DEP's Alphonse and Gaston routine

Alphonse and Gaston were characters in an eponymous early 20th century cartoon strip whose excessive politeness and repeated deference prevented them from so much as getting though a doorway. Inspired by their routine – “After you, Alphonse.” “No, you first, my dear Gaston.” – baseball broadcasters still describe two fielders who both shy away from a catchable fly ball as “pulling an Alphonse and Gaston.”

As baseball season approaches, two units of Pennsylvania’s Department of Environmental Protection (DEP) are pulling their own, bureaucratic version of the Alphonse and Gaston routine. DEP’s version, however, is not funny.

Citizens and regulators from several government agencies have repeatedly observed excessive amounts of sediment being carried into a High Quality segment of the Youghiogheny River adjacent to the Great Allegheny Passage in Fayette County. The sediment is generated by erosion occurring on a parcel of land known as the Curry site, where timbering activities have exposed and disturbed the soil.

Enter Alphonse.

Most erosion and sedimentation problems in Pennsylvania are handled by DEP’s Waterways and Wetlands (W&W) Program, which delegates some regulatory responsibilities to county conservation districts. If you call W&W or the Fayette County Conservation District, however, you are told that they lack jurisdiction (authority) over the Curry site because it is a permitted surface coal mine. W&W suggests that you call DEP’s Greensburg District Mining Office.

Enter Gaston.

DEP’s Mining Program takes exactly the opposite view on the jurisdiction issue: The mining company has not yet activated its mining permit and is not performing the timbering, so the Mining Program has no regulatory authority over the erosion and sedimentation problems. They suggest – as you might have guessed – that you call W&W or the Conservation District.

While DEP performs this regulatory Alphonse and Gaston routine and watches the ball drop, the sediment continues to flow into the High Quality waters of the Youghiogheny.

As in baseball, giving up a “hit” this way is both embarrassing and avoidable. Ultimately, DEP’s W&W and Mining Programs answer to the same Secretary. Like a pitcher who takes charge by calling out which of two infielders should handle a pop-up, DEP Secretary Abruzzo should direct W&W or Mining to step up and make the play. If each unit of DEP has jurisdiction over different responsible parties, the Secretary should direct both units to take action to protect the Yough.

One way or another, somebody should catch the ball.

Kurt Weist is senior attorney for PennFuture and is based in Harrisburg.

Act 13 case: Court sets aggressive schedule, impact fee likely to remain intact

The Pennsylvania Commonwealth Court issued an order last week in Robinson Township v. Commonwealth of Pennsylvania, No. 284 M.D. 2012 (Pa. Commw.), setting briefing and hearing schedules. As we’ve discussed previously on this blog, Robinson Township has been remanded by the Pennsylvania Supreme Court to the Commonwealth Court for further proceedings after the Supreme Court overturned parts of the Commonwealth Court’s original ruling and upheld other portions that invalidated certain provisions of Act 13.

The Commonwealth Court’s order imposes a fairly aggressive schedule on the parties. The Court directs parties to file affirmative briefs supporting their various requests for pre-trial relief by April 1, 2014. Each side will then have the opportunity to respond in writing to the other side’s submission by April 21, 2014. The parties will then appear in court to present their arguments before an “en banc” panel of seven Commonwealth Court judges on May 14, 2014. 210 Pa. Code 3103(a)(2).

During this round of briefing, the parties will address: • Whether the portion of Act 13 regarding which parties are entitled to receive notice of a spill constitutes a “special law” or a violation of equal protection. • Whether portions of Act 13 related to the jurisdiction of the Public Utility Commission must be struck down because they are incapable of standing on their own in the absence of other provisions that have been deemed unconstitutional by the Supreme Court. The parties will also resubmit briefing that they previously submitted to the Court about: • Whether Act 13 effects a ‘taking’ by allowing well operators to take private property for use in its operations. • Whether the ‘gag rule’ covering the ability of health care practitioners to communicate about the chemical composition of fluids used in fracking is constitutional.

The media has reported that the parties and Court have agreed to limit their consideration of severability to several discrete provisions of the law. That suggests that other sections of Act 13 (including the impact fee) not directly implicated in the Robinson Twp. case are likely to remain intact.

Mike Helbing is a staff attorney for PennFuture and is based in Philadelphia.