The implications of Act 46
Signed into law on July 6th, 2010, the Permit Extension Act, also known as Act 46, will benefit the developers of shale drilling operations by changing the terms by which they keep the permits allowing them to operate. The main effect of Act 46 is to automatically extend approval of permits for a three year period, through July of 2013.
The automatic approvals apply to any permits ending between now and 2013 as well as any permits granted during that time. The automatic approvals extend over a number of borough government statues, regulations and ordinances, including the Clean Streams Law and the Federal Water Pollution Control Act.
One of the most important facets of the Act 46 is that it effectively grandfathers in the permits, making them answerable only to laws passed before their enactment. "A law, regulation or policy," reads the act, "enacted, adopted or modified by a government agency during the extension period shall not have the effect of prohibiting or limiting an existing approval during the extension period."
In other words, local government agencies only have the power to enforce conditions of approvals granted before the enactment of Act 46. This effectively limits the power of borough governments to regulate existing drilling operations through the creation of new ordinances.
The way it works, is a company that has a permit or is seeking one, sends a letter of request to the appropriate borough council. This council then has 30 days to respond with its approval of the extension. If they do not respond within 30 days, the extension approval is granted automatically.
The new law changes the dynamics of permit enforcement by effectively placing the burden of proof of non-compliance on the shoulders of local government agencies. They must now prove wrongdoing in order to take action against a permit holder. In the past, when permits had to be renewed every year, the permit holder had the burden of justifying their operations when they appeared before local councils.
There are a number of minor exceptions to Act 46, most notably, the city of Philadelphia does not fall under its jurisdiction, and operations there must still renew permits. Also, the act doesn't limit the authority of government agencies to enforce the conditions under which approval was granted before January 1st, 2009.
However, Act 46 does limit the ability to enforce standards of water recycling and environmental protection by granting agencies authority to "enforce only those conditions in an approval, that are required to be performed prior to final plan approval." This means that agencies can only police what is on the books. If an accident or catastrophe or damage were incurred that was not specifically illegal at the time, agencies would have no power to pursue damages or rescind approvals.
Act 46 is only one of many similar bills changing the landscape of local government that have been passed recently by the State Congress. The state association of Township Supervisors and County Commisioners have issued statements opposing such changes insofar as they do not take into account local conditions.
When asked for his impression of Act 46's impact, Bill Caton the Press Secretary for Rep. Keith McCall answered, "There have been concerns noted that the bill could be perceived as overly friendly to developers and that it really takes local control away from the municipalities, but we're confident that oversight at the local and state level will still be effective."