PA Brownfields Environmental Law : Pennsylvania Environmental Law & Brownfields Lawyer & Attorney : Fox Rothschild Law Firm : Philadelphia PA

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....

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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• The update will remove outdated references, such as to the old Money-Back Guarantee Program, and will clarify policies in an effort to achieve consistency across the regional offices.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.

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For the past several months, PADEP has been working internally and with stakeholders to develop policy supporting the use of mine influenced waters (“MIW”) in the natural gas extraction process — that is, using acid mine drainage and mine pool water, from Pennsylvania’s long history of coal mining, for fracking. The concept is that the impacted mine waters, which typically require treatment before discharge to surface waters, could serve as a substitute for the natural gas extraction industry’s withdrawal of millions of gallons of water from the same freshwater sources that also support aquatic life, our drinking water, and recreational uses. If workable and done safely, it’s a clear win-win — the gas extractors can use MIW that is already plentiful but has no higher use absent expensive long-term treatment, while preserving the Commonwealth’s natural resources.

Last week, PA DEP released a white paper entitled “Utilization of Mine Influenced Water for Natural Gas Extraction Activities” (the “White Paper”; link is to PDF). The document attempts to address storage and liability issues, which, if left unresolved, would significantly increase the legal risk and lower the economic incentive for transporting and using MIW. The White Paper also provides procedural guidance for those seeking to submit proposals to use acid mine drainage waters in the development of gas wells.

The storage options covered by the White Paper either would require new permitting, or might involve modification of existing well permits and Water Management Plans. One option, known as nonjurisdictional impoundment, would also require showings that the MIW (a) will not result in water pollution and (b) meets a specified set of parameters based upon EPA’s NPDES standards for mine drainage (measured at the source, prior to storage). The other storage options cited in the White Paper would not require that the MIW meet such parameters.

The White Paper’s proposed long-term liability solutions are somewhat more limited. The challenge for expanding the use of MIW into fracking applications is that Pennsylvania’s Clean Streams Law has been interpreted by state courts to impose long-term treatment obligations on those who pump water from abandoned mine pools and thereby create a discharge. As the White Paper notes, long-term treatment of MIW is expensive and labor- and capital-intensive.  So PADEP offers two options for users of MIW for fracking to limit their liability under current law and policy: First, some operators could structure their project to fit within the scope of the Environmental Good Samaritan Act, which provides fairly broad protection from civil liability under state law to certain eligible parties for projects involving treatment of MIW, with specified exceptions. Second, PADEP could enter a Consent Order and Agreement with the MIW user under which the Department would agree not to hold the user liable for long-term treatment obligations, so long as the user meets project-specific conditions. 

The CO&A would theoretically limit the user’s liability to the state, but would not address civil liability to third parties. For the user who cannot meet the requirements of the Environmental Good Samaritan Act, though, a CO&A may be the next best available option to protect against at least the long-term treatment liability that could otherwise attach. In some circumstances, a belt-and-suspenders approach that employs both the Environmental Good Samaritan Act and a CO&A might make sense. In any case, early communications with PADEP's program staff will be critical. Natural gas extractors who are considering MIW projects should consult environmental counsel to discuss how to take full advantage of the available protections against liability under Pennsylvania law and how best to navigate the process within PADEP.

Looking to the future, PADEP notes that it might be appropriate to develop a general permit covering the use of MIW for fracking, or even to rework its oil and gas regulations in a way that would directly address the issue. Importantly, the MIW policy appears to have earned support across a wide spectrum of stakeholders, from the oil and gas industry to environmental organizations. Indeed, the White Paper expressly envisions the creation of partnerships between industry and watershed groups to help foster MIW uses. Time will tell whether the mechanisms and options set forth in the White Paper will help promote this new use for impaired mine discharges, or whether further regulatory or legislative actions will be necessary for the concept to reach its full potential.

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On November 3, 2012, PADEP published notice of final new guidance for its revamped Permit Decision Guarantee Policy, which restructures the environmental permitting process. Last week, Joel highlighted the way the new Permit Decision Guarantee Policy interacts with the Pennsylvania Natural Diversity Inventory review; this week, I’m going to discuss how the Permit Decision Guarantee Policy interacts with the Department's existing Environmental Justice Public Participation Policy.  I’ve worked extensively with the Environmental Justice ("EJ") policy in my past experience representing residents and community groups, and as an appointee to the Department’s Environmental Justice Advisory Board. Though currently undergoing some modernizing revisions, the EJ Public Participation Policy, which was published in 2004, received unqualified support from Department officials at the most recent Advisory Board meeting in early November.

Among other things, the new Permit Decision Guarantee guidance puts the onus on applicants to submit an administratively complete and technically sound application before the Department’s obligation to provide a timely review kicks in. As a result, the applicant’s pre-application strategy will be more critical than ever to an efficient and prompt permitting decision. The Department has scheduled a series of webinars to provide information to various sectors of the regulated community about the new permitting guidance.

The Permit Decision Guarantee Policy, including its specific timeframes for rendering decisions on complete applications, does nothing to alter the process set forth in the EJ Public Participation Policy, under which certain permit applications trigger additional public outreach if the project is located within an Environmental Justice area (“EJ Area”). “Environmental Justice” generally reflects the idea that disadvantaged communities ought not bear a disproportionate level of environmental burdens as compared to other communities. After submission of a trigger permit, the Department determines whether the project implicates an EJ Area – broadly stated, the Department identifies an “area of concern” around the project area and looks to see if any census tract within the area of concern has a minority population of 30% or greater, or 20% or more of its population at or below the federal poverty level. If so, the Department will invoke its enhanced public participation provisions. The Department then circulates a plain language description of the proposed project to residents of the EJ Area and schedules a public information session at which the applicant may voluntarily participate. Residents may also seek a public hearing before the Department to offer testimony about their concerns with the proposed project and its potential impacts.

Although cooperation under the EJ Public Participation Policy is not a box that the applicant must check off to achieve administrative completeness under the Permit Decision Guarantee policy, the Department still – with or without the applicant’s cooperation – must undertake the EJ Area analysis and offer enhanced public participation opportunities to the community when applicable. In addition, the time limits that the Permit Decision Guarantee Policy now imposes on the Department once an administratively complete application is in hand will not trump the existing public participation process. The applicant that is out in front with the community is less likely to see that permitting clock grind to a halt while an enhanced public participation process plays out.  As a result, it makes a lot of sense for a permit applicant to determine whether the EJ Public Participation Policy will apply and, if so, to approach community engagement thoughtfully.

The applicant that takes the time to think through a community engagement strategy during the pre-application phase will be well prepared for the enhanced public participation process. The public information meeting conducted under the EJ policy is often the first time that the applicant engages directly with the community about its project. For better, and often for worse, this presentation can have a significant impact on the applicant’s relationship with the community going forward. In my experience representing community groups, I saw applicants who did this well, and others who ignored or attempted to outmaneuver the local community and wound up alienating residents and forfeiting credibility – which only makes it harder for the Department and elected representatives to support the applicant through the process. 

Simply put, it makes the Department’s job easier when applicants seize the chance for early community engagement.  In turn, this gives applicants the ability to affect better results for their projects.  

Community outreach involves a complex set of interactions, and it is critical as an applicant to know your intended host community and its concerns. Know your project too, and how it might affect the neighboring community. This is wise with respect to any project in any community.  But take the time in the pre-application phase to determine whether your project is in, or close enough to impact, an EJ community by using the Department’s eMap PA tool. Note that the mapping application currently relies on 2000 U.S. Census data, but the Department is in the process of updating to the 2010 Census data set, which may affect the applicability of the policy to your project.

The importance that the Department’s new permitting structure places on the pre-application period presents an opportunity for applicants who seek trigger permits in EJ Areas to work together with community stakeholders – not only to resolve residents’ issues before the application is submitted and community concerns harden into opposition at public meetings and hearings, but also to identify avenues for positive collaboration that can enhance the applicant’s business interests, improve local environmental conditions, and promote further economic development in the community. The applicant who does not take advantage of this opportunity risks delay, uncertainty, and negative media attention, not to mention its own credibility with the Department and elected officials.

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