The details of the Department of Environmental Protection (DEP) permitting process are getting a close examination this week in Harrisburg. The DEP got a lot of attention recently when it decided to stop processing Sunoco’s environmental permits (including those for the Dragonpipe—the Mariner East pipeline system) because of non-compliance. But the details and importance of the permitting process haven’t gotten much recognition lately. Through its permits, the DEP is responsible for assuring that the “waters of the Commonwealth” are protected.
Ellen and Stephen Gerhart, whose property Sunoco took by eminent domain after a long fight, have filed a complaint with the Environmental Hearing Board (EHB) alleging improper DEP permitting of construction through a wetland on their property. The EHB is the organization to which DEP decisions are appealed if they are thought to be incorrect.
The hearing began yesterday (February 20, 2019) and will continue for two or three additional days. On the first day, the Gerhart’s case was laid out, based on a short appearance by Ellen Gerhart and a thorough review of the facts in the case by her expert witness, James Schmid, who is a wetlands authority.
The key issues in the case are: what is the official definition of a wetland for permitting purposes (the Army Corps of Engineers defines this), what determines whether a wetland is “forested” or not, how are wetland boundaries determined, did Sunoco’s contractors fail to identify forested wetlands and fail to correctly determine the extent of wetlands more generally, and did the DEP issue permits despite obvious evidence of errors in wetland definition and boundaries.
The Gerharts appear to have a strong case. If they prevail, the outcome could involve better remediation of the site, compensation or fines, and the requirement for the DEP to improve its permitting processes. Sunoco would once again come out looking like a bad actor, twisting the rules to its own advantage. Those are all important outcomes, but do not look to this particular case to result in the shutdown of the Dragonpipe. And regardless of who wins the EHB case, there is a good possibility of an appeal, so the ultimate resolution is likely to take a while.
About 20 supporters of the Gerharts, including Ellen’s daughter, showed up for the hearing. Together with a phalanx of Sunoco lawyers and a number of DEP representatives, they filled the small hearing room to capacity.