PA Environment Digest Blog: PA Senate Republicans Move Bills To Roll Back Any State Regulations, Laws, Guidance At The Request Of Industry

Trying to get legislation passed to roll back any state regulations, laws and guidance at the request of regulated industries and business is nothing new for Pennsylvania Republicans. They’ve been trying to do it for years.

Last week Senate Republicans moved three bills-- one that gives unelected bureaucrats power to waive any state law or regulations at the request of businesses in a regulatory “sandbox” -- Senate Bill 245 (Coleman-R- Bucks); give the Senate and House the power to kill final regulations by doing nothing-- Senate Bill 333 (Keefer-R-York); and resuscitating a “sunset” review of existing regulations process that was dropped years ago as a useless, make-work process-- Senate Bill 444 (Brooks-R-Crawford).

A new bill-- Senate Bill 810 (Phillips-Hill-R-York) that creates a whole new bureaucracy and agency regulatory compliance officers with the ability to waive any fines and penalties agencies issued and help regulated entities with defending their actions when they violate the law.

Waiving Laws At Industry Request

On June 4, the Senate Intergovernmental Operations Committee amended and reported out by a vote of 6 to 5-- Republicans supporting (except for Sen. Keefer (R-York)-- Senate Bill 245 (Coleman-R-Bucks).

The bill establishes an Office of Regulatory Relief and a regulatory “sandbox” program to allow the waiving or suspension of any state law, regulation, rule or guidance requested by a business or industry in order to allow that business to produce a product.

The legislation is so broadly written, regardless of its intent, that it could cover almost any product or means of production.

The new Office can reject a request by industry if there was “potentially significantly harm to the health, safety or financial well-being of consumers or the public and the likelihood of the harm occurring” from waiving a law or regulation or if would fail to meet a requirement of federal law or regulations.

Note, the environment is not considered.

The bill also creates an eight member Regulatory Sandbox Program Advisory Committee “who need not be residents of this Commonwealth” chaired by the Director of the Office to review and offer advice to the Office.

The Committee, however, is authorized to override any decisions of the Office of Regulatory Relief on granting waivers to industries requesting them, regardless of cause and without justification.

The bill prohibits any judicial review of the advisory Committee decision.

Prior criminal convictions of a business or its principals is not necessarily a bar from participating in the “sandbox” program.

“A criminal conviction may be weighed in the application process, but shall not be a barrier to participation in the regulatory sandbox,” unless it involves theft, fraud or dishonesty that bears a significant relationship to the applicant’s ability to participate in the program.

Note it says nothing about violating the laws and regulations the business is seeking to have waived.

Public notice of applications is required only after the Office has taken action on the application.

Approval of an application to waive laws or regulations is good for two years, but can be extended for an additional year.

During this time the business with an approved application may not be prosecuted by anyone for violating the law or regulations it successfully got waived.

The bill does require the successful applicant to notify applicable agencies of any incident that results in “harm to the health, safety or financial well-being of a consumer” [but not the environment].

When the business completes the two or three year waiver period, the business is required to submit a report on how it went and make any recommendations of statutory or regulatory reforms.

The bill is now on the Senate Calendar for action.

The prime sponsor, Sen. Coleman, said he would be introducing Senate Bill 633 from last session that establishes a similar “universal” regulatory sandbox concept for all industries and businesses, although, again, the language in Senate Bill 245 is extremely broad.

Killing A Regulation By Doing Nothing

On June 4, the Senate Intergovernmental Operations Committee also reported out Senate Bill 333 (Keefer-R-York) by a vote of 7 to 4-- Republicans supporting.

Under the bill, if the Independent Regulatory Review Commission approves an economically significant final regulation imposing more than $1 million in costs, or if a state agency decides to go ahead with a final regulation disapproved by the Commission, the General Assembly must approve the regulation by passing a concurrent resolution.

Under the bill, doing nothing-- failing to adopt a resolution-- would prohibit the regulation from being published.

It could only be published as final if the Senate and House passed the resolution.

The bill is now on the Senate Calendar for action.

Mandatory Review Of Existing Regulations

On June 4, the Senate Intergovernmental Operations Committee reported out Senate Bill 444 (Brooks-R-Crawford) by a vote of 7 to 4-- Republicans supporting.

The bill requires the mandatory review of all economically significant existing regulations with an economic impact of $1 million or more after it has been in effect for three years with a formal report to the General Assembly on their implementation.

The bill, however, does not define how regulations would be segmented to be analyzed under the bill, in particular if they are dozens or hundreds of pages long and have been amended frequently over the years.

This process was called a “Sunset Review” that was effectively abandoned decades ago by the General Assembly as a make-work exercise of limited value.

The bill is now on the Senate Calendar for action.

Office Of The Repealer - Revived

On May 30, Sen. Kristin Phillips-Hill (R-York) introduced Senate Bill 810 to establish a new Office Of Government Efficiency and new “Regulatory Compliance Officers” within each state agency.

In last session’s bill-- Senate Bill 726-- the bill created the Independent Office of the Repealer, at least an improvement in the name, if not the function.

The legislation requires all state agencies to identify at least two existing regulations for repeal for each new regulation proposed by an agency.

Under this legislation an agency would have to decide whether a new regulation to regulate PFAS ‘forever chemicals,’ for example, was more important than an existing regulation covering hazardous waste disposal or surface coal mining they would need to repeal.

In another provision, , like in Senate Bill 333, if the Independent Regulatory Review Commission approves a final regulation that is “economically significant” imposing costs of $1 million or more, or if a state agency decides to go ahead with a final regulation disapproved by the Commission that is economically significant, the General Assembly must approve the regulation by passing a concurrent resolution.

Doing nothing-- failing to adopt a resolution-- would prohibit the regulation from being published. It would only be published as final if the Senate and House passed the resolution.

Under the bill, a Senate or House committee may initiate a concurrent resolution, rather than pass a law which requires additional reviews, to repeal any existing regulation in effect.

If a resolution is successfully adopted, an agency would be prohibited from issuing a revised regulation that is substantially similar to the regulation repealed, unless it is specifically authorized by law.

The bill also requires the existing Independent Fiscal Office to prepare an estimate of the costs imposed by any regulation for inclusion in the Regulatory Analysis Form submitted by state agencies as part of the review by the Independent Regulatory Review Commission.

Previously this was done by the state agency proposing a regulation. There was no mention of calculating potential benefits.

Waiving Any Penalty Or Fine

Senate Bill 810 would require each state agency to designate “an employee” as a Regulatory Compliance Officer with the authority to waive any penalty or fine issued by their agency and offer binding opinions to regulated entities on the duties and responsibilities of those entities under the laws and regulations of the agency.

If an entity reported a violation to the Regulatory Compliance Officer and before a fine or penalty is imposed, the Officer could waive any fine or penalty for the entity under guidelines to be developed by the Officer-- not the agency-- and approved by no one.

If an entity requests an opinion from the Regulatory Compliance Office of their responsibilities under any regulation or program of the agency, that resulting opinion can be used as a “complete defense” against any civil or criminal proceeding against the requesting entity.

These Officers would also be required to provide a detailed explanation of each regulatory requirement administered by their agency, including expectations for compliance, guidelines for measuring compliance and the primary benefit of each requirement; to educate the regulated community on complying with laws and regulations; and working with entities to resolve noncompliance issues before imposing penalties.

The workload on these “Officers” would be significant, some might say staggering, for “an employee.”

Office Of Government Efficiency

Senate Bill 810 would create an Office of Government Efficiency, within the Independent Regulatory Review Commission, to adopt “rules” for determining whether an existing statute or regulation is--

-- Unreasonable, unduly burdensome, detrimental to economic well-being, duplicative, onerous, defective or in conflict with another statute or regulation.

-- Defying a common sense approach to government.

The new Office is charged with recommending changes to statutes and regulations as a result of its reviews.

Senate Bill 810 was referred to the Senate Intergovernmental Operations Committee for consideration.

PA Oil & Gas Industry Public Notice Dashboards:

-- PA Oil & Gas Weekly Compliance Dashboard - May 31 to June 6 - Horizontal Drilling Spill; ‘Control Issue’ Blows Drilling Mud Out A Flare; Failure To Notify DEP Of Spills; More Abandoned Wells [PaEN]

-- PA Oil & Gas Industrial Facilities: Permit Notices, Opportunities To Comment - June 7 [PaEN]

-- DEP Posted 73 Pages Of Permit-Related Notices In June 7 PA Bulletin [PaEN]