As the coronavirus (COVID-19) pandemic continues, state government agencies are increasingly responding with closures and cancellations. In Pennsylvania, the Department of Environmental Protection recently cancelled seven highly anticipated public hearings.
A Pennsylvania Department of Environmental Protection (DEP) representative recently advised that the DEP opted to permanently cancel seven public hearings due to uncertainty about when restrictions related to COVID-19 will end. The public hearings concerned three issues: (1) the Mariner East 2 pipeline project; (2) proposed standards for cleaning up per- and polyfluoroalkyl substances (PFAS); and (3) draft air quality plan approvals to Sunoco Partners for the Marcus Hook Industrial Complex in Delaware County. With DEP staff working remotely and prioritizing “issues critical to public health and safety,” industry groups and the public should anticipate further cancellations in the coming weeks.
The DEP is not legally required to hold public hearings on all proposals under its purview. While the DEP must accept public comment under most circumstances, its governing regulations reserve mandatory public hearings for only the most significant matters. The COVID-19 pandemic has highlighted this distinction in real time.
Although the DEP will accept only written comments on those topics subject to cancelled public hearings, it announced a virtual public hearing on a proposed change to Pennsylvania’s implementation plan under the federal Clean Air Act. The proposed change—a revision titled Certification of Pennsylvania’s Submittal of All Case by Case Reasonably Available Control Technology Determinations and Averaging Plans to the US Environmental Protection Agency for the 1997 and 2008 8-Hour Ozone National Ambient Air Quality Standard—would certify that enforceable measures in DEP permits address US Environmental Protection Agency air-quality requirements.
Importantly, there is no legal distinction between comments received during public hearings versus comments submitted in writing. The DEP has accordingly sought to assure interested entities and individuals that comments received “in public hearings are treated just the same as comments that are received through other means.”
Parties affected by the cancelled public hearings should familiarize themselves with the public comment deadlines for these matters:
As the DEP and other state agencies take steps to stem the spread of COVID-19, we will continue to monitor and report on these developments.
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers: