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Pennsylvania Brownfields & Environmental Law Information and Developments in Brownfields and Pennsylvania Environmental Law

PADEP Proposes Changes to NPDES General Permit for Stormwater Construction Activities

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In a notice published in the Pennsylvania Bulletin on August 18, 2012, PADEP proposes to make revisions to the NPDES general permit (GP) for stormwater construction activities, known as PAG-02.  The notice includes a summary of the proposed changes to the existing GP and solicits comments which must be provided to the Department by September 17, 2012.  Most of the proposed revisions are being made to reflect regulatory changes to 25 Pa. Code Chapter 102, which were finalized in 2010. 

I want to highlight one of the changes found in Chapter 102 and reflected in the revisions PADEP is proposing to the GP.  It has to do with the obligations to use "licensed professionals".  A "licensed professional" is defined in Chapter 102 and the revised GP language as "professional engineers, landscape architects, geologists, and land surveyors licensed to practice in the Commonwealth."  I had understood that engineers and geologists were licensed by the Commonwealth, because when you submit an Act 2 report it has to be signed and sealed by a licensed professional engineer or geologist, depending on what it is.  But I didn’t know that landscape architects and land surveyors were also licensed by the Commonwealth.  You need to keep that in mind because here is where the licensing requirement comes into play under Chapter 102 and under the new language proposed for the GP PAG-02.  

Under Chapter 102, and as reflected in the revised language to GP PAG-02, a preconstruction meeting is now mandatory for all projects using the GP, unless PADEP or the Conservation District states otherwise in writing.   The regulations and the revised GP language identify the people required to attend the preconstruction meeting, and those people include the "licensed professionals" responsible for earth disturbance activity, the implementation of the E&S plan, and the implementation of the PCSM.   It doesn’t say which "licensed professionals" have to attend the meeting.  It also doesn’t say whether you must have all of your "licensed professionals" attend the meeting, and if you do, do you need a licensed engineer, a licensed geologist, a licensed land surveyor, and a licensed landscape architect working on every project covered by GP PAG-02.  Secondly, both the regulations and the revised GP language state that a "licensed professional" or his or her designee is required to be present "onsite" and "responsible" during "critical stages of implementation of the approved post construction stormwater management plan."  What are the "critical stages"?  They include the installation of underground treatment or storage BMPs, structurally engineered BMPs, or other BMPs "as deemed appropriate by the Department or authorized conservation district."   So there appears to be some wiggle room there.   Which licensed professional must be present?  Every one of them?  It is unclear.  Presumably, depending on the activity, you may need to have more than one licensed professional present on site when the BMPs are being installed.  There is an out, however, in that both the regulations and the revised GP language allow for "designees" to take the place of the licensed professional.   What standards and qualifications apply to the designees?  Both the regulations and the revised GP language are silent on that.  Presumably, the designees are under the control of the licensed professional, so it all falls back on them.    

The interesting thing is that the regulations and the revised GP language don’t require that the E&S Plan and PCSM Plan be prepared by a "licensed professional."  Under the regulations and the revised GP language, the person preparing those plans must be a "person trained and experienced" in "erosion and sedimentation control methods and techniques" (for the E&S Plan) and "PCSM design methods and techniques" (for the PCSM Plan) that are "applicable to the size and scope of the project being designed."    Is that a qualification that is different than a "licensed professional"?    Would a "licensed professional" satisfy that requirement for training and experience?  That too is unclear.  What if your licensed professional just received their license?  If it is his or her first day holding the license, maybe they don’t yet have the "experience" needed to prepare the plans. 

The bottom line is that developers in Pennsylvania need to be aware of the requirements involving the use of licensed professionals on projects involving the GP PAG-02 for stormwater construction activities.   When hiring an engineering firm to handle the E&S and PCSM requirements of a development, questions should be asked about whether the firm has people meeting the definition of "licensed professionals" and whether the firm has people with the "training and experience" necessary to prepare the required E&S and PCSM Plans.   At a minimum, licensed professionals must be retained in order to designate others and oversee the development and implementation of the E&S controls and PCSM BMPs under the GP PAG-02.  At the end of any project using the PAG-02, the "licensed professional" is the one that must provide a final certification along with the notice of termination, which indicate that the project site was constructed in accordance wit the approved or modified PCSM Plan.  

As noted above, the comment period on the proposed revisions to GP PAG-02 is open until September 17.