PA Environment Digest

Share this:

House DEP Budget Hearing 2: Only 0.30% Of DEP Final Actions Were Appealed In 2018; 25 Fewer Attorney Positions

On March 4 DEP Secretary Patrick McDonnell returned before the House Appropriations Committee to review the answers DEP provided to questions asked, but not answered, during the first House budget hearing on February 14.

A number of legislators asked questions about how many times appeals are taken from DEP’s final actions to the Environmental Hearing Board, how much has the agency paid in attorneys fees, whether DEP hires outside legal counsel for its cases, legislation DEP supports to regulated pipelines, additional details on the agency’s response to PFAS contamination, a list of federal agencies that notified DEP it did not have the resources to meet minimum standards for administering their programs and other issues.

Here are some of the highlights from DEP’s response--

Appeals

DEP reported of the 42,689 final actions it took on permits and other approvals in 2018, 128 appeals were filed with the Environmental Hearing Board or on 0.30 percent of the cases.

“Over the last 10 years, the EHB appeal numbers have not varied much - between ll7 and 224 appeals per year - though 2008 was a high appeal outlier with 351 appeals filed. The 10-year annual average for appeals is 191.

“Assuming, conservatively, DEP took 30,000 final (appealable) actions each of these years prior (12,000 fewer than 2018), the appeal rate would still be less than one percent (0.64 percent).

“The EHB had a particularly busy docket between 1985 and 1992 - when the DEP complement was one-third larger than it is today - where appeals filed per year ranged between 538 and 621.”

Paid Legal Fees

“Over the past 11 years, the Department has paid a total of $1.3 million pursuant to the Pennsylvania Clean Streams Law Section 309. This amount is the combination of court awarded fees and some fees paid in settlement, all pursuant to the statutory provision.

“Please note: The vast majority of these cases where fees were awarded are situations where DEP defended permits issued alongside the permittee and their counsel/experts.

“The total amount includes payments to both environmental groups and to other

Appellants.

“What is the source of the money used to reimburse legal fees?

-- 61 percent Clean Water Fund

-- 16 percent General Operations

-- 14 percent Air & Energy Title V Management

-- 6 percent Safe Drinking Water

-- 3 percent Misc. Funds (mostly Dams & Encroachments/Solid Waste Abatement Fund)”

Outside Counsel

“It is extremely rare for DEP to hire outside counsel for an environmental case.2

DEP has hired outside counsel for environmental cases in two cases that we are aware of--

-- Robinson Township RE: the environmental rights amendment. This decision was made under a prior administration, so we are not able to answer the reasons for this decision; however, the case did represent an important, unique, and significant constitutional issue.

-- EOT - Declaratory Judgement (PA Supreme Court argument only) RE: The Clean Streams Law civil penalty provision. This is the only case under the Wolf Administration and under DEP's current Chief Counsel where outside counsel has been engaged. There were a number of legal and strategic reasons for hiring specialized statutory construction counsel in this case.

“Moreover, EQT, which has experienced in-house environmental counsel and regular outside environmental counsel, also chose to hire an appellate specialist in this case, perhaps for similar strategic reasons. This outside counsel engagement in EQT was for the Supreme Court argument only.

“The DEP Office of Chief Counsel litigated the case in the lower coufi and prevailed in the civil penalty case and that appeal.

“Again, it is remarkably rare to errcountel a case that DEP counsel cannot handle, as we have sorne of the most experienced state environmental compliance and enforcement attorneys in both the Commonwealth and the United States.”

Attorney Positions

“While DEP is down 25 attomey positions from 14 years ago and faces competition for hiring from the private sector and budgetary pressures, we have worked to be more efficient and our attorneys are highly competent to handle lawsuits.

Pipeline Legislation

“We support legislation to provide the Public Utility Commission with the authority to regulate siting and routing of intrastate pipelines; legislation requiring pipeline operators to provide more information to schools located within 1,000 feet of a pipeline, including how to respond to leaks; legislation requiring public utility facilities transporting natural gas or natural gas liquids to work with county emergency coordinators on response to releases and emergency response; and legislation mandating the installation and use of automatic or remote shutoff valves in high consequence areas.” (Borrows from the list Gov. Wolf announced February 8.)

Click Here for a copy of DEP’s responses to questions asked, but not answered, during the first House budget hearing. Click Here for videos of DEP’s House budget hearings.

Click Here for DEP’s written budget testimony. Click Here to watch a video of DEP’s Senate budget hearing.

NewsClips:

Meyer: Lawmakers Keep Questioning Wolf’s Intricate Web Of Environmental Funding

Op-Ed: PA Budget Proposal Hurts Local Environmental Projects, Bipartisan Consensus - Rep. Bernstine (R)

Editorial: Lawmakers Should Recognize Need For Infrastructure Program And A Fair Severance Tax

Wolf Returns To Schuylkill County With Plan For Flood Prevention And Recovery

Officials Tout Severance Tax To Fund Infrastructure Projects

Officials Detail How Wolf Plan Would Help West Pittston Flood Survivors

York Twp. Official Hangs Hopes On Wolf’s Severance Tax Plan

Work Underway To Retrofit Flood Gate In Wilkes-Barre

Wolf Highlight Need For Restore PA Proposal To Deal With Flooding In Allegheny County

Wolf: Tremont Flooding Helped Inspire Aggressive Restore PA Plan