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Senate Environmental Permitting Changes Would Emasculate DEP’s Ability To Regulate Air, Water, Mining, Waste, Radiation, Oil & Gas

The Tax Code bill passed by the Senate Thursday-- House Bill 542 (Thomas-D-Philadelphia) -- includes provisions creating a special Advisory Committee that must approve any air quality general permits for oil and gas operations before they go into effect and directs DEP to set up a third-party permit review program for all its permits.

The net impact of the changes would be to emasculate the ability of the Department of Environmental Protection to regulate pollution under any of its programs and sets up significant conflicts with the ability of the agency to continue to administer any of its federal regulatory programs.

The amendment also directs DEP to take all fees collected by the agency over the last calendar year for any permits considered delayed and transfer those funds to the third-party reviewers, further cutting DEP’s operating budget.

These changes are on top of the 40 percent cut to DEP’s budget over the last 13 years made by the General Assembly and Governors and the loss of over 22 percent of its staff.

Now the Senate amendments propose to take away DEP’s permit fees and its authority to issue environmental permits and create another private bureaucracy of third-party reviewers and allow a permit applicant to pick the reviewer he wants, including picking a landscape architect to review as hazardous waste permit.

All, of course, with no resources to administer this new bureaucracy.

The provisions were no doubt deliberately put in the Tax Code bill, which only has to do with taxes not administrative issues, along with the natural gas severance tax to make it much more difficult for the Governor to veto.

Scarnati, Corman Stabbed Us In The Back

The following article was published in the Marcellus Drilling News and distributed Saturday morning via Twitter by Drew Crompton, Chief Of Staff for Senate President Pro Tempore--

“Pennsylvania Senate Majority Leader Jake Corman and Senate President Pro Tempore Joe Scarnati have betrayed the Marcellus gas industry and should be tossed out on their rear-ends in the next election.

Click Here to read the full article.  Click Here for an image of the article.  Click Here for an image of Crompton’s Tweet.

The Rest Of The Article Says...

If you subscribe to the Marcellus Shale News, this is what a key part of the remainder of the article says--

“We sincerely hope and trust the drilling industry will put big money behind challengers to Corman, Scarnati and the other traitors in the PA Senate. In fact, we have the list of names from the Republicans on the budget committee who voted “yes” to a severance tax, so you know who to vote (and contribute) against next time around.”

The article goes on to list the Republican “traitors” and the “four brave Republicans who voted against this insanity, worthy of your support in the next election” -- Senators Argall, Langerholc, Martin and Wagner.

Click Here for an image of the article not included in the free view and from which this quote was taken.

Air Quality Permit "Advisory" Committee

One amendment would create a new 7-member Air Quality Permit Advisory Committee dominated by 6 members appointed by the Senate and House and one member by the Governor (Section 2401-B, page 46 of the amendment).

The language requires the Committee to approve all general air quality permits meant to regulate air emissions from oil and gas operations.

It was meant to address the ongoing disagreement with some in the General Assembly and DEP over its proposed methane emission control general permits covering oil and gas operations.

This is the first time in history a legislatively-dominate body has veto authority over any environmental regulation or permit short of a vote to pass new legislation or a resolution that is then presented to the Governor for his action.

Mandatory Third Party Environmental Permit Reviews

Another amendment to the bill directs DEP to within one year establish a program for third-party review of any permits (not licenses or certifications) issued by the agency (Section 2401-C, page 47).

DEP is required to review all permit decisions already made (issuances, denials changes in ownership, transfers, renewals, amendments) and permit decision delays (beyond the permit guarantee deadlines or 30 days if not included in that program) in the prior calendar year and submit that report to the Chairs of the Senate and House environmental committees within one year.

DEP is required to contract with third-party permit reviewers and transfer its report on all permit decisions and permit decisions delays to those reviewers. 

The third-party reviewers are required to be licensed professionals defined as “an individual licensed by the Commonwealth as a professional landscape architect, engineer, land surveyor or geologist.”

Any permit fees collected by DEP for permit considered delayed are directed to be turned over to the third-party reviewers.

The third-party reviewers are designated an “agent of the Commonwealth” for purposes of resolving each permit application which is subject to a permit decision delay and permit decisions in the report.  There are no provisions for any supervision of these individuals or for accountability.

There are no conflict of interest provisions that would prevent a consultant from reviewing his own application, and if DEP added even a basic conflict provision would they be going beyond their statutory authority?

There are no provisions dealing with public participation.  Since the third-parties are now handling a permit application will they make the decision on holding a public hearing or extending a comment period when a legislator calls? 

There are no deadlines for permit review actions by the third-parties and no provision requiring them to follow procedures, many times hammered out with federal agencies, to assure permit review integrity.

The permit applicant may also select his own permit reviewer (an “individual licensed by the Commonwealth as a professional landscape architect, engineer, land surveyor or geologist”) among those third-party reviewers contracted with DEP.

These third-parties are accountable to no one, according to the language in the bill.  There is no provision to even require the third-parties to communicate with DEP on what their decision was or to allow DEP access to the documents they sent to permit applicants.

There are no provisions dealing with appeals of permits by the applicant or public.   Since third-parties are an "agent of the Commonwealth" and charged with "resolving each permit application" will there even be appeals and who defends a permit in court.  Certainly not DEP under this program since they had nothing to do with the permit decision. 

And just as certain, the third-parties will not defend permits for free although there is no provision for paying third-parties more than DEP permit fees.

DEP is authorized to adopt regulations to implement these provisions, but again, would adding common sense protections for the public be going beyond their statutory authority as written?

Click Here to read the amendment for yourself the amendment.  Click Here for a copy of the Senate Fiscal Note and summary.

What DEP Has Said About Third-Party Reviews

At a Senate Transportation hearing in February, DEP Deputy Secretary John Stefanko said there were several significant concerns with third-party reviews, not the least of which is the statutory requirements requiring DEP make its own independent determination when taking permit actions.

“Only the Commonwealth has constitutional obligations to the public and our natural environment,” said Stefanko.  “Absent direct supervisory oversight and Commonwealth parallel review, the quality of review and application of constitutional, statutory and regulatory requirements is difficult to control. Sufficient QA/QC [Quality Assurance/Quality Control] requires time and personnel, likely eliminating any cost benefits and time savings assumed by the third party review structure.”

He noted third party reviews would required DEP to providing training of third party reviewers by the Department.

“The Department has made staff training a priority. This is a complex and time consuming activity. It will take a great deal of time, effort and energy to insure that the third party reviewers are properly trained and understand Department regulations and guidance,” explained Stefanko.  “This time effort and energy would be better spent by enhancing Department staff capabilities to deliver training to both Department and County Conservation District staff.”

Stefanko also pointed out, during an appeal of a permit approved under a third party review, that third party would be required to defend its actions before the Environmental Hearing Board and Commonwealth Court.

The third party reviewer would not defend its reviews for free and impose additional costs on the agency.  The third party could also be responsible for attorney’s fees and other costs if they lose.

He also said there is a significant concern over potential conflicts of interest and ethics with third party contractors.

Click Here for a copy of Stefanko’s written testimony.

Oil and Gas Erosion Permit Reviews

Section 2403-A of the Tax Code bill (page 77) requires DEP to do several things with permits for unconventional oil and gas wells development--

-- Any permit which has not been denied by DEP within the statutory timeframe is deemed approved;

-- If the review period is extended for cause, DEP must refund the permit review fee to the applicant; and

-- DEP is required to review well permits within 45 days (or 60 days with cause), general air quality permits within 30 days and an erosion and sedimentation permit within 53 days or 24 business days of submission for an expedited application.

Permit Review Reforms Without Destroying Programs

There are without doubt changes and reforms needed to speed DEP permit reviews and make them more consistent across the state.

Many of those reform initiatives were discussed at DEP’s budget hearings this year, separate committee hearings and at the confirmation hearing for DEP Secretary Patrick McDonnell.  Click Here for a list of those initiatives.

At a Senate hearing on May 24 David Spigelmyer from the Marcellus Shale Coalition “applauded” efforts by Secretary McDonnell to help speed up permit reviews, while at the same time pointing out legitimate issues.

But without investment in technology and people, these changes will never be made.

The Senate missed the mark on this issue.

It is ironic this proposal comes out now, during the same week we are celebrating the 15th anniversary of the Quecreek Mine Rescue, a rescue by public employees doing their jobs and volunteers working cooperatively with private contractors to get a critical job done.

Just the opposite of this proposal.

NewsClips:

McKelvey: Legislative Measure Relaxes Environmental Oversight In Exchange For Severance Tax

Legere: Senate’s Severance Tax Bill Makes Major Changes To DEP Permitting

Senate Budget Measure Would Outsource Environmental Permit Review 

Straight Talk: An Environmental Crippling PA Revenue Package & Rationalizing The Severance Tax

Editorial: Radical, Ill-Advised 3rd Party Review Of DEP Permits

Related Stories:

Nothing In Senate $970 Million Revenue Package For The Environment, Code Bills Littered With Environmental Riders

DEP To Senate Committee: Complete Applications, More DEP Staff Keys To Improving Permit Turnaround Times

Analysis: House/Senate Republicans Introduce DEP Permit/Reg Reform Bills

[Posted: July 27, 2017]

PA Senate GOP Leaders Stab Gas Industry With Severance Tax Plan


StabbedInBack.jpg

The following article was published in the Marcellus Drilling News and distributed Saturday morning via Twitter by Drew Crompton, Chief Of Staff for Senate President Pro Tempore Joe Scarnati (R-Jefferson)--

“Pennsylvania Senate Majority Leader Jake Corman and Senate President Pro Tempore Joe Scarnati have betrayed the Marcellus gas industry and should be tossed out on their rear-ends in the next election.

“Corman, Scarnati and other so-called Republicans in the PA Senate leadership have signed on to promote a severance tax plan to “close” the budget gap THEY CREATED by idiotically passing a bloated spending plan they couldn’t pay for.

“Now, caving to pressure from a tax-and-spend liberal media and tax-and-spend Democrat Party, PA Senate Republicans have opened a door that should never have been opened.

“PA’s Marcellus drillers already pay the equivalent of a 9.16 percent severance tax–highest in the country (called an impact fee).

“This new plan leaves the impact fee in place, AND places a severance tax on top of it, guaranteeing LESS drilling (and less tax money) for PA, not more.

“How utterly stupid is that?

“Last night 19 members of the PA Senate Appropriations Committee voted on a plan that, among other things, puts a 2 cents per thousand cubic feet severance tax on all natural gas produced, which, according to the wizards of smart in the Senate, will raise an extra $108 million.

“Today the package goes to the full Senate for a vote, where it is expected to pass. It then goes to the House.

“If a severance tax is passed (big if), Gov. Wolf can finally “check a box on a campaign promise” to give away other people’s money to teacher’s unions.

“Our only line of defense now is the steel backbone of PA House Speaker Mike Turzai and the House Republicans, to hold the line and reject the severance tax proposal coming from the Senate…”

In response, Crompton’s Tweet said, “We knew this would be whispered. I didn’t think it would be printed. All the shale provisions are nonseverable.”

Nonseverable means if one provision of the Tax Code bill is declared unconstitutional, then the whole set of Tax Code amendments passed by the Senate related to DEP permitting "reforms" will become null and void.

That’s why the most onerous provisions related to DEP’s permit programs were put in the Tax Code bill in the first place-- as a trade off.

Click Here for an image of the article in case it’s lost.  Click Here for an image of Crompton’s Tweet.

The Rest Of The Article Says...

If you subscribe to the Marcellus Shale News, this is what a key part of the remainder of the article says--

“We sincerely hope and trust the drilling industry will put big money behind challengers to Corman, Scarnati and the other traitors in the PA Senate. In fact, we have the list of names from the Republicans on the budget committee who voted “yes” to a severance tax, so you know who to vote (and contribute) against next time around.”

The article goes on to list the Republican “traitors” and the “four brave Republicans who voted against this insanity, worthy of your support in the next election” -- Senators Argall, Langerholc, Martin and Wagner.

Click Here for an image of the article not included in the free view and from which this quote was taken.

(Photo: Illustration from the article in Marcellus Shale News.)

Related Stories:

Nothing In Senate $970 Million Revenue Package For The Environment, Code Bills Littered With Environmental Riders

Senate Environmental Permitting Changes Would Emasculate DEP’s Ability To Regulate Air, Water, Mining, Waste, Radiation, Oil & Gas

PEC To Legislators: Oppose Diversion Of Monies From Local Environmental Project Funds

Growing Greener Coalition urges Senate, House Members To Protect Local Environmental Restoration Project Funding

[Posted: July 29, 2017]


7/31/2017

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