Environmental Highlights

April 24, 2002

The Department of Environmental Protection is Required to Consider Local Land Use and Zoning in Permit Decisions
With the signing of Acts 67 and 68 last year, the Pennsylvania Municipalities Planning Code was amended to provide local governments with greater potential impact on the Department of Environmental Protection (“DEP”)'s permit process in local land use planning. Where counties and local municipalities have comprehensive plans and/or zoning ordinances in place, DEP is required to consider them and "may rely" on them when issuing permits. This greatly expands DEP's permit considerations, as local land use planning was always "off limits" given DEP’s lack of statutory authority in the past.

To implement its new authority, on January 26 DEP released its final policy for considering local land use plans and zoning ordinances as part of its permit activities. The policy, effective as of January 29th, affects virtually all permits administered by DEP. It requires permit applicants to answer questions about local land use planning and zoning and provide expanded notice and information to local governments. It also gives local governments an opportunity to comment based on land use implications. Where conflicts exist between the proposed project and local land use planning, DEP may deny, apply special conditions to or approve the permit, despite the conflict.

U.S. Supreme Court Restricts Corps' Jurisdiction over Wetlands
On January 9, 2001, the United States Supreme Court, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, struck down the U.S. Army Corps of Engineers' Migratory Bird Rule, holding that the Corps' asserted jurisdiction over non-navigable, isolated, intrastate waters (including wetlands) exceeded its authority under the Federal Clean Water Act. The Court found that the Corps, which regulates the discharge of dredged or fill materials into waters of the United States, cannot regulate ponds and other bodies of water that are not adjacent to open water. Previously, the Corps had interpreted its jurisdiction to include all waters used as habitat by migratory birds, thereby basing its jurisdiction on interstate commerce.

This decision’s true impact on developers of properties containing wetlands will depend on the extent of the state’s and local municipality’s regulatory authority. In Pennsylvania, for instance, DEP has broad authority to regulate all wetlands, so the developer may simply have to deal with one fewer regulatory agency. However, Ohio’s agency has much more limited authority over development in wetlands, and the Corps has always taken the lead in regulation. Developers should also be aware that some municipalities have extensive ordinances regulating activities in wetlands and wetland buffer areas, at least in those states like Ohio that do not have their own comprehensive regulatory programs.

Third Circuit Upholds Contribution Protection Against Superfund Non-Settlor
Last December, the Third Circuit Court of Appeals upheld a Superfund settlement giving Amtrak, SEPTA and Conrail protection from liability to Penn Central Railroad's successor for additional cleanup at the Paoli Railyard Site. American Premier Underwriters, which has not settled with the federal government and the Commonwealth of Pennsylvania, faces a 33 percent share of the cleanup costs, currently estimated at $53 million. American Premier Underwriters’ liability could increase significantly if estimates prove too low or if settling defendants bring separate actions against it.

The court noted that a possible increase in a non-settlor’s liability because of uncertain future cleanup costs does not render the consent decree unfair, reasoning that "[t]he intended effect of protecting settling parties from contribution claims is that non-settling defendants may bear disproportionate liability for their acts." The court also determined that the contribution protection applied not only to the portion of the site being cleaned up by the settling parties, but also to the portion being addressed by the non-settlor under a separate administrative order.

New Legislation Tightens Reporting Requirements for Pennsylvania Companies Using Hazardous Materials
Effective February 19, 2001, Pennsylvania’s Hazardous Material Emergency Planning and Response Act was amended and now requires the owner or operator of any facility handling a hazardous material exceeding the federal reporting threshold quantity to report the material’s presence to state and local government authorities within five business days after it is first present at the facility. Previously, reporting was not required for 60 days for extremely hazardous materials and 90 days for hazardous materials.

For more information, please contact sthistle@cohenlaw.com.