On May 3, the PA Environmental Council and Environmental Defense Fund wrote to all members of the House opposing five House Bills they said would “impede agency function and curtail environmental and public health protections” by changing the way regulations are adopted and how permits are reviewed.

The bills include-- House Bill 72 (Keefer-R-York); House Bill 139 (Rothman-R- Cumberland); House Bill 288 (O’Neal-R-Washington); House Bill 939 (Klunk-R-York); and House Bill 950 (Metcalfe-R-Butler).

Final House action on these bills is expected this week.

“While enhancing regulatory performance, transparency, and accountability is undoubtedly an important goal, these bills will do more to impede agency function and curtail environmental and public health protections.

“Furthermore, many of these bills impact multiple agencies that address crucial issues far beyond the responsibilities of just the Department of Environmental Protection (DEP).”

“Because these bills are largely redundant with existing authority, and in fact create new and unwarranted hurdles for environmental and public health protection, we urge you to oppose this legislation.

“While there are some isolated concepts within these bills that we could support or stay neutral on, there are very concerning provisions that far outweigh any true benefits.

“We would welcome the opportunity to come to the table on these issues.”

The text of the letter follows--

Dear Representatives:

The Pennsylvania Environmental Council (PEC) and Environmental Defense Fund (EDF) urge you to oppose a suite of bills that may be considered by the House this week. These bills – House Bills 72, 139, 288, 939, and 950 – have been introduced under the theme of regulatory and permitting reform.

While enhancing regulatory performance, transparency, and accountability is undoubtedly an important goal, these bills will do more to impede agency function and curtail environmental and public health protections.

Furthermore, many of these bills impact multiple agencies that address crucial issues far beyond the responsibilities of just the Department of Environmental Protection (DEP).

Our specific concerns with these bills, which overlap with one another in several respects, are as follows:

Concerns with House Bill 72

This legislation requires that, before any proposed rulemaking deemed “economically

significant” (as defined in the legislation) can be implemented, the General Assembly must pass a concurrent resolution to approve it.

In practice, this means that mere inaction of the General Assembly could negate a proposed rulemaking – even if it is required by existing state or federal law.

There is no requirement in the bill that the legislature actually take up consideration of a proposed rulemaking.

Further, House Bill 72 allows standing committees to halt proposed rulemakings, through notice to the Independent Regulatory Review Commission (IRRC), until the committee formally

reviews the proposal.

The standing committees already have opportunity to review proposed regulations in existing law; this bill indefinitely extends the timeline by expanding the number of legislative session days allowed for review.

This could unduly delay timely review. For example, if the committee would provide such notice to IRRC, and then the legislature adjourns for several months as it normally does each year, that could delay a rulemaking for an improper amount of time without cause.

It also threatens rulemakings in that the Regulatory Review Act requires proposed rulemakings be finalized within two years after the close of the public comment period.

House Bill 72 also requires that the Independent Fiscal Office (IFO), rather than the agency proposing the rulemaking, calculate the anticipated costs of the regulation.

We don’t have objection to this concept per se, although it should be recognized that the IFO will still be dependent on the expertise of the agency for a complete analysis.

In addition, we would submit that the anticipated benefits (costs savings, public health, et cetera) of any proposed rulemaking be factored into any analysis as well.

This legislation also automatically disqualifies any rulemaking unless there is statutory language expressly authorizing the specific purpose of the rule.

This is incredibly problematic because  most environmental statutes are written broadly to provide DEP with sufficient authority to respond to emerging or changing needs, or to adapt to changes in federal law.

So, for example, it could be argued that this legislation would forbid DEP from adopting any protections for pollutants like PFAS and PFOA, or for any other specific pollutant criteria, unless a statute specifically delineates them.

This arbitrarily creates a nearly insurmountable restraint on the agency, which ultimately threatens public health.

Concerns with House Bill 139

This legislation requires agencies to report permitting review performance to the General Assembly. We have no issue with this requirement, although we would note that DEP reports this information to the public already.

House Bill 139 also requires agencies to develop an online tracking system for permitting decisions. We support this concept but note that the legislation does not provide any financial resources to agencies, which are already underfunded, to perform this additional task.

Our ask to the legislature would be for this requirement to be accompanied by adequate support to complete the task.

This legislation also provides for third party permitting – requiring agencies to allow independent individuals to make permitting decisions – which we oppose in concept and as laid out in this bill.

It also likely violates all federal programs for which DEP has primacy.

More concerning, HB 139 would allow these third parties to participate in permitting decisions without any standards with respect to their qualification, preventing conflicts of interest, or protection of public disclosure and involvement.

Third party permitting ultimately would lead to increased delays as it is essentially an additional permitting process, increasing administration costs and requiring permitees to deal with two separate authorities.

It will also likely lead to increased litigation on permitting decisions.

Concerns with House Bill 288

This legislation creates “regulatory compliance officers” in agencies to help permitees with regulatory interpretation and permit compliance.

At first glance, this objective does not appear to be a bad idea. However, the legislation takes this concept too far.

HB 288 provides that if a regulatory compliance officer fails to reply to an inquiry within 20 days, that failure to respond results in a “complete defense” in “any enforcement proceeding” – including civil and criminal proceedings – for any violations.

The legislation does allow for extension of the response timeframe for good cause, but one individual at an agency like DEP which administers tens of thousands of permits each year will not be able to handle this volume.

Further, the bill directs regulatory compliance officers to establish a process for waivers of fines or penalties for self-reported violations of the law without any demonstration that those violations have in fact been remedied.

Concerns with House Bill 939

House Bill 939 requires agencies to identify at least two regulations for repeal any time they intend to promulgate a new rulemaking. In addition, this legislation establishes an ‘Independent’ Office of the Repealer that in reality is governed by a politically-appointed committee.

Requiring agencies to catalog existing regulations for repeal merely so they may promulgate a new rulemaking – even if that new rulemaking is required by state or federal law – is an unjustifiably burdensome hurdle that could impede much-needed economic and public health protections.

For example, under this legislation if the Department of Environmental Protection were to propose remediation or drinking water criteria to address PFOS and PFOA contamination, they would first have to spend time identifying two other regulations for repeal – despite growing scientific consensus that such criteria is desperately needed.

There is already an established process via the Environmental Quality Board for any member of the public to recommend changes to, or even repeal of, existing regulations. As a result, this legislation is redundant and would create more delays than it would solve.

Concerns with House Bill 950

House Bill 950 provides a means for the General Assembly to disapprove existing regulations via concurrent resolution.

In addition, the legislation also prohibits an agency from re-initiating a proposed or enacted regulation, even if changes are made to the proposal, if the General Assembly passes a concurrent resolution to disapprove.

The one exception to this prohibition is if the General Assembly passes new legislation authorizing the rulemaking proposal.

Currently, the legislature has the option to pass legislation to change statutory law; there is no need to establish a secondary process.

Furthermore, establishing a prohibition on amended rulemakings – where an agency may be attempting to address any substantive objections raised by the legislature or stakeholders – is overly restrictive.

Conclusion

Because these bills are largely redundant with existing authority, and in fact create new and unwarranted hurdles for environmental and public health protection, we urge you to oppose this legislation.

While there are some isolated concepts within these bills that we could support or stay neutral on, there are very concerning provisions that far outweigh any true benefits.

We would welcome the opportunity to come to the table on these issues.

Thank you for your consideration.

-- John Wallizer, Senior Vice President, Legal & Government Affairs, PA Environmental Council

-- Mandy Warner, Director, Climate & Clean Air Policy, Environmental Defense Fund

Click Here for a copy of the letter.

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[Posted: May 3, 2021]

5/10/2021