State Agency Permitting

In response to the COVID-19 pandemic, the Pennsylvania Department of Environmental Protection (“PADEP”) recently announced the availability of a process for requesting temporary suspensions of environmental permitting and regulatory compliance obligations.  Regulated entities experiencing difficulties due to COVID-19 in meeting the terms and conditions of their environmental permits or complying with environmental regulatory provisions should consider submitting a form request to PADEP for relief.  Completed forms must be submitted to RA-EPCOVID19SuspReq@pa.gov.  While PADEP’s offices remain closed, program staff continue to work remotely to process submitted requests.

Unless a temporary suspension is granted
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Overview of Force Majeure
With COVID-19 headlines dominating the news cycle, and with no end in sight to the uncertainty that the virus brings, affected businesses are wise to consider whether the current pandemic qualifies as a “force majeure.”  In the last few weeks, the Chinese government has issued “force majeure certificates” to domestic businesses as a way of shielding companies from breach of contract claims, American businesses are sending mass e-mails to customers explaining that the virus prevents the company’s performance or operations, and businesses in an array of industries have sent formal inquiries to their service providers seeking confirmation of continued performance.

What is “Force Majeure”
The defense of force majeure will excuse a party’s performance under a contract if
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Please see below regarding the Governor’s order from our Government Relations and Labor & Employment Groups.  Do not hesitate to contact anyone at McNees with questions, including how this order might apply to your job site, project approvals or your office.  McNees is a full service law firm that remains operational, remotely and in compliance with the Governor’s order.  We are ready and able to continue to support our clients’ needs during this trying time.

UPDATE: Latest on Gov. Wolf’s Closure Order amid COVID-19 Outbreak

 As detailed in a special edition of Capitol Buzz sent on Thursday evening, Gov. Tom Wolf ordered all “non-life-sustaining” businesses throughout Pennsylvania to physically close their operations in response to the COVID-19 coronavirus outbreak. The new directive, which went into effect at 8 p.m. on Thursday evening, contains the threat of enforcement action
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**Updated 2/26/2020**

On December 7, 2019, the Pennsylvania Department of Environmental Protection (PADEP) reissued the general permit for stormwater associated with construction activities (PAG-02).  This general permit is routinely utilized in most real estate developments, solar farm installations, construction projects and other earth disturbance projects in the Commonwealth.  With the permit package, PADEP made substantial changes to the terms and conditions of the permit as well as the eligibility requirements to qualify for coverage under the general permit.  Importantly, the new permit automatically replaces any existing PAG-02 permit, however PADEP is requiring that permittees covered under a PAG-02 issued prior to December 7, 2019 certify whether they “remain eligible for and are able to comply with the terms and conditions of the reissued PAG-02 General Permit” in order to maintain coverage.  The acknowledgment is to be made electronically on or before March 9, 2020, and the form can be found here.

Permittees who are unable to certify that they remain eligible and able to comply with the new PAG-02 must nevertheless certify to that effect and submit an application for an individual NPDES permit on or before March 9, in which case general permit coverage under the new PAG-02 will continue until the individual permit is issued.  Failure to provide timely acknowledgement will result in termination of the permit coverage as of March 9, 2020.  Therefore it is critical that the acknowledgment be completed for all outstanding permits, or earthmoving activities will have to cease until a new permit is obtained.

The acknowledgment has raised many questions regarding
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The Pennsylvania Turnpike Commission, in consultation with the Pennsylvania Department of Transportation (PennDOT), is currently studying the viability of building a hyperloop tube that would transverse Pennsylvania from Pittsburgh to Harrisburg to Philadelphia and then northeast toward Scranton/Wilkes-Barre.  Pennsylvania House of Representatives Resolution 1057 authorized the Commonwealth to conduct a study for a hyperloop system that would facilitate the transportation of passengers and freight at speeds approaching 700 miles per hour in pods that move through low-pressure tubes.

House Resolution 1057 found that the concept of the hyperloop, first described by Elon Musk in 2012-2013, may no longer be a hypothetical notion, given the recent work of states and firms to study and develop the necessary technologies.  In 2018, transportation agencies in Ohio and Illinois announced a study involving a hyperloop that would connect Columbus, Ohio to Chicago, Illinois.  House Resolution 1057 explains that Elon Musk desires to build a hyperloop connecting New York City to Washington, D.C. with a projected travel time of 29 minutes with planned stops in Philadelphia and Baltimore.
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Real estate developers, construction businesses, engineers, and others involved in development projects are subject to numerous permitting and approval requirements under local, state, and federal regulatory programs.  For example, development projects in Pennsylvania involving earthmoving of more than one acre (i.e. most projects) must obtain a National Pollutant Discharge Elimination System (“NPDES”) permit for construction-related stormwater discharges, also known as PAG-02.  The current PAG-02 expires on December 7, 2019.  Recently, the Pennsylvania Department of Environmental Protection (“PADEP”) announced the availability of supporting documents, such as an updated Fact Sheet, and a comment period on the draft revised PAG-02.  The comment period is open until only September 16, 2019.

Anyone engaged in construction, real estate development, or similar operations should review the draft revised PAG-02 permit and supporting documents, and should consider submitting comments to PADEP.   PADEP anticipates the revised PAG-02 having an effective date of December 8, 2019.
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Our Energy and Environmental Practice Group issued a client alert today related to a rule released by the EPA and USACE that deals with “waters of the United States.”  The rule will impact land development and permitting.  The first two paragraphs of the article are reproduced below and additional details and the full text of

Earlier this year, Claudia Shank blogged about the revival of the Environmental Rights Amendment (the “ERA”) (available HERE) after the Pennsylvania Supreme Court’s decision in Pennsylvania Environmental Defense Fund v. Commonwealth, 161 A.3d 911 (2017).  The PEDF decision breathed new life into the 1972 amendment to the Pennsylvania Constitution, but also left many unanswered questions about the ERA.  The most relevant unanswered question for developers and municipalities was the meaning of the revived ERA in the land use context.  Last week, the Commonwealth Court provided some insight.

In Frederick v. Allegheny Twp. Zoning Hearing Board, 2018 Pa. Commw. LEXIS 593 (Commw. Ct. Oct. 26, 2018), the Court reviewed a substantive validity challenge to a zoning ordinance that permitted oil and gas wells by right in all zoning districts of a township.  In a 5 to 2 decision, an en banc panel rejected the challenge (and the accompanying land use appeal to a zoning permit) that was filed by objectors to an unconventional gas well project in a residential zoning district.  The Court dismissed the objectors’ argument that
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When you order something online, you can immediately begin tracking the package and continue to track it until it arrives at your doorstep. Imagine if the same process was possible with all state permit applications. That is what House Bill No. 1959 (the “Bill”) intends to do. The Bill, also known as the Permit Administration Act, would implement a tracking system for state permit applications. It would create an accessible tracking system for state permit applications that would allow applicants to see the status of their applications during each step of the process. The main goal of the Bill is to make the permit application process more transparent and to provide for more timely action on state permit applications.
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This post, which is the second in a two-part series exploring the scope of Pennsylvania’s Environmental Rights Amendment (the “ERA”), will delve deeper into the text of the ERA as analyzed and explained by the Pennsylvania Supreme Court in Pennsylvania Environmental Defense Fund (“PEDF”) v. Commonwealth, 161 A.3d 911 (Pa. 2017).

In PEDF, the Court ruled that the ERA grants citizens of the Commonwealth two distinct rights: 1) the right to clean air and pure water, and to the preservation of natural, scenic, historic and esthetic values of the environment; and 2) the right of common ownership by the people, including future generations, of Pennsylvania’s public natural resources. The Court noted that the first right, which comes directly from the text of the ERA itself, “places a limitation on the state’s power to act contrary to [the] right, and while the subject of the right may be amenable to regulation, any laws that unreasonably impair the right are unconstitutional.” Despite this declaration by the Court, the scope and meaning of the first right remains undefined. It remains to be seen how the courts will define “clean air” or “pure water” and even more intangibly, who will determine which “scenic” or “esthetic” values are worthy of preservation?
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