Tuesday, May 4, 2021

House OKs 4 Bills On Killing Regulations By Doing Nothing; Shielding Law Violators; Mandating Private Review Of DEP Permit Applications

On May 4, the House approved four bills by mostly party-line votes-- Republicans supporting-- to allow the General Assembly to kill final regulations by doing nothing, provide a shield to law violators and mandating private review of DEP permit applications.
The bills went to the Senate for action where they were referred to the Senate Intergovernmental Operations Committee.  
Senate Republicans reported their own versions of most of these bills out of this Committee a week ago that are now on the Senate Calendar for action.  Read more here.

The House bills include--

-- Killing Regulations By Doing Nothing: House Bill 72 (Keefer-R-York) would require legislative approval of any economically significant final regulation or final-omitted regulation that has an impact of $1 million or more on a regulated community.  In order for a final regulation approved by the Independent Regulatory Review Commission to go into effect, the Senate and House would have to adopt a concurrent resolution approving the regulation. If one or both of the chambers failed to act, the final regulation would be deemed NOT approved and would be prohibited from taking effect.  Read more here.

-- Shields Violators From Enforcement Actions: House Bill 288 (O’Neal-R-Washington)  would create a Regulatory Compliance Officer in each state agency to, among other duties, develop guidelines to waive penalties if a business or other entity if they just “attempt to comply” with a regulation.

The Officers could also offer advisory opinions that would offer violators a complete defense from enforcement without any involvement of the public.  If the Officers failed to respond to a request for an opinion serves as an automatic defense to the violator’s actions.

-- Repeal Existing Regulations By Resolution Not Law: House Bill 950 (Metcalfe-R-Butler) would authorize the General Assembly to repeal any existing regulation using a concurrent resolution passed by both the Senate and House and presented to the Governor for his action.  If a regulation is repealed or disapproved, an agency may not propose a new or revised regulation unless specifically authorized by law.

This bill creates a shortcut in the legislative process never used before to repeal an existing requirement in the Pennsylvania Code that can protect public health and the environment (in the case of DEP) and have the force of law.

A resolution is passed by only one vote in each of the Senate and House.  A change in law-- requiring three votes in each chamber-- is now required to repeal or replace a regulation.

-- Mandates Private Review Of DEP Permit Applications:  House Bill 139 (Rothman-R- Cumberland)  establishes a program to require the review of permit applications by private contractors for applications that have been “delayed,” eliminating agency review of permit applications on behalf of the public and adding more state bureaucracy and cost on taxpayers.

The bill has many fatal flaws, including no conflict of interest provisions that would prohibit a third party permit reviewer from reviewing their own permit applications.

It sets a standard 30 day window for agency review of permit applications which eliminates the ability of the public to comment on permit applications required by other state and federal laws.

The bill also lacks any deadline for a review and decision by the third party permit reviewer on applications, which is allegedly the reason for the legislation in the first place.

If legislators are worried about delayed permit reviews, at a May 2019 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.

Another fundamental flaw deals with permit appeals.  Since the bill takes the review of permit applications away from DEP, there are also basic issues of what happens when a permit decision is appealed by either the applicant or the public. 

Who defends the permit review and the decision and who pays for that?

Across state agencies there are thousands of different types of permits, each with their own requirements with review times meeting hundreds of state and federal laws that can vary from one page to many pages.

Legislators interested in solving the permit review issue could do things like invest in electronic permitting systems that help eliminate application errors going in and encourage a publicly accessible review process.  But they haven’t.

Also remember, DEP is processing 94 percent of its permit applications within the Permit Review Guarantee Program deadlines, even in a pandemic.

This bill is simply a political statement.  It would not work in the real world.

Office of The Repealer

A fifth bill in this package-- House Bill 939 (Klunk-R-York) creating a new bureaucracy-- the Independent Office of the Repealer-- was amended and referred into and out of the House Appropriations Committee and is now on the House Calendar for action.


On May 3, the PA Environmental Council and Environmental Defense Fund wrote to all members of the House opposing five House Bills they said would “impede agency function and curtail environmental and public health protections” by changing the way regulations are adopted and how permits are reviewed.  Read more here.

The bills include-- House Bill 72 (Keefer-R-York); House Bill 139 (Rothman-R- Cumberland); House Bill 288 (O’Neal-R-Washington); House Bill 939 (Klunk-R-York); and House Bill 950 (Metcalfe-R-Butler).

“While enhancing regulatory performance, transparency, and accountability is undoubtedly an important goal, these bills will do more to impede agency function and curtail environmental and public health protections. 

“Furthermore, many of these bills impact multiple agencies that address crucial issues far beyond the responsibilities of just the Department of Environmental Protection (DEP).”

“Because these bills are largely redundant with existing authority, and in fact create new and unwarranted hurdles for environmental and public health protection, we urge you to oppose this legislation. 

“While there are some isolated concepts within these bills that we could support or stay neutral on, there are very concerning provisions that far outweigh any true benefits.

“We would welcome the opportunity to come to the table on these issues.”  

Some Thoughts

These bills are now part of a Republican effort to promote “economic recovery” from the pandemic, but in reality these initiatives seeking to attack regulations and restrict environmental protection and safety efforts have been around for years from Republicans.

They just gave themselves a new reason to pass bad bills.

With respect to “recovery,” let’s not forget Pennsylvania’s businesses have so far received direct, taxpayer-funded payments of over $32 billion-- that’s BILLION dollars-- from the federal government through the Paycheck Protection Program to get them through the pandemic, according to the Independent Fiscal Office.

It was certainly needed in these unprecedented times, but just saying.

Related Articles This Week:

-- Republicans On House Committee OK Bill To Roll Back Environmental Protections From Conventional Oil & Gas Drilling, Legalize Road Dumping Of Drilling Wastewater

-- House Environmental Committee Republicans Oppose Fees Funding Water Quality Protection Programs; Write RGGI On Authority For Regs To Reduce Carbon Pollution From Power Plants 

House Republican 2021 Environmental & Energy Agenda

-- House Republicans Introduce Bills To Raid Dedicated Environmental Funds, Cripple Solar Energy, Shield Violators From Enforcement

-- Republicans On House Committee OK Bill To Roll Back Environmental Protections From Conventional Oil & Gas Drilling, Legalize Road Dumping Of Drilling Wastewater

-- House Republican Introduces ‘You’re On Your Own’ Emergency Declaration Bill

-- Republicans Introduce Bill Saying DEP Permit Applicants Are Always Right, Eliminates Public Comments; Add Other Bills To Their Environmental Agenda

-- Republican Bills Again Seek To Make Road Dumping Of Conventional Drilling Wastewater Legal

-- -- House Environmental Committee Republicans Oppose Fees Funding Water Quality Protection Programs; Write RGGI On Authority For Regs To Reduce Carbon Pollution From Power Plants 

-- Republicans On House Committee OK Letter Urging IRRC To Disapprove Reg. Reducing Carbon Pollution From Power Plants 

-- House Republicans Reintroduce Bill To Kill Regulations By Doing Nothing 

-- House Republicans Want To Mandate Private Contractor Permit Application Reviews, Eliminating DEP’s Review On Behalf Of The Public 

-- Republicans On House Committee OK Letter Disapproving Of Proposed EQB Changes To Chapter 105 Regulations                                 

-- House Budget Hearing Fails To Address A Single Critical Budget Issue Faced By DEP Or DCNR     

[Posted: May 4, 2021]  PA Environment Digest

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