On April 6, the House State Government Committee is scheduled to meet on legislation giving regulated entities sweeping new power to control DEP permit and technical guidance with no opportunity for public involvement or higher review.
[Note: Moving this legislation violates public statements by House Republican leadership they only intend to take action on COVID-19-related legislation using the less transparent remote voting procedures at a time when the public is barred from the Capitol and legislators have closed their district offices and can only be reached by the easily ignored email, telephone and fax.]
The legislation-- House Bill 1874 (Grove-R-York)-- authorizes any regulated entity at any time [not members of the public] to request a review of any permit or policy guideline produced by DEP or other agencies by the Independent Regulatory Review Commission.
The IRRC is then tasked with making a determination of whether the requirements of any permit or policy guidance issued by an agency is excessive and whether the requirements of the regulatory action should be submitted for review as a regulation.
Any permit or policy guidance under review by the Commission is automatically prohibited from being enforced by an agency until the Commission completes its review.
There are no provisions for the Commission to make public the “regulatory entity” making the request to the Commission.
If the IRRC determines a permit or policy guidance should be a regulation, it “shall” require the agency to revise the requirements of the regulatory action. It gives the IRRC authority to issue orders to require agencies to provide information on the statutory basis for the permit or policy guidance and an analysis of its impact.
The regulatory entity requesting the review then has an opportunity to comment on the agency’s comments.
The definition of “excessive” is a permit or policy guidance that exceeds or is beyond the scope of an agency’s approved regulatory authority by the Commission.
As a result of this legislation, regulated entities would be given the right to control agency actions on any permit or technical guidance issued by an agency.
In DEP’s case, it issues an average of 35,000 permits or one type or another every year and they all would be subject to these provisions.
Any person aggrieved by the permit issued by DEP-- from the public or the permittee-- now has the right to appeal that permit to the Environmental Hearing Board which holds proceedings on the appeal each side and where members of the public can intervene.
And since the definition of “excessive” only includes “approved regulatory authority by the Commission,” many individual permit conditions may fall outside of previous actions by the Commission since they are tailored to specific locations.
Permits and policy guidance are also subject to public comment periods prior to a decision where anyone can submit comments to DEP.
In addition, policy guidance is also discussed with the relevant DEP advisory committee before being published for comments and input.
Commonwealth Court is also available to handle appeals from the EHB and to challenge DEP’s regulatory actions with the right of intervention by citizens.
House Bill 1874 would give only regulated entities the ability to challenge any permit or policy guidance and prevent the agency from taking any action to enforce the permit or policy guidance for at least 120 days.
This is a one-sided process designed for one thing-- adding more bureaucracy and layers of review for agency actions all without the opportunity for citizens and the public to become involved.
Also on the agenda is Senate Bill 703 (Scarnati-R-Jefferson) which expands the authority of the little-known, and even less frequently used bureaucratic procedure to allow the Joint Committee on Documents to block publication of documents they think should be published as a regulation with no requirements meetings be held in the public eye or involve the public in any way.
The Joint Committee on Documents is made up of nine members-- the President Pro Temper of the Senate, the Senate Minority Leader, the House Speaker, the House Minority Leader, the Attorney General, the Governor's General Counsel, the Director of the Legislative Reference Bureau, the Secretary of General Services and two members of the public
There is no set time for this meeting, it will be called off-the-floor by the Speaker at any time after the House is scheduled to convene at 1:00 p.m. on April 6. The meeting will be held in Room 60 East Wing, where the public is barred from attending. Click Here to watch the meeting online.
Rep. Garth Everett (R-Lycoming) serves as Majority Chair of the House State Government Committee and can be contacted by calling 717-787-5270 or sending email to: geverett@pahousegop.com. Rep. Kevin Boyle (D-Montgomery) serves as Minority Chair and can be contacted by calling 717-783-4944 or sending email to: RepKevinBoyle@pahouse.net.
[Posted: April 2, 2020] PA Environment Digest
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