Tuesday, May 23, 2017

Analysis: House/Senate Republicans Introduce DEP Permit/Regulation Reform Bills, So Far, None Address The Real Problem

House Speaker Mike Turzai (R-Allegheny) Monday told members of the Pennsylvania Press Club his Republican Caucus has introduced 10 or more bills aimed at reforming the way the Department of Environmental Protection reviews permits and regulates industry.
He said DEP really means “Don’t Employ Pennsylvanians” because it’s “bureaucratic red tape filibuster” is sending employers to other states as a result of delays in processing permits.
Speaker Turzai said the “excellent” proposals made by House Republicans will bring more transparency and accountability to the permit review process, as well as reducing permit review times.
It should be noted the General Assembly and Governor cut DEP General Fund monies by 40 percent and its staff by 25 permit over the last decade which has had a significant impact on not only the speed of permit reviews, but the ability of DEP to accomplish its mission.
The FY 2017-18 budget bill passed by House Republicans the beginning of April imposed more across-the-board cuts on DEP.
House Republicans have, instead, supported and repeatedly endorsed a Fee-For-Protecting The Environment Model, rather than use general taxpayer dollars, but enactment of the fees needed to support DEP programs always lag at least two or three years behind the actual need.  (Click Here for an example of the Safe Drinking Water Program.)
DEP has received deficiency notices from the U.S. Environmental Protection Agency and other federal agencies specifically citing lack of staff and other financial resources for not meeting minimum requirements in the Safe Drinking Water, Air Quality, Surface Coal Mining, Water Infrastructure Funding and other programs.
At the same time DEP is receiving these notices from federal agencies, the Trump Administration is proposing 40 percent or more in cuts to the grants states earn by administering federal environmental protection programs.  Thirty percent of DEP’s budget is federal funds.  (Click Here for more.)
DEP Initiatives Underway
DEP now has significant initiatives underway, even with its very limited resources, to address the permitting concerns Secretary McDonnell and members of the General Assembly have identified over the last year he served as Acting Secretary.
At his May 15 Senate confirmation hearing, Secretary McDonnell summarized his approach to dealing with the challenges at DEP--
“Over my almost 20 years in state government, I’ve had the chance to see almost every aspect of our agency.  From our policy making and regulatory functions to our budget and human resources apparatus.
“Through it all I prided myself on being open to collaboration, being honest about problems and listen to all perspectives to help my colleagues make meaningful decisions.
“It is no secret the Department faces challenges.  Over the past year we’ve continued to address those issues.
“We are modernizing and improving our permitting processes, collaboratively addressing the Commonwealth’s Chesapeake Bay obligations, and we’ve created an e-permitting platform and e-inspection app to improve our partnerships with the regulated community and increase our transparency.
“We’ve refocused on engaging with stakeholders to identify problems and solutions and we’ve begun investing in the most critical asset we have in the Department, our people.”
Among the reform measures DEP has underway are--
-- Listening Sessions To Hear About Issues From Consultants, Permittees: DEP completed a series of 7 regional listening sessions with consultants and permit applications early in the year to learn what DEP is doing right and wrong with its basic Chapter 102 erosion and sedimentation control and NPDES water quality permitting process.  The results of that process and recommended changes will be ready to release in mid to late June.  (Click Here for more.)
-- New General Permit For Low-Impact Projects Of 5 Acres Or Less Instead Of Full Permit: One result of the listening sessions is already being started-- developing a new General Permit for Chapter 102 erosion and sedimentation control permits for low impact projects like projects on farms, instead of a full permit. DEP’s workload evaluation found as many as 40 to 50 percent of the projects DEP now requires full permits for are projects of 5 acres or less. (Click Here for more.)
-- Shifting Permit Work Between Regions: DEP has a pilot project underway to shift some of the erosion and sedimentation permit work for oil and gas operations from the Southwest Regional Office to the Northcentral Office to speed permit reviews.
-- ePermitting Platform: Secretary McDonnell told both the Senate and House Appropriations Committees in March DEP’s new ePermitting platform has already reduced the modules required for mining permits by 20 percent.  Since the system requires correct, step-by-step input of information, it also reduces errors and deficiencies in applications submitted significantly.  This is potentially huge because 60 to 80 percent of the 30,000 permit applications DEP receives contain errors or other deficiencies.  He said DEP would be expanding the system to erosion and sediment permits next.  (Click Here for more.)
-- Electronic Documents System: Secretary McDonnell told both the Senate and House Appropriations Committees in his budget testimony in March DEP has already taken the first steps toward an agency-wide electronic documents management system that will speed submissions to the agency and make the agency more transparent to the public by giving better access to documents without taking staff time for document reviews.  (Click Here for more.)
-- Regional Permit Coordination Office: Secretary McDonnell told both the Senate and House Appropriations Committees in March he formed a special Regional Permit Coordination Office to better coordinate the handling of pipeline and other projects that cross DEP regional office boundaries
-- Electronic Field Inspection Reports: Secretary McDonnell told both the Senate and House Appropriations Committees in his budget testimony in March DEP has now equipped its Oil and Gas Program inspectors with iPads to fill out inspection reports electronically and submit them to agency databases making staff much more efficient and effect.  Previously staff worked with paper and had to recopy field notes into a database at the office. He said he hopes to expand the initiative to other programs.  (Click Here for more.)
-- Other Solutions Pros/Cons: During a February Senate Transportation Committee hearing, DEP also discussed a variety of recommendations pro and con for improving the permit review process.  (Click Here for more.)
These are the kinds of realistic, grind-it-out-on-the ground, hands-on management of programs DEP needs to improve its programs with the resources it is able to cobble together.
House Republican “Reforms”
Here’s a quick review of what House Republicans view as “reforms” of DEP’s permitting and regulatory process-
-- Expedited Environmental Permit Review For Licensed Professionals: House Bill 1352 (Bloom-R-Cumberland) directs DEP to develop an alternative permit review process for all applications submitted by a licensed professional engineer, landscape architect, geologist and land surveyor that requires publication of public notice, schedule required public meetings and hearings and initiative a technical review within 10 working days of the receipt of an application and it is declared complete and requires DEP to make a decision on the permit within 45 days.  It also prohibits DEP from charging an “additional” fee for receipt or processing of an application submitted by a licensed professional (sponsor summary).  Here’s a question, do you really want an expedited permit review for a permit related to a hazardous waste facility or landfill submitted by a land surveyor?  Just one of the many, many difficulties that plague this vague proposal.  There is no funding associated with this proposal to actually improve permit review times.
-- Tracking DEP Applications: House Bill 587 (Zimmerman-R-Lancaster) requiring DEP to develop another system for tracking the status of permit applications (sponsor summary).  DEP already has eFACTS which tracks permit review status, although it does need to be upgraded since it hasn’t been touched in 20 years.  With no funding to support this added requirement, it represents just another unfunded mandate on DEP.
-- Approving E&S Permits Whether Or Not They Meet Standards: House Bill 588 (Zimmerman-R-Lancaster) requiring DEP to approve erosion and sedimentation control permits whether or not they meet environmental standards within a set time frame (sponsor summary).  Various studies by DEP show between 60 and 80 percent of 30,000 permit applications-- most completed by engineers-- come in the door at DEP with deficiencies.  Do we want to compound these errors by issuing permits with these deficiencies?   Again, there is no funding to backup this new requirement.
-- Citing Specific Regulations In Deficiency Notices: House Bill 1353 (Bloom-R- Cumberland) would require DEP to cite specific regulations or statutes when it declares an application deficient (sponsor summary).  DEP also ready does this in deficiency notices.
-- Listing DEP Permits: House Bill 1003 (Ortitay-R-Allegheny) requiring DEP to list all its permits in the PA Bulletin and online (sponsor summary).  Billed as a way to “streamline DEP permitting,” it does nothing of the sort.  It only makes the PA Bulletin bigger and adds more costs.  DEP already has an existing online DEP Permit Application Consultation Tool that leads potential applicants through a series of questions to answer the basic question of What Environmental Permits Do I Need For My Project?  There is also no funding associated with this proposal, so it’s another unfunded mandate on DEP.
-- IFO Verification Of Costs Of DEP Regulations: House Bill 1237 (Keefer-R-Cumberland)-- would require the Independent Fiscal Office to verify the cost of the regulations and then provide the House and Senate with 30 calendar days or 10 legislative days to vote on the proposal (sponsor summary). Interestingly, there is no similar requirement for legislation going through the General Assembly and there is no funding associated with this proposal, so it’s another unfunded mandate.  (Click Here for more.)
-- General Assembly Vote On DEP Regulations: House Bill 911 (Rothman-R-Cumberland) would send regulations to the House and Senate, assign them to the appropriate committee and require an informational hearing before the regulations would be voted up or down (sponsor summary). There is no criteria for evaluating the regulations other than cost in the bill.  No assessment of benefits or the reason the regulations were adopted in the first place-- direction of state and/or federal law.  And if the General Assembly can kill a regulation if it does nothing at all. (Click Here for more.)
-- Eliminate Church, School Water Supplies From State Regulation: House Bill 776 (Zimmerman (R-Lancaster) would no longer require thousands of church-owned facilities-- churches, schools, camps and businesses-- with their own water supplies from being required to meet state Safe Drinking Water Act requirements (sponsor summary).  It’s billed as a simplification of the permit program and unneeded regulation. The legislation risks Pennsylvania’s primacy for administration the federal Safe Drinking Water Program and the loss of $100 million a year in federal funds to improve drinking water systems.  (Click Here for more.)
-- Rolls Back Protections From Temporary Suspension Of Mining Permits: House Bill 1333 (Gabler-R-Clearfield) would eliminate the current DEP limit on temporarily ceasing of surface coal mining operations of 180 days and replace it with the less stringent federal requirement that has no specific time frames (sponsor summary).  There is no requirement for a maintenance or stabilization plan for the site to prevent pollution and financial guarantees for restoring the site if a mine operator goes bankrupt. (Click Here for more.)
-- Transferring Permit Authority For Farm Projects To State Conservation Commission:  Rep. David Zimmerman (R-Lancaster) circulated a co-sponsor memo for legislation that would transfer permit authority for all farm-related projects from DEP to the State Conservation Commission which has no staff to review these permits.  There is no funding associated with this bill and represents another unfunded mandate.
-- Exempts Farm High Tunnels From DEP Permit Requirements: Rep. David Zimmerman (R-Lancaster) circulated a co-sponsor memo to exempt high tunnels (greenhouse-like structures designed to extend the growing season on farms) from Stormwater Management Act permit requirements.  It’s billed as a way to simply permit reviews by exemption.
Senate Republican Initiatives
Senate Republicans have also introduced some of the same “reforms” as the House Republicans, plus their own ideas--
-- General Assembly Approval Of DEP Regulations: Senate Bill 561 (DiSanto-R-Dauphin).  (Click Here for more.)
-- Taking Oil & Gas Penalty Monies From DEP: Senate Bill 32 (Hutchinson-R-Venango) would take oil and gas penalty monies from DEP and deposit them in the General Fund where it could be spent on any program in state government (sponsor summary).  The sponsor believes DEP now has an incentive to penalize oil and gas operators more under the current system to make up for cuts to DEP’s budget made by the General Assembly.  It’s right in his sponsor summary.  
-- Tracking DEP Applications:  Senate Bill 487 (Vogel-R-Beaver), same as House Bill 587 (Zimmerman-R-Lancaster) above.
-- Rollback DEP Drilling Regulations Waste Reporting: Senate Bill 486 (Vogel-R-Beaver) would rollback DEP’s Chapter 78A drilling regulations to report waste generated every 6 months rather than monthly (sponsor summary).
-- Limit State’s Ability To Control Methane Emissions: Senate Bill 175 (Reschenthaler-R- Allegheny) prohibits the state from adopting its own methane emission limits from oil and gas development or any other source of methane and instead requires the adoption of any federal standards.  (Click Here for more.)
Will Final Budget Address The Real Issues?
We’ll see if the final FY 2017-18 state budget begins to address the real issue with DEP’s permit review and environmental protection programs-- strangling them with cuts in funding year after year and not investing in real solutions-- like IT and other upgrades-- to support streamlined permit review systems.
Turzai Says He Would Stay On As Speaker If He Runs For Governor

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