Wednesday, October 16, 2019

Sen. Yaw Introduces Bill To Authorize 3rd Party Review Of Chapter 102, 105 Permit Applications

On October 15, Sen. Gene Yaw (R-Lycoming), Majority Chair of the Senate Environmental Resources and Energy Committee, introduced Senate Bill 891 authorizing third party review of Chapter 102 (erosion and sedimentation) and Chapter 105 (dam safety and encroachment) permit applications.
The bill requires the Department of Environmental Protection to establish an “Advanced Permit Review Program” which gives applicants the option of using DEP-qualified licensed professionals to review Chapter 102 and 105 permit applications, excluding those related to abandoned mine reclamation.
The ultimate decision on the permit applications would be left to DEP.
Selecting Qualified Professionals
DEP is required to establish a program to select qualified licensed professionals from state-licensed professional engineers, land surveyors or geologists with at least 5 years of relevant environmental experience and which have completed a training program approved by DEP.
General Outline Of Program
Under the provisions of the Advanced Permit Review Program, an applicant indicates upfront their desire to participate in the permit review program.
DEP is still required to initially review the application to determine completeness and the payment of the permit application fee.  If the application is complete, it will be referred to a qualified licensed professional to conduct a technical review.
Applicants get only one chance to submit a complete application to be part of the program.
DEP may not refer an application to a licensed professional and a licensed professional may not review an application if that professional has done work for the applicant within 3 years of the submission of the application.
If an application, for example for a pipeline project, involves multiple individual permits or general permits, DEP is required to refer the entire application to a licensed professional.
The qualified licensed professional will conduct a technical review of the application and notifies the applicant of any deficiencies.
The bill only authorizes one opportunity for the applicant to correct any deficiencies.
If the licensed professional receives a “timely response,” the professional forwards its recommendation on the application to DEP.
Specific Provisions
All Chapter 102 (erosion and sedimentation) and Chapter 105 (dam safety and encroachment) applicants requesting review under the Advanced Permit Review Program must submit those applications to the appropriate DEP Regional Office [not a conservation district] along with the application fee.
DEP will publish a notice in the PA Bulletin as required by regulation [for the initial public review presumably] saying it intends to refer the application to a qualified licensed professional within 30 days.
The licensed professional has 15 business days to issue a deficiency letter or submit its recommendation to DEP.  If a response is received, the licensed professional has an additional 10 days after a response to a deficiency letter is received to send their recommendations to DEP.
There is no deadline for the applicant to get back to the licensed professional other than a general admonition in the bill for a “timely response.”
The licensed professional then submits an invoice to DEP for its services as determined by a fee schedule established by DEP.
DEP then has 10 days [not business days] to act on the recommendation.  
DEP is authorized to hold a hearing on the technical merits of the application or the notice of intent, in which case a decision is not required until 30 days after the hearing is conducted.
A special fund is established and appropriated to DEP to fund the administration of the Advanced Permit Review Program from the permit fees received.
The bill was referred to the Senate Environmental Resources and Energy Committee for consideration.
The bill offers a new version of third party permit review addressing some of the glaring deficiencies in similar proposals in the past, like adding a conflict of interest provision, however, it’s difficult to see how this complicated and costly process will actually speed permit reviews.
Positive Points
In terms of positive points--
-- Narrow Focus: It is focused on Chapter 102 and 105 permits, rather than every permit issued by DEP.
-- Reject Incomplete Permit Applications Upfront: As drafted, it would allow DEP to simply reject incomplete permit applications and make them start over and not forward them on to a licensed professional for review.
During recent hearings by the House Environmental Resources and Energy Committee and DEP’s own permit review analysis, from 50 to 60 percent of permit applications come in the door incomplete or technically deficient.
The Cumberland County Conservation District told the Committee consultants just submit what they have on hand knowing it will come back to them because they are under pressure from their clients.
Right now a lot of DEP and conservation district staff time is spent “handholding” consultants to correct applications and resubmit them.
A once and done rule like envisioned here would be a huge help, even without any legislation.  Consultants would be under tremendous pressure to get it right the very first time.
But if 50 to 60 percent of applications are rejected upfront, how long will it take House and Senate members to start complaining about that?  That’s just the political nature of things.
-- Only One Opportunity To Correct Deficiencies: During the review by the licensed professional, the bill provides only one opportunity to correct problems.
Again, a lot of DEP and conservation district staff time is spent “handholding” consultants to correct technical problems with their applications so they can move forward to a decision.
If consultants are given only one chance to submit corrections with only an up or down recommendation by the reviewing professional, it would speed the process.
However, again, how long would it take House and Senate members to start complaining about that?  This is just the political nature of things.
Negative Points
-- Time Limits On Application Reviews Unrealistic  For Complex Projects: The 15 business day deadline for a technical review by a licensed professional may be OK for simple project, but falls apart with more complex pipeline and other projects.
-- No Time Limit On Consultant Responses: There is no time limit set for consultants to respond to the licensed professional’s technical deficiency letter other than to say a “timely response.”
 At a May hearing by the House Environmental Resources and Energy Committee, the Cumberland County Conservation District testified it took an AVERAGE of 33 business days (more than 6 calendar weeks) for a consultant to get back to the District with corrections.
A month and a half, let that sink in.
-- Public Comment Opportunities Muddled: Since these provisions would apply to individual projects as well as pipeline projects that could cover several counties, the opportunities for public comment should be crisp and unaffected by the bill.
The bill would seem to preserve the initial comment period on Chapter 102 and 105 permit applications, but it becomes a little muddled later.
The bill says if DEP decides to have a hearing or hearings on an application it has to make a decision within 10 days [not business days] after the last hearing.
Clearly for multi-county pipeline and other complicated projects this simply is not enough time for DEP to absorb and respond to comments in writing as it is required to do.  There are numerous examples that could be cited here, Mariner East II Pipeline to mention just one.
Milking A Cow Through A Fence 
The cost of setting up the qualification program for licensed professionals and providing training would all come out of permit fees.  These permit fees now do not cover DEP costs to operate the existing programs.
There are no separate appropriations to support this program in the bill, so existing fees would have to increase even more dramatically to cover this special program.
Since DEP is the ultimate “decider” on the permit applications, it would have to conduct its own second review of the application and the licensed professional’s recommendation and any public comments within the 10 days alotted by the bill to make a decision.
DEP is then the one that has to defend that decision in any subsequent legal challenges, even though it did not do the technical review and under the bill does not have adequate time to conduct its own review.  
The bottom line is why do 2 reviews?   A significant weakness.
Bottom line
Given the process outlined in this bill, it is very difficult to see where there would be any significant speed-up of permit reviews.  The bill also does not anticipate the electronic permitting systems now being developed at DEP.
This is simple.
Why not simply invest money in bolstering electronic permitting systems that work to eliminate incomplete applications completely and speed permit review and allow for more transparency through the entire process?
Tell DEP to adopt administrative rules, if the bill sponsors really meant them, to--
-- Give consultants only one chance to submit a complete application, period; and
-- Give consultants only one chance to correct permit application deficiencies.
You could adopt this bill, but it would be like milking a cow through a fence.  Yes, you could do it, but would you want to?  
And chances are you’d get less milk because you’re actually creating barriers to the work that needs to be done.
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:   Sen. John Yudichak (D-Luzerne) serves as Minority Chair and can be contacted by calling 717-787-7105 or sending email to:
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[Posted: October 16, 2019]

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