On June 5, the Senate Environmental Resources and Energy Committee held a lively, but generally thoughtful hearing on the concept of allowing third parties to review DEP permit applications as a way of getting faster turnaround times.

On May 2, Sen. Gene Yaw (R-Lycoming), Majority Chair of the Committee, announced he will introduce legislation seeking to expedite the review of Chapter 102 (erosion and sedimentation) and 105 (dam safety and encroachment) permit applications through the use of third party consultants chosen by DEP.

There is no legislative language publicly available at this point.

Sen. Yaw said the purpose of the hearing was to get a better understanding of some of the opportunities and concerns DEP and others had about the idea.

Ramez Ziadeh, DEP Executive Deputy Secretary For Programs, said “DEP acknowledges that permitting processes have slowed in the last decade and that companies are seeking more certainty in the permitting process.”

He outlined more than a half dozen initiatives DEP had underway to improve permit review times or simplify the process, including ePermitting and developing a new general permit for projects under 5 acres.

He also outlined 5 major issues that needed to be dealt with when developing any third party permit review program, including a robust conflict of interest provision, fleshing out what would happen if permits are appealed, federal environmental program delegation, the variety of complexity of permit applications and the requirements that apply to them and others.

He also tried to underline the point that no two permit applications were alike, that stormwater and erosion issues vary considerably across the state due to differences in geology, soils and terrain and that each permit is specific to a specific location.

He said there are state and federal requirements that have to be met by any application that requires technical knowledge and skill in the permit review process.

Ziadeh concluded a portion of his comments by saying, “We want that outside expertise, but we need to figure out a way to make it work. We need to talk about the logistics of what that means, what these contracts say, how much it’s going to cost, is it going to be cost effective for the applicant.

“There are a lot of logistics that we really need to consider, but I’m not opposed to something that would help the process, but at the same time, works.

“We would welcome meeting with you to discuss logistics, to discuss details, to discuss how we can explore some ideas to improve the process. 

“We’re definitely very open to that. I don’t want you to feel that we are opposed to getting ideas that would improve the efficiency of the permitting program, we are not.”

A few minutes after Ziadeh made these comments, Sen. Scott Hutchinson (R-Venango), who serves on the Committee and as Chair of the Joint Senate/House Legislative Air and Water Pollution Control and Conservation Committee, made these comments--

“Thank you [Mr. Chairman]. Again this is not a question, but this is a comment that I feel like I have to make now. 

“Hearing your description of DEP’s operation and all the problems that can come out of this, quite frankly I think that many people, people who don’t work for government, thousands of them across Pennsylvania, have been insulted by what you said.

“I think there are thousands and thousands of people in the outside world who work very hard.  They have real world knowledge base, they are practical thinking, and they can run circles around many of the employees in your department. 

“To imply that only government workers know how to do this stuff is insulting, it is. 

“I think there are hundreds and hundreds of employees in state government that couldn’t hold a candle to people in the private sector, with their knowledge base, their lifetime work in certain fields and to think that not one of them is going to be certified to put together an application, maybe, oh my gosh, I might forget to check one little box and so it’s the end of the world? 

“That’s beyond the pale.

“And number two, just to carry the analogy further, if a business in private industry, for profit, had the same metrics, regarding efficiency, and the slow turnaround on time of permits. 

“If that was their business for profit, you know what, they’d be out of business.  But DEP is not out of business because it’s government. 

“There is a management problem here. And if DEP were held to the standards of a for profit company, they’d be out of business. 

“There are so many complaints about timeliness, and inefficiencies and I think sometimes things get delayed because the employees don’t understand how the real world works. 

“They sorta like pass off, we have to not approve this because we haven’t figured out how to deal with it yet, but we’re up against a time constraint so we’re just going to disapprove of this permit right now while we have time to catch up on our knowledge base, on a technical area of one sort or another.

“I think this bill is a wonderful start to making government more friendly, more efficient, and practical for the real world. 

“I hope the next time you speak, you measure your response a little bit better.  That’s all I have to say.”

Click Here to watch Sen. Hutchinson’s remarks on the video of the hearing at about the 43:40 mark.

To his credit and professionalism, Mr. Ziadeh did not respond.

He did not say the General Assembly and Governors over the last 10 years have cut DEP’s General Fund budget by 40 percent and as a result the agency lost nearly 30 percent of its staff.

He did not mention, as the permit reviewer from the Cumberland County Conservation  District District told the House Environmental Committee at a recent hearing, that more than 50 percent of plan applications submitted to them by private consultants were incomplete

He did not mention, as the Cumberland County Conservation District did, that it took an AVERAGE of 33 business days for private consultants to respond to technical deficiencies called out in their applications-- more than 6 calendar weeks.

The District permit review manager added, “We often hear from consultants and engineers that they just submitted what they had completed for review because of deadlines set by the applicant or other municipal reviews.”

If DEP was a private, for profit business, the first things it would do faced with a 30 percent cut in staff and a 40 percent cut in income is eliminate whole categories of products and continue to make only the products that make them the most money, close plants and offices until income meets expenses, plus a profit.

And what if 50 percent of the parts a supplier gave a private business were bad, like 50 percent of the permit applications DEP gets?  That supplier would be fired right?

But, it doesn’t work that way with a public agency like DEP. 

Public employees work for the public and have to provide the best service they can within the laws, regulations and guidance and programs they administer.

They have no control over the resources they get or the programs they are given to manage and every final decision DEP makes on a permit can be appealed in a legal proceeding.

Private businesses work for themselves, can change product mix and raise or lower prices to respond to market conditions.

The work of public employees and environmental permitting provide real help to people to prevent things like flooding, deaths, illness and damage to the environment the sustains us and makes everything else possible.

By cutting DEP’s budget are they really asking for one-third of DEP’s environmental protection programs to be eliminated?

If they are, where should we start?

Not monitoring nuclear power plants (probably not good on the 30th anniversary of the TMI accident)? 

Not regulating surface coal mining (Pennsylvania has 250,000 acres of abandoned mine lands leftover when they weren’t regulated before)? 

Perhaps we should stop the Deep Mine Safety training program and disband the rescue teams?

Not regulate the oil and gas drilling industry (we tried that and have 300,000 or more abandoned and orphan wells to show for it)?

How about eliminating the Chapter 105 and dam safety programs (but that might not go down well this year since we’re celebrating the 130th anniversary of the Johnstown flood that killed 2,200 people)?

Stop regulating air quality?  The disposal of our waste?  Not cleanup leaking storage tanks?  Eliminate health threats from radon?

The list of DEP’s responsibilities goes on.

Sen. Hutchinson’s comments unfortunately recall the saying, “The beatings will continue until morale improves.”

Is that good management in private industry? Don’t think so.

Rather than flogging DEP’s employees, Sen. Hutchinson, who has been a leading advocate for cutting DEP’s budget, taking resources away from DEP’s Oil and Gas Management Program and reducing environmental protection standards for the conventional oil and gas industry, should be focused on the real issues driven by real information.

What investments and changes are needed to speed up permit reviews, without sacrificing environmental protection?

For example, ePermitting will help speed the permit review process considerably because it helps eliminate one of the biggest single problems-- that half the permit applications coming in the door are incomplete.

But that costs money.

A real third party permit review program that deals with the issues raised by DEP with oversight, training and perhaps a special licensing as was suggested at the Senate hearing, isn’t free.

It costs money that permit applicants and/or the General Assembly would have to pay for.  It isn’t free.

And what if the proverbial “little guy” can’t afford to participate?  What happens to her and her permit application?  There are fairness issues.

DEP should sit down with legislators to talk through these issues, as Mr. Ziadeh suggested.

But it should be an honest conversation about the real issues, not one participant just reading their sound bites about third party permitting, saying how great private industry is and how terrible public employees are.

It’s also has to be private industry working with DEP to help solve these problems together.

Sen. Yaw commented at the conclusion of Mr. Ziadeh’s portion of the hearing-- “Sir, Our goal too is to make it work and to help.

“As I said, I think that you’ve helped us by pointing out and the purpose of this hearing today is to find out where people stand on it and what you think the problems are. 

“OK, you’ve listed what you think the problems are, and we can try to address all those and hopefully make it something. 

“I agree with Sen. Hutchinson, I think people need to open their minds a little bit and say maybe there is a new way to do business here and we can be more efficient and get better expertise. Thank you.”

In 2017, the Senate passed a third party permitting bill that would have let landscape architects and land surveyors review hazardous waste facility permits, and they didn’t care.

Let’s hope this one turns out very differently, and it should with Sen. Yaw’s public commitment..

(Written by David E. Hess, former Secretary of DEP.  Comments should be sent to: PaEnviroDigest@gmail.com. )

Related Stories:

More Than Half Of E&S Permit Applications Submitted Are Incomplete; Consultants Take 6 Weeks To Respond To Deficiencies

Senate Environmental Committee Hears Ideas On 3rd Party DEP Permit Reviews, Including A Special Licensing Program For Consultants

[Posted: June 9, 2019]

6/10/2019