While much of the House hearing on DEP’s budget request Thursday was a repeat of the Senate hearing, Rep. Joshua Kail (R-Beaver) said he thought it was “outrageous” DEP has a process where any citizen can petition the agency for a change in its regulations.

Rep. Kail began his questioning by asking Acting DEP Secretary Jessica Shirley to “explain the citizen's rulemaking process and how many petitions are currently being considered a DEP at this point?”

Acting Secretary Shirley described the process that was established in law on October 10, 1980 by an amendment to the Administrative Code Section 1920-A (h) that allows “any person” to petition to issue a new regulation or repeal an existing  regulation..

Acting Secretary Shirley explained-- “The number of petitions, I'm not sure we could get that for you. The rulemaking body for the department is the Environmental Quality Board.

“It's a 20-member board made up of various agencies and some members of the Legislature, some of them who are in this room.

“Anyone can petition the department or the EQB for a rulemaking, that if they have scientific data and various information. Typically, we see this…”

Rep. Kail interrupted, “Our time is limited. If I may ask a follow-up question, there are three particular petitions that I'd like to ask you about today.

“One deals with [shale gas well plugging] bonding [so plugging burden does not fall on taxpayers. Accepted for evaluation in November 2021] in the natural gas industry. One deals with a setback rule of a kilometer [from a shale gas well to better protect people from health impacts] [accepted for evaluation by DEP in November 2024, but a recommend not yet presented to the EQB], I believe, and then one deals with a cap and trade program as well [accepted for evaluation  by DEP in April 2019, but a recommendation not yet presented to the EQB].

“As you consider these rules, are you considering the financial impact that these roles would have on the Commonwealth?”

Acting Secretary Shirley responded, “So that is part of the evaluation.  So what happens is they [citizens, businesses, any “person”] petition the department or the Environmental Quality Board. If it meets specific criteria, we accept the petition for further study.

[EQB regulations at 25 Pa. Code § 23.2 require a petition to meet three criteria in DEP’s initial review--

[-- Petition must be complete;

[-- Petition requests an action that can be taken by the EQB [within its statutory authority]; and

[-- The action does not conflict with federal law.]

“Part of that further study does have to do with financial implications, anything that would have to go through the rulemaking process.

“There are questions, as part of the rulemaking process, from IRRC [Independent Regulatory Review Commission], on what's called a Regulatory Analysis Form.

“A lot of it has to do with small business impacts. So those are considerations that we would have to do to determine whether or not we take that back to the EQB with a recommendation.

“And we say, "We recommend that we move forward with the rulemaking," which is what happened in the PFAS MCL, or we say, "We recommend that this petition be rejected on these grounds."

“Then the EQB makes the decision.”

Rep. Kail-- “And it's your position that these rules could be implemented without any legislative consent whatsoever?”

Acting Secretary Shirley-- “So that is part of the evaluation. So if you look at the department's petition policy, as long as it meets three, I would say, very broad criteria, we accept it for further evaluation.

“That does not mean that it's moving forward with the rulemaking. There's a very long process with a petition, but what it means is that we are going to take it and evaluate it and make those determinations of whether we have that at….”

Rep. Kail-- “And anybody can file a petition? Entities from out of state can file a petition?”

Acting Secretary Shirley-- “Sure.”

Rep. Kail-- “An NGO [non-governmental organization] that’s getting funded by USAID [US Agency for International Development] could file a petition?”

Acting Secretary Shirley-- “Yeah. So typically, we see these for stream redesignations. That's what it historically has been for stream redesignations. But recently, I would say, over the last two years, we have seen different types of petitions come in for evaluation.”

Rep. Kail-- “Could you quantify, and if you don't have it off the top of your head, I'd like to know it, the number of man-hours that DEP is spending on these types of petitions and how much time and money is being wasted reviewing and going over these types of petitions  (emphasis added)?”

Acting Secretary Shirley-- “Yeah, we could probably... It really depends on the petition and the evaluation.

“Some of them, we can look at pretty quickly and say, "We don't have the authority to do this," and then, there isn't a ton of time spent. But then, some of them do require modeling and analysis and things like that. So we might be able to do that on a case-by-case basis.”

Rep. Kail-- “It's concerning to me that huge decisions, these petitions could quite frankly eliminate entire industries in the Commonwealth if they were to be implemented, billions and billions and billions of dollars of investment, over 100,000 jobs are on the line, and there's absolutely no legislative input in this process.

“I think it's outrageous that it's even a process that we should consider (emphasis added).”

Acting Secretary Shirley-- “There would be legislative input as part of the typical rulemaking process. Just the act of petitioning does not make it go into effect. The petition process is an evaluation process. Any regulation would still have to follow the regulatory process.”

Rep. Kail-- “So we would have to approve this regulation, this rule that would go into effect?”

Acting Secretary Shirley-- “There's no approval, but IRRC [Independent Regulatory Review Commission] would have to approve it.”

Rep. Kail-- “Where's the legislative process? Where's the legislative consent in this process?”

Acting Secretary Shirley-- “Within the regulatory process, there's a number of touch points for legislative members. Obviously, public comment periods, but there is a process of review.”

Rep. Kail-- “No vote on the floor? No rule or law….”

Acting Secretary Shirley-- “There could be. That's on the Legislature. If the legislature wants to take a vote, they can do that.”

Rep. Kail-- “Of course, we could take the vote to revoke, but we don't have a voice in the process (emphasis added).   You could allegedly implement it without us being involved.”

Acting Secretary Shirley-- “Within the rulemaking process, though, there are touch points for the legislature. And this is not just petitions, this is any rulemaking that the department does or any agency does.

“There is a legislative review process for rulemakings, and we have had votes by this body against regulation.”

Rep. Kail-- “I've been a part of them (emphasis added).  Thank you, Mr. Chairman [of the House Appropriations Committee].”

Click Here to the video of this exchange (at the 54:24 mark).

Resource Links:

-- Senate DEP Budget Hearing Focuses On Permit Reviews; Governor’s Lightning Energy Plan; Bringing On More Baseload Power Generation; Firing ‘Intractable’ DEP Employees  [PaEN]

-- DEP House Budget Hearing: Democrat Rep. Vitali Raises Concerns About Whether DEP Has The Resources To Fulfill Its Mission When Workloads Have Increased Dramatically  [PaEN]

-- House DEP Budget Hearing: Republican Rep. Kail Says It Is ‘Outrageous’ DEP Has A Process Where Citizens Can Petition Their Government For Changes In Regulations  [PaEN]

-- DEP Budget Testimony: DEP Moving At The Speed Of Business; Lightning Energy Plan; Most Inspections; Commitment To Environmental Justice  [PaEN]

-- What The Shale Gas Industry Is Leaving Behind:  DEP Issues Violations To 2 More Shale Gas Companies For Abandoning, Not Plugging 6 Shale Gas Wells In Butler, Greene Counties  [PaEN]

-- Gov. Shapiro’s Budget Includes Energy Plan; Funding To Make-up Deficit In Oil & Gas Program; New State Park, Trail Initiative; Over $6.2 Billion In Federal Funding At Risk For DEP, DCNR, PennVEST  [PaEN]

-- Gov. Shapiro Announced  Federal Funds Identified In State Lawsuit Are No Longer Frozen - Mine Reclamation, Conventional Well Plugging, Water Infrastructure  [PaEN] 

-- Chesapeake Bay Foundation: President's Proposed 65% Cut In EPA Budget, Coming Mass Layoffs Spell Disaster For Chesapeake Bay [PaEN]

[Posted: February 27, 2025]

3/3/2025