Following up on my posts of February 7, 2013 and November 28, 2012, the agenda for next week's meeting of the Pennsylvania DEP's Environmental Justice Advisory Board includes a scheduled discussion of the status of the Department's draft Permit Review Process Public Participation Policy. After I return from the meeting next week, I'll provide an update on the draft policy, and particularly any revisions made as a result of earlier public comment. Stay tuned....
Last week, I attended the April meeting of the Delaware Valley Regional Planning Commission's Environmental Justice Work Group. DVRPC staff presented an overview of its updated comprehensive plan, Connections 2040, which contained eye-opening information that is relevant to developers throughout the Delaware Valley.
Holding all else equal – that is, absent implementation of the comprehensive regional plan – DVRPC's long-term projections showed high growth expected in the outermost parts of Chester County, Montgomery County, and Bucks County, and slower-to-flat growth in most of Philadelphia and the other surrounding Pennsylvania suburbs. But in Delaware County, DVRPC projected losses of both jobs and population, focused in the central part of the county and the communities along the Delaware River. (Click for a pdf showing DVRPC’s projections)
Connections 2040, however, would focus on reinvestment in the central cities of the region, primarily on infill development and redevelopment near existing transportation infrastructure. Transportation capital investments over the next 2 to 3 decades would largely be devoted to maintenance and repair of our existing transportation infrastructure, rather than on expansion of service. This may seem frustrating to the many of us who commute from suburb to suburb, rather than from suburb to Philadelphia; most commuting trips now fall into the former category, and I'm sure there are many who, like me, would like to take the train but find our options lacking and wind up in the car.
But transportation and comprehensive planning in the Delaware Valley are caught in a bind of scarce funds as pressures on both federal and state shares create a shrinking overall pie. Beyond repairing and maintaining existing roads, bridges, and rail lines (some of which have deteriorated to the point that closure is required), available funding will be prioritized for operational improvements such as SEPTA's new fare collection system. Expansion of service will be the third priority, but meaningful expansion, at least through the medium term, does not appear to be in the cards. Thus, faced with the alternative of perpetuating car-centric suburban sprawl that lacks access to public transit, DVRPC’s planners believe that focusing growth into areas that are already well served by existing infrastructure will help to reduce energy demand through more compact land-use patterns and to reduce transportation-related emissions that both cause air pollution and contribute to global climate change.
Given this backdrop, Connections 2040 would seem to offer significant opportunities to developers who are willing to take on Brownfields projects in the central cities of the greater Philadelphia region. Ultimately, the additional costs associated with these sites could compare quite favorably to the costs of building out new infrastructure and navigating regional and local planning policies for new development on greenfield parcels in the far suburbs of Philadelphia.
Earlier this month, the Pennsylvania Senate Environment Resources and Energy Committee took up Senate Bill No. 411, designed to foster the use of mine influenced water for hydraulic fracturing and other gas well development. The bill, originally proposed by Senator Richard Kasunic, was unanimously approved by the committee and can now move on to the full Senate.
The bill would amend Pennsylvania’s Environmental Good Samaritan Act (the “Act”) in several respects:
- By expanding or adding definitions under the Act to make clear that projects that withdraw, divert, and use mine influenced waters for fracking or other gas well development, industrial or other water supply, or other beneficial uses, with and in some cases without treatment, are eligible for the protections of the Act;
- By expanding the scope of immunity afforded under the Act to include such projects, as well as limiting the legal liability of landowners, mine operators, and water pollution abatement project operators involved in treating mine influenced water from such projects for any costs, injury or damages resulting from the approved uses;
- By exempting the operators and backers of such projects from certain requirements or liabilities under the Surface Mining Conservation and Reclamation Act, the Hazardous Sites Cleanup Act, the Solid Waste Management Act, and the Clean Streams Law; and
- By modifying existing exceptions to the immunity afforded under the Act to clarify that those exceptions would not apply to those who use, allow the use of, or provide mine influenced waters as part of a water pollution abatement project for fracking or other gas well development, industrial or other water supply, or other beneficial uses.
S.B. 411 still has a long way to go before it, or some further amended version, winds up on the Governor’s desk. But on the heels of PA DEP’s recent White Paper (PDF), which I blogged about last month, it appears that the use of mine influenced waters in fracking and gas well development has bipartisan traction in the state Senate. We will continue monitoring the bill and will provide further updates as the legislative process unfolds.
Updating my November 28, 2012 post, the Department is in the process of finalizing updated guidance for its policy covering public participation in the permit review process. The existing policy, Document ID 012-0900-003 (PDF copy here), was last updated in July 2005. At the February 5, 2013 meeting of the Environmental Justice Advisory Board, staff from the Department’s Policy Office briefed the members of the EJAB and other attendees on the upcoming revised guidance, which the Department expects will be published for public comment around the end of February 2013. Some highlights of the presentation:
- The update will remove outdated references, such as to the old Money-Back Guarantee Program, and will clarify policies in an effort to achieve consistency across the regional offices.
- The update will emphasize the actual elements of public participation as opposed to internal Department procedures supporting public participation.
- Other goals include:
- improving efficiency in the permitting process while honoring the requirements of public participation;
- clarifying the types of public participation available for particular actions;
- clarifying DEP’s role at public information meetings and public hearings;
- clarifying when it is appropriate to schedule a hearing or other applicable public participation meeting;
- establishing standards for conduct at public informational meetings and public hearings (addressing such things as time management; fairness issues; use of demonstrative exhibits, props and signs; disruptive behavior; and public safety issues);
- to the extent possible, harmonizing the elements of and requirements for public participation across the relevant environmental statutes.
Note that the updated guidance expected at the end of the month will address only the public participation policy that is applicable to Department permits or plan approvals with a public comment process (the policy does not apply to Notices of Intent for coverage under general permits or to permits by rule). An update to the separate Enhanced Public Participation Policy for Environmental Justice (EJ) communities (PDF copy here) is still several months away from being ready for public comment. I’ll update the blog as each of the updated policies are released for comment, and I encourage those of you who interact with the Department on permits to submit your input on the policies as proposed.
Finally, in another follow-up to my November 28, 2012 post, the EJAB members were also advised at our February meeting that the Department’s eMap PA online map application has been updated with 2010 Census data. The new data resulted in the designation of 185 additional census tracts in the Commonwealth as EJ Areas. If you have a project proposed in an area that might fall within the eligibility criteria for an EJ Area, I encourage you to check eMap PA and to review the existing EJ Public Participation Policy.
The TMDL regulatory scheme is taking hold in many sectors of our country. In fact, even the wine growing industry in Napa and Sonoma Valleys are being impacted by proposed regulations. If interested (and yes, Pennsylvania has a growing wine industry too), see Philip Hinerman's recent post at Fox Rothschild's Legal Tastings blog.