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PA Bulletin, Doc. No. 10-1440


Permit Extensions Law (Act 46); Notice of Applicability

[40 Pa.B. 4458]
[Saturday, August 7, 2010]

 Pursuant to Section 1607-I of the Act of April 9, 1929 (P. L. 343, No. 176), known as the Fiscal Code, added July 6, 2010 (P. L. __, Act No. 46) (hereafter ''Act 46''), this notice hereby identifies the applicability of the extension period provided under Act 46 to certain approvals granted under programs administered by the Department of Environmental Protection (Department).

 Act 46 was passed by the General Assembly on July 6, 2010, to provide relief to the building industry impacted by the economic downturn and to that end is focused on land development for residential and commercial purposes. The Act automatically extends the expiration date of certain types of approvals, permits, decisions, agreements and other authorizations or decisions (hereafter ''approvals'') that were in effect, or issued, after December 31, 2008. The extension provided under Act 46 lasts until July 1, 2013.

 By its express terms, Act 46 does not apply to: (1) an approval issued to comply with federal law, the duration or terms of expiration of which is specified or determined by federal law; or (2) requirements that are necessary to retain federal delegation to, or assumption by, the Commonwealth of the authority to implement a federal law or program. For example, Act 46 does not extend any of the NPDES permits administered by the Department or County Conservation Districts, including those for construction activities, for both of those reasons.

 The following approvals issued by the Department, County Conservation Districts and local agencies are subject to Act 46 when they are associated with land development and related construction, subject to the exceptions listed below in this Notice:

 1. Dam, Water Obstruction and Encroachment permits, and General Permit authorizations, under 25 Pa. Code Chapter 105. According to the Army Corps of Engineers, the related Pennsylvania State Programmatic General Permit (''SPGP'') authorizes pursuant to Section 404 of the federal Clean Water Act will also be extended. Neither the Department nor any delegated County Conservation District or holder of such an authorization under Chapter 105 will have to take any action to effectuate this extension of any related SPGP authorization.

 2. Water Quality Certifications under Section 401 of the Federal Clean Water Act that are issued by the Department for General Permits issued under Chapter 105. The extension is for the same length of time that the applicable Chapter 105 coverage approval is extended.

 3. The following permits and general permit authorizations issued for beneficial use of residual waste, under 25 Pa. Code Chapter 287:

 WMGR065—Beneficial use of the following types of residual wastes related to the manufacturing of iron and steel: refractories, foundry sands, slags, air emission control solids and the media associated with their excavation as construction fill at an Act 2 remediation site.

 WMGR070—Beneficial use of baghouse fines from air pollution devices generated at hot-mixed asphalt plants as a construction material or as levee core impermeable fill and pipe bedding.

 WMGR072—Beneficial use of dewatered dredge waste for use as a roadbed material in roadway construction.

 WMGR079—Processing and beneficial use of waste asphalt shingles as an aggregate in the production of hot mix asphalt paving material and as a sub-base for road and driveway construction.

 WMGR082—Processing and beneficial use of steel and iron slag and refractory bricks mined from an existing slag pile for use as a construction material.

 WMGR090—Processing and beneficial use of reclaimed asphalt pavement (RAP) materials as roadway construction material.

 4. Deadlines for commencement of construction in public water system construction permits issued under 25 Pa. Code § 109.503.

 5. Approvals for on-lot systems issued by local agencies under 25 Pa. Code Chapter 72.

 6. Plan approvals under Act 167, 32 P. S. § 680.1 et seq. (relating to storm water management).

 7. Part II permits for construction of sewage treatment facilities under 25 Pa. Code Chapter 91.

 Holders of approvals (i.e., permittees) granted under programs administered by the Department should not assume that an expiration date has been extended under Act 46 unless it is one of the types of approvals listed in this Notice and the holder has received a verification according to guidelines included in the Department's Guidance for Implementation of Act 46, which is available on the Department's website at under the ''Licensing, Permits & Certification'' link.

 Certain approvals granted under programs administered by the Department, as well as particular circumstances, are not applicable to the extensions provided under Act 46. These include:

 1. An approval issued to comply with federal law, the duration or terms of expiration of which is specified or determined by federal law.

 2. Requirements that are necessary to retain federal delegation to, or assumption by, the Commonwealth of the authority to implement a federal law or program.

 3. Approvals where, after the approval and during the extension period, the surface waters became classified as High Quality pursuant to 25 Pa. Code Section 93.1, 93.4b(A) or classified as Exceptional Value pursuant to 25 Pa. Code § 93.4b(B)(1).

 4. An approval that was issued in connection with Exceptional Value surface waters under 25 Pa. Code § 93.4b(B)(1).

 5. An administrative consent order or other enforcement action relating to an approval that is subject to the extension period.

 6. The revocation or modification of an approval or extension of an approval, when the approval authorizes the modification or revocation for cause.

 The Department's interpretation of Act 46 referred to herein is not an adjudication or a regulation. There is no intent on the part of the Department to give the contents of this Notice, and the Department's guidance referred to in this Notice, that weight or deference. This Notice explains the framework within which the Department will exercise its administrative discretion in the future, and the Department reserves the discretion to deviate from that framework if circumstances warrant.

 Questions concerning the applicability of Act 46 to approvals granted under programs administered by the Department may be directed to the Regional Office, District Mining Office, Central Office program, County Conservation District or local agency that issued the approval. Contact information is provided in the Department's guidance document referred to above.


[Pa.B. Doc. No. 10-1440. Filed for public inspection August 6, 2010, 9:00 a.m.]

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