Time Period for Third-Party Appeals to NPDES Permits and Chapter 105 Permits

January 2011Newsletters In the Zone

Anyone proposing to discharge stormwater from construction activities disturbing five acres or more of land must apply for and receive a National Pollutant Discharge Elimination System (NPDES) Permit, which regulates the discharge of pollutants from a point source into surface waters.

Chapter 92a of Title 25 of the Pennsylvania Code regulates NPDES permits. Public notice of every complete application for an NPDES permit will be published in the Pennsylvania Bulletin. 25 Pa. Code § 92a.82(a). Following public notice, there is a 30-day period during which written comments may be submitted by interested persons before the Pennsylvania Department of Environmental Protection makes its final determinations. Id. at 92a.82(d). The Department reserves the right to extend this public comment period for an additional 15 days. Id. In addition, the Department provides an opportunity for the applicant, any affected state, any affected interstate agency or any interested agency, person or group of persons to request or petition for a public hearing and file a request for such hearing within the 30-day public comment period. Id. A hearing will be held if there is significant public interest. Id. Following the public comment period and any public hearing, the Department will take action on the permit and publish any final action in the Pennsylvania Bulletin. Id. at 92a.86. Appeals to the Department’s issuance of an NPDES permit may be taken to the Environmental Hearing Board (EHB) and notice of the appeal will also be published in the Pennsylvania Bulletin. See id. at 92a.88.

Chapter 105 of Title 25 of the Pennsylvania Code provides that a person may not construct, operate, maintain, modify, enlarge or abandon a dam, water obstruction or encroachment without first obtaining a written permit from the Department. 25 Pa. Code § 105.11(a). Except for dams, water obstructions and encroachments authorized under Sections 105.12 (regarding waiver of permit requirements), 105.64 (regarding emergency permits) and Subchapter L (regarding general permits on a regional or statewide basis for a category of dam, water obstruction or encroachment), or as small projects (those having an insignificant impact on safety and protection of life, health, property and the environment), the Department will publish a notice in the Pennsylvania Bulletin upon receipt of an application and again upon the issuance or denial of a permit by the Department. Id. at 105.21a. Appeals to the Department’s issuance of a Chapter 105 permit may be taken to the EHB upon the filing of a notice of appeal. Id. at 1021.51.

Chapter 1021 of Title 25 of the Pennsylvania Code regulates the practices and procedures before the EHB. An appeal from a Department action shall commence with the filing of a written notice of appeal with the EHB. 25 Pa. Code § 1021.51. The person to whom the Department action is directed or issued shall file its appeal within 30 days after it receives written notice of the action. Id. at 1021.52(a)(1). Any other person aggrieved by an action of the Department shall file its appeal within one of the following: (1) 30 days after the notice of the action has been published in the Pennsylvania Bulletin; or (2) 30 days after actual notice of the action if a notice of the action is not published in the Pennsylvania Bulletin. Id. at 1021.52(a)(2). Publication of a notice of action or proposed action by the Department or Board in the Pennsylvania Bulletin constitutes notice to or service upon all persons, except a party, effective as of the date of publication. Id. at 1021.38.

Therefore, the time period to file an appeal with the EHB to the issuance of an NPDES permit by the Department is within 30 days after notice of the issuance of the permit is published in the Pennsylvania Bulletin. With regard to a Chapter 105 permit, assuming the type of Chapter 105 permit is one that would published in the Pennsylvania Bulletin, a third party would have 30 days from the date on which issuance of the Chapter 105 permit is published in the Pennsylvania Bulletin to file its appeal with the EHB. If the Chapter 105 permit is not one that would have been issued in the Pennsylvania Bulletin (for instance, if it were designated a “small project” having an insignificant impact on safety and protection of life, health, property and the environment), then a third party would have 30 days after actual notice of the issuance of the Chapter 105 permit to file its appeal.

For more information, please contact Kimberly A. Freimuth at 215.918.3627 or [email protected].