§ 271.127. Environmental assessment.

 (a)  Impacts. Each environmental assessment in a permit application shall include at a minimum a detailed analysis of the potential impact of the proposed facility on the environment, public health and public safety, including traffic, aesthetics, air quality, water quality, stream flow, fish and wildlife, plants, aquatic habitat, threatened or endangered species, water uses, land use and municipal waste plans. The applicant shall consider features such as scenic rivers, recreational river corridors, local parks, State and Federal forests and parks, the Appalachian Trail, historic and archaeological sites, National wildlife refuges, State natural areas, National landmarks, farmland, wetland, special protection watersheds designated under Chapter 93 (relating to water quality standards), airports, public water supplies and other features deemed appropriate by the Department or the applicant. The permit application shall also include all correspondence received by the applicant from any State or Federal agency contacted as part of the environmental assessment.

 (b)  Harms. The environmental assessment shall describe the known and potential environmental harms of the proposed project. The applicant shall provide the Department with a written mitigation plan which explains how the applicant plans to mitigate each known or potential environmental harm identified and which describes any known and potential environmental harms not mitigated. The Department will review the assessment and mitigation plans to determine whether there are additional harms and whether all known and potential environmental harms will be mitigated. In conducting its review, the Department will evaluate each mitigation measure and will collectively review mitigation measures to ensure that individually and collectively they adequately protect the environment and the public health, safety and welfare.

 (c)  Municipal waste landfills, construction/demolition waste landfills and resource recovery facilities. If the application is for the proposed operation of a municipal waste landfill, construction/demolition waste landfill or resource recovery facility, the applicant shall demonstrate that the benefits of the project to the public clearly outweigh the known and potential environmental harms. In making this demonstration, the applicant shall consider harms and mitigation measures described in subsection (b). The applicant shall describe in detail the benefits relied upon. The benefits of the project shall consist of social and economic benefits that remain after taking into consideration the known and potential social and economic harms of the project and shall also consist of the environmental benefits of the project, if any.

 (d)  Other facilities. If the application is for the proposed operation of another type of facility and the applicant or the Department upon review determines that known or potential environmental harm remains despite the mitigation measures described in subsection (b), the applicant shall demonstrate that the benefits of the project to the public clearly outweigh the known and potential environmental harms. In making this demonstration, the applicant shall consider harms and mitigation measures described in subsection (b). The applicant shall describe in detail the benefits relied upon. The benefits of the project shall consist of social and economic benefits that remain after taking into consideration the known and potential social and economic harms of the project and shall also consist of the environmental benefits of the project, if any.

 (e)  Identification of harms and benefits. Known and potential harms and benefits of a proposed project may also be identified by the Department or any other person or municipality.

 (f)  Need. The description required by subsections (c) and (d) may include an explanation of the need for the facility, if any. Simply adding new capacity does not establish need for a facility.

 (g)  Evaluation. After consultation with other appropriate agencies and potentially affected persons, the Department will evaluate the environmental assessment in Phase I of permit review or otherwise prior to technical review.

 (h)  Revision. The Department may require submission of a revised environmental assessment if additional harms or potential harms are discovered during any phase of permit application review.

Source

   The provisions of this §  271.127 adopted April 8, 1988, effective April 9, 1988, 18 Pa.B. 1681; amended October 9, 1992, effective October 10, 1992, 22 Pa.B. 5105; amended December 22, 2000, effective December 23, 2000, 30 Pa.B. 6685. Immediately preceding text appears at serial pages (225996) and (248213) to (248214).

Notes of Decisions

   Constitutionality

   The Environmental Quality Board’s regulations adopting a Harm/Benefits Test as part of the permitting process for waste disposal facilities does not exceed the Commonwealth’s police power; a determination of a project’s inherent harms and benefits is reasonably necessary in order to determine whether a potentially dangerous project should be granted a permit in a heavily regulated industry. Eagle Environmental II, L. P. v. Department of Environmental Protection, 884 A.2d 867, 883 (Pa. 2005).

   The inclusion of implementation of PA. CONST. ART I, Sec. 27 as an express purpose of the Storm Water Management Act (33 P. S. § §  6018.101—6018.1003) indicates that the Legislature intended to authorize the balancing of environmental harms against social and economic benefits. Therefore, the harms/benefits test of the regulations comport with the Constitution. Tri-County Industries, Inc. v. Department of Environmental Protection, 818 A.2d 574 (Pa. Cmwlth. 2003).

   Delegation

   The General Assembly made the ‘‘basic policy choice’’ and its will was merely carried out by the substantive rulemaking process. Therefore, the creation of the harms/benefits test of the regulations is a valid exercise of the rulemaking powers. Tri-County Industries, Inc. v. Department of Environmental Protection, 818 A.2d 574 (Pa. Cmwlth. 2003).

   Department Requirement

   The Department erred by issuing a permit to a landfill operator without requiring the operator to include the potential harm of bird hazard in its environmental assessment. Leatherwood, Inc. v. Department of Environmental Protection, 819 A.2d 604 (Pa. Cmwlth. 2003).

   Economic Benefits

   Where the Department determined that the faster payment of fees would economically benefit the local municipalities, that determination is entitled to great deference; therefore, it was an error of law for the Environmental Hearing Board to determine that the increase in host fees did not represent an economic benefit. Browning-Ferris Industries v. Department of Environmental Protection, 819 A.2d 148 (Pa. Cmwlth. 2003); appeal granted in part 893 A.2d 67 (Pa. 2006).

   Harms/Benefits; Standards

   Department of Environmental Protection’s failure to complete the ‘‘harms/benefits’’ part of its analysis before turning to the technical review of application seeking modification of solid waste permit had no material effect on its grant of permit application; purpose of regulation providing the environmental assessment be conducted prior to technical review was to save time and resources, and consideration of technical aspects of landfill was necessary to fully evaluate harms and benefits. Berks County v. Department of Environmental Protection, 894 A.2d 183, 193 (Pa. Cmwlth. 2006).

   There is no rule or mandatory requirement in the Department of Environmental Protection’s (DEP) regulation which precluded it from offering permittee an opportunity to submit additional information to address an issue raised during the review process; DEP did not view it as fair or proper to deny the entire application based on concerns identified after it began drafting its ‘‘harms/benefits’’ analysis as fairness required expending an opportunity to permittee to respond. Berks County v. Department of Environmental Protection, 894 A.2d 183, 194 (Pa. Cmwlth. 2006).

   Issue of whether certain benefits were sufficiently related to landfill expansion project to warrant consideration in the Department of Environment Protection’s harms/benefits analysis was waived for appeal where County had opportunity to raise issue before the Environmental Hearing Board but failed to do so. Berks County v. Department of Environmental Protection, 894 A.2d 183, 205 (Pa. Cmwlth. 2006).

   In determining whether to issue permit to expand solid waste landfill, the Department of Environmental Protection properly considered permittee’s clean-up of nearby stream and uncontrolled dumps as a benefit in conducting the harms/benefits analysis. Berks County v. Department of Environmental Protection, 894 A.2d 183, 205 (Pa. Cmwlth. 2006).

   County’s claim that clean-up and waste services offered by applicant for landfill expansion permit to municipalities surrounding the landfill were imporperly considered by the Department of Environmental Protection and the Environmental Hearing Board because the benefit was neither quantified in a dollar amount nor enforceable by contract; there was no requirement that all of the benefits or harms of the project be quantified in a dollar amount and provision of the services was enforceable by the Department through the permit. Berks County v. Department of Environmental Protection, 894 A.2d 183, 204 (Pa. Cmwlth. 2006).

   Since there is no enunciated standard by which benefits must clearly outweigh the harms, the standard may be met where the benefits outweigh the harms by a mere scintilla, so long as proof is provided with the high degree of certainty. Browning-Ferris Industries v. Department of Environmental Protection, 819 A.2d 148 (Pa. Cmwlth. 2003); appeal denied 541 A.2d 1139 (Pa. 1988).

   Validity

   The statutes reflect the General Assembly’s clear intent to regulate every aspect of waste disposal, and the language of the relevant acts clearly conferred broad supervisory power to the Environmental Quality Board. This power is broad enough to encompass the harms/benefits test contained in duly promulgated regulations. Tri-County Industries, Inc. v. Department of Environmental Protection, 818 A.2d 574 (Pa. Cmwlth. 2003); appeal granted 835 A.2d 706 (Pa. 2003); aff. 884 A.2d 867 (Pa. 2005).

Cross References

   This section cited in 25 Pa. Code §  271.201 (relating to criteria for permit issuance or denial); 25 Pa. Code §  273.140 (relating to daily volume); 25 Pa. Code §  277.139 (relating to daily volume); 25 Pa. Code §  279.111 (relating to daily volume); 25 Pa. Code §  281.123 (relating to daily volume); and 25 Pa. Code §  283.114 (relating to daily volume).



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