Pennsylvania’s Onsite Sewage Program Structure
The PA Sewage Facilities Act (Act 537) is the law adopted in the late 1960s that creates and assigns powers, duties and responsibilities for approving sewage technologies, planning to satisfy future sewage disposal needs and defining permitable onsite technologies. The law has been changed through minor technical amendments but has remained essentially unchanged for nearly fifty years.
Pennsylvania's Formal Regulations
DEP authored Regulations are authorized by Act 537. The regulations related to Act 537 are divide into three main subject areas within Chapter 25 of the Pennsylvania Code.
§71. Planning for future sewage disposal needs
§72 Administration of the sewage system permitting process
§ 73 Sewage treatment methods, processes and components
Broad Public Involvement Is Required by the Act
The most effective and widely accepted regulations are adopted following an arduous public involvement process. The Act created the Sewage Advisory Committee (SAC) to play a major role in the Public Involvement process. The committee's charge is to review all matters DEP will regulate that deal with sewage. This is paraphrased from the Act by a former SAC chairperson.
DEP believes SAC's role is to comment only on what DEP selectively asks it to comment on.
Pennsylvania’s Official Shadow Regulations
Contained in a recently rescinded document that was initially validated by "publication for comment" in the Pennsylvania Bulletin, the Alternate System Guidance Document (ASG) added emerging treatment technologies to DEP's validated list that only select SEOs can permit.
The first page of the ASG provided that "this Guidance does not modify, change, set aside, add to or otherwise alter the Title 25 sewage regulations." Beginning on the following page the ASG modified, changed, set aside, and added to and otherwise altered the Title 25 sewage regulations.
The ASG created new system types that the authors of the Act and the original regulations expected DEP to periodically incorporate into Chapter 73. Nearly annually since the late 1990s, DEP has initiated and then abandoned the regulatory revision process.
The ASG was terminated in early 2014 by a notice in the PA Bulletin.
Pennsylvania’s Official Ephemeral Regulations Process
In early 2014, DEP transitioned from the shadowy but tangible ASG regulatory scheme to the Ephemeral Regulatory Process (ERP). The ERP was announced by a PA Bulletin notice which was bereft of any formal public participation process; it is best described as Regulation by Website Listing. in late 2015 it was relocated to a new web address. Several weeks laterm the community most in need of the information was sent to all SEOS by email. Again there was no formal announcementm simply an email. Afainm somewhere in the new web page we find that new e-regulations...
- are promulgated by web posting
- are established without any meaningful public participation
- become effective when posted
- are modified when reposted
- are repealed when removed from the web
- are never directly communicated to the SEO community
- can be implemented or ignored by every SEO as they choose
- do not include a training mandate
- are not uniformly available to every land owner in the Commonwealth
It is uncertain how policies and requirements established in the ASG and still implemented but which are not validated by the Ephemeral Regulations retain their authority. Only time and a web posting may tell . . .