1. COMMENT RESPONSE DOCUMENT
      2. SUBSTANTIAL REVISION OF
      3. DOCUMENT 012-0200-001
      4. INFRASTRUCTURE”
      5. DEPARTMENT OF ENVIRONMENTAL PROTECTION
      6. POLICY OFFICE
      7. AUGUST 2009
      8. List of Commentators

COMMENT RESPONSE DOCUMENT
SUBSTANTIAL REVISION OF
DOCUMENT 012-0200-001
“POLICY FOR CONSIDERATION OF LOCAL COMPREHENSIVE PLANS AND
ZONING ORDINANCES IN DEP REVIEW OF PERMITS FOR FACILITIES AND
INFRASTRUCTURE”
DEPARTMENT OF ENVIRONMENTAL PROTECTION
POLICY OFFICE
AUGUST 2009

List of Commentators
1
George Ellis, President
PA Coal Association
212 North Third Street
Suite 102
Harrisburg, PA 17101
717-233-7900
2
Michael Jones-Stewart, PG
EADS Group
15392 Route 322
Clarion, PA 16214
814-764-5050
Fax – 814-764-5055
mjones@eadsgroup-clarion.com
3
Jerry S. Walls, AICP
Professional Planner
1950 Eldon Road
Montoursville, PA 17754
570-323-2760
Cell – 570-419-1771
jerry@jwallsaicp.com
4
Judith L. Schwank
10,000 Friends of Pennsylvania
200 North Third Street, 4th Floor
Harrisburg, PA 17101
717-234-6070 phone
717-234-6075 fax
jschwank@10000friends.org
5
Peter Slack
Government Relations Associate
PA Municipal Authorities
Association
1000 North Front St.
Wormleysburg, PA 17043
www.municipalauthorities.org
6
Kathy L. Pape
National Association of Water
Companies
PA Chapter
800 West Hershey Park Drive
P O Box 888
Hershey, PA 17033-0888
717-531-3200
Kathy.Pape@amwater.com
7
David Wills
Pa Turnpike Commission
8
Grant Gulibon, Regulatory
Specialist
PA Builders Association
600 North 12
th
Street
Lemoyne, PA 17043
717-730-4380 x 3013
ggulibon@pabuilders.org
9
Steven Tagert
American Water Works
Association
PA Section
1309 Bridge Street
New Cumberland, PA 17070
717-774-8870
setagert@aquaamerica.com
10
Steven Tagert
AQUA Pennsylvania Inc
762 W. Lancaster Ave
Bryn Mawr, PA 19010
610-645-4290
setagert@aquaamerica.com
11
Aurel Arndt
Lehigh County Authority
1053 Spruce Street
P O Box 3348
Allentown, PA 18106-0348
610-398-2503
service@lehighcountyauthority.org
12
Edward R. Vogel
Vogel Holdings, Inc
P O Box 847
Mars, PA 16046
724-265-1511
13
Mary Gattis-Schell
Senior Environmental Planner
Lancaster Co. Planning
Commission
150 North Queen Street
Suite 320
Lancaster, PA 17603
717-299-8333
Fax – 717-295-3659
GattisM@co.lancaster.pa.us
14
Marcellus Shale Committee
Independent Oil and Gas
Association of PA
PA Oil and Gas Association
115 VIP Drive
Suite 210
Wexford, PA 15090
724-933-7306
Fax - 724-933-7310
www.PAMarcellus.com

SECTION I A: EVALUATION OF CONSISTENCY
Comments
:
The commentator requested clarification regarding the DEP’s role in making a determination of
consistency among county and municipal comprehensive plans and zoning ordinances.
The commentator also requested clarification on the length of time required to do a land use review in the
event a potential land use conflict is determined. (8)
Response:
The PA Municipal Planning Code requires consistency among these documents and therefore,
consistency is presumed. DEP requests that the municipality confirm consistency in the Municipal Land
Use Letter.
Land use conflicts that emerge as a result of DEP’s Land Use policy are reviewed on a case by case basis.
In general, the Office of Community Revitalization and Local Government Support endeavors to provide
the DEP regional office or district mining office with a response within 30 days of receipt of the
information related to the land use conflict.
SECTION I A: DEP’s AUTHORITY TO RELY UPON COMPREHENSIVE PLANS AND ZONING
ORDINANCES
Comment
:
The Commentator asserts that DEP does not have the authority to rely upon comprehensive plans because
they are guidance documents, not controlling operative documents. (8)
Response:
The term "rely upon" is not defined in Acts 67, 68 and 127 of 2000. The department interprets the
statutory language "may rely upon" to give the Department discretion as to how to rely upon planning and
zoning in its authorizations. DEP does not interpret the law to authorize the department "to rely" solely
upon a comprehensive plan because comprehensive plans do not have the same force of law as zoning
ordinances.
SECTION I B – PREEMPTION OF LOCAL AUTHORITY TO REGULATE CERTAIN ACTIVITIES
Comments
:
As presently drafted, the proposed Land Use Policy provides only general reference to preemption of
local regulation for certain activities. Except for a brief reference to mining activities, the proposed
Policy does not define which activities municipalities can or cannot regulate. Further, the proposed
Policy does not provide any guidance on how to address preemption situations or how the Policy’s
procedures should be applied where a municipality asserts “inconsistency” based on a plan provision or
ordinance which is preempted by state or federal law.

We believe that the proposed Policy should more accurately describe and define the “activities” and
should describe the scope of preemption based on both Pennsylvania statutes and case law. Specifically,
the proposed Policy should set forth the scope of preemption for local regulation of oil and natural gas
operations.
Allowing a municipality to assert that a proposed project violates a local regulation permits a municipality
to utilize the Land Use Policy as a “back door” method to assert and enforce regulations that are
otherwise preempted by state law. Under the proposed policy, DEP is not required to review the validity
of the regulation that the municipality is asserting is violated.
The prospects of such delay, and its attendant effect in derailing projects, would effectively allow
municipalities to hijack the state permitting process in order to gain leverage in achieving local regulatory
objectives that they are otherwise barred by statutory preemption provisions. (14)
Response:
DEP disagrees with the Commentator’s analysis of the law and the proposed revisions to the policy. The
Pennsylvania Supreme Court recently interpreted section 602 of the Oil and Gas Act, which preempts
certain municipal ordinances that purport to regulate oil and gas well operations that are regulated by the
Act. Pursuant to the Court’s holding in Huntley & Huntley v. Oakmont Borough, 964 A.2d 855(Pa.
2009) it is clear that the Act’s preemption of municipal ordinances does not extend to all aspects or oil
and gas well siting and drilling. As such, the department believes that municipal ordinances that regulate
activities which are permitted through statutes other than the Oil and Gas Act are not preempted. Finally,
the department does not believe it is appropriate for the Department to adjudicate the validity of
municipal ordinances as part of the permit review process.
SECTION II – AUTHORIZATIONS SUBJECT TO THE LAND USE POLICY
Comments
:
The following comments were received with regard to authorization applications that are subject to DEP’s
Land Use Policy:
1) Why does this Policy NOT apply to other types of Natural Gas facilities – e.g. brine treatment or
pretreatment facilities; Compressor Stations, Pipelines, etc.? (3)
2) We would strongly recommend that the Department reconsider the types and numbers of authorization
actions that are subject to this policy, particularly those situations where existing water, sewer, or
stormwater facilities are being upgraded to comply with changing regulatory requirements or are being
repaired/replaced/rehabilitated as part of an ongoing infrastructure asset management plan. (5)
3) Will this be enforced for all construction permits (including “Major” and “Minor” permits)? For
example, adding or replacing a pump in an existing booster station, painting an existing water tank,
installing a water main along a state road that DEP considers a “transmission main,” or installing a water
main under a stream. (6) (9) (10) (11)
4) Will this essentially become a “de facto” requirement for all State PWS(s) to obtain local approval of
all PWS projects? (6) (9) (10)

5) What will occur with utilities that are regulated under the Public Utility Commission (PUC)? In some
instances, provisions of the zoning ordinance don’t apply if the utility obtains a certificate from the PUC
that the project is unnecessary for the convenience and welfare of the public. (9) (10)
Response:
The list of authorization applications that are affected by the DEP’s Land Use Policy is included in
Appendix A of the policy. The list was developed to address those authorization applications that are for
facilities and infrastructure, and DEP programs have decided which authorizations are included in
Appendix A based on this criteria. If an authorization application is required for the construction or
operation of facilities referenced above, DEP’s Land Use Policy shall apply.
The purpose of this policy is to avoid or minimize conflict with local land use decisions. DEP depends on
input from the municipalities and the counties to alert the agency to these conflicts. If a project, such as a
public water system, requires a permit from Appendix A, DEP does not make the determination as to
whether or not a zoning issue exists but rather depends on the local municipality to inform us of such,
including whether or not the project is subject to the zoning ordinance.
Comment:
The Revised policy perpetuates different treatment for municipal waste facilities as opposed to other
facilities that must be rectified. This concept was continued in the current policy with respect to most
facilities, including residual waste landfills. However, municipal waste landfills are treated differently as
the Policy also applies to applications for “Increased Capacity/ADV/MDV” that do not involve new
acreage. There is no legal justification for implicating a Land Use Policy where the application does not
change the use of the land already permitted and does not involve any additional acreage. For example,
for areas already permitted, a request to increase the ADV does not effect any change in the use of the
land. The revised Policy must be amended to provide that the Policy is effective only as to applications
for new municipal waste landfills or major modifications for acreage not previously permitted. (12)
Response:
DEP has addressed these concerns by modifying Appendix A. Where appropriate, the permit description
in Appendix A has been revised to read as follows: “Expansion of Increased Capacity/Acreage” for both
municipal and residual waste permits.
Comment
:
DEP has recently framed proposals for further streamlining the permitting process for oil and gas
activities, including Marcellus Shale projects. As part of that concept, DEP and the Governor’s Office
have proposed to shift to a “permit by rule” process for erosion control and stormwater permitting. Such
a permit by rule process is to focus on assuring that best management practices (“BMPs”) and other
environmental protection standards (such as buffers in special protection watersheds) are implemented.
However, if the permit by rule process is to be effective as a streamlining procedure, it cannot become
bogged down by invoking the Land Use Policy, where municipalities will attempt to attain through the
“back door” of “consistency comments” what they cannot impose through the “front door” of local
regulations because of the Oil and Gas Act’s preemption provisions. (14)

Response:
Permits by rule have never been subject to DEP’s Land Use Policy. Please refer to Section II B of the
Land Use Policy.
SECTION III – LAND USE INFORMATION: REVISIONS TO QUESTIONS ON THE GENERAL
INFORMATION FORM
Comment:
With regard to the Land Use Information section of the GIF, we are uncertain of the direction provided in
the policy with respect to the responses to Questions 2, 3, and 4. As written, it states that the answers to
all of those questions must be YES in order for the MPC provisions to be applicable. Is that the intent, or
is it intended that the MPC is applicable if any of the answers to those questions is YES. (7)
Response:
Please refer to APPLICABILITY - 1) through 3) of the Land Use Policy for clarification regarding this
question. DEP has also provided additional clarification in the General Information Form (GIF) Land
Use Information Section.
If the applicant answers NO to any of the questions, the provisions of the PA MPC are not
applicable and the applicant does not need to respond to additional questions in the Land Use
Information section of the GIF.
If the applicant answers YES to questions 1, 2 and 3, the applicant must respond to additional
questions in the Land Use Information section of the GIF.
Comment:
DEP should consider adding the following language in Section A, page 4 of the November 15, 2008 draft
immediately after question 4:
If the Applicant answers NO to either Question 2, 3, or 4, the MPC provisions are not applicable. (12)
Response:
DEP agrees that this proposed language provides additional clarification and has incorporated similar
language into the GIF.
Comment:
Page 11, Appendix B (Land Use Letter from County)
Question #2, add “If yes, please provide date of adoption”
Question #3, add “If yes, please provide date of adoption” (13)
Response:

DEP agrees that this proposed language provides additional clarification and has incorporated similar
language into the sample County and Municipal Land Use Letters.
Comment:
Question #5, Is the proposed project consistent with zoning, yes or no; If zoning approval is required,
please explain and attach relevant documentation.
We have seen a number of these forms come through with incorrect answers about multi-municipal plans
in the past. By asking for the date of adoption, we can have more assurance that the person filling out the
form has referenced the correct plan. (13)
Response:
DEP has received numerous comments regarding the questions on the sample Municipal Land Use Letter
related to zoning and has made revisions to the GIF questions and the sample Municipal Land Use Letter
to provide clarification to the applicant and the municipality.
SECTION III – LAND USE INFORMATION - MUNICIPAL AND COUNTY LAND USE LETTERS
Comments:
DEP received numerous comments regarding the provisions of Section III – Land Use Information –
Municipal and County Land Use Letters. (1) (2) (5) (6) (8) (9) (10) (11) (12)
A summary of these comments is as follows:
1) In the draft policy revision, applicants are requested to notify affected counties and municipalities
twice. All commentators preferred a single process for notification.
2) Commentators expressed concerns regarding potential delays in construction schedules as a result of a
two-step process for obtaining County and Municipal Land Use Letters. Most believe this places an
unfair burden on industry.
3) Several commentators requested clarification from DEP on the process if no response is received
from a county or municipality in response to the applicant’s request for Land Use Letters.
4) Commentators requested that DEP consider allowing an early opt out provision that was included in
the previous Land Use Policy (March 6, 2004).
Response:
DEP notes that the majority of these comments are related to concerns about potential project delays that
may result from a proposed two-step notification process and lack of response from the host municipality
or county.
As a result of the comments received, DEP has made several revisions to the Land Use Policy in an effort
to both streamline and clarify the process involved in obtaining County and Municipal Land Use Letters
from the municipality and county. The majority of changes are reflected in Section III B of the Land Use
Policy.

DEP has condensed the County and Municipal Land Use Letter request to one step for the Applicant. The
department has also clarified the three options available to the Applicants in the Land Use Policy, one of
which remains an early opt-out provision.
Comment:
We recommend that, instead of relying entirely on letters from county and local governments, the policy
should be amended to allow citizens to weigh in on the process. The document should acknowledge that
any citizen or citizens’ organization may submit a letter to DEP alleging that a proposed project is
inconsistent with county and local plans and ordinances. The receipt of such a letter should not
automatically trigger a DEP land use review. However, if a citizen’s letter makes a reasonable case for
inconsistency, DEP should recognize a potential land use conflict and initiate a land use review in
accordance with Section IV of the policy. (4)
Response:
Acts 67, 68 and 127 of 2000 amended the Pennsylvania Municipalities Planning Code (PA MPC) to
provide new tools for local governments to plan for and manage growth. Section 1105 of Act 67 of 2000
and Section 619.2 of Act 68 directs that state agencies “shall consider and may rely upon comprehensive
plans and zoning ordinances when reviewing applications for the funding or permitting of infrastructure
or facilities.” The purpose of DEP’s Land Use Policy is to provide direction and guidance to DEP staff,
applicants, and local and county governments for the implementation of Acts 67, 68 and 127 of 2000 of
the PA MPC.
DEP’s Land Use Policy provides local governments the opportunity to assert land use conflicts to DEP in
a manner that is consistent with the authority expressed in the PA MPC. It is DEP’s opinion that county
and municipal governments maintain the sole responsibility of asserting land use conflicts to DEP with
regard to the Land Use Policy.
There are opportunities for the public to provide comment during the permit review process. Notices and
decisions of applications for permits are published in the Pennsylvania Bulletin. The public has an
opportunity to provide comment to DEP during the permit review period. Further, the public is
encouraged to make municipalities aware of their concerns about land use before and during the
permitting process.
SECTION III – LAND USE INFORMATION – MUNICIPAL AND COUNTY LAND USE
LETTERS: ESTABLISHING LAND USE CONFLICTS BASED ON INFORMATION FROM THE
COUNTY AND MUNICIPALITY
Comments:
If DEP receives responses from the municipality and the county indicating that: (1) both the county and
municipality have comprehensive plans; (2) the proposed project is not consistent with these plans; and
(3) the proposed project has not received municipal zoning approval, DEP permitting staff shall recognize
a potential land use conflict and follow the instructions in Section IV of this policy.
As this is written, it is not clear if an alleged inconsistency from
either
the county
or
the municipality
would trigger the land use review process, or if
both
must object before a review would be conducted. We
recommend revising the paragraph to make it clear that an objection from
either
the county
or
the

municipality would trigger a land use review. We feel this is important because we can imagine many
instances in which the county would allege inconsistency, but not the municipality, or vice versa. (4)
Response:
A land use review is initiated if both of the following factors are present:
1) The county has a comprehensive plan, the municipality has a comprehensive plan, and the
municipality has a zoning ordinance; AND
2) The municipality has asserted that there is a land use conflict related to inconsistency with their
zoning ordinance.
Comment:
Obtaining letters may also create difficulties if the county does not concur but the municipality does
concur (or vice versa). Traditionally, the county only recommends action on the part of municipal
planning commissions, which can choose to ignore the recommendation of the county. (6) (9) (10) (11)
Response:
DEP does not interpret the law to authorize our agency “to rely” solely upon a comprehensive plan,
because comprehensive plans do not have the same force of law as zoning ordinances.
Comment:
Commentator suggests changing “and” to “or” between (2) and (3) in the Municipal and County Land
Use Letter. Thus, the sentence would read “When DEP receives Municipal and County Land Use Letters
which confirm that: (1) both the county and municipality have comprehensive plans; (2) the proposed
project is not consistent with these plans; OR (3) the proposed project has not received municipal zoning
approval, DEP permitting staff shall recognize a potential land use conflict and a land use review will
commence in accordance with Section IV of this policy.” (13)
Response:
DEP does not interpret the law to authorize our agency “to rely” solely upon a comprehensive plan,
because comprehensive plans do not have the same force of law as zoning ordinances.
SECTION III –LAND USE INFORMATION: DEPARTMENT’S REQUEST FOR PROOF OF
ZONING APPROVAL
Comments:
DEP received numerous comments regarding the information requested in the Municipal Land Use Letter
related to zoning approval. A variety of scenarios may pertain to a given project with regard to zoning
and commentators expressed concerns that these scenarios were not accurately reflected in the Municipal
Land Use Letter. In particular, several commentators stated that there will be instances in which there is
no zoning approval requirement if the project complies with the zoning ordinance, and thus the policy as
drafted would be unworkable in certain situations. With regard to project sponsors obtaining “Zoning
Approval”, some commentators suggested that the policy be clarified to allow for simple documentation

that the local zoning officer agrees that the project meets local zoning requirements (as opposed to
requiring formal approval by the local zoning hearing board). (3) (5) (6) (8) (9) (10) (11)
Response:
DEP has considered all comments regarding the range of scenarios that can exist with zoning, and has
made revisions to the GIF questions and the sample Municipal Land Use Letter to provide clarification to
the applicant and the municipality.
DEP agrees that a project may have already received zoning approval, a project may not need zoning
approval, or a project may be awaiting zoning approval. The Land Use Policy has been clarified in
Section III, and supporting documentation (GIF, Sample County and Municipal Land Use Letters) have
been revised to address these conditions.
SECTION IV – LAND USE REVIEW PROCESS
Comments:
Once a potential land use conflict is recognized under its provisions, DEP proceeds to Section IV, “Land
Use Review Process,” which includes only a “consult” with Regulatory Counsel, the regional manager or
district mining manager, leaving DEP with the following options: (i) suspend review of the application;
(ii) approve it; (iii) approve it with appropriate recommended conditions (not explained); or (iv) deny the
authorization. In each case the decision will be made in light of information provided by the Office of
Community Revitalization and Local Government Support, which might leave some project leaders with
the impression that an operator’s legal rights and regulatory compliance carry less weight than local
predisposition to the project. (1)
While the steps identified are logical one MAJOR step is missing. An appropriate DEP Staff should
contact the County Planning Agency directly to better understand the nature and specifics of a land use
conflict and options available BEFORE determining which option DEP should utilize. (3)
Response:
The Department has included the following in Section IV – LAND USE REVIEW PROCESS:
3. Coordinate with the applicant, county, or municipality, as appropriate.
Comment:
The commentator strongly disagrees with the elimination of the following language from the revised
Policy, citing that language provides clear direction to staff, applicants, municipalities, and the public that
in making permit decisions, DEP would not rely upon information from municipalities that do not meet
the threshold requirements for applicability of the Land Use Policy and the provisions of the
Municipalities Planning Code (“MPC”) upon which it is based. The elimination of this language creates
an ambiguity where one did not exist beforehand. (12)
Section V.A.: Where a municipality or county has identified a conflict with a project located in a
municipality that does not meet the above requirements, DEP cannot rely upon the information provided
by the municipality or county when making permitting decisions. DEP will notify the Governor’s Center

for Local Government Services that the county or municipality has concerns with the project but that the
comprehensive plans and zoning ordinances do not meet the requirements of Acts 67, 68 and 127.
Response:
DEP does not believe removing this language creates ambiguity, nor is it the agency’s intent to create
confusion where it did not exist beforehand. Based on the review and management of land use cases over
the past several years, DEP has contacted municipalities directly to inform them of instances where the
requirements of Acts 67, 68 and 127 were not met.
OTHER COMMENTS:
Comment:
Section 608.1 of the Municipal Planning Code was created in the MPC when Acts 67 and 68 were passed
to establish rights, responsibilities and notifications for projects involving expansion of water systems,
sewer systems and stormwater systems across municipal boundaries. We recommend that the provisions
of Section 608.1 be reflected within this DEP policy. (5)
Response:
Section 608.1 of the Municipalities Planning Code does not relate to the activities of DEP. Including it in
the Policy is unnecessary.
Comment:
Given that the Pennsylvania Turnpike Commission (PTC) roadway traverses the multitude of counties
and municipalities noted above, we believe it to be inappropriate and unwieldy for the PTC to be
complaint with the many zoning requirements. While Penn Dot is expressly exempt from compliance
with MPC, the PTC was not included in that exemption. In addition, we believe the PTC pre-dated many
of the counties’ and municipalities’ planning and zoning requirements, i.e., as a pre-existing condition we
should be exempted. In fulfilling the mandate of the PTC’s enabling legislation, to build and maintain a
safe highway system, we believe we should be exempt from local requirements. Also, in order to the
PTC to fulfill the mandates established in Acts 61 and 26, directives from the state legislature, we believe
the intent was to provide the PTC with the authority to undertake such actions free of requirements from
each local jurisdiction. (7)
Response:
DEP’s position is that the Pennsylvania Turnpike Commission is subject to the provisions of the Land
Use Policy.
Comment:
The draft Land Use Policy indicates that except for “disposal wells,” oil and gas well drilling and
alteration permits
per se
are not among the list of permits triggering the policy, then proceeds to list a
series of other related permits, including “NPDES Permits” for stormwater, as necessitating application of
the policy’s municipal notification and land use plan/zoning ordinance consistency procedures.
At the outset, we note that under the express provisions of the Federal Clean Water Act, almost all oil and
gas drilling and development activities are exempt from the requirement to obtain NPDES stormwater
permits – and hence, the reference to NPDES permits in this context appears to be inappropriate. (14)

Response:
DEP no longer requires NPDES permits for uncontaminated stormwater discharges from oil and gas
exploration, production, processing, or treatment operations or transmission facilities. Accordingly,
NPDES permits have been removed from the Oil and Gas Management Program list of authorization
applications in Appendix A.
Instead, DEP requires stormwater discharges from these facilities and activities to be permitted under the
Erosion and Sediment Control General Permit (“ESCGP-1”). This permit is authorized pursuant to the
Clean Streams Law and 25 Pa. Code Chapter 91. ESCGP-1 is not on the list of affected authorization
applications in Appendix A.
Comment:
Vogel Holdings objects to the changes reflected in this revised policy being made effective to applications
pending as of the date this Policy is published in the Pennsylvania Bulletin. The Policy should only be
applicable to applications first submitted after the effective date of publication in the Pennsylvania
Bulletin. Otherwise, pending applications will be disrupted as applicants attempt to comply with a
retroactively applicable policy. The effect would be particularly unfair in light of the mandatory
requirement for applicants to provide, with the application and GIF, letters from the host municipality and
county planning agency stating whether or not the application is consistent with the applicable
comprehensive plans and zoning ordinances. (12)
Response:
DEP’s Land Use Policy will apply to all new applications received on or after the effective date of the
final revision of the Land Use Policy as published in the PA Bulletin.

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