ACTION ON OVERLOADED FACILITIES

1. (a) If the annual report establishes or if the Department determines that the sewerage facilities or any portions thereof are either hydraulically or organically overloaded, the permittee of the sewerage facilities shall comply with the following program:

   1. (1) Prohibit new connections to the overloaded sewerage facilities except as approved by the permittee under the standards for granting exceptions contained in § § 94.55—94.57 (relating to building permit issued prior to ban; replacement of a discharge; and other exceptions). No building permit may be issued by a governmental entity which may result in a connection to overloaded sewerage facilities or increase the load to those sewerage facilities from an existing connection. The permittee shall retain records of exceptions granted and make the records available to the Department upon request.
   2. (2) Immediately begin work for the planning, design, financing, construction and operation of the sewerage facilities that may be necessary to provide required capacities to meet anticipated demands for a reasonable time in the future and resulting in a project that is consistent with the applicable official plans approved under the Pennsylvania Sewage Facilities Act (35 P. S. § § 750.1—750.20) and the regulations thereunder in Chapter 71 (relating to administration of the sewage facilities planning program) and consistent with the requirements of the Department and the Federal Government regarding areawide planning and sewerage facilities.
   3. (3) Submit to the Regional Office, for the review and approval of the Department, a written CAP to be submitted with the annual report or within 90 days of notification of the Department’s determination of overload, setting forth the actions to be taken to reduce the overload and to provide the needed additional capacity. The written CAP shall include, but not be limited, to limitations on and a program for control of new connections to the overloaded sewerage facilities and a schedule showing the dates each step toward compliance with paragraph (2) shall be completed.
2. (b) Upon receipt of an acceptable CAP submitted in accordance with subsection (a)(3), the Department may modify or lift the requirement to prohibit new connections and the issuance of building permits contained in subsection (a)(1). In determining whether the requirement to prohibit new connections shall be modified or lifted, the Department will consider the extent to which the permittee plans to limit new connections; the timing for provisions of additional capacity and reduction of the existing overload; and the impact of the overload on treatment plant effluent quality, water quality degradation and public health.

3. (c) The Department may approve permits for extensions to overloaded sewerage facilities when the following conditions are met:

   1. (1) The proposed extension is consistent with an acceptable CAP submitted under subsection (a)(3).
   2. (2) The proposed extension is consistent with the applicable official plan approved under the Pennsylvania Sewage Facilities Act and the regulations adopted thereunder at Chapter 71.
   3. (3) The additional load from the proposed extension will not have a significant adverse impact on the water quality of the receiving waters.
   4. (4) The proposed extension is in accordance with any other applicable requirement of this title.
   5. (5) The connections to the extension are controlled in accordance with the CAP submitted in accordance with subsection (a)(3); provided that, no connections to an extension may be allowed when the approved CAP is not being implemented in accordance with the schedule contained therein.

Authority

The provisions of this § 94.21 issued under section 9 of the act of January 24, 1966 (P. L. 1535 (1965), No. 537) (35 P. S. § 750.9).

Source

The provisions of this § 94.21 adopted November 4, 1977, effective November 21, 1977, 7 Pa.B. 3259; amended October 6, 1978, effective October 23, 1978, 8 Pa.B. 2722; amended October 3, 1980, effective October 4, 1980, 10 Pa.B. 3917; amended September 4, 1998, effective September 5, 1998, 28 Pa.B. 4517. Immediately preceding text appears at serial pages (228282) to (228283).

Notes of Decisions

Approval

Section 94.21 does not prohibit approval of an Act 537 sewage facilities planning module, even if there is an actual hydraulic overload. At most, the situation would prohibit new connections to the overloaded facility. The Ainjar Trust v. Department of Environmental Protection, 806 A.2d 482 (Pa. Cmwlth. 2002).

Exceptions

To allow the Department of Environmental Resources to require a plan supplement rather than a plan revision where an applicant for a sewage connection permit met one of the exceptions would be to take away the building permit exemption granted by the provisions of regulation by the Environmental Quality Board. Rico, Inc. and McDonald’s Corporation v. Department of Environmental Resources, 21 Pa. D. & C.3d 177 (1981).

The provisions of subsection (a)(1) did not require a would-be developer to have obtained sewage facilities planning approval under 25 Pa. Code Chapter 71 (relating to administration of sewage facilities program) as well as a building permit prior to the imposition of a connection prohibition in order to meet the building permit exception. Rico, Inc. and McDonald’s Corporation v. Department of Environmental Resources, 21 Pa. D. & C. 3d 177 (1982).

Municipal Corporations

When an overload of a sewer system occurs, transfer of permits from one landowner to another is barred during a period of connection prohibition. Chateau Woods, Inc. v. Lower Paxton Twp., 772 A.2d 122 (Pa. Cmwlth. 2001).

Where a sewer facility is overloaded, new connections are prohibited, except as approved by the municipality for exceptions enumerated in 25 Pa. Code § § 94.55 and 94.57. Chateau Woods, Inc. v. Lower Paxton Twp., 772 A.2d 122 (Pa. Cmwlth. 2001).

Where the Department of Environmental Protection restricts a municipality’s ability to authorize new connections to an overloaded facility to only four per month, the municipality cannot issue 44 permits, as it is under a ‘‘prohibition’’ as defined by this section. Chateau Woods, Inc. v. Lower Paxton Twp., 772 A.2d 122 (Pa. Cmwlth. 2001).

Regulation Invalid

Since this section, in effect, delegated unlimited discretion to the Department of Environmental Resources and provided for no exceptions, it was unreasonable and invalid on its face. City of Lancaster v. Department of Environmental Resources, 6 Pa. D. & C.3d 159 (1978).

Cross References

This section cited in 25 Pa. Code § 94.11 (relating to sewer extensions); 25 Pa. Code § 94.12 (relating to annual report); and 25 Pa. Code § 94.31 (relating to organic or hydraulic overload).