PENNSYLVANIA ACTS 67/68 - BAD FOR THE ENVIRONMENT?

Over the lat three decades, Pennsylvania has been one of the best states in the Delaware Valley for quickly responding to environmental compliance problems.  When permits are needed for improvements, needed for treatment plants or air emissions control devices, they have been quickly issued.  Acts 67/68 are likely to change all this, and we at RT are concerned that Pennsylvania's environment will suffer!

As Pennsylvania develops, more and more people want to stop further development.  This is not a realistic goal because there will be more development to provide for an expanding population.  The Legislature, in June, passed Act 67/68.  These statutes provide that state agencies are to take local land use into account before using environmental permits.

Local ordinances simply do not reflect the complexity of different environmental regulations on municipal, commercial and industrial facilities.  Key areas of concern are:

• Is a recycling facility a "waste" facility?

• If so, does an expansion require new zoning or land use approval?

• If there is waste processing at an industrial facility, does that require special approvals under local zoning ordinances?

• Does addition of an air pollution control device constitute an expansion of a non-conforming use?

DEP has issued Guidance to address how the DEP will implement Acts 67/68.  Unfortunately, DEP does not appear to understand the implications of this major expansion in its responsibilities.  Surrounding states have dealt with this issue for years; their programs are for more than a simple two page Guidance Document.  RT has submitted to DEP the following comments on DEP's act 67/68 Guidance:

• We would like to submit the following comments for the Department's consideration, regarding the implementation of Acts 67 and 68, particularly in regard to recycling and industrial facilities in the Commonwealth.  As I have commented to the Department previously on the issue of confusing waste definitions, and use of permit by rule provisions which leave many materials questionable as to whether they are or are not waste.  Because of this, recycling facilities operating in the Commonwealth cannot tell whether they are or are not in compliance with local zoning, particularly when a "individual permit" is called in at a facility previously covered under permit by rule.

• The problem is caused because Pennsylvania does not have "bright line" waste definitions as to what is and is not waste, like surrounding states.  Waste and beneficial use materials in Pennsylvania are defined in a very complex manner, yet, most local ordinances and zoning regulations assume that a "bright line" waste definition actually exists in the Commonwealth.

• At a minimum, the Department needs to develop detailed guidance for these and industrial facilities clarifying that:

• Recycling facilities are not actually "waste" facilities, and, materials properly recycled are not wastes.
• Clarifying that managing waste incidental to industrial or recycling activities does not cause land use to be considered that of a waste management facility.
• Clarifying that all facilities in existence, or for which permits have been issued, prior to Acts 67 and 68 coming into effect, are considered to be in conformance with local land use (or otherwise "grandfathered"), and have a reasonable right to expansion and continued operation, including issuance of permits for continued operation, if a local land use conflict is caused by the definition of what is and is not waste in Pennsylvania.