History Code Implementation

DEPARTMENT OF ENVIRONMENTAL PROTECTION

OFFICE OF POLICY AND COMMUNICATIONS

DOCUMENT

NUMBER: 012-0700-001

TITLE: IMPLEMENTATION OF THE HISTORY CODE: POLICY AND PROCEDURES FOR

APPLICANTS FOR DEP PERMITS AND PLAN APPROVALS

AUTHORITY: 37 Pa. C.S.A., Section 101 et seq. and Article 1, Section 27 of the Pennsylvania Constitution

POLICY:The Department of Environmental Protection (DEP) will cooperate with the Pennsylvania Historical and Museum Commission (PHMC) in the protection of significant archaeological resources and historic structures.

PURPOSE:To establish procedures for DEP plan approvals and permit reviews so that PHMC has the opportunity to review activities undertaken with DEP's approval for their possible impact on significant historical and archaeological resources.

APPLICABILITY: To applicants for DEP permits and plan approvals and DEP staff.

DISCLAIMER:

The policy and the procedures outlined in this guidance document are intended to supplement existing requirements. Nothing in the policy or the procedures shall affect more stringent regulatory requirements.

The policy and the procedures herein are not an adjudication or a regulation. There is no intent on the part of DEP to give the rules in this policy that weight or deference. The policy and the procedures merely announce the policy and establish the framework, within which DEP will exercise its administrative discretion in the future. DEP reserves the discretion to deviate from this policy statement if circumstances warrant.

PAGE LENGTH: 18 pages (including appendices)

LOCATION: Volume 1, Tab 3

DEFINITIONS:

1. "Project applicant." A person who has filed or intends to file an application for a permit, approval, or authorization which DEP is authorized to issue under any of the environmental statutes which DEP implements.

2. "Permittee."A person who has a permit, approval, or authorization which DEP is authorized to issue under any of the environmental statutes which DEP implements.

3. "Permitted activity." An activity requiring a DEP-issued permit, approval, or authorization.

4. "Cultural Resource Notice." A notice given by the project applicant to PHMC regarding the intended activity for which the applicant needs DEP's permit or plan approval.

5. "Determination Letter." A letter given by PHMC to the project applicant indicating PHMC's determination of the historical or archaeological significance of the site of the project applicant's intended activity.

6. "Historic resource."A building, structure, object, district, place, site, or area significant in the history, architecture, maritime heritage, archaeology, or culture of this Commonwealth, its communities or the nation.

7. "Significant archaeological site." An area of land that contains extensive evidence of previous prehistoric or historic human habitation or stratified deposits of animal or plant remains or manmade artifacts or human burials.

8. "Archaeological survey."A visual inspection and limited sampling and excavation of an archaeological site to determine the characteristics and physical extent of a site, also known as phase one or phase two archaeological research.

9. "Archaeological field investigation."Extensive controlled excavation of an archaeological site to study the cultural history using professionally accepted means of sampling, removing and excavating archaeological specimens, also known as phase three archaeological research or data recovery.

10. "Mitigation Plan." A plan that decreases the severity of adverse effects on the site of historic resources. According to PHMC's guidelines, "An acceptable mitigation plan might involve shifting the location of the project or its adverse effects away from the sites or, alternatively, designing appropriate investigations to recover significant data which the sites contain."

SPECIFIC CONSIDERATIONS FOR INDIVIDUAL DEP BUREAUS

DEP wrote this policy and these procedures to apply, in general, to most DEP-permitted activities. However, the diversity of programs regulated by DEP is wide and the applicable statutes and regulations may differ enough that a single document cannot adequately address the needs of each program.

To the extent that the statutes and regulations under which individual bureaus operate conflict with the following general procedures, the statutes and regulations will receive precedence over the general procedures.

It is the responsibility of the program staff of each DEP program to integrate these general procedures into its permitting program.

EMERGENCIES

The procedures outlined in this document do not apply for an emergency undertaking. An emergency undertaking is one that requires an essential and immediate response to an imminent threat to public health or safety or damage to property.

DEP will make reasonable efforts to notify PHMC of such emergency undertakings.

LIST OF EXEMPTIONS

PHMC and DEP have agreed to exempt some DEP permits and plan approvals from these procedures. (Please refer to a copy of this list in Appendix 1.)

CULTURAL RESOURCE NOTICE

DEP programs include the Cultural Resource Notice form with their permit (or plan approval) application package. (Please refer to the copy of this Notice in Appendix 2.) The Notice contains the following information:

The name, address and telephone number of the project applicant

The project title and location

The DEP permit or plan approval requested

The DEP regional office, DEP district mining office or County Conservation District

responsible for review of the permit or plan approval application

The name, address and telephone number of the consulting engineer, if any

Various attachments required by PHMC

Total acres of property and, of these, total acres of earth disturbance

7.5' United States Geological Survey (U.S.G.S.) Map indicating the boundary of the

proposed activity

Photographs of any building over 40 years old and indication of what is to be done to all buildings in the project area

Construction drawings of the proposed activity, if available

Narrative description of the proposed activity

The project applicant completes the form and sends it to PHMC by certified mail, return receipt requested. Once the project applicant receives the return receipt, the project applicant attaches it to a copy of the completed Cultural Resource Notice and submits this information to DEP as part of the permit application.

Part of the program's check for application completeness will include a check for the completed Cultural Resource Notice and the attached return receipt. When the permit application is complete, the permit review may begin.

SIGNIFICANT ARCHAEOLOGICAL SITES

PHMC determines whether the location of the project applicant's proposed activity includes a significant archaeological site. If this is so, PHMC will respond with a Determination Letter to the project applicant or the consulting engineer (whichever sent PHMC the Notice) within 30 days (during 1996); within 15 days (starting January 1, 1997). DEP calculates the time of response starting with the date shown on the return receipt.

DEP's permit reviewers will apply the 30 day/15 day time frame in the following ways, depending on the permit or plan approval involved:

1. DEP's permit or plan approval programs that require a tight time frame of 45 days or less within which DEP must complete its review:

DEP reviewers should accept permit or plan approvals when the return receipt shows that PHMC has had the Notice for the applicable amount of time (30 days in 1996/15 days after January 1, 1997). For example, DEP's reviewers must complete their review of Oil and Gas permit-applications in 30 days (according to DEP's Money-back Guarantee requirements) or in 45 days (by law).

For such permit-applications or plan approvals, the project applicant should submit the Notice and give PHMC their review time prior to submitting their permit application to DEP.

When the program checks for application completeness, it should check for the completed Cultural Resource Notice and the return receipt. If 30 days (in 1996) or 15 days (after January 1, 1997) have elapsed since the date on the receipt, the permit review may begin.

2. In general, DEP's permit or plan approval programs that require a longer time frame than 45 days within which DEP must complete its review:

So as not to extend the review time additionally, DEP reviewers should accept permit or plan approvals so long as the permit applicant includes the return receipt in the application package. Then, PHMC's review can run simultaneously with DEP's review.

When the program checks for application completeness, it will check for the completed Cultural Resource Notice and the return receipt. If the project applicant includes both in the application package, the permit review may begin.

3. Specifically for DEP's Sewage Facility plan approval program:

This program has reached agreement with PHMC on a process whereby PHMC reviews these plans prior to DEP's acceptance of the plan for its review. When this program checks for application completeness, it will check for the completed Cultural Resource Notice and the return receipt. If 30 days (in 1996) or 15 days (after January 1, 1997) have elapsed since the date on the receipt, the plan revision may begin.

For significant sites only, PHMC will alert both DEP and the project applicant.

PHMC will send Determination Letters indicating significant sites to:

1. The project applicant or the consulting engineer (whichever one sent PHMC the Notice), 2. The reviewing office (listed in Section D or E of the Notice) and

3. The DEP Liaison with PHMC in the Office of Policy and Communications.

For all other responses, PHMC Determination Letters will only go to the project applicant or the consulting engineer (whichever one sent PHMC the Notice).

The failure of PHMC to provide this written response will release the "requester" (that is, the project applicant or the permittee) from any further duties under the History Code.

PHMC TIME FRAMES

The History Code outlines the following legal time frames. (Please also refer to the work flow chart in Appendix 3.):

1. PHMC has 60 days (during most months of the year) to complete an archaeological

survey if it chooses to do so.

2. PHMC may notify the permittee that it needs an additional 30 days to do so when it makes its determination in December, January and February.

3. After completion of the survey, PHMC has 15 days to decide whether to do an archaeological field investigation.

4. If PHMC does an archaeological field investigation, it will complete this work in 90 days (during most months of the year).

5. PHMC may notify the permittee that it needs an additional 30 days to do so when it makes

its determination in December, January and February.

6. Failure of PHMC to complete the work within the time limits outlined in the History Code

will release the permittee from any further duties under the History Code, unless the

applicant agrees in writing to a specific time extension.

DEP includes these time frames in this technical guidance primarily for the information of DEP staff. In addition, the information enables DEP staff to explain them to project applicants. Since the History Code now gives PHMC the authority to conduct these studies and investigations on significant sites, implementation of the Code at this point is PHMC's responsibility.

LIMITS OF AUTHORITY

1. PHMC does not have the authority to delay, deny, condition or limit (or cause to be delayed,

denied, conditioned or limited) any permits which would otherwise be issued by DEP beyond

those time frames specified in section 507 (outlined above), unless the applicant agrees in

writing to such condition, limit or time extension.

2. The applicant may not utilize a permit or license in any manner that would impair or interfere with

the performance of an archaeological survey or field investigation until the expiration of the

time frames in section 507 or until receiving written notification from PHMC that its

archaeological survey or investigation is completed, whichever is sooner.

3. DEP, in the absence of specific statutory language in DEP's enabling or regulatory statutes, may

not stop processing a permit or deny a permit solely because of the possible or actual

presence of archaeological resources.

WHO PAYS FOR ARCHAEOLOGICAL SURVEYS OR INVESTIGATIONS

The History Code states that PHMC "shall conduct or cause to be conducted through an agent, subcontractor or other person and pay any costs associated with an archaeological survey or field investigations except for the following situations:

1. Projects of other State agencies (DEP projects) or instrumentalities (those who act under

DEP's authority

2. Projects on Commonwealth lands

3. Projects of publicly regulated utilities

4. Archaeological surveys and field investigations required under Federal law."

DEP will implement this section of the History Code on a case-by-case basis.

ALERTING THE PROJECT APPLICANT THAT PHMC DESIRES NOTIFICATION SHOULD HUMAN REMAINS BE DISCOVERED DURING EARTH DISTURBANCE

PHMC wants the permittee to notify them, especially should human remains be discovered during earth disturbance. PHMC will alert the project applicant to its interest by including this information in a Fact Sheet, which PHMC plans to develop. At PHMC's request and when PHMC completes its Fact Sheet, DEP will include it in DEP's appropriate application packages.

There are DEP programs where the project applicant will be conducting ground disturbance activities long before the project applicant applies to DEP for a permit. To the extent possible, DEP will educate PHMC regarding these programs so that PHMC can make its Fact Sheet available in an appropriate and timely way.

HISTORIC STRUCTURES

When PHMC receives the Cultural Resource Notice from the project applicant, it may determine that:

1. The proposed activity affects a structure that is an historic resource listed on the National

2. It considers a structure on the site of the proposed activity to be eligible for listing on this

Historic Places determinants of significance (36 CFR 60.4).

Photographs

PHMC has requested that project applicant attach photographs of any building over 40 years old to the Cultural Resources Notice.

PHMC gives the following explanation for this request:

The National Register of Historic Places designates 50 years and older as the cutoff age for evaluating historic properties. However the PHMC requests that applicants submit information and photographs of all structures over 40 year age. this policy is in place for several reasons:

1. Applicants are sometimes uncertain as to the age of the buildings within their project area. By notifying the PHMC of all buildings over 40 years of age, the applicant is more likely to include potentially historic resources in their submissions. The staff at the PHMC is trained in dating the ages of historic resources.

2. Buildings constructed within the past 50 years are not usually evaluated for their eligibility, except in certain cases. For example, properties achieving exceptional importance within the past 50 years may be considered eligible for National Register. Therefore, by reviewing properties 40 years of age and older, the PHMC is afforded a slightly greater opportunity to evaluate such historic resources.

3. Finally, development projects are often constructed over a period of several years, especially if the project is phased. A building in the project area that was 45 years old at the time of permit approval, may become 50 years old during the construction period. In such cases, the effects on the building must be taken into account long after the development plans have been approved. By notifying the PHMC of the existence all buildings over 40 years of age, long term project effects on the potentially historic resources can be considered during the planning process.

Whether or not the project applicant includes such photographs with the Notice is a PHMC concern and it is PHMC's responsibility to interact directly with the project applicant regarding its need for photographs.

DEP includes National Register Criteria here only so that DEP staff can inform project applicants, when asked. It is PHMC's responsibility to apply these criteria when making its determinations.

According to the U.S. Department of the Interior, National Park Service, National Register Bulletin No. 15: "How to Apply the National Register Criteria for Evaluation," there are four criteria to consider.

Criterion A: Event: Properties can be eligible for the National Register if they are associated with events that have made a significant contribution to the broad patterns of our history.
Criterion B: Person: Properties may be eligible for the National Register if they are associated with the lives of persons significant in our past.
Criterion C: Design/Construction: Properties may be eligible for the National Register if they embody the distinctive characteristics of a type, period or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction.
Criterion D: Information Potential: Properties may be eligible for the National Register if they have yielded, or may be likely to yield, information important in prehistory or history.

PHMC will indicate its determination in a written response to the project applicant. PHMC will respond within 30 days from the date of it receives the Notice (as indicated by the return receipt). In the case of this determination by PHMC, the project applicant will provide a proposed plan developed in accordance with procedures agreed to by PHMC for protecting the structure.

CONFLICT RESOLUTION

When bureaus and programs become aware of disagreements between the project applicant and PHMC, they should notify their program counsel and the PHMC liaison in the Office of Policy and Communications.