THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY DEASY, MUSTIO, VULAKOVICH, MATZIE, BRADFORD, DERMODY, FABRIZIO, FRANKEL, FREEMAN, GEORGE, MAHONEY, MELIO, MURPHY, READSHAW, CASORIO, MARSHALL, D. COSTA AND MURT, MAY 6, 2009

AS REPORTED FROM COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY, HOUSE OF REPRESENTATIVES, AS AMENDED, JUNE 29, 2010   

AN ACT

Amending Title 53 (Municipalities Generally) of the Pennsylvania

Consolidated Statutes, transferring provisions relating to

environmental advisory councils; providing for the

designation and regulation of geologically hazardous areas

throughout this Commonwealth to protect people and limit

property damage and the disruption of commerce from the

possible dangers associated with land development in areas

that are prone to landslides, sinkholes or other geologic

hazards; imposing duties and conferring powers on the

Department of Environmental Protection, the Department of

Conservation and Natural Resources and municipalities; and

providing for enforcement and remedies.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Subchapter B of Chapter 23 of Title 53 of the

Pennsylvania Consolidated Statutes is repealed:

[SUBCHAPTER B

ENVIRONMENTAL ADVISORY COUNCILS

Sec.

2321.  Scope of subchapter.

2322.  Establishment of environmental advisory council.

2323.  Composition and organization of council.

2324.  Powers and duties of council.

2325.  Records and reports.

2326.  Appropriations for expenses of council.

2327.  Status of existing agencies unaffected.

2328.  Assistance from State Conservation Commission.

2329.  Assistance from Department of Community and Economic

Development.

§ 2321.  Scope of subchapter.

This subchapter applies to all municipal corporations.

§ 2322.  Establishment of environmental advisory council.

The governing body of any municipal corporation or group of

two or more municipal corporations may by ordinance establish an

environmental advisory council to advise other local

governmental agencies, including, but not limited to, the

planning commission, park and recreation boards and elected

officials, on matters dealing with protection, conservation,

management, promotion and use of natural resources, including

air, land and water resources, located within its or their

territorial limits.

§ 2323.  Composition and organization of council.

(a)  Composition.--An environmental advisory council shall be

composed of no less than three nor more than seven residents of

the municipal corporation establishing the council, who shall be

appointed and all vacancies filled by the governing body. Where

two or more municipal corporations jointly establish an

environmental advisory council, the members shall be appointed

in the same manner by each of the respective municipal

corporations establishing the council, each constituent

municipal corporation to have equal membership on the joint

council.

(b)  Term of office.--Council members shall serve for three

years except that initial appointments shall be so staggered

that the terms of approximately one-third of the membership

shall expire each year, the terms of their successors to be of

three years each.

(c)  Compensation and expenses.--Members shall receive no

compensation for their services but shall be reimbursed for the

expenses actually and necessarily incurred by them in the

performance of their duties.

(d)  Chairman.--The appointing authority shall designate the

chairman of the council except that in joint councils the

chairman shall be elected by the duly selected members. Whenever

possible, one member shall also be a member of the municipal

planning board.

§ 2324.  Powers and duties of council.

(a)  General rule.--An environmental advisory council shall

have the power to:

(1)  Identify environmental problems and recommend plans

and programs to the appropriate agencies for the promotion

and conservation of the natural resources and for the

protection and improvement of the quality of the environment

within its territorial limits.

(2)  Make recommendations as to the possible use of open

land areas of the municipal corporations within its

territorial limits.

(3)  Promote a community environmental program.

(4)  Keep an index of all open areas, publicly or

privately owned, including flood-prone areas, swamps and

other unique natural areas, for the purpose of obtaining

information on the proper use of those areas.

(5)  Advise the appropriate local government agencies,

including the planning commission and recreation and park

board or, if none, the elected governing body or bodies

within its territorial limits, in the acquisition of both

real and personal property by gift, purchase, grant, bequest,

easement, devise or lease, in matters dealing with the

purposes of this subchapter.

(b)  Limitation.--An environmental advisory council shall not

exercise any powers or perform any duties which by law are

conferred or imposed upon a Commonwealth agency.

§ 2325.  Records and reports.

An environmental advisory council shall keep records of its

meetings and activities and shall make an annual report which

shall be printed in the annual report of the municipal

corporation or, if none, otherwise made known and available.

§ 2326.  Appropriations for expenses of council.

The governing body of any municipal corporation establishing

an environmental advisory council may appropriate funds for the

expenses incurred by the council. Appropriations may be expended

for those administrative, clerical, printing and legal services

as may be required and as shall be within the limit of funds

appropriated to the council. The whole or any part of any funds

so appropriated in any year may be placed in a conservation fund

and allowed to accumulate from year to year or may be expended

in any year.

§ 2327.  Status of existing agencies unaffected.

This subchapter shall not be construed to require a municipal

corporation to abolish an existing commission with a related

responsibility or to prevent its establishment.

§ 2328.  Assistance from State Conservation Commission.

The State Conservation Commission shall establish a program

of assistance to environmental advisory councils that may

include educational services, exchange of information,

assignment of technical personnel for natural resources planning

assistance and the coordination of State and local conservation

activities.

§ 2329.  Assistance from Department of Community and Economic

Development.

The Department of Community and Economic Development shall

establish a program of assistance to environmental advisory

councils in planning for the management, use and development of

open space and recreation areas.]

Section 2.  Title 53 is amended by adding a part to read:

PART VI

ENVIRONMENTAL MATTERS

Subpart

A.  Environmental Planning

B.  Special Considerations

SUBPART A

ENVIRONMENTAL PLANNING

Chapter

71.  Environmental Advisory Councils

CHAPTER 71

ENVIRONMENTAL ADVISORY COUNCILS

Sec.

7101.  Scope of chapter.

7102.  Establishment of environmental advisory council.

7103.  Composition and organization of council.

7104.  Powers and duties of council.

7105.  Records and reports.

7106.  Appropriations for expenses of council.

7107.  Status of existing agencies unaffected.

7108.  Assistance from State Conservation Commission.

7109.  Assistance from Department of Community and Economic

Development.

§ 7101.  Scope of chapter.

This chapter applies to all municipal corporations.

§ 7102.  Establishment of environmental advisory council.

The governing body of any municipal corporation or group of

two or more municipal corporations may by ordinance establish an

environmental advisory council to advise other local

governmental agencies, including, but not limited to, the

planning commission, park and recreation boards and elected

officials, on matters dealing with protection, conservation,

management, promotion and use of natural resources, including

air, land and water resources, located within its or their

territorial limits.

§ 7103.  Composition and organization of council.

(a)  Composition.--An environmental advisory council shall be

composed of not less than three nor more than seven residents of

the municipal corporation establishing the council who shall be

appointed and all vacancies filled by the governing body. Where

two or more municipal corporations jointly establish an

environmental advisory council, the members shall be appointed

in the same manner by each of the respective municipal

corporations establishing the council, each constituent

municipal corporation shall have equal membership on the joint

council.

(b)  Term of office.--Council members shall serve for three

years except that initial appointments shall be so staggered

that the terms of approximately one-third of the membership

shall expire each year, the terms of their successors shall be

three years each.

(c)  Compensation and expenses.--Members shall receive no

compensation for their services but shall be reimbursed for the

expenses actually and necessarily incurred by them in the

performance of their duties.

(d)  Chairman.--The appointing authority shall designate the

chairman of the council, except that in joint councils, the

chairman shall be elected by the duly selected members. Whenever

possible, one member shall also be a member of the municipal

planning board.

§ 7104.  Powers and duties of council.

(a)  General rule.--An environmental advisory council shall

have the power to:

(1)  Identify environmental problems and recommend plans

and programs to the appropriate agencies for the promotion

and conservation of the natural resources and for the

protection and improvement of the quality of the environment

within its territorial limits.

(2)  Make recommendations as to the possible use of open

land areas of the municipal corporations within the council's

territorial limits.

(3)  Promote a community environmental program.

(4)  Keep an index of all open areas, publicly or

privately owned, including flood-prone areas, swamps and

other unique natural areas, for the purpose of obtaining

information on the proper use of those areas.

(5)  Advise the appropriate local government agencies,

including the planning commission and recreation and park

board or, if none, the elected governing body or bodies

within the council's territorial limits, in the acquisition

of both real and personal property by gift, purchase, grant,

bequest, easement, devise or lease, in matters dealing with

the purposes of this chapter.

(b)  Limitation.--An environmental advisory council shall not

exercise any powers or perform any duties which by law are

conferred or imposed upon a Commonwealth agency.

§ 7105.  Records and reports.

An environmental advisory council shall keep records of its

meetings and activities and shall make an annual report which

shall be printed in the annual report of the municipal

corporation or, if none, otherwise made known and available.

§ 7106.  Appropriations for expenses of council.

The governing body of any municipal corporation establishing

an environmental advisory council may appropriate funds for the

expenses incurred by the council. Appropriations may be expended

for those administrative, clerical, printing and legal services

as may be required and as shall be within the limit of funds

appropriated to the council. The whole or any part of any funds

so appropriated in any year may be placed in a conservation fund

and allowed to accumulate from year to year or may be expended

in any year.

§ 7107.  Status of existing agencies unaffected.

This chapter shall not be construed to require a municipal

corporation to abolish an existing commission with a related

responsibility or to prevent its establishment.

§ 7108.  Assistance from State Conservation Commission.

The State Conservation Commission shall establish a program

of assistance to environmental advisory councils that may

include educational services, exchange of information,

assignment of technical personnel for natural resources planning

assistance and the coordination of State and local conservation

activities.

§ 7109.  Assistance from Department of Community and Economic

Development.

The Department of Community and Economic Development shall

establish a program of assistance to environmental advisory

councils in planning for the management, use and development of

open space and recreation areas.

SUBPART B

SPECIAL CONSIDERATIONS

Chapter

75.  Geologically Hazardous Areas

CHAPTER 75

GEOLOGICALLY HAZARDOUS AREAS

Subchapter

A.  Preliminary Provisions

B.  Agency and Municipal Responsibilities

C.  Enforcement and Remedies

D.  Miscellaneous Provisions

SUBCHAPTER A

PRELIMINARY PROVISIONS

Sec.

7501.  Short title of chapter.

7502.  Purpose.

7503.  Definitions.

§ 7501.  Short title of chapter.

This chapter shall be known and may be cited as the

Geologically Hazardous Areas Act.

§ 7502.  Purpose.

The purpose of this chapter is to:

(1)  Protect people and property from the dangers and

damage associated with earth disturbance activity in

geologically hazardous areas that may be prone to landslides

or sinkholes and other hazardous conditions, such as

hazardous rock and soil slippage, and other soil management

problems.

(2)  Recognize and minimize the man-made conditions that

increase the potential for:

(i)  Landslides and other gravity-driven movements of

susceptible rock and soil.

(ii)  Sinkhole development and related subsidence in

soluble units.

(iii)  Degradation of surface and groundwater

resources associated with the alteration of geologic

conditions.

(3)  Authorize a comprehensive and coordinated program to

regulate earth disturbance activity in geologically hazardous

areas using sound land use practices designed to prevent

damage to and destruction of private and public property and

structures, to prevent the disruption of commerce and

preserve and restore the natural ecological systems.

(4)  Encourage administration, management and stewardship

of geologically hazardous areas consistent with the

obligation to avoid the unnecessary expenditure of public

moneys, the Commonwealth's duty as trustee of natural

resources and the people's constitutional right to the

preservation of the natural, scenic, aesthetic and historic

values of the environment.

§ 7503.  Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Closed depression."  Part of the land surface on a site that

drains internally, has generally sunk to a variable depth and is

generally characterized by a downward movement of soil into

bedrock voids without breaking the ground surface.

"Department."  The Department of Environmental Protection of

the Commonwealth.

"Earth disturbance activity."  A construction or other human

activity that disturbs the surface of the land, including, but

not limited to, land clearing and grubbing, grading,

excavations, embankments, land development, agricultural plowing

or tilling cultivation, operation of animal heavy use areas,

timber harvesting activities, road maintenance activities, oil

and gas activities, well drilling, mineral or oil extraction and

<--

the moving, depositing, stockpiling or storing of soil, rock or

earth materials, provided, however, the term does not include,

<--

and this act does not regulate, any surface or subsurface

activities of any person or legal entity that is regulated by

the act of December 19, 1984 (P.L.1093, No.219), known as the

Noncoal Surface Mining Conservation and Reclamation Act, the act

of May 31, 1945 (P.L.1198, No.418), known as the Surface Mining

Conservation and Reclamation Act, the act of April 27, 1966 (1st

Sp.Sess., P.L.31, No.1), known as The Bituminous Mine Subsidence

and Land Conservation Act, or the act of September 24, 1968

(P.L.1040, No.318), known as the Coal Refuse Disposal Control

Act.

"Geologically hazardous area."  An area with geologic

formations or soil conditions, or both, that under natural

conditions or when disturbed are documented by a licensed

professional to be geologically susceptible to cause, or

historically have caused, a hazardous condition.

"Hazardous condition."  Any condition that may include, but

not be limited to, a mass earth movement, such as a soil and

rock slide, acid formation or sinkhole development, that:

(1)  has a negative environmental impact;

(2)  constitutes a danger or potential danger to life,

health or property; or

(3)  threatens the safety, use or stability of property,

public ways, structures or utilities.

"Karst."  A type of topography that is formed over limestone,

dolomite or gypsum by bedrock solution and characterized by

closed depressions or sinkholes, caves and underground drainage.

"Licensed professional."  A person licensed by the

Commonwealth in the applicable practice under the act of May 23,

1945 (P.L.913, No.367), known as the Engineer, Land Surveyor and

Geologist Registration Law.

"Sinkhole."  A surface feature that is:

(1)  formed in a karst area;

(2)  characterized by a roughly circular hole in the

ground of variable size and depth; and

(3)  the result of the movement of soil, rocks or similar

materials down into voids in the limestone bedrock or

regolith.

SUBCHAPTER B

AGENCY AND MUNICIPAL RESPONSIBILITIES

Sec.

7511.  Duties of Department of Conservation and Natural

Resources.

7512.  Geologic reports.

7513.  Duties of department.

7514.  Inspections.

7515.  Liability.

7516.  Conditioned approval by municipality.

7517.  Scope.

<--

§ 7511.  Duties of Department of Conservation and Natural

Resources.

(a)  General rule.--The Department of Conservation and

Natural Resources shall:

(1)  Develop techniques and criteria for mapping

geologically hazardous areas in this Commonwealth.

(2)  Identify and delineate geologically hazardous areas

in this Commonwealth.

(3)  Analyze:

(i)  The type and nature of rock and soil susceptible

to acid formation, a landslide, a sinkhole or development

of karst that may result in a hazardous condition.

(ii)  Other relevant factors determined by the

Department of Conservation and Natural Resources.

(4)  Create an inventory of data developed under this

section that is publicly available.

(5)  Notify the municipalities identified as falling

within a geologically hazardous area or having within their

boundaries a geologically hazardous area.

(b)  Report.--Within two years following enactment of this

chapter, the Department of Conservation and Natural Resources

shall report to the General Assembly the information gathered

under subsection (a), including the mapping of geologically

hazardous areas of high priority, as defined by the Department

of Conservation and Natural Resources, and a projected plan to

continue gathering the information directed by subsection (a).

(c)  Review and update.--The Department of Conservation and

Natural Resources shall periodically review and update the

following, which shall be forwarded to the department:

(1)  The techniques and criteria for mapping geologically

hazardous areas in this Commonwealth.

(2)  The maps of geologically hazardous areas in this

Commonwealth.

(d)  Performance of duties.--In performing its duties under

this section, the Department of Conservation and Natural

Resources shall:

(1)  Review aerial photographs and maps, soil data and

geologic information, which may include:

(i)  Data and reports from other departments.

(ii)  Geologic reports under section 7512 (relating

to geologic reports).

(2)  Perform site visits and studies as necessary.

(e)  Publication of hazardous areas.--The Department of

Conservation and Natural Resources shall publish in the

Pennsylvania Bulletin a list of all municipalities that fall

within a geologically hazardous area or have geologically

hazardous areas within their boundaries, as identified and

delineated under subsection (a)(2). The list shall be published

at least annually and more often if updated, but at least 30

days prior to the municipality being officially designated.

(f)  Regulations.--The Department of Conservation and Natural

Resources may promulgate regulations necessary to implement this

section.

§ 7512.  Geologic reports.

(a)  General rule.--A person proposing to undertake earth

disturbance activity within a geologically hazardous area shall

submit a geologic report, prepared and sealed by a licensed

professional, to the municipality and department or its

delegated designee, along with:

(1)  any application to discharge pollutants or storm

water under a National Pollutant Discharge Elimination System

Permit for Discharges Associated with Construction Activities

or any other authorization relating to earthmoving

activities;

(2)  a plan to control erosion and sediment required

under departmental rules and regulations; or

(3)  a plan to manage postconstruction storm water

required under departmental rules and regulations.

(b)  Additional requirements.--In addition to the application

requirements for the items set forth in subsection (a), a

geologic report under this section must adequately identify the

proposed courses of action and their sequence, to be taken

during and after construction to eliminate or reduce the

occurrence of a hazardous condition as a result of the proposed

earth disturbance activity.

(c)  Fees.--A person submitting a geologic report under this

section shall be responsible for all fees involving the

preparation and review of the report.

(d)  Review.--The department, its delegated designee or a

municipality may have a geologic report submitted under this

section reviewed by a licensed professional independent from the

preparer and sealer of the submitted report.

(e)  Scope.--This section shall not apply to a municipality

engaging in road construction and maintenance activities.

§ 7513.  Duties of department.

(a)  Approval.--The department may authorize earth

disturbance activity in a geologically hazardous area in

accordance with applicable laws and regulations if the

department determines that the geologic report under section

7512 (relating to geologic reports) adequately identifies the

proposed courses of action to be taken during and after

construction to eliminate or reduce the occurrence of a

hazardous condition as a result of the proposed earth

disturbance activity.

(b)  Disapproval.--The department may refuse to authorize

earth disturbance activity in a geologically hazardous area if

the geologic report under section 7512 fails to adequately

identify proposed courses of action to be taken during and after

construction to eliminate or reduce the occurrence of a

hazardous condition as a result of the proposed earth

disturbance activity.

(c)  Delegation of permit review.--The department may

delegate its permit review, enforcement and inspection authority

under this chapter to a county conservation district.

(d)  Duties.--In issuing orders or permits, and in taking any

other action under this chapter, the department shall:

(1)  Review and take appropriate action on all permit

applications submitted under this chapter and issue, modify,

suspend, limit, renew or revoke permits under this chapter

and departmental regulations.

(2)  Receive and act upon written complaints.

(3)  Issue orders necessary to implement this chapter or

departmental regulations.

(e)  Regulations.--The Environmental Quality Board may

promulgate regulations necessary to implement this chapter.

§ 7514.  Inspections.

(a)  Condition.--Approval of earth disturbance activity

within a geologically hazardous area may be conditioned upon the

granting of permission for an agent or employee of a

municipality or the department to:

(1)  Enter a property to survey a geologically hazardous

area or ascertain the location of a structure.

(2)  Enter a property or structure to ascertain

compliance or noncompliance with this chapter, municipal and

Commonwealth law, regulation, approval, conditional approval

or order.

(b)  Inspection warrant.--If an agent or employee of a

municipality or the department charged with the enforcement of

the provisions of this chapter has been improperly refused

access to the property to survey or inspect as authorized by

subsection (a) or reasonably requires access to the property

without prior notice to the owner, the agent or employee of the

municipality or the department may apply for an inspection

warrant to any Commonwealth official authorized by law to issue

a search or inspection warrant to permit the agent or employee

of the municipality or the department to access and inspect the

property. In determining whether to issue an inspection warrant,

sufficient probable cause is that the inspection is necessary to

properly enforce the provisions of this chapter.

(c)  Grounds.--The department shall promptly inspect earth

disturbance activity within a geologically hazardous area when

the municipality presents information to the department that

gives the department probable cause to believe that there is a

violation of this chapter, including a violation of regulation,

approval, conditional approval or order issued under this

chapter. The department shall notify the municipality of this

inspection and allow a municipal inspector from the municipality

to accompany the departmental inspector during the inspection.

If the department determines that there is insufficient

information to give the department probable cause to believe

that a violation is occurring or has occurred, the department

shall promptly provide a written explanation to the municipality

of its decision not to inspect.

§ 7515.  Liability.

(a)  General rule.--Approval, conditional approval or

issuance of a permit under this chapter does not:

(1)  relieve a person from liability for damage to

persons or property resulting from the issuance or

compliance, or as otherwise imposed by law; or

(2)  impose any liability for damages to persons or

property on the municipality or Commonwealth or its officers,

employees or agents.

(b)  Costs.--Any person conducting earth disturbance activity

in violation of this chapter or a regulation or order under this

chapter is liable for the costs of abatement of any pollution

and any public nuisance caused by the violation.

§ 7516.  Conditioned approval by municipality.

A municipality may not finally approve a proposal involving

earth disturbance activity under this chapter unless and until

the department approves the earth disturbance activity, but a

municipality may conditionally approve a proposal involving

earth disturbance activity under this chapter, subject to

approval or conditional approval by the department.

§ 7517.  Scope.

<--

This chapter shall not apply to any person or legal entity

that is regulated by the act of December 19, 1984 (P.L.1093,

No.219), known as the Noncoal Surface Mining Conservation and

Reclamation Act, the act of May 31, 1945 (P.L.1198, No.418),

known as the Surface Mining Conservation and Reclamation Act, 

the act of April 27, 1966 (1st Sp.Sess., P.L.31, No.1), known as

The Bituminous Mine Subsidence and Land Conservation Act, or the

act of September 24, 1968 (P.L.1040, No.318), known as the Coal

Refuse Disposal Control Act.

SUBCHAPTER C

ENFORCEMENT AND REMEDIES

Sec.

7521.  Enforcement and remedies.

§ 7521.  Enforcement and remedies.

(a)  Unlawful conduct.--It is unlawful to:

(1)  Fail to comply with any departmental rule,

regulation, order, permit or license.

(2)  Violate this chapter or any rule or regulation

adopted under this chapter.

(3)  Hinder, obstruct, prevent or interfere with the

department, its personnel or any delegated designee in the

performance of any duty under this chapter.

(b)  Remedies and enforcement under The Clean Streams Law.--

Except as provided in subsection (c), for purposes of

enforcement of this chapter and remedies under this chapter, the

act of June 22, 1937 (P.L.1987, No.394), known as The Clean

Streams Law, shall govern.

(c)  Scope.--Nothing in subsection (b) is intended to broaden

the scope of persons that must comply with the provisions of

this chapter.

(d)  Construction.--An offense that constitutes a violation

of this chapter and The Clean Streams Law shall not result in

dual penalties.

SUBCHAPTER D

MISCELLANEOUS PROVISIONS

Sec.

7531.  Administration.

7532.  Effect on other law.

§ 7531.  Administration.

The General Assembly shall appropriate the funds necessary to

implement this chapter.

§ 7532.  Effect on other law.

Nothing contained in this chapter shall be construed to

create additional review powers already regulated by other law.

Section 3.  The addition of 53 Pa.C.S. Ch. 71 is a

continuation of 53 Pa.C.S. Ch. 23 Subch. B. The provisions of

this act shall not affect any act done, liability incurred,

right accrued or vested or any suit or prosecution pending or to

be instituted under the authority of 53 Pa.C.S. Ch. 23 Subch. B.

Section 4.  This act shall take effect immediately.