Friday, May 10, 2019

House Environmental Committee Hears Concerns About Regional Consistency, Timeframes In Permit Reviews; DEP Taking Steps To Address Issues

On May 8, the House Environmental Resources and Energy Committee held an informational meeting to hear from the regulated community on their experiences with DEP’s permit review processes.
Among the key points made during the meeting by presenters were--
-- No Exemption From Reviews: The community of licensed engineers and geologists is not seeking to be exempt from permit review -- even for those components of an application which involve the practices of geology or engineering
-- Need Licensed Professionals To Review Permits: DEP needs to make sure there are licensed engineers or professionals acting as reviewers or are working under the responsible charge of Department licensed professionals. [DEP now has licensed reviewers or reviewers under the charge of licensed professionals.]
-- Township, County, DEP Reviews: Some on-farm building construction projects require reviews at different levels of government-- township, county and DEP permit reviews which delays projects.
-- Better Accounting For BMPs In Chesapeake Bay Watershed: Private consultants should have better access to PracticeKeepper which tracks Best Management Practices so they count toward nutrient reductions. [Consultants now have access by reporting BMPs and completed nutrient plans to conservation districts or DEP for BMPs actually constructed and maintained projects.]
-- Consistent Timeframes, Consistency Between Regions: There needs to be review consistency between DEP regions and some certainty with review timeframe with respect to Oil and Gas Program erosion and sedimentation permits. The timeframes are still running between 64 and 114 days depending on the regional office.
-- DEP Taking Steps To Address Issues: DEP is aware of the consistency and timeframe concerns in the Oil and Gas Program and has taken some steps to improve through the restructuring their staff, a commitment to the e-Permitting process and improving the consistency between the regional offices.
This information meeting did not address issues raised in the Committee’s meeting on May 1 where the Cumberland County Conservation District said more than half of the erosion and sedimentation plan applications they receive from engineers are incomplete and it took an average of 33 businesses days (more than 6 calendar weeks) for engineers to respond to technical deficiencies in applications.
Thomas D. Gillespie, Sr.,  Professional Geologist with Gilmore & Associates, Inc., expressed a concern that while the engineering and geologic components of erosion and sediment control plans and permits are prepared by licensed professionals, many of the staff at DEP who review the applications are not licensed engineers or geologists and may violate statutory responsibilities.
“The community of licensees is not seeking to be exempt from review -- even for those components of an application which involve the practices of geology or engineering.
“The law stipulates that no modifications or alterations to finalized documents can be made or required to be made by persons not in responsible charge, who are not under the direct supervision of the professional in responsible charge, or by persons about whose qualifications the responsible professionals have no direct knowledge.
“Despite those statutory provisions and prohibitions, PADEP reviewers of Erosion and Sediment Control General Permit applications for natural gas well sites routinely involve the Department in the geologic and engineering design processes by requiring either directly specified alterations to finalized documents, or stipulations that the professional in responsible charge must make specific alterations to the finalized documents in order to obtain a permit on behalf of a client.
“In almost all circumstances such revisions or alterations are contrary to the professional expertise of the geologist or engineer in responsible charge who prepared and finalized their original designs pursuant to the principles of geology or engineering defined by the Department of State.
“What is objectionable is the requirement by PADEP permit application reviewers that licensees make specific alterations to their finalized documents as a condition to obtain a permit on behalf of a client when or in specific situations wherein:  
-- The original plan or design is protective of the public -- if it is protective, it is approvable without modification; or
-- The required revisions/modifications do not result in increased public protection where no such protection was provided for by the licensed professional.”
[Editor’s Note: With respect to the DEP’s practices relating to the review of Chapter 105 and Chapter 102 permit applications for which licensed professional seals are required, DEP reviewers conduct reviews of permit applications to ensure that proposed projects requiring permits from the Department meet the applicable regulatory requirements.  
[Design revisions are sometime necessary to achieve regulatory compliance.  It is the applicant’s responsibility to provide the necessary design revisions to comply with the applicable regulatory requirements.  Department reviewers do not direct or dictate the design revisions.
[All technical reviews of applications requiring licensed professional seals are conducted by either Department licensed professionals or other reviewers working under the responsible charge of Department licensed professionals.]
Jedd Moncavage, Certified Professional Soil Scientist, Environmental Consulting Services Manager, Team Ag, Inc., said timelines for modernization and expansion of farm operations can be drawn out with reviews by a township engineer [for local permits], a county engineer [or a county permit] and DEP [for environmental permits].
Also built into the process are 30 day public review periods and possibly appeals of permits at the end of the process.
With respect to conservation practices in the Chesapeake Bay Watershed, Moncavage said one of the issues is their work does not get reported to the Chesapeake Bay model and count toward Pennsylvania’s obligation to reduce nutrients going to the By because firms like Team Ag are not granted access to the PracticeKeeper Program used to track their progress.
“If private sector planners could gain access to that, we could quickly add thousands of BMPs [Best Management Practices] that are not recorded,” Moncavage said.
[Editor’s Note: Firms like Team Ag already have access to PracticeKeeper because they can report their BMP and nutrient planning practices to a county conservation district to be included in PracticeKeeper or they can report their BMPs directly to DEP to be included in PracticeKeeper.
[Any BMP project that is required to get a permit from DEP or a county conservation district is included in the PracticeKeeper, and many of these BMPs require a permit.
[In every instance, for  BMPs to count toward Chesapeake Bay nutrient reduction requirements they must actually be built, not simply planned, as well as maintained and that requires verification.]
Bryan Pauling, P.E., Director Of Energy, Larson Design Group, works with oil and gas projects in Pennsylvania, West Virginia, Ohio and Texas and focused his comments on erosion and sedimentation and stormwater permits for these projects.
Pauling said he has worked with DEP’s new e-permitting system to test the process and so far submitted 2 permitting packages through the system and both have been approved.
He said the e-Permitting system is “fairly user-friendly with only a few quirks” and those issues were reported to DEP and he is fixing them.
Pauling said the latest permit approval times for DEP’s 3 Oil and Gas Regional Offices, according to the Marcellus Shale Coalition, are 64 calendar days in the Northcentral Region, 75 calendar days in the Northwest Region and 114 days in the Southwest Region.
In response to a question with respect to DEP understaffing, Pauling said he has noticed it is difficult for DEP to fill positions or retain staff in certain areas because of competition in the employment market with the private sector.
"If DEP can get to a point where there is some review consistency and some certainty with the approval timeframe, it will allow the operators to make long-term commitments to the state of Pennsylvania and grow their confidence in the regulatory environment here," Pauling said.
"DEP is aware of these concerns and have taken some steps to improve through the restructuring of their staff committed to the e-Permitting process, with the goal of improving the consistency between the regional offices," added Pauling.  “We certainly like how the [e-Permitting process] worked. The e-Permitting process is a huge step forward.”
Rep. Daryl Metcalfe (R-Butler) serves as Majority Chair of the House Environmental Committee and can be contacted by calling 717-783-1707 or sending email to: Rep. Greg Vitali (D-Delaware) serves as Minority Chair and can be contacted by calling 717-787-7647 or sending email to:
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