A Citizen's Right to Inititate Environmental Rulemaking in PA

Citizen’s Right to Initiate Environmental Rulemaking in Pennsylvania

By John R. Embick, Esq.  February, 2013

Co-Chair, CCBA Environmental Law Section

The process by which environmental regulations (e.g., 25 Pa. Code Chapter 102 (Erosion and Sedimentation Control rules and regulations)) are promulgated in our Commonwealth is somewhat unusual, in that a separate, independent Board (see 71 P.S. 180-1), known as the PA Environmental Quality Board (“PaEQB ”), and therefore not the PA Department of Environmental Protection (“PaDEP”), is responsible for creating rules and regulations which implement the mandates of our Commonwealth’s environmental statutes (e.g., the Clean Streams Law, 35 P.S. 691.1 et seq.).

The powers and duties of the PaEQB are set forth in section 1920-A of the Administrative Code of 1929, 71 P.S. 510-20.   Were you also aware that rulemaking may be initiated by private citizens by way of a petition process?  Section 1920-A(h), 71 P.S. 510-20(h), provides this right of petition to any person.

The PaEQB has created procedures to manage the petition process, and they are found at 25 Pa. Code Chapter 23.  A format for the petition has been developed, and it can be found on the PaDEP website.

The petition process has been used a number of times by persons and groups seeking to upgrade the classification of streams (e.g., from Cold Water Fishery class to High Quality or Exceptional Value class).  Stream reclassification, if successful, increases the level of protection afforded to those Waters of the Commonwealth.  The mere filing of such a petition (assuming it is accepted) can have significant consequences, as the PaDEP considers that the waters in question actually have the upgraded reclassification until such time as the petition is acted upon (the latter which can take many years).

Under the general petition procedures (there are different, specific procedures for various kinds of substantive rulemaking petitions), proposed petitions are submitted to PaDEP.  The Department then has 30 days to determine whether the petition is complete, or is not appropriate for presentation to the PaEQB.

In the event PaDEP determines that a rulemaking petition does not meet the submission standards, the rulemaking petitioners have 30 days to submit an amended petition.

In the event a rulemaking petition is determined to satisfy the requirements of the rulemaking petition regulations, the rulemaking petitioner is provided an opportunity to make a presentation on the proposed changes to the PaEQB.

The PaEQB then votes whether to accept the rulemaking petition.  The rulemaking petition procedures set forth various reasons for which the PaEQB may reject a rulemaking petition.  For instance, if a related matter is being litigated, or if the petition is not appropriate for rulemaking due to policy or regulatory considerations, or if the rulemaking petition involves an issue previously considered by the Board, or if the PaEQB considered the same issue within the last two years, the rulemaking petition may be rejected.

If the rulemaking petition is accepted by the PaEQB, the petition is then evaluated and the staff of PaDEP has 60 days to return to the Board with a recommendation to draft a regulation making the changes requested by the rulemaking petition, or to deny the requested regulatory change.

PaDEP’s recommendations are shared with the rulemaking petitioner, and the petitioner has an opportunity to respond to the PaDEP’s recommendations prior to the time when the PaEQB considers the PaDEP’s recommendations.

The PaEQB then decides to accept or reject DEP’s recommendations.  If the Department’s recommendations are accepted by the PaEQB, then additional and normal rulemaking procedures ensue (e.g, publication, public comment, etc.).