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PA Bulletin, Doc. No. 97-474

PROPOSED RULEMAKING

ENVIRONMENTAL QUALITY BOARD

[25 PA. CODE CH. 103]

Financial Assistance

[27 Pa.B. 1553]

   The Environmental Quality Board (Board) proposes to amend Chapter 103 (relating to financial assistance). The proposed amendments include revisions to delete provisions related to the Federal Clean Water Act Title II construction grants program, retain the sewage project priority rating system used in the Federal Clean Water Act Title VI sewage construction loan program, delete text related to an obsolete design grant program and add language to allow use of a small amount of remaining Land and Water Conservation and Reclamation Act (32 P. S. §§ 5101--5121) funds for a grant to one or more economically depressed communities.

   This proposal was adopted by the Board at a meeting held on February 18, 1997.

   A.  Effective Date

   These amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.

B.  Contact Persons

   For further information contact Peter T. Slack, Chief, Division of Municipal Financial Assistance, Office of Water Management, P. O. Box 8466, 11th Floor, Rachel Carson State Office Building, Harrisburg, PA 17105-8466 (717) 787-3481, or William S. Cumings, Jr., Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, 9th Floor, Rachel Carson State Office Building, Harrisburg, PA 17105-8464 (717) 787-7060. Information regarding submitting comments on this proposal appears in Section I of this Preamble. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposal is available electronically through the Department of Environmental Protection's (Department's) Web site (http://www.dep.state.pa.us).

   C.  Statutory Authority

   The amendments are being proposed under the authority of The Clean Streams Law (35 P. S. §§ 691.1--691.1001) and section 16(2) of the Land and Water Conservation and Reclamation Act (act) (32 P. S. § 5116(2)) which authorize the Board to promulgate rules and regulations relating to the awarding of construction grants for sewage facilities to political subdivisions and municipal authorities. The amendments are also proposed under the authority of section 1920-A of The Administrative Code of 1929 (71 P. S. § 510.20).

   D.  Background and Purpose

   Over the past year, the Department has been conducting an overall review of its existing regulations through its Regulatory Basics Initiative as outlined at 25 Pa. B. 3343 (August 19, 1995). This Initiative was designed with the goal of adopting environmental regulations that are no more stringent than Federal rules unless there is a compelling need for more stringent rules. The amendments being proposed in this rulemaking are one of a number of proposed regulations resulting from the Initiative.

   The proposed revisions to the Chapter 103, Subchapter A (relating to water pollution control revolving fund project priority list ratings) regulations delete provisions related to the Federal Clean Water Act Title II sewage treatment construction grant program. Almost all projects that received a Title II grant award for the construction of sewage treatment or conveyance facilities are nearing construction completion and the last one is about to go under construction. These regulations are no longer needed to administer the Title II grant program. The sewage construction project priority rating system is being retained as it will continue in use for establishing project priority ratings for projects seeking funding under the Clean Water Act Title VI loan program. The Federal Title VI loan program replaced the Title II grant program and is jointly administered by the Department and the Pennsylvania Infrastructure Investment Authority (PENNVEST).

   The proposed revisions to Chapter 103, Subchapter D (relating to State grants for construction of sewage facilities) delete provisions related to a State design grant program and a supplemental construction grant program. The design grant program provided funds to communities that had completed plans and specifications for a sewage treatment facility, but did not receive a Federal grant for construction of the facility. The grant program awarded a 5% supplemental grant to economically depressed communities that had received a 75% Federal construction grant. Eligible communities were identified and design and supplemental construction grants have been awarded and paid. A small amount of money remains available, and the Department proposes to award grants to one or more economically depressed communities to assist with the cost of construction of needed sewage treatment facilities. The source of these funds is the act bond issue moneys made available and intended as aid to political subdivisions for the construction of sewage facilities. The $155,000 available cannot be awarded under the existing regulations and the proposed revisions will allow award of these funds as grants to one or more economically depressed communities.

   E.  Summary of the Proposed Rulemaking

   1.  Section 103.1--Definitions.

   Section 103.1 contains several proposed new definitions necessitated as a result of the replacement of the Clean Water Act Title II construction grants program by the Title VI Water Pollution Control Revolving Fund, as described in Section D of this Preamble. Terms newly defined are: ''intended use plan,'' ''project priority list,'' ''sewage facilities plan'' and ''Water Pollution Control Revolving Fund.'' Minor revisions are proposed for the existing definitions of ''facilities'' and ''Federal act.'' In addition, the definitions relating to the four steps (steps 1, 2, 3 and 2 and 3) in the construction of a sewage treatment facility would be deleted.

   2.  Sections 103.2--103.14--Federal Clean Water Act Title II Construction Grants Program.

   As noted in Section D of this Preamble, the Federal Clean Water Act Title II Construction Grants Program has been replaced by the Title VI Water Pollution Control Revolving Fund. Except for § 103.6, existing §§ 103.2--103.14 contain certain provisions which exclusively relate to the administration of the Title II Construction Grants Program, which is now obsolete. Accordingly, the existing language of §§ 103.4--103.5 and 103.13--103.14 will be deleted. In addition, references to the various steps will be deleted from §§ 103.8--103.11.

   3.  Section 103.5--Preparation of Project Priority Lists.

   The existing provisions of this section are proposed to be deleted. However, this section would be amended by adding provisions relating to the establishment of a project rating system in accordance with the requirements of Subpart K of 40 CFR Part 35. Subpart K outlines the criteria established by the Environmental Protection Agency (EPA) for the administration of the Water Pollution Control Revolving Fund. The project priority ratings would be water quality based assessments of sewage treatment needs. The Department would prepare a project priority list and intended use plan for submission to the EPA in support of its annual Water Pollution Control Revolving Fund capitalization grant application. Once the Commonwealth receives its capitalization grant award, applications from municipalities would be evaluated under the Pennsylvaia Infrastructure Investment Authority (35 P.S. §§ 751.1--751.20).

   4.  Section 103.6--Priority Rating Factors.

   This section currently establishes a point system for certain rating factors to establish the priority among eligible projects. This section would be amended to clarify that the rating factors are for the purpose of creating the project priority list and intended use plan which the Department would be submitting to the EPA in support of its annual Water Pollution Control Revolving Fund capitalization grant application.

   5.  Section 103.12--Other Considerations.

   The existing language of subsection (a) outlines factors to be utilized in the event projects receive the same number of rating points. The language would be amended to make it clear that the rating points will be used to determine the relative rank of the projects on the project priority list and intended use plan, which list and plan are a major component of the grant application the Department submits to the EPA.

   Subsection (b), which applies to the ranking of regional projects, would be similarly amended by incorporating references to the project priority list and intended use plan. In addition, the language of this subsection would be revised to make it clear that the Department will make a determination whether each part of a regional project is essential to the integrity of the project for the purposes of establishing a rating. The existing language implies that the Department will make this determination.

   Subsection (c), which outlines the procedure to be utilized if there is a need to rerate a project, would also be revised to make it clear that the rerating would be for the purpose of ranking projects on the project priority list or intended use plan. In addition, the subsection would be amended to provide that the rerating would be based on the sewage facilities plan the municipality adopted under the provisions of the Sewage Facilities Act (Act 537) (35 P. S. §§ 750.1--750.20).

   6.  Sections 103.71--103.76--State Grants for Planning and Design.

   Potential recipients that may have been eligible under these regulations for grants from the act moneys were identified and awarded grants. The advance of allowance provisions authorized the Department to provide Title II Federal funds for projects that may in the future be ready for a Title II construction grant award. The Title II construction grant program has been replaced by the Title VI loan program and there is provision for advances of the design allowance in the Title VI program. Accordingly, these sections would be deleted.

   7.  Sections 103.82--103.84--State Grants for Construction.

   Language is being deleted which authorizes award of grant funds as supplemental grants for projects that had received a Federal Title II construction grant. Existing language is retained to allow the award of the small amount of remaining funds to one or more communities that suffer financial hardship and would benefit from a grant to make construction of sewage treatment works more affordable to the community.

   F.  Benefits and Costs

   Executive Order 1996-1 requires a cost/benefit analysis of the proposed amendments.

   Benefits

   The proposed revisions are intended to clarify certain provisions for the benefit of applicants. No additional costs are associated with the proposed revisions to Chapter 103, Subchapter A or D. There is approximately $155,000 of act bond issue funds available for award to one or more communities for construction of sewage treatment facilities. There is no cost to potential recipients of these funds. The Department expects to identify a potential economically depressed community recipient rather quickly and award the funds to that municipality.

   Compliance Costs

   There are no existing or new compliance costs to be created by these regulatory revisions.

   Paperwork Requirements

   There are no new forms to be created or revisions to existing forms or other paperwork requirements relating to these proposed amendments.

   G.  Sunset Review

   These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.

   H.  Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of the proposed rulemaking on March 18, 1997, to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In addition to submitting the proposed amendments, the Department has provided IRRC and the Committees with a copy of a detailed regulatory analysis form prepared by the Department. A copy of this material is available to the public upon request.

   If IRRC has objections to any portion of the proposed amendments, it will notify the Department within 30 days of the close of the public comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review by the Department, the Governor and the General Assembly before final publication of the regulations.

   I.  Public Comments

   Written Comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed amentments to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477 (express mail: Rachel Carson State Office Building, 15th Floor, 400 Market Street, Harrisburg, PA 17101-2301). Comments submitted by facsimile will not be accepted. Comments, suggestions or objections must be received by the Board by April 28, 1997. Interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be received by April 28, 1997. The one-page summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the final regulations will be considered.

   Electronic Comments--Comments may be submitted electronically to the Board at RegComments@A1.dep. state.pa.us and must also be received by the Board by April 28, 1997. A subject heading of the proposal and a return name and address must be included in each transmission. If an acknowledgment of electronic com-ments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.

JAMES M. SEIF,   
Chairperson

   Fiscal Note: 7-311. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 25.  ENVIRONMENTAL PROTECTION

PART I.  DEPARTMENT OF ENVIRONMENTAL PROTECTION

Subpart C.  PROTECTION OF NATURAL RESOURCES

ARTICLE II.  WATER RESOURCES

CHAPTER 103.  FINANCIAL ASSISTANCE

Subchapter A. [FEDERAL GRANTS FOR CONSTRUCTION OF SEWAGE FACILITIES] WATER POLLUTION CONTROL REVOLVING FUND PROJECTS PRIORITY LIST RATINGS

[FEDERAL GRANTS] WATER POLLUTION CONTROL REVOLVING FUND

§ 103.1.  Definitions.

   The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

*      *      *      *      *

   Facilities--Any device [and] or system for the storage, treatment, recycling and reclamation of municipal sewage, domestic sewage or liquid industrial wastes [or] necessary to recycle or reuse water at the most economical cost over the useful life of the works. The term includes intercepting sewers, outfall sewers, sewage collection systems, individual systems, pumping, power and other equipment and their appurtenances; extensions, [improvement] improvements, remodeling, additions and alterations thereof; elements essential to provide a reliable recycled supply such as standby treatment units and clear well facilities; and any works, including site acquisition of the land that will be an integral part of the treatment process or is used for ultimate disposal of residues resulting from [such] the treatment, including land for composting sludge and temporary storage of [such] the compost and land used for the storage of treated wastewater in land treatment systems before land application; or another method or system for preventing, abating, reducing, storing, treating, separating or disposing of municipal waste or industrial waste, including waste in combined storm water and sanitary sewer systems.

   Federal Act--The Federal Water Pollution Control Act (33 U.S.C.A. §§ 1251[, 1252, 1254, 1255, 1256, 1259, 1262, 1263, 1281--1288, 1291, 1292, 1294--1297, 1311, 1314, 1315, 1317--1319, 1321, 1322, 1323, 1324, 1328, 1341, 1342, 1344, 1345, 1362, 1364, 1375 and 1376]--1387).

*      *      *      *      *

   Intended use plan--The product of an evaluation of projects on the project priority list using the wastewater project evaluation criteria in §§ 103.6--103.12 to those proposed projects which are anticipated to expend Water Pollution Control Revolving Fund moneys in a specific fiscal year.

*      *      *      *      *

   NPDES--The [national] National system for the issuance of permits under section 402 of the Federal Act including, any State or interstate program which has been approved by the [Administrator] EPA, in whole or in part, under section 402 of the Federal Act.

   Project equivalent population--The initial population equivalent which would be served by a [Step 3] project implemented for the rated area at the time that the area is rated.

   Project priority list--The product of an evaluation of information submitted by municipalities to establish relative priority of proposed sewage facilities through a standardized set of criteria in §§ 103.6--103.12.

   Sewage facilities plan--A plan developed under the Pennsylvania Sewage Facilities Act (35 P. S. §§ 750.1--750.20) for the provision of adequate sewage facilities, adopted by municipal officials and approved by the Department.

*      *      *      *      *

   [Step 1 (Planning and Preliminary Design)--A project to conduct planning and engineering studies that results in a facility plan that directly relates to the potential construction of treatment and other waste management facilities, that demonstrates the need for the facilities, and that by systematic evaluation of feasible alternatives, determines the most cost-effective means of meeting established effluent requirements and water quality goals while recognizing environmental and social considerations.

   Step 2 (Plans, Specifications and Estimates)--A project to prepare detailed engineering plans, specifications, estimates and other documents necessary for the construction of facilities recommended in the applicable facilities plan and for taking other actions recommended therein.

   Step 3 (Construction of Facilities)--A project to construct a facility in conformance with applicable Step 2 work.

   Step 2 and 3 (Combination design and construction)--A project combining Step 2 and Step 3 for a wastewater treatment works.]

   Water Pollution Control Revolving Fund--A fund jointly administered by the Department and the Pennsylvania Infrastructure Investment Authority (PENNVEST) that provides low-interest loan funds to borrowers for the construction of facilities.

*      *      *      *      *

§ 103.2.  [Grant application process] (Reserved).

   [(a)  The Federal Act provides for funding in steps. Unless otherwise permitted by Federal regulations, no applications for any step may be approved unless the work required by the preceding steps has been completed and approved by the Department and EPA. Approval from the Department and EPA must have been received prior to the start of work for any step for said work to be grant eligible.

   (b)  Combined Step 2 and 3 grant projects in municipalities with a population of 25,000 or less may be accepted provided that the eligibility and procedural requirements of the Federal Act are met.

   (c)  Application for Federal grants shall be made in a manner prescribed by the EPA and the Department and shall contain and be supplemented with such information as may be required by EPA and the Department.

   (d)  An acceptable application for a State permit which contains necessary and sufficient documentation to support the application shall be submitted concurrent with or prior to submission of an application for a Step 3 grant. Under a combined Step 2 and 3 grant, a State permit must have been issued prior to a grant increase for Step 3.

   (e)  Applications for Federal grants will be accepted by the Department throughout the year.

   (f)  Applications will be reviewed by the Department for compliance with Federal and State law and regulations and the provisions of this subchapter.]

§ 103.4.  [Project eligibility] (Reserved).

   [Projects shall remain eligible for Commonwealth certification only if the following conditions are met:

   (1)  The project complies with all grant regulations and other requirements for such grant applications as promulgated by the EPA and the Department.

   (2)  The project remains eligible for issuance of a Commonwealth permit for construction and operation of the proposed project.

   (3)  The project is part of or consistent with a Department approved comprehensive program of water quality management and pollution control as described in § 91.31 (relating to comprehensive water quality management).

   (4)  Initiation of the project for which funding is requested has not occurred prior to grant award unless authorized by Federal regulations.]

§ 103.5.  Preparation of project [priority] lists.

   [(a)  The Department will prepare annually a project priority list in conformance with Federal requirements for submittal of the lists. When approved by EPA, this project priority list will remain intact until the project priority list for the subsequent fiscal year has been approved by EPA, except that projects becoming ineligible will be removed from the project priority list.

   (b)  The Department will schedule a public hearing on the annual project priority list prior to submission of the list to EPA for approval. Municipalities will be invited to provide testimony on the list and the Department will comment to EPA on all testimony received. A public hearing will also be held for any revisions to the approved project priority list determined significant by the EPA Regional Administrator.

   (c)  The fundable portion of the project priority list will contain projects in priority order planned for funding during the fiscal year for which the project priority list is being prepared and will not exceed the total funds expected to be available during the Federal fiscal year. The planning portion of the list will include projects outside the fundable portion which, may under anticipated future allotment levels, receive funding during subsequent Federal fiscal years.

   (d)  Step 1 and Step 2 projects approved by the Department for funding from the fiscal year 1976 allotment of Federal funds and projects which were on the project priority lists for Federal fiscal years 1978, 1979 and 1980 that maintain their eligibility will be placed at the top of the project priority list in the order of relative priority beginning with the Federal fiscal year 1981 priority list. These projects will retain their priority rating established under the previous priority rating system and be considered fundable as long as they make satisfactory progress toward Step 3 project implementation and the scope of the originally rated project is not significantly changed. These projects will be subject to rerating under the current priority rating system if the Department determines that progress toward Step 3 project implementation is not satisfactory or the scope of the originally rated project is significantly changed. Following completion of a Step 1 project, any portion of the facility planning area shown to have significantly lower impact on water quality or public health than the Step 1 project rating was based on, will be separated and rerated pursuant to the provisions of this chapter.

   (e)  Projects which appear on the fundable portion of the project priority list that are not ready to proceed during the funding year will be bypassed, and supplements to the fundable portion of the project priority list necessary to utilize available funds will be made by adding the highest ranked projects on the planning portion of the project priority list that are ready to proceed during the funding year. Bypassed projects which retain their priority rating will be subject to the same eligibility and funding considerations for future allotments as other fundable projects.

   (f)  Following Step 1 funding, subsequent Step 2 and Step 3 funding will take precedence over new Step 1 applications. Step 2 and Step 3 projects will be funded in order of their relative priority. Funds not obligated for active Step 2 and Step 3 applications will be applied to fundable Step 1 applications. Step 2 and Step 3 projects will maintain their preferential funding status as long as a satisfactory schedule for Step 3 project implementation is met and the definition of wastewater treatment need and the scope of the originally rated project are not significantly changed.

   (g)  A project will be removed from the project priority list if:

   (1)  It has been fully funded.

   (2)  It is no longer entitled to funding.

   (3)  The project is otherwise ineligible under the requirements of the Federal Act or the provisions of this subchapter.

   (4)  EPA has determined that the project is not needed to comply with the enforceable requirements of the Federal Act.

   (h)  In developing the fundable portion of the project priority list, the Department will provide for the establishment of reserves in accordance with the Federal Act and the Federal regulations promulgated thereunder.

   (i)  In the event the Department determines that the projects on the fundable portion of the project priority list will not fully utilize the required set aside funds, the Department may supplement the fundable portion of the list with qualified projects to obligate the balance of the set aside funds.

   (j)  The Federal Act allows for reimbursement of 100% of the cost for modification or replacement of eligible Alternative and Innovative processes and techniques which for technical reasons do not achieve projected performance requirements. These modification or replacement projects will be rated in accordance with the current project rating procedures and shall compete with other eligible projects for funding.

   (k)  If additional funds become available prior to preparation of the subsequent year's project priority list, the Department may supplement the fundable portion of the project priority list. Supplemental projects will be selected from the planning portion of the project priority list in order of priority established in accordance with rating procedures set forth in this subchapter.]

   (a)  The project priority ratings developed under this subchapter are water quality based assessments of sewage treatment needs. This priority rating system is mandated by section 216 of the Federal Act (33 U.S.C.A. § 1296) and has been approved by the EPA for ranking projects for the Water Pollution Control Revolving Fund (WPCRF) project priority list and intended use plan. To be funded under the WPCRF, a project first shall appear on a project priority list and then an intended use plan list.

   (b)  The Department prepares project priority lists and intended use plan lists required by Title VI of the Federal Act (33 U.S.C.A. §§ 1381--1387). These lists are prepared in conformance with 40 CFR Part 35, Subpart K (relating to State water pollution control revolving fund) and regulations and guidance issued by PENNVEST and submitted in support of annual WPCRF capitalization grant applications to EPA.

   (c)  Once the Commonwealth receives its capitalization grant award, applications for funding are evaluated under the Pennsylvania Infrastructure Investment Authority Act (35 P. S. §§ 751.1--751.20) and Part VII (relating to Pennsylvania Infrastructure Investment Authority) and regulations including the wastewater evaluation criteria in § 963.8 (relating to wastewater project evaluation criteria). The water quality based project priority ratings are the bases for the public health and safety and environmental impact criteria in the PENNVEST project evaluation process.

§ 103.6.  Priority rating factors.

   (a)  Priority among eligible projects for the purpose of creating the project priority list and intended use plan shall be established according to the [applicant's] accumulation of points for each of the following rating factors weighted as shown:

*      *      *      *      *

§ 103.8.  Water pollution control.

   (a)  The number of points for water pollution control shall be based on the extent to which [Step 3] project implementation will eliminate detrimental effects of pollution and public health hazards from existing discharges of untreated or inadequately treated sewage.

   (b)  The following point values shall be used to determine rating points for this factor.

*      *      *      *      *

   (2)  Domestic water supply. Points awarded in the domestic water supply category shall be assigned as follows:

   (i)  18 points--Documented evidence provided by laboratory analysis that public drinking water sources or a significant number of private drinking water sources are contaminated by malfunctioning [on-lot] onlot disposal systems or that downstream drinking water sources are subject to water quality standards violations due to discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by [Step 3] project implementation.

   (ii)  10 points--Documented contamination of public or private groundwater drinking water sources supported by known subsurface soil and hydrogeologic conditions and evidence of periodic water source contamination or documentation that downstream drinking water sources are periodically subject to contamination by existing discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by [Step 3] project implementation, based on water quality analyses or evaluation of the stream's physical characteristics, or both.

   (iii)  5 points--Suspected contamination of public or private groundwater drinking water sources based on knowledge of subsurface soil and hydrogeologic conditions or a downstream drinking water source is shown to be affected by periodic water quality standards violations from discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by [Step 3] project implementation based on evaluation of the stream's physical characteristics.

   (iv)  0 points--No downstream drinking water sources or no documentation or evidence that drinking water sources are affected by the sewage treatment need which would be eliminated or upgraded by [Step 3] project implementation.

   (3)  Fish and aquatic life. Points awarded in the fish and aquatic life category shall be assigned as follows:

   (i)  14 points-Surface waters are capable of supporting a cold or warm water fishery but documented evidence shows that they are not because of pollution caused by discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by [Step 3] project implementation.

   (ii)  8 points--Surface waters currently supporting a depressed cold or warm water fishery shown through documentation to be caused by untreated or inadequately treated sewage which would be eliminated or upgraded by [Step 3] project implementation.

   (iii)  5 points--Surface waters currently supporting a cold or warm water fishery documented to be periodically affected or threatened by discharge of untreated or inadequately treated sewage which would be eliminated or upgraded by [Step 3] project implementation based on evaluation of the stream's physical characteristics.

   (iv)  0 points--No documentation or evidence that fish and aquatic life are affected by untreated or inadequately treated sewage discharges which would be eliminated or upgraded by [Step 3] project implementation.

   (4)  Public bathing. Points awarded in the public bathing category shall be assigned as follows:

   (i)  8 points--A downstream permitted public bathing beach has been closed due to contamination as a result of water quality standards violations due to discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by [Step 3] project implementation.

   (ii)  3 points--A downstream permitted public bathing beach is shown through water quality analysis and an evaluation of stream and bathing area's physical characteristics to be subject to contamination by untreated or inadequately treated sewage discharges which would be eliminated or upgraded by [Step 3] project implementation.

   (iii)  1 point--A public bathing place permit has been denied because of violations of water quality standards resulting from discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by [Step 3] project implementation.

   (iv)  0 points--No downstream public bathing uses are documented or there is no documented effect of discharges of untreated or inadequately treated sewage on downstream public bathing uses which would be eliminated or upgraded by [Step 3] project implementation.

   (5)  Boating and recreation. Points awarded in the boating and recreation category shall be assigned as follows:

   (i)  5 points--Documentation shows that discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by [Step 3] project implementation prevent the use of a stream or impoundment for boating and other nonswimming and nonfishing recreational purposes due to excessive aquatic growth or other material posing a danger to the user or his equipment.

   (ii)  3 points--Discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by [Step 3] project implementation are shown to adversely affect, but not prevent, the use of the stream or impoundment for boating and other nonswimming and nonfishing recreational purposes.

   (iii)  1 point--Discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by [Step 3] project implementation are shown to potentially affect the use of the stream or impoundment for boating or other nonswimming and nonfishing recreational purposes.

   (iv)  0 points--No downstream boating and recreation uses are documented or there is no documented effect of untreated or inadequately treated sewage discharges which would be eliminated or upgraded by [Step 3] project implementation on downstream boating or other nonswimming and nonfishing recreational purposes.

   (6)  Industrial water supply. Points awarded in the industrial water supply category shall be assigned as follows:

   (i)  5 points--Documented evidence that water supply intakes for industries which process foods or make fine papers are shown to be directly affected as a result of water quality standards violations due to untreated or inadequately treated sewage discharges which would be eliminated or upgraded by [Step 3] project implementation.

   (ii)  3 points--The use of water supplies for industries which use water in a way that persons are exposed to untreated water is shown to be limited or restricted as a result of water quality standards violations due to untreated or inadequately treated sewage discharges which would be eliminated or upgraded by [Step 3] project implementation.

   (iii)  1 point--Industrial water supply intakes are shown to be adversely affected by discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by [Step 3] project implementation based on evaluation of the stream's physical characteristics.

   (iv)  0 points--No downstream industrial water supply intakes are documented or there is no documented effect on downstream industrial water supply uses caused by untreated or inadequately treated sewage discharges which would be eliminated or upgraded by [Step 3] project implementation.

   (7)  Irrigation. Points awarded in the irrigation category shall be assigned as follows:

   (i)  3 points--Irrigation water sources for crops grown or prepared for human consumption are shown to be adversely affected as a result of water quality standards violations due to discharges of untreated or inadequately treated sewage which would be eliminated or upgraded by [Step 3] project implementation.

   (ii)  2 points--Irrigation water sources for crops other than those grown or prepared for human consumption are shown to be adversely affected as a result of water quality standards violations due to untreated or inadequately treated sewage discharges which would be eliminated or upgraded by [Step 3] project implementation.

   (iii)  1 point--Irrigation sources are shown to be affected by untreated or inadequately treated sewage discharges which would be eliminated or upgraded by [Step 3] project implementation based on evaluation of the stream's physical characteristics.

   (iv)  0 points--No downstream irrigation uses are documented or there is no effect on downstream irrigation uses by untreated or inadequately treated sewage discharges which would be eliminated or upgraded by [Step 3] project implementation.

   (8)  Stock watering. Points awarded in the stock watering category shall be assigned as follows:

   (i)  3 points--Water sources used to wash and water dairy animals are documented to be adversely affected as a result of water quality standards violations due to untreated or inadequately treated sewage from discharges which would be eliminated or upgraded by[Step 3] project implementation.

   (ii)  2 points--Water sources used to water livestock other than dairy animals are documented to be in violation of water quality standards as a result of untreated or inadequately treated sewage from discharges which would be eliminated or upgraded by [Step 3] project implementation.

   (iii)  1 point--Water sources used to water livestock are shown to be contaminated by untreated or inadequately treated sewage from discharges which would be eliminated or upgraded by [Step 3] project implementation based on evaluation of the stream's physical characteristics.

   (iv)  0 points--No downstream stock watering is documented or there is no documented effect on downstream stock watering uses caused by untreated or inadequately treated sewage discharges which would be eliminated or upgraded by [Step 3] project implementation.

*      *      *      *      *

§ 103.11.  Small municipality projects.

*      *      *      *      *

   (b)  Where a [Step 2 or Step 3] project will serve more than one municipality, it shall qualify as a small municipality project if each municipality involved conforms to the definition of a small municipality as set forth in § 103.1 (relating to definitions).

§ 103.12.  Other considerations.

   (a)  [In the event that] If two or more projects receive the same number of total rating points, the relative rank of the projects on the project priority list and intended use plan will be based on points awarded under the water pollution control factor, the higher rank being assigned to that project with the higher water pollution control points. If, after this test, the projects remain tied, the factors of stream segment priority and then population affected shall be used to break ties.

   (b)  In the case of a regional project [for which] when the Department [has on hand separate applications from participating municipalities and] determines each portion of the regional project is essential to the integrity of the project, the Department [shall] will rank all portions of the project together as a single project and assign the same number of rating points to [each separate application. All] all portions of the regional project [shall be processed and certified as concurrently as possible to allow simultaneous funding] on the project priority list or intended use plan.

   (c)  Based on the findings and conclusions of the [Step 1] sewage facilities [plans] plan, the Department will consider the need to rerate projects for [subsequent Step 2 funding. If] the purpose of ranking projects on the project priority list or intended use plan if the findings and conclusions of [a facility] the sewage facilities plan significantly alter the definition of wastewater treatment need or the scope of the project[, the priority rating for Step 2 funding may be different than the Step 1 project rating].

§ 103.13.  [Project certification] (Reserved).

   [(a)  The grant amount certified will be based on the estimated eligible cost contained in the grant application submitted to the Department and will normally be 75% of the estimated eligible cost except that the grant may be increased to 85% for eligible treatment works or portions thereof which meet the criteria for Alternative and Innovative processes and techniques. Final grant amounts will be based on the approved project cost determined at the completion of the project.

   (b)  With the exception of combined Step 2 and 3 applications, the Department will not certify any Step 3 project unless and until the applicant has submitted plans and specifications suitable for advertising for bids for construction. For combined Step 2 and 3 applications, no grant increase for the construction phase will be approved until plans and specifications suitable for advertising for construction bids have been approved.

   (c)  Any project on an approved project priority list which has not complied with all Federal and State requirements for certification or grant award within 90 days of notification of deficiencies in application documentation will be considered ineligible and will be removed from the fundable portion of the project priority list. Such bypassed projects will be considered for inclusion on the fundable portion of a subsequent project priority list only after requirements for funding have been met.

   (d)  Grants may be limited to a portion of a project if it is determined by the Department that staging of a Step 2 or 3 project, or both, is technically and economically feasible. In such event, subsequent portions of staged facilities will be given first priority in appropriate future project priority lists, provided that the funded stage or stages do not result in an operable system. Where funded stages do result in an operable system, subsequent stages will be ranked in priority with other projects in the appropriate fiscal year.]

§ 103.14.  [Changes in scope] (Reserved).

   [(a)  All changes in scope of a grant project must be submitted in writing to the Department for approval.

   (b)  Grant funding for changes in the scope of a grant project will be approved by the Department:

   (1)  If the change in scope is the result of new or revised requirements of 42 U.S.C.A. §§ 4342, 4343, 4346A, 4346B and 4347; the Federal Act and the Federal regulations promulgated thereunder; this subchapter; other changes directed by EPA or DER; or

   (2)  In the case of a Step 3 grant project:

   (i)  Where the change in scope is necessary to protect the structural or process integrity of the facilities; or

   (ii)  Where adverse conditions are identified during the construction of the facilities which could not have been foreseen by the design engineer prior to encountering the condition.

   (c)  The cost of any additional work under $100,000 resulting from a change in scope shall not be eligible for grant participation unless the grantee requests and the Department subsequently gives written approval of the change in scope. Where changes in scope costs will exceed $100,000, written approval will be required prior to initiation of the additional work. Funding eligibility for any change in scope will be based on the criteria described in subsection (b).]

Subchapter D. STATE GRANTS FOR CONSTRUCTION OF SEWERAGE FACILITIES

[STATE GRANTS FOR PLANNING AND DESIGN]

   (Editor's Note: As part of this proposal, the Department is proposing to delete the text of §§ 103.71--103.76 (relating to State grants for planning and design) which appears at 25 Pa. Code pages 103-34--103-39, serial pages (162240)--(162245).)

§ 103.71--103.76.  (Reserved).

STATE GRANTS FOR CONSTRUCTION

§ 103.82.  Eligibility.

   (a)  Projects which meet the following criteria are eligible for construction grants:

   (1)  The eligible [cost] costs of the project based on construction bids or actual construction and associated [cost exceeds] costs exceed the [estimated project cost contained in the application for Federal construction grants] amount of grant funds made available from other State and Federal grant sources.

   (2)  [The applicant did not initiate construction on or before June 30, 1972, and does not qualify for funding under section 206(a) or (b) of the Federal Water Pollution Control Act (33 U. S.C.A. § 1286(a) or (b)).

   (3)  The applicant was awarded a Federal construction grant from allocations made prior to Federal Fiscal Year 1973.

   (b)  Projects meeting the criteria set forth in subsection (a) shall be called old projects.

   (c)  In addition to those eligible projects described in subsection (a), projects which meet the following criteria are also eligible for construction grants:

   (1)  The applicant has received a Federal construction grant in the amount of 75% of the eligible cost of the proposed project, from Federal Fiscal Year 1973 and later funds.

   (2)]  The [Department determines that the] municipality to be served by the proposed project suffers from unusual financial hardship and [that] State grant funds are available for the project. In evaluating the extent of financial hardship, the Department will consider the ratio of the median family income in the municipality to be initially served by the project to the State median family income[, the ratio of the local share of the project cost to market value of real estate in the municipality or municipalities to be initially served,] and the equivalent annual sewer rental to be charged.

   [(d)  Projects meeting the criteria set forth in subsection (c) shall be called new projects.[

§ 103.83.  Applications.

   [(a)]  ***

   [(b)  Applications will be accepted by the Department throughout the year.

   (c)  Applications for grants for new projects shall be accompanied by or preceded by an acceptable application for a Federal construction grant.

   (d)  Applications for old projects will be processed in the order of priority to the extent of availability of funds. Priority for funding will be determined by the Department based on priorities assigned to the projects for Federal grants made prior to Federal Fiscal Year 1973.]

§ 103.84.  Payments [and grant amount].

   [(a)  Grants to old projects for eligible cost overruns shall be based on the same percentage at which the project was originally funded.

   (b)  Grants to new projects shall be 5.0% of the eligible project cost; provided, however, that no project may receive grants exceeding 90% of the eligible project cost from all grant sources.

   (c)  Payments] Payment of grant funds shall be made [concurrently with Federal construction grant payments] subject to the terms and conditions established by the Department.

[Pa.B. Doc. No. 97-474. Filed for public inspection March 28, 1997, 9:00 a.m.]



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