On Wednesday, DEP’s Citizens Advisory Council voted unanimously to recommend over a dozen improvements to the way the Department of Environmental Protection involves the public in the development of regulations and technical guidance.

The recommendations were based on comments received from the public in response to an invitation by Council and issues brought to the Council over the last year or more.

Interim DEP Secretary Chris Abruzzo attended his first meeting of the Council and said his agency must do a much better job communicating with the public and engaging with all agency stakeholders saying, “we are sometimes our own worst enemy.”  (Click Here to read separate article.)

Council also elected Terry L. Dayton Chair of Council and Nancy D. Perkins Vice Chair for the coming year starting at Council’s next meeting on June 18.

Dayton developed and managed the environmental program for Pennsylvania Land Holdings Company over a period of 36 years. The operations have received the President’s Award for the best environmental program in the corporation. The facilities are consistently cited by the regulatory agencies for their excellent environmental achievements.

Perkins is Associate Dean and Professor of Law at the Duquesne Law School. She teaches courses in: Environmental Justice, Property, Environmental Law, Pennsylvania Environmental Law and Administrative Practice and serves as Advisor for Duquesne Law School Environmental Law Society and is a past advisor for the Duquesne Law Review.

Public Participation Recommendations

On March 27 the Citizens Advisory Council to DEP issued an invitation to the public and members of DEP’s 22 active advisory committees for ideas on how to improve public participation in developing environmental regulations, technical guidance and formal policies.

The invitation was designed to help the Council provide DEP with early input into its announced plan to update its existing regulatory and technical guidance development public participation policies.

In response to the invitation, Council receive comments from a dozen individuals, groups, local governments and advisory committee members offering more than 40 suggestions and comments.

Commenters commended the Council for undertaking the effort to improve public participation and in several ways said the fundamental principles of true public participation are: civic engagement, empowerment, transparency and accountability.

The result of effective public participation should be to produce a more informed public, reduce mistrust in our institutions and in industry, establish cooperative relations and generate legitimacy for the decisions made.

To strengthen public participation in the regulatory and guidance development process, the Council offers for consideration to DEP--

-- Citizens Guide: The Council recommends DEP prepare a citizens guide to participating in the regulatory and guidance development process which clearly describes the tools available to keep informed on which issues are before the department and how they can be involved.

-- Plain Language Statement of Purpose: The Council recommends DEP prepare a Plain Language Statement of Purpose for each regulation and policy it develops providing a description of the objective and reasons behind the change, the scientific basis (whether complete or not) for the change and how groups or individuals and the environment would be affected, negatively or positively, along with the description of the Public Participation Plan (see following recommendation).

-- 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.

The Plan should encourage the widest possible distribution of information on the proposed regulation or technical guidance changes through a variety of media-- online, newspapers, social media and other tools.

The Council strongly believes all interested parties in the process should be treated equally, receive the same white papers, drafts of rulemakings or policies or presentations and at the same time to limit confusion and promote fairness in dealing with stakeholders.

-- One Public Participation Center: Online tools like the advisory committee webpages, the Public Participation Center, the Regulatory Agenda and a Regulatory Update, proposals open for comment, the listing of proposals with closed comment periods, the eNOTICE email notification service and links to the Pennsylvania Bulletin are scattered throughout DEP’s website.  In fact, there are several “public participation” webpages on the website.

These tools should all be consolidated into one location for easy access by the public, along with the Citizens Guide which describes the purpose of each tool and the relevant supporting documents for each regulatory and guidance proposal.

-- 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.

DEP should also consolidate and better organize the webpages it now devotes to technical guidance open for comment, recently closed, recently finalized by not only where the guidance is in the process and by date, but also by program area.  It should also be clear where the public can get copies of the guidance at each step.

-- 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.  Typically these notices are sent when the Environmental Quality Board publishes proposed or final regulations in the Pennsylvania Bulletin.  It also provides intermittent notice of proposed and final technical guidance changes published in the Bulletin.

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.

-- Advisory Committee Procedures: A number of commenters made suggestions about advisory committee procedures adopted by Council--

            -- Advisory Committee webpages should be updated with agendas and handouts on a timely basis with the goal of posting meeting materials 14 days before a meeting date;

            -- DEP should keep the basic information on each Advisory Committee webpage current-- committee members and contact information, DEP staff liaison and the meeting schedule;

            -- There should be consistent public notice of all advisory committee subcommittee and work group meetings and conference calls to allow the public the opportunity to participate;

-- The department should review the advisory committee webpages to determine which committees or groups are still active and identify those which are not; and

            -- Reimbursement of the expenses incurred by members of Advisory Committees should be done in a timely manner.  It was brought to the attention of Council that some members of the Radiation Protection Advisory Committee have not been reimbursed for expenses they incurred since October of 2012.

In response to a comment about sharing information on Advisory Committee activities between Committees, the Council recommends Advisory Committee members regularly review the report DEP presents to the CAC each month outlining significant activities going on within the agency.

In addition, the improvements recommended in this report will also make information sharing easier for Committee members.

-- Calendar of Meetings/Hearings/Events: DEP should again publish an online calendar of all Advisory Committee-related meetings and calls, all public meetings and hearings related to regulatory and technical guidance development and other significant agency activities. 

The Calendar should also highlight the agenda items on the upcoming Advisory Committee meetings and where the public can get handout items.  Also providing a way to search the Calendar by DEP region or county would also be helpful.

The Council notes DEP this week has again begun to post agency events on an updated Calendar function on its website which responds to this recommendation.

-- 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 both a summary of recommendations and a Comment/Response document responding to all comments received as a result of the invitation.  These documents will be posted on the Council’s webpage.

The Council also noted comments were received on other public participation issues not related to the development of regulations and technical guidance and included those in the response document as well.  The Council said they will consider those comments when DEP’s public participation policy on permit reviews is made available to Council.

Holly Cairns, Acting Director of DEP’s Office of Environmental Advocate told the Council, DEP should publish its proposed revisions to its Permit Review Public Participation policy on June 1 with a 30-day comment period.

Other Council Issues

The Council heard reports from other committees and dealt with other issues on the agenda--

-- Welcomed two new Council members: Seth Mendelsohn and Donald Welsh.

-- EQB Representatives: Council named Cynthia Carrow, Walter Heine, Bill Fink and Burt Waite as the CAC’s representatives to the Environmental Quality Board.  Terry Dayton and S. Pat Lupo were named as alternates.

-- EHB Representative: Council named Gail Conner as its representative on the Environmental Hearing Board Rules Committee, if she chooses to accept.

-- Legislative Committee: Informed the Council they plan to move ahead with trying to set up meetings with the four Chairs of the Senate and House Environmental Committees in June before the General Assembly adjourns for the summer.  The Committee will also be working with Peter Lyle, a Duquesne Law School student, to monitor and analyze legislation.

-- Auditor General’s Marcellus Audit: The Council agreed to respond to the Auditor General’s request to provide comments and recommendations on questions his office should address during the audit of DEP’s Marcellus Shale drilling program.  The issue will be addressed at the June 18 meeting.

-- Permit Review Public Participation: Holly Cairns, Acting Director of DEP’s Office of Environmental Advocate told the Council, DEP should publish its proposed revisions to its Permit Review Public Participation policy on June 1 with a 30-day comment period.

Presentations To Council

The Council heard presentations on a number of other DEP programs and issues--

-- Rosebud Mining Stream Reclamation Project: John Stefanko, DEP Deputy Secretary for Active and Abandoned Mine Operations and Joe Koricich, Acting California District Mining Manager, gave Council a presentation on an innovative partnership between DEP and the Rosebud mining company which will cleanup the largest single source of abandoned mine drainage into the Little Conemaugh River in Cambria, Indiana, Somerset and Westmoreland counties.

An agreement between Rosebud mining and DEP authorized the company to mine underground coal reserves by pumping and treating water from a mine pool from the abandoned Maryland No. 1 mine.  The mine pool now feeds a discharge of 3,656 gallons per minute of mine drainage.

The company has funded and construction is almost complete on a $15 million mine water treatment plant at St. Michaels in Cambria County to treat the water.  At the same time, the company will fund a trust fund to provide funds for the annual operation of the plant totalling another $15 million over the next 15 years.

The project will result in the removing of 98 percent of the pollution loading to the Little Conemaugh River over the next 20 years, including 44 million pounds of iron.

Click Here to download the presentation.

-- PA Natural Diversity Inventory: Jason Oyler, from DEP’s Office of Chief Counsel, provided an overview of the proposed changes in the agency’s guidance for handling rare, threatened and endangered species and the use of the PA Natural Diversity Inventory during its review of permits.  Oyler said he anticipates the final revised policy will be published in the May 25 PA Bulletin.

-- Enforcement/Penalty Overview: Richard Morrison, from DEP’s Office of Chief Counsel, provided an outline of the compliance, enforcement and penalty tools the agency has available to enforce environmental laws and regulations.

Public Comments

During the public comment portion of the meeting, several individuals made statements--

-- PA League of Women Voters: Roberta Winters urged that all aspects of DEP must be adequately funded to ensure Pennsylvania protects our environment and public health, in particular for the PA Natural Diversity Inventory on the Council’s agenda.  She also said DEP needs a Secretary that is well-qualified, conscientious and credible to head the agency.  See added that DEP can best prompt compliance with environmental regulations through meaningful fines and prompt disciplinary action.

-- Stewards of the Susquehanna: Steve Todd said his group opposed the decision not to list the Lower Susquehanna River as impaired, although he said the decision to list it as having not enough information to make a decision was somewhat a victory.  He said he was encouraged by the remarks of Acting Secretary Abruzzo at the meeting on working more closely with the Fish and Boat Commission and other stakeholders on the issue.

-- PA Sierra Club: Jeff Schmidt again raised the issue of the need for a more complete response by DEP on the issue water sampling during investigations of whether drilling compromised water quality or affected drinking water supplies.  He noted a Scranton Times article from Sunday saying 161 drinking water supplies have been affected by drilling between 2008-2012.  He added the groups concerned about this issue will renew its request for a meeting with the new Acting Secretary.

The next meeting of the Citizens Advisory Council is June 18.  For more information, visit the Council’s webpage.

5/27/2013