Environmental Law

PADEP Releases Guidance on Permit Extensions

By Joel Bolstein

As required by the recently approved Fiscal Code bill (now known as Act 46), PADEP just released a Notice of Applicability  and a Guidance Document listing the permits that it thinks are covered by the statutory permit extensions.  As reported previously on this blog, the General Assembly provided relief to developers adversely effected by the recession in the form of permit extensions covering PADEP and Conservation District permit and approvals needed for construction activities.  The extensions run through July 1, 2013.  The question everyone was waiting for PADEP to answer was whether the permit extension would cover NPDES stormwater construction permits.  The Department has now released its official position on that subject.

According to the Department, NPDES Stormwater Construction permits are not covered by the permit extensions because such permits are issued pursuant to delegated authority under the federal Clean Water Act.   The General Assembly had put language in the Fiscal Code bill stating: "Nothing in this Article shall be construed to modify any requirement of law that is necessary to retain federal delegation to, or assumption by, the Commonwealth of the Authority to implement a federal law or program."   Looking at that language, it would appear that PADEP's exclusion of NPDES stormwater permits is consistent with the charge given to it by the General Assembly.   

The Guidance issued by the Department tries to cover all bases when it comes to NPDES stormwater construction permits.  Under Act 46, a person has the right to file a request with PADEP requesting verification that a permit is covered by the extension.  The Act says that if PADEP does not respond within 30 days, the verification request is deemed approved.  Maybe recognizing that the Department doesn't have the resources to respond to each and every verification request, the Department states in the Guidance as follows: 

DEP does not interpret this "deemed affirmation" language to either allow expired approvals to be reinstated, or to allow an approval's expiration date to be extended, if that approval is not governed by Act 46.  For example, if a request for verification is submitted for an expired NPDES permit, it cannot be "deemed" to be extended because DEP failed to respond within 30 days.  This law does not reinstate that permit because NPDES permits are not subject to this law.   

So let's be perfectly clear, NPDES permits are not covered by Act 46 and don't even think about trying to slip one by the Department through the verification/deemed affirmation route.  The Guidance states that DEP will respond to all verification requests, so presumably, there will be no deemed affirmations.

A couple of items in PADEP's list of permits covered by Act 46 jumped out at me.  First, there are several residual waste general permits included on the list.  I find that curious since the Solid Waste Management Act was not one of the statutes listed in Act 46 as "relating to or affecting development".   It would appear that the Department has taken a more expansive view of Act 46 by extending it to statutes not expressly listed in the Scope Section, Section 1602-I.  I have no problem with that.  On the other hand, why pick and chose certain residual waste permits?  For example, GP096, which allows regulated fill material to be used as part of a construction project, is not included in the list of GPs covered by the permit extension.  Neither are GPs 028, 065, 083, 089, 094, 096 and 097.  Some of the GPs can be used for construction projects.  Maybe the Department didn't intend its list to be exclusive.  Maybe it looked at all the GPs out there and only listed the ones where someone arguably might be eligible for the permit extension, given the date of issuance and expiration.  I don't know.  My thought is that anyone holding a GP issued pursuant to the SWMA that could be used as part of a construction project, which would expire sometime between now and July 1, 2013, may want to consider filing a verification request.  The Department certainly opened that door when it listed several residual waste GPs in the Notice of Applicability.

Second, the Department has included sewage approvals issued for on-lot systems pursuant to Chapter 72.  What about other planning module approvals issued by the Department pursuant to the Sewage Facilities Act?  

I think it's possible that there are other permits or approvals that would arguably be covered by Act 46 that aren't necessarily on the Department's list.  I intend to have a conversation with the Department to see if its expectation is that this list is all-inclusive or whether they purposely avoided trying to have to identify each and every permit type that could be covered. 

The Notice says that any questions concerning the applicability of Act 46 "may be directed to the regional Office, District Mining Office, Central Office program, Conservation District or local agency that issued the approval."   Given the fact that the Department was not actively involved with the development of Act 46, and the short period of time it had to develop its list of covered permits and explanatory guidance, don't be surprised if the first person you reach at the Department answers your question with a good-natured "I'll have to get back to you on that".  From the people I've spoken with at the Department, I think this is being viewed as a work in progress. 

Full post as published by PA Brownfields Environmental Law on August 06, 2010 (boomark / email).