On June 5, the Senate Environmental Resources and Energy Committee heard testimony on how DEP is making fundamental changes to its Chapter 102 (Erosion and Sedimentation) and Chapter 105 (Dam Safety and Encroachment) permit to speed permit reviews, cautions about constructing third party permit review programs and a suggestion for developing a special licensing program for third party reviewers.
Sen. Gene Yaw (R-Lycoming), Majority Chair of the Committee, said the purpose of the hearing was to discuss the third party permit review concept and get a better understanding of some of the opportunities and concerns.
On May 2, Sen. Yaw announced he will introduce legislation seeking to expedite the review of Chapter 102 and 105 permit applications through the use of third party consultants chosen by DEP to do technical reviews.
Sen. John Yudichak (D-Luzerne), Minority Chair of the Committee, noted the Joint Legislative Budget and Finance Committee is scheduled to meet on June 19 to release an independent performance evaluation of DEP’s Chapter 102 and 105 Permit Programs required by Senate Resolution 226 he sponsored that will also inform this process.
Testimony
Ramez Ziadeh, DEP Executive Deputy Secretary For Programs, said “DEP acknowledges that permitting processes have slowed in the last decade and that companies are seeking more certainty in the permitting process.”
He said he believes DEP and the General Assembly agree on several fundamental objectives--
-- Efficient, timely and consistent permit application reviews;
-- Protection of Pennsylvania’s water resources and the prevention of development induced flooding, landslides, sinkholes and damage to infrastructure and property; and
-- Transparent permit application review processes.
He went on to describe a series of initiatives DEP has undertaken to make some fundamental changes in the Chapter 102 and 105 permit programs--
-- ePermitting System For Chapter 102 NPDES Permit Applications: It is expected that this system, which is expected to be online in the Fall, will improve the efficiency of the Chapter 102 permitting program by ensuring all submissions are complete upon submission and reducing processing time for correspondence and documentation.
Ziadeh said getting complete applications from consultants continues to be a significant issue in the permit review process.
[Note: The Cumberland County Conservation District testified before the House Environmental Committee on May 1 more than half of the applications submitted to them are incomplete and it takes consultants an average of 6 weeks to respond to deficiencies.]
-- An Update of Stormwater BMP Manual : DEP partnering with Villanova University to update the 2006 Stormwater BMP Manual. The goal of the project is to evaluate how well the existing practices perform, add new, updated practices and provide more clarity to permit applicants. The manual will also encourage new green infrastructure solutions.
-- Clean Water Academy: DEP is developing a new Clean Water Academy training tool on the permit review process for conservation district staff and DEP employees that will increase the capacity of staff to do better and faster reviews.
Ziadeh said DEP plans to open the Academy to consultants who prepare applications later in the year so they can be educated in the same way about the permit requirements and review process.
-- New General Permit For Projects Under 5 Acres: DEP is developing a new General Permit for small construction activities under 5 acres that should cover a significant number of projects that now require an individual sedimentation.NPDES permit. DEP told the House Environmental Committee May 1 they hope to publish the proposed permit this month for comment.
-- Managed Release Concept: This new statewide alternative Best Management Practice will allow projects in sensitive environmental areas to move forward in areas like contaminated sites, sites in karst areas, sites with limited infiltration capabilities and sites which otherwise cannot reduce post- construction runoff volume. Click Here for Managed Release Standards. Click Here for MRS Design Summary.
-- Permit Backlog Reduction Tool: DEP continues to implement a permit management tool which has resulted in a drastic reduction in permit backlog.
Ziadeh outline a series of concerns about the use of private consultants to do third party permit reviews that he said will not achieve the goals shared by DEP and the General Assembly. They include--
-- Makes Commonwealth More Vulnerable To Legal Challenges;
-- DEP Best Positioned With A Statewide View Of Complexity And Variability;
-- Potential Conflicts Of Interest By Consultants;
-- Would Jeopardize Federal Delegation & State Primacy Of Programs; and
-- Keeping Public Participation & Equity In The Permitting Process.
In response to Ziadeh’s comments, Sen. Yaw said the proposal he has in mind will be structured to let DEP pick qualified consultants that could be used by someone who is willing to pay for third party reviews and will address the issue he raised.
“If there is more expertise in the private sector DEP can use, I want to see DEP use that expertise,” said Sen. Yaw.
Kevin Sunday, Director of Government Affairs, PA Chamber of Business and Industry, said, “It is vital to the health of the state’s economy and to the protection of its environmental resources that the Department of Environmental Protection has the resources to develop and implement timely, predictable permitting programs that produce durable decisions.”
He said it is important that any such legislation include the following:
-- Be optional for the applicant;
-- Address potential conflicts of interest on the part of the qualified licensed professional;
-- Institute predictable timeframes for the applicant, qualified licensed professional and DEP; and
-- Allow DEP to concentrate resources on mission-critical actions that protection the environment, such as compliance, education and training.
Sunday also raised a concern about too much DEP staff time devoted to defending permit decisions from legal challenges.
“Too often, issues that were never raised in a public comment period are thrown into the briefs challenging the agency’s decision. Simply put, we believe if an issue is important enough to sue DEP over, it is important enough to have been brought up in public comment.
“Therefore, we also support legislation being drafted by Senator Bartolotta to reform how appeals are brought before and considered by the Environmental Hearing Board.”
With respect to DEP and resources, Sunday said, “We do not believe it is sustainable for the agency to attempt to pay for on-going expenses on the backs of the regulated community through increasing permit fees.
“We are supportive of having the federal government provide the necessary resources to the agency to implement these requirements – particularly if there is in fact a federal infrastructure bill.
“Our desire is that the agency maximize what resources it has by turning to licensed professionals to aid in the technical review of permits, which will allow more resources to be devoted to training and developing staff and more time spent going into the field and ensuring everyone is playing by the rules.
“An important component of this may include reviving the Office of Compliance Assistance and Pollution Prevention, which held educational events throughout the state to advise small businesses on ways to comply with regulations, reduce waste and improve energy efficiency.”
Scott Drew, Vice President NJ Licensed Site Remediation Professionals Association, said his organization represents 800 professionals involved in the cleanup of contaminated property under New Jersey’s Site Remediation Reform Act.
Under the New Jersey remediation professionals program, a Site Remediation Professional Licensing Board oversees the licensing and auditing of remediation professionals that includes a proficiency exam, education and experience criteria, continuing education requirements over a 3-year licensing cycle.
[Editor’s Note: DEP administers a wide variety of licensing programs for professionals now involved in environmental protection activities, including local Sewage Enforcement Officers that issue permits for onlot septic systems, drinking water and wastewater plant operators, storage tank installers and inspectors, radon testing and remediation firms and individuals and environmental testing laboratories.
[These programs have robust testing, continuous education and qualification requirements individuals and companies must meet to be certified.
[One of the real weaknesses with previous proposals for third party permit reviews was they wanted to do things on the cheap, by introducing the concept, but not actually thinking through how a program would really operate and be effective in the real world.
[In addition, relying on existing engineering and other professional licensing boards could not guarantee that any professional currently licensed would actually have the specialized expertise to actually do the permit review job.
[Witness previous Senate and House legislative proposals that would have let licensed land surveyors or landscape architects review hazardous waste facility permits and which had no conflict of interest provisions.]
George McAuley, PennDOT Deputy Secretary for Highway Administration also provided comments to the Committee on the program they have with DEP that pays for staff there to review permits for transportation projects.
Click Here to watch a video of the hearing and for copies of written testimony.
Sen. Gene Yaw (R-Lycoming) serves as Majority Chair of the Senate Environmental Committee and can be contacted by calling 717-787-3280 or sending email to: gyaw@pasen.gov. Sen. John Yudichak (D-Luzerne) serves as Minority Chair and can be contacted by calling 717-787-7105 or sending email to: yudichak@pasenate.com.
(Photo: Senator Yaw, Senator Yudichak.)
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