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House Bill 1959 Creates New 3rd Party Permit Review Bureaucracy At DEP, State Agencies
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House Bill 1959 (Rothman-R-Cumberland) was introduced Wednesday and represents yet another attempt to give third parties the power to review and direct the Department of Environmental Protection to issue environmental permits and in the process creates a new permit review bureaucracy that is not funded.

This bill goes beyond others by applying to all state agencies, but targets DEP permits specifically.

The bill targets any permit, general permit, permit renewal, amendment, modification, permit transfer or change of ownership under any permit DEP is now authorized to issue from hazardous waste, underground mining, air quality, safe drinking water, dam safety, oil and gas, erosion and sedimentation and more.

The bill directs DEP to contract with third-parties to review each and every type of permit covered by the bill where decisions have been delayed. This could potentially include hundreds of third party reviewers which the bill requires to be qualified to review DEP permits.

Establishing and then reviewing the qualifications of third parties and contracting with hundreds of permit reviewers needed to review all of DEP’s permits is a daunting task, but the bill requires it to be done within 180 days.  No funding is provided to DEP to accomplish this task initially or to maintain the program going forward.

Under the bill, third party reviewers are required to take over the review of any DEP permit or authorization where decisions have been delayed and to “resolve” the issues causing the delay based on deadlines established in law, under DEP’s Permit Decision Guarantee Program or 30 days after the submission of the permit application if a review deadline is not specified in law or regulation.

There is no provision requiring the resolution of those issues to be done in compliance with Pennsylvania’s environmental laws and regulations.  The bill does not explain what happens to an application where there is no third party reviewer available.

DEP is then required to issue the permit or authorization where the third party reviewer says the issues delaying the permit have been resolved.  DEP can only take action after-the-fact to revoke a permit that does not meet Pennsylvania’s environmental laws and regulations.

The third party is to be paid only the fees collected by DEP for the permit review.  No fees are retained by DEP for the work its staff did.

Fatal Flaws

This bill has the same fatal flaws as the third party review provisions included in the Tax Code bill-- House Bill 542-- passed by the Senate in July and agreed to by Gov. Wolf--

-- No Obligation To Assure Compliance: There is no provision requiring third party reviewers to review applications to assure compliance with Pennsylvania’s environmental laws, regulations and technical guidance, it simply says “resolve” differences;

-- No Deadlines On Third Party Reviews: There are no deadlines for permit reviews by third parties;

-- No Conflict Of Interest Requirements: No conflict of interest provisions related to third party reviewers reviewing their own permit applications or prohibitions against reviewers accepting payments from permit applicants;

-- Leaves Out Public Participation: No reference to required public participation requirements and how they will be complied with or how public hearing or comment period extension requests will be handled and by whom-- third party reviewers or DEP?; and

-- Who Defends Permit Appeals? No provisions for who handles any appeals of permits to the Environmental Hearing Board and the courts by the applicant or third parties since it is the third party reviewer who makes the decision, and no funding of course.

The co-sponsor memo entitled “Permitting Transparency Legislation” sent by the sponsor on the legislation does not mention the third party permit review program, it only mentions provisions related to DEP and other agencies setting up a website to track permit reviews.

The bill is now in the House State Government Committee which has been looking at the issue of regulatory and permitting “reforms.”

[Posted: Jan. 5, 2018]


1/8/2018

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