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House DEP Budget Hearing: Safe Drinking Water, Permitting, Pipelines, Chesapeake Bay

Acting DEP Secretary Patrick McDonnell answered questions before the House Appropriations Committee for 2 hours and 30 minutes Monday on DEP’s budget request touching on deficiencies EPA pointed out in the state’s Safe Drinking Water Program because of budget cuts, permit reviews, the regulation of pipelines, penalty assessments, going beyond federal requirements and meeting Pennsylvania’s obligations under the Chesapeake Bay Program.

Click Here for a summary of DEP’s written budget testimony.

Here is a quick summary of issues raised by questions from House members at the budget hearing--

-- Safe Drinking Water: In response to a question from Rep. Stan Saylor (R-York), Majority Chair of the House Appropriations Committee, McDonnell said DEP is seeking permit fee increases to deal with many of the issues raised by EPA about the Safe Drinking Water Program. The fees would help support additional 33 positions for the program. Rep. Saylor said, “great.”

In response to another question, the consequence of EPA taking federal primacy away from DEP is EPA would take over the program. “I will do my level best to make sure we are nowhere near that conversation [on losing primacy],” said McDonnell.

[In addition, for the Safe Drinking Water Program, Pennsylvania would annually lose $100 million in federal funding for drinking water system improvements administered by PennVEST and DEP if it lost primacy.]

[Late Monday, DEP released a letter it sent to EPA outlining a plan for dealing with the staffing deficiencies saying they may not be made up until 2020.]

-- Lead In Drinking Water Contamination: McDonnell said lead in drinking water is different from other contaminants because most often lead comes from individual service lines and inside plumbing [and the chemical “aggressiveness” of the water itself that leaches lead out of these lines]. Part of the response is to educate homeowners and others on how to deal with these issues as well as local initiatives to replace individual service lines where there are lead issues.

-- Pipelines: Rep. Joe Markosek (D-Allegheny), Minority Chair of the House Appropriations Committee, asked if DEP supported pipeline development across the state. McDonnell said the agency supports responsible development that meets the state’s environmental requirements. He noted DEP has created a new Regional Permit Coordination Office to better address issues raised by projects like pipelines.

With respect to the recommendations of the Governor’s Pipeline Task Force report, DEP has established an online pipeline portal to put in one place information about proposed pipelines the agency has in process, is dealing with pipeline permit coordination issues and taking other steps to implement the recommendations for DEP in the report.

With respect to natural gas gathering pipelines, McDonnell noted DEP does regulate them with respect to environmental permitting, like other pipelines, for erosion and sedimentation and stream crossings, but DEP does not have authority on siting the pipelines or on safety. He pointed out the Public Utility Commission.

-- Concerns About DEP’s Overall Budget: Rep. Mike Carroll (D-Luzerne), Minority Chair of the House Environmental Resources and Energy Committee, expressed a general concern about DEP’s proposed budget in light of its obligations under the state’s constitution to protect the state’s air, land and water for future generations. He noted, in particular, DEP’s growing dependence on federal funding and the uncertainty over whether that will continue. Rep. Carroll said the real question for appropriators should be how much it takes to comply with the state constitution.

-- Chesapeake Bay: In response to a question from Rep. Garth Everett (R-Lycoming), now the Chair the Chesapeake Bay Commission, McDonnell said the 2017 milestone report will show Pennsylvania is behind on reducing nitrogen and erosion and sedimentation to streams and rivers going to the Chesapeake Bay. He said “clearly the funding isn’t enough” to address Bay and water quality issues. He noted the budget does propose an additional $15 million for Bay issues for DEP, DCNR and Agriculture.

In response to a follow up question, McDonnell said the possible federal actions for not meeting Chesapeake Bay requirements include withholding federal funding, which EPA has done in some cases, having EPA oversee individual permit actions and having EPA set its own permit requirements in Pennsylvania.

Rep. Saylor asked about steps to regulate fertilizer application by lawn care services. McDonnell said his agency was supportive of legislation to regulate fertilizer application [Senate Bill 563 (Alloway-R-Franklin) from last session].

-- Erosion & Sediment Permitting Delays: Why does it take 200 days for E&S permit reviews in Southwestern PA and 30 to 45 days in other parts of Pennsylvania? McDonnell said there have been challenges in adequating training staff given budget constraints as well as staff reductions in meeting permit review times. He said DEP is addressing the issue with additional training, dialog with consultants to improve the completeness of applications and through improving permit coordination within the agency.

[Although not said, this comment was related to the Oil and Gas Program which has recently documented the fact 60 percent of the E&S permit applications received for this program were incomplete or had deficiencies.]

In response to another question about these permits, McDonnell said DEP is working to include erosion and sedimentation permits in its ePermitting initiative. ePermitting generally will help reduce the number of incomplete permit applications received by the agency because it requires consultants to fill in the permit application correctly.

McDonnell noted ePermitting also involves an analysis of the permitting process itself. In the mining program, he said, the ePermitting initiative reduced the number of permit modules required by 20 percent.

-- Farm Permitting Issues: McDonnell said the agency is working closely with the Department of Agriculture and county conservation districts to improve agency interactions and permitting with agricultural operations, particularly on Chesapeake Bay Program responsibilities. He said DEP is also looking at General Permitting opportunities for agricultural operations.

-- Act 162 Buffer Law: McDonnell said Act 162 eliminated any waivers of the stream buffer requirement. He said Act 162 said permittees could do either stream buffers or the equivalent measure and no longer provided for waivers. McDonnell said DEP would be very open to a conversation on the issue.

-- Susquehanna, Delaware River Basin Commission Fund Balances: Several members expressed concerns about the balances now being held by the Susquehanna and Delaware River basin commissions supported by fees and appropriations from the state. McDonnell said he would like to follow up on that issue with members to better explain the funding for the commissions.

-- Cross-Training Of Inspectors: McDonnell said there may be some potential for cross-training inspectors, but much of the work done by DEP’s is very technical and some cross-training may not be cost effective. He noted Air Quality staff have to requalify every 6 months on skills like smoke opacity and it would be more costly to have more staff going to training.

-- Technology Initiatives: McDonnell described recent ePermitting initiatives in the mining program, an eDocument management program in the Waste Management Program and recording inspection results for the Oil and Gas program on iPads.

-- Does DEP Fine People To Fund Agency?: McDonnell said no, DEP does not fine people to fund the agency. DEP fines people because they violate environmental laws. DEP has established processes in law, regulations and written guidance on when and how penalties are calculated. DEP’s budget is funded with 50 percent with fees and whatever penalties are collected, 30 percent federal funds and 20 percent General Fund.

-- Federal Funding: McDonnell said there is no detailed information yet on changes or cuts in federal funding and the details matter. He did not speculate on what those funding changes may be. At potential risk for Pennsylvania is turning back permitting programs to the Federal Government to administer if federal funding is not adequate. [In addition, for the Safe Drinking Water Program, Pennsylvania would annually lose $100 million in federal funding for drinking water system improvements administered by PennVEST and DEP.]

-- Going Beyond Federal Requirements: McDonnell said the agency evaluates whether each of its regulations goes beyond federal requirements and if it does the reason why, pursuant to Executive Order 1996-1. It also looks generally at the economic impact and specifically on the impact of small businesses as required by law.

-- Going Around The General Assembly: Rep. Saylor made a comment about concerns he is hearing about EPA and DEP trying to go around the General Assembly in setting environmental requirements. He encouraged DEP to come to the General Assembly with the problems they’ve found so they can discuss them. McDonnell responded by saying he has had nothing but productive conversations with members of the Senate and House on issues.

-- Methane Emission Standards: McDonnell said DEP’s authority for setting methane emission limits on the oil and gas industry is in the state Air Pollution Control Act which directs DEP to adopt federal standards. He said EPA did adopt a emission standard for methane. He explained DEP is proposing changes to the existing General Permit setting methane limits to implement the standard. Adoption of a general permit is authorized by the state act.

-- EPA Clean Power Climate Plan: McDonnell said Pennsylvania has not done work on developing a plan to meet EPA’s Clean Power Plan after the U.S. Supreme Court stayed action on the plan at the federal level. He said DEP is monitoring actions taken by others, including PJM and neighboring states.

-- Volkswagen Settlement: McDonnell said DEP is the lead agency for determining how the estimated $118 million Pennsylvania is set to receive from the Volkswagen vehicle mileage testing settlement with EPA. The funds would be available from a federal trustee over a 3 year period. DEP will be involving the public and stakeholders when a draft plan for spending the funds is ready for review and input. He noted not all of the guidelines on how to spend the funds have been settled by EPA and the trustee.

-- Reauthorizing The Recycling Fee/Curtailing Grants: McDonnell said he is open to a discussion on how to improve the recycling program since it was adopted in 1988. The current $2/ton recycling fee sunsets in 2020. Because DEP funds existing recycling grants over 3 years, the offering of new grants will be curtailed because the funds are needed to pay existing grantees.

-- Electronic Waste Recycling: McDonnell said the biggest problem is the e-waste recycling [Covered Device Act] law is that it is based on manufacturers paying for the recycling of old devices by the weight of new products sold which means manufacturers meet their recycling goals typically in the first 6 months of the year. Municipalities have been left hanging with no one to pay for recycling devices they collected. He said DEP’s priorities in amending the law are to make sure electronics recycling is available to all residents, that paying for recycling is based on the market share not weight and keeping the ban on landfilling of CRT computer and TV monitors containing lead in place.

-- Environmental Justice: McDonnell noted when the Environmental Justice Program was formed, it was a leader, but much has happened since that time. DEP has formed an internal work group to see how it could improve the Environmental Justice Program, including looking at the adequacy of the definition DEP now uses. McDonnell said the agency will going out and holding listening sessions as part of this process.

Click Here for a summary of DEP’s written budget testimony. Click Here to view a video of the hearing when it is posted.

The Senate Appropriations Committee hearing on DEP’s budget is March 9 at 10:00 a.m. Click Here to watch the Senate hearing live.

NewsClips:

AP: Environmental Budget Cuts Get Pushback In Pennsylvania

PA Warned About Crippling Cuts In Environmental Funding

Federal Officials: DEP Not Adequately Staffed To Carry Out Its Mission

Editorial: Lawmakers, Administration Need To Avoid Federal Takeover At DEP

DEP Proposes Fee Increase To Enforce Drinking Water Standards

DEP Proposing Fee Increase To Improve Oversight Of Drinking Water

McKelvey: PA Outlines Plan To Address EPA Safe Drinking Water Deficiencies

DCNR Owed Hundreds Of Thousands Of Dollars In Royalties For State Forest Drilling

McKelvey: Will Trump’s EPA Let PA Off The Hook For Chesapeake Bay Cleanup?