Analysis: The Public Has A Right To Meaningful Participation In Policy Making

The public has a right to meaningful participation in permit reviews and policy making within the Department of Environmental Protection.  It sounds simple, but it’s not.

Over the last two years DEP’s 18-member Citizens Advisory Council has made a series of recommendations for improving public participation in permit reviews, in the development of technical guidance and regulations and in the use of the agency’s advisory committees.

Some of those recommendations were accepted by DEP and resulted in the creation of a new tools like the Public Participation Center on DEP’s website which brings together many of the agency’s public participation opportunities in one place.

Some of the recommendations were not accepted or their fate is unknown.

The incoming Wolf Administration and the individual named by Gov.-Elect Wolf to be Secretary of DEP will find a ready set of changes they can make to improve public participation waiting on his or her desk by reviewing the work done by the Council.

Permit Reviews

In July 2013 the CAC submitted recommendations to DEP for changes in its Policy On Public Participation in the Permit Review Process covering nuts and bolts issues like file review requests at DEP offices, adequate notice for public hearings and when permit applications have been changed enough to put them out for review again.

DEP did make a number of changes, including developing a new brochure to inform the public how and when they can be part of the permit review process, but other Council recommendations were not adopted or Council did not receive feedback on the suggestions.  They included--

-- Public Review of Changes In Permit: Allowing for an additional 10 days of public review if new information which substantially changes a permit application is added to a permit file by either the applicant or DEP and allow the public the right to review that information under the Department’s file review procedures in time to comment;

-- Define Significant Changes In A Permit Application: Add a definition for “substantially changes,” which was taken out of the revised policy, to give further guidance to DEP in making its decision to add more public review time.  A substantial change would include an increase of 30 percent or more in the size of the facility or activity, a material change in the location of the project, a change in the materials used in the project that would increase its environmental impact and a material increase in the environmental impact of the project, among other factors;

-- Defining Role Of Informal Conferences: Further defining when informal conferences are used in the public participation process, clarifying who is allowed to attend and recommending a formal record of the conferences should be kept;

-- Training DEP Staff: Recommends DEP provide staff with training on public participation procedures.

Technical Guidance & Regulations

From March through May 2013 the CAC reviewed the process for involving the public in the development of technical guidance and regulations, taking the added step of extending an invitation to the public and members of DEP’s 22 active advisory committees asking for their ideas.

The final report included over a dozen recommendations for improving the process.  Among those recommendations not adopted or responded to by DEP were--

-- Public Participation Plan: The Council recommends DEP develop a Public Participation Plan for significant regulation and guidance changes which includes early identification of interested and affect members of the public, identification of the specific public outreach tools it will use to develop and solicit public comments on the change, i.e. informal or formal stakeholder groups, work groups, advisory committees, public meetings and hearings, appropriate supporting documents, white papers and presentations, both online and hardcopy, special webpages and a timeline for activities, including responding to comments and presenting the final product.

-- Policy Agenda/Policy Update: Presently DEP does not have a Technical Guidance Agenda which lays out the policies the agency plans to develop in each program over the coming six months, like the Regulatory Agenda does for regulatory development and there should be.

-- eNOTICE: DEP’s eNOTICE email notification service has not been updated in more than 10 years and should be made much more user friendly.  The current system notifies individuals who have signed up for the service notice by email.  At a minimum, the service should be changed to consistently notify users of the opportunity to comment on all regulations and all technical guidance changes and their final disposition.

-- Staff Training/Evaluation Of Public Participation Efforts: An important part of implementing any public participation policy is to provide training to program staff on the tools available to encourage public participation, the basic policies and principles behind the agency’s public participation program and the seriousness with which the agency believes in public participation and its value to the agency in improving the quality and effectiveness of the regulations and technical guidance it publishes.  DEP should also periodically review the individual application of its public participation tools to determine how effective they are in encouraging real public participation.

-- Inappropriate Use Of Technical Guidance: The use of technical guidance which function as regulations was raised by the comments received by Council, specifically with respect to guidance documents issued by DEP creating exemptions from the full permitting process for sources of air pollution. Although guidance documents frequently have a provision saying the policies and procedures outlined in guidance documents should not affect regulatory requirements, the Council agrees technical guidance should not be treated as regulations by agency staff.  The Council advises the Department of this concern and asks for its response on this issue.

Council prepared a Comment/Response document responding to all comments received as a result of the invitation for comments.

Use Of Advisory Committees

From August to November 2014 the Citizens Advisory Council evaluated the existing 1998 guidance outlining procedures for DEP interaction with and management of the agency’s 22 advisory committees.

Council surveyed each of the committees on issues like how effectively was DEP using the committee, did they get adequate time to review proposals given to them and asked for their recommendations on improving the process.  Eighteen of the 22 committees responded to the survey.

As a follow-up, Council invited the Chairs of each of the committees to a roundtable discussion of these issues in October.

Overall, advisory committees reported a positive experience with DEP and thought they had made meaningful contributions to the development of guidance and regulations.  It was clear, however, that experiences differed between committees.

The result of this initiative was a report adopted in November outlining a series of recommendations on improving the management and interactions with advisory committees. 

Those recommendations not adopted or responded to by DEP included--

-- Identifying Gaps And Redundancy: The responsibilities of existing Advisory Committees should be reviewed to identify gaps and redundancy both in the scope of their responsibilities and in the types of issues given to Committees for review.  For example, the changes proposed to DEP’s Oil and Gas Program enforcement policy was not reviewed by any Advisory Committee.

-- Formal Review Of Regulatory Programs: DEP should establish a formal program to regularly review existing regulations, technical guidance and agency programs for effectiveness and efficiency and whether DEP has adequate resources to carry out its responsibilities and statutory mandates.

-- Establish And Share Best Practices: There are still some significant gaps to close in basic Advisory Committee administrative procedures, such as getting Committee members meeting materials in enough time for a meaningful review and posting them on the Committee webpage, collaboratively setting Advisory Committee agendas and having higher-level DEP staff attend meetings so members can have direct discussions with decision makers.

-- Apply Advisory Guidelines To All Formal Advisory Groups: DEP has established formal advisory groups like the Regional Roundtables and the Chesapeake Bay Management Team that are not using the existing guidelines to provide notice of meetings and posting meeting materials and they should.

-- Establish A Technical Guidance Agenda: DEP should create a Technical Guidance Agenda, like the Regulatory Agenda, to give the public more information about which policies the agency is looking to update or create (suggested a second time).

The public has the right to a meaningful opportunity to be involved in permit reviews and policy making at the Department of Environmental Protection.  Meaningful public participation can identify issues overlooked by the agency and help address real concerns in a community or industry sector.

Without the opportunity to participate and share real information, the public begins to lose its faith in the ability of the agency to do its job of protecting public health and the environment.

Yes, in the end, DEP will make its decision based on the laws it operates under and the facts as they see them and those decisions can be then be challenged at the Environmental Hearing Board and in state court if necessary.

But, wouldn’t it be better to have everything on the table before a decision is made?  That’s what meaningful public participation is all about.


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