Wednesday, February 24, 2016

PA Faces Losing Control Of Environmental Programs Due To DEP Funding, Staff Cuts

The PA Environmental Council and Chesapeake Bay Foundation-PA wrote to members of the Senate Appropriations Committee Wednesday to raise concerns about the risk of losing control of key environmental regulatory programs to the federal government and courts because of the cuts in funding and staff at the Department of Environmental Protection over the past decade.
The following is the text of the letter--
Tomorrow the Senate Appropriations Committee will hold a hearing on budgeting for the Department of Environmental Protection (Department). Against the backdrop of the ongoing budget stalemate, it could be easy to lose sight of the very real and precarious situation facing the Department with respect to capacity issues.
We are writing to underscore some of those issues, which, if not addressed by the Governor and General Assembly, may result in a series of unintended and damaging consequences including federal management of permitting programs.
Budget Impacts to Department Operations
Since  FY 2002-2003, there has been more than a 40 percent cut in General Fund support for the Department – going from $245.6 million in 2002-2003 to $142.6 million in 2015-2016. As a result, the Department has lost 22 percent of its staff. That’s more than 700 positions.
These cuts have occurred across the board, crippling the Department’s ability to meet its mission of protecting the health and safety of Pennsylvania’s citizens. It has also cost the Commonwealth millions of dollars in federal funding for staff and program support.  
These cuts have been made without regard for their impact on reviewing and issuing permits, conducting compliance inspections, and taking enforcement actions. They are cuts the Department has simply been expected to live with, regardless of the consequences.
At the same time, there has been no corresponding decrease in the laws the Department has to enforce, the projects it is told to undertake, the mandates it must meet, and the emergencies to which it must respond in order to protect public health and the environment.
Those responsibilities have only increased in the last decade.
Consequences of Budget Cuts
We have reached the tipping point. Failure to change course will lead to the courts and federal government making our decisions for us.
Over the past several years, the Department has been engaged in a series of remedial reports and action plans with the U.S. Environmental Protection Agency (EPA) and Office of Surface Mining Reclamation and Enforcement (OSMRE), among others, to address ongoing capacity and staffing issues. Some examples include:
Some examples include:
-- U.S. Environmental Protection Agency - Water
There are a number of programs where EPA review has found deficiencies in staffing and resources:
-- A 2012 Summary Field Report on the Department’s Stormwater Program, that contained several observations regarding lack of capacity including: insufficient Regional Office reviews of post construction stormwater management plans (Observation 5); overall ability to undertake compliance and enforcement activities (Observation 10); lack of Central Office oversight (Observations 14 and 23); and insufficient staffing to implement the Municipal Separate Storm Sewer System (MS4) Total Maximum Daily Load (TMDL) and Chesapeake Bay Pollution Reduction Plans.
-- A May 2015 letter, noting that EPA may need to condition or redirect federal funding for Chesapeake Bay pollution reduction efforts. This funding was indeed withheld, though it was recently released upon announcement of the Department’s Reboot Plan for the Chesapeake Bay . However, ongoing funding will be contingent on demonstration of sufficient funding and outcomes for that effort.
-- A June 2015 EPA Program Evaluation Report on the Drinking Water State Revolving Fund Program, which is administered by both the Department and the Pennsylvania Infrastructure Investment Authority. Specific action items from the Report included Department evaluation of staff resources to address failures in inspections and the finalization of projects.    
-- A June 2015 EPA Program Evaluation Report on the Clean Water State Revolving Fund Program, noting similar staffing review needs as with the Drinking Water State Revolving Fund Program.
-- U.S. Environmental Protection Agency - Air
In a November 2015 EPA Technical System Audit on air quality monitoring (attached with this correspondence), EPA determined that the Department’s Air Quality Monitoring Division is “severely understaffed,” constituting a Major Finding which equates to “nonconformance of high importance which is unacceptable and must be remedied.”
Report discussion notes that the Department lacks adequate resources both in personnel and funding, and that EPA auditors found “significant concerns with [the Department’s] field staff shortage.”
The corrective recommendation offered in the report is that vacant positions “need to be filled in order to continue operating (the) air monitoring program pursuant to 40 CFR 58 Appendix A.”
-- Office of Surface Mining and Reclamation Enforcement
Since 2011, the Department has been required to submit a series of Action Plans for regulatory compliance to OSMRE. In the 2016 Oversight Performance Agreement and Action Plan signed by both the Department and OSMRE, there are two specific areas of particular note with respect to budget issues:
-- Due to staffing reductions, the Department has not been able to meet required inspection compliance rates. In 2012, the compliance rate was 71% on active mine permits; 38% on inactive mine permits; and 20% on bond forfeited permits.
-- OSMRE has also taken issue with adequacy of bonding for mining permits, citing the inability of the Department to conduct full volume bonding with proper site analysis due to staffing shortfalls. This matter is doubly important because any bonding shortfalls could (and likely will) ultimately become a liability for the Commonwealth.
In correspondence between OSMRE and the Department (attached to this correspondence), OSMRE states: “failure [to comply with the Oversight Performance Agreement and Action Plan] will jeopardize Pennsylvania’s primacy under the Federal Surface Mining Control and Reclamation Act … for regulating coal surface mining operations.”
Pennsylvania’s Budget & Environmental Responsibility
These examples, which are likely a few of many areas of concern, demonstrate a pervasive inability of the Department to perform its mandated responsibilities. These deficiencies are not the result of Department neglect – they stem directly from long-term staffing and funding shortfalls.
In other words, there are deficiencies that we have the means to remedy. These are deficiencies that we are legally obligated, through state and federal law, to address.
The obligations of the Department are only going to increase. One of Pennsylvania’s most immediate and challenging obligations – cleaning of roughly 19,000 miles of polluted streams in Pennsylvania, including the Chesapeake Bay Watershed – is now squarely in the crosshairs.
The Commonwealth is projecting a significant shortfall for 2017 pollution reduction targets. These are not aspirational standards; they are legally-mandated requirements that Pennsylvania is not going to meet.
The Department has been extraordinarily candid about this reality, even while undertaking a new multi-agency strategy, using all available resources, to reduce water pollution.
If the Governor and General Assembly fail to fully act, they knowingly risk the very real possibility that Pennsylvania will lose control of air, water, and mining programs, among others, to the federal government.
This is not an outcome that anyone, regardless of party affiliation or fiscal viewpoint, should want.
We suspect the regulated community would strongly agree.
Lack of adequate funding for the Department will, and should, result in dramatic permit fee increases in an effort to at least partially bridge the shortfall.
By our very own state constitution, there is a definitive obligation on elected members of government to protect public health and the environment. This starts with ensuring that our resource protection agencies have the tools and capacity needed to fulfill their mission.
Davitt Woodwell, President and CEO, PA Environmental Council
Harry Campbell, PA Executive Director, Chesapeake Bay Foundation
A copy of the letter and attachments is available online.
For more information on programs, initiatives and special events, visit the PA Environmental Council website, visit the PEC Blog, follow PEC on Twitter or Like PEC on Facebook.  Click Here to receive regular updates on PEC programs, activities and special events.)
For more on Chesapeake Bay-related issues in Pennsylvania, visit the CBF-PA webpage.  Click Here to sign up for Pennsylvania updates (bottom of left column).  Click Here for a copy of CBF-PA’s most recent newsletter.
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