PA Environment Digest

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Senate Republicans Pass Bill Authorizing An Authority To Take Over Permitting Large-Scale Energy Projects; Eliminating Public Comment; Waiving Any Regulation; Providing Immunity From Prosecution; Barbers Reviewing Permits?

On May 1, Senate Republicans passed Senate Bill 832 (Yaw-R-Lycoming) giving a state authority the power to take over the review of all necessary permits from any state agency for large-scale energy projects, eliminating any public comment, waiving any regulation needed for the project and providing immunity from prosecution for waived regulations.

The legislation would also authorize the authority to select a licensed land surveyor, landscape architect, engineer or any other state “licensed professional” to be the official technical reviewer of all needed permit applications from any state agency for the authority. [page 17]

The original language of the bill established a new Independent Energy Office, which is still in the legislation, to analyze energy policies, regulations and laws.

Sen. Gene Yaw’s press release announcing the passage of the bill focuses on the Independent Energy Office and includes only one line about the new Authority and its powers and no mention of the Authority being able to waive any regulation covering energy facilities. Read more here.

The legislation was also changed to an Administrative Code bill which puts it in play for must-pass budget-related bills.

The bill passed the Senate in a party line vote of 28 to 22 and now goes to the House for action.

Bill Summary

Senate Bill 832 repurposes the existing PA Energy Development Authority into the PA Opportunities With Energy Reliability Authority (POWER) with broad new responsibilities.

Click Here for the text of the bill.

-- Accelerated Energy Development & Electric Generation Permit Review For Large-Scale Projects: The Authority is authorized to take over the original review of any permit from any agency needed for a large-scale energy project upon request of an applicant. [page 15]

A large-scale project is defined as any project that proposes to construct or modify an electric generator with a nameplate capacity equal to or greater than 25 MW.

The Authority would select a third-party “licensed professional” to be its technical reviewer of any permit application(s) needed from any state agency for the project.

Licensed professionals named in the bill could include land surveyors, landscape architects, geologists, a professional engineer as well as “other licensed professional” (an undefined term).

The Authority’s selected licensed professional reviewer is required to complete the review of all the permit applications needed for the project from any state agency within 120 days or any review deadline established in statute.

In the case of DEP, these permits could include air quality, residual or hazardous waste management, Chapter 105 waterways and encroachments, Chapter 102 erosion and sedimentation and others depending on the sources of pollution from the project.

As drafted, the reviewer is only looking at the application(s) as submitted by the applicant. There is no procedure in the legislation for changes or corrections to the application(s).

There are no statutory or regulatory requirements or any standards or criteria in the legislation to be used in reviewing the applications for any permits from any state agency.

The bill does not require the third-party reviewer’s evaluation to include whether an application complies with any applicable state and federal statutes and regulations administered by any state agency as part of the review.

There is no public review or comment period on the application(s) provided for in the legislation or posting the application(s) on its website or any public notice.

When the reviewer completes the review, a recommendation is made to the Authority Board to approve or reject the application(s).

There is no requirement for a record of decision to be produced by the reviewer for the benefit of the Board or the public.

The Board must accept or reject the recommendation(s) at its next scheduled meeting or within 10 business days, whichever occurs first.

If the recommendation is accepted, the Board issues an “order” to the state agency or agencies involved directing them to issue the permits.

If the recommendation is rejected, the Board issues an “order to that effect” to the state agency or agencies involved directing “that the permit or permits be issued in accordance with the Board’s order.”

There is no provision requiring the posting of decisions of the Board on its website or any other public notice.

The legislation gives Commonwealth Court original jurisdiction over appeals of the Authority’s actions.

The legislation specifies the original permitting agency is to still issue the permit(s) approved by the Authority.

In the case of DEP that means the Environmental Hearing Board still has the legal jurisdiction to hear appeals of this action by DEP.

-- Regulatory Waiver/Immunity From Prosecution Program: The Authority Board is given the authority to waive any “applicable regulations that would otherwise apply to an energy project.” [page 19]

An applicant seeking a regulatory waiver would submit an application to the Authority identifying each regulation they seek a waiver for.

The legislation does not define “regulation,” so it could include both state and local government land use and regulations adopted by any regulatory authority with jurisdiction in the state..

The Authority Board would then consider the waiver application at its next meeting or within 45 days, whichever is sooner.

There are no provisions saying who or how the applications are to be reviewed or what criteria are to be used in making decisions.

There is no requirement for a record of decision to be produced by the reviewer for the benefit of the Board or the public.

The legislation says “the Board shall take public comment before voting” at the meeting a waiver application is scheduled for action.

The Authority is to provide public notice of its final decision on its website, but no other notice is required.

The decision of the Board to deny a waiver application is not subject to judicial review.

The legislation grants successful applicants for a waiver immunity from charges brought by “a prosecutor” for failure to comply with a regulation the Authority Board has waived. [page 21]

“Prosecutor” is not a defined term so it could refer to any state or local prosecutor.

The legislation specifies successful waiver applicants would still be subject to criminal liability for murder and other criminal offenses and shall comply with federal law governing consumer protection. [page 22]

In addition, a state agency may not file or pursue any punitive action against a successful applicant, including a fine or license suspension or revocation for any regulation the Authority has waived. [page 21]

-- Third Party Small-Scale Energy Project Review: The legislation provides an alternative permit review program by third-party licensed professionals that would take over reviewing any initial permit applications for small-scale energy projects where an agency has not issued a decision within 120 days or within deadlines established in statute. [page 9]

A small-scale project is defined as projects with a nameplate capacity of less than 25 megawatts

Licensed professionals named in the bill could include land surveyors, landscape architects, geologists, a professional engineer or “other licensed professional” (an undefined term).

The review process is essentially the same as with the large-scale projects.

Like the large-scale projects, the legislation specifies the original permitting agency is to still issue the permit(s) approved by the Authority.

In the case of DEP that means the Environmental Hearing Board still has the legal jurisdiction to hear appeals of this action by DEP.

Click Here for the text of the legislation.

Bill Analysis

Senate Bill 832 as passed by the Senate has multiple, significant, fundamental fatal flaws that not only violate federal law and the public trust, but also ultimately would work directly against the stated reason for the legislation in the first place.

-- Fails To Comply With Federal Law/Regulations: The Department of Environmental Protection is delegated authority under various federal laws to administer environmental permit programs for the US Environmental Protection Agency, the Office of Mining, Reclamation and Enforcement and others.

To qualify for delegation, Pennsylvania must have laws and regulations that-- at a minimum-- meet environmental protection, public participation and other standards in federal law and regulations.

Senate Bill 832 has no statutory or regulatory requirements or any standards or criteria in the legislation to be used in reviewing the applications for any applicable permits.

It does not require the Authority’s reviewer to evaluate whether an application complies with any applicable state and federal statutes and regulations administered by any state agency.

As draft, any permit ordered to be issued by the Authority would fail to meet minimum standards in federal laws and regulations on its face.

Since state environmental statutes passed to meet the minimum federal requirements of the various environmental permitting programs administered by DEP, the Authority process is also in violation of state law since they adopt federal requirements.

Because of these significant flaws, permits ordered issued by the Authority would be subject to easy challenge before EPA, which can review any permit issued by DEP, and in federal courts.

It would also be within the authority of the federal agencies to withdraw their delegation of authority to administer these permits from DEP and Pennsylvania as not complying with federal environmental laws and regulations.

Any permits issued by the Authority would become easily void in challenges.

-- States Have No Authority To Waive Federal Law/Regulations: Senate Bill 832 establishes a program to waive any regulation for any permit applicant from any state agency.

With respect to DEP and the programs it administers, there is no statutory basis in federal law allowing a state to waive any federal environmental law or regulation or under the terms of federal delegation.

Since states do not have the authority to waive any federal environmental law or regulation, any permit issued with a waiver from the Authority would violate federal law and state law and would therefore become easily void in challenges.

-- No Mandated Public Review: Senate Bill 832 eliminates mandated public comment and review periods for any of the permit applications the Authority reviews in violation of both federal and state law and regulations.

Any permits issued under this process, because they violate fundamental provisions in both state and federal law, would become easily void in challenges

-- Doubling Appeals Of Permit Actions: Because Senate Bill 832 specifies the Authority orders agencies like DEP to still issue the permits the Authority approves, that means the Environmental Hearing Board still has the legal jurisdiction to hear appeals of this action by DEP.

Since DEP had no role in reviewing the application, it is in no position to testify or provide support for how the decision was made or respond to challenges of whether the application complies with applicable state and federal law and regulations.

Because of this fatal flaw, any appeals of permits the Authority orders DEP to issue would be easily challenged before the Environmental Hearing Board because the agency would be in no position to defend a decision actually made by the Authority.

Applicants could also be involved in defending direct appeals of the Authority’s actions in at least one other court-- possibly more-- because the legislation specifies actions of the Authority must be taken to Commonwealth Court.

Doubling or tripling up on appeals of permit actions does not seem consistent with the objectives of the legislation.

-- Barbers Reviewing Permits?: Pennsylvania has 29 professional licensing boards and commissions that provide state licenses to professionals like barbers, cosmetologists, real estate agents, social workers, pharmacists, nurses and others.

Under Senate Bill 832, the Authority would select a third-party state “licensed professional” to be its technical reviewer of any permit application(s) needed from any state agency for a project.

Licensed professionals named in the bill include land surveyors, landscape architects, geologists, a professional engineer as well as “other licensed professional” (an undefined term).

Presumably the authors of this legislation did not mean that barbers or any of the 29 state “licensed professionals” could be the reviewers of permits covering air pollution, hazardous waste or stream channel crossings.

-- Hiding The True Purpose Of The Bill: The fact that Sen. Yaw’s press release announcing passage of the bill focuses almost exclusively on the creation of an Independent Energy Office and has almost nothing about a new Authority taking over permitting large-scale energy facilities without public involvement and nothing at all about that Authority being able to waive any regulation from any state agency is troubling.

It’s almost like Sen. Yaw and Senate Republicans are trying to hide the legislation's real purpose-- to exclude the public from permit decisions and ensure technically incompetent reviews of permits to see if they meet environmental and health standards.

Conclusion

This legislation is poorly thought out, poorly drafted and violates multiple federal and state laws using authority states do not have.

It shows a fundamental lack of understanding of federal and state environmental statutes and how they work together to protect the environment and public health.

It violates the public’s trust that state government will protect Pennsylvania’s environment and public health.

It should also be a concern to right-thinking energy companies who believe in working with communities and the public in siting their facilities.

It gives them a bad name and implies their facilities aren’t safe if they can’t go through the normal permitting processes and meet environmental, safety and health standards without waiving them.

And, it fails to address the real problems DEP has in its permit review programs and puts Pennsylvanians at risk.

Click Here for a copy of Senate Bill 832.

(Written by David Hess, Former Secretary, PA Department of Environmental Protection.)

Resource Links:

-- DEP Posts New Permit Modernization Webpage To Track Progress In ‘Getting Stuff Done’ Without Sacrificing Environmental, Public Health Protection

-- Gov. Shapiro On Republican Reaction To His Energy Plan: They’ve Done Nothing And Power ‘Plants Have Closed On Their Watch;’ They’re ‘Used To Doing Nothing;’ ‘Doing Nothing Is Not Acceptable’ [PaEN]

-- Pennsylvania’s Electric Grid Is Dependent On One Fuel To Generate 59% Of Our Electricity; Market Moving To Renewables + Storage [PaEN]

PA Oil & Gas Industry Public Notice Dashboards:

-- PA Oil & Gas Weekly Compliance Dashboard - April 27 to May 3 - Hunting Abandoned Quaker State Wells; Conventional Well Dumpster Fire; Multiple Water Withdrawal Violations [PaEN]

-- PA Oil & Gas Industrial Facilities: Permit Notices, Opportunities To Comment - May 4 [PaEN]

-- DEP Posted 73 Pages Of Permit-Related Notices In May 4 PA Bulletin [PaEN]

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