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Bills kill regulations by doing nothing

On April 20, the House Environmental Resources and Energy Committee approved legislation by party-line vote– Republicans supporting– to allow the General Assembly to kill final regulations by doing nothing, provide a shield to law violators and mandating private review of DEP permit applications.

The bills include:

— Killing Regulations By Doing Nothing: House Bill 72 (Keefer-R-York) would require legislative approval of any economically significant final regulation or final-omitted regulation that has an impact of $1 million or more on a regulated community. In order for a final regulation approved by the Independent Regulatory Review Commission to go into effect, the Senate and House would have to adopt a concurrent resolution approving the regulation. If one or both of the chambers failed to act, the final regulation would be deemed NOT approved and would be prohibited from taking effect.

— Mandates Private Review Of DEP Permit Applications: House Bill 139 (Rothman-R- Cumberland) establishes a program to require the review of permit applications by private contractors for applications that have been “delayed,” eliminating agency review of permit applications on behalf of the public and adding more state bureaucracy and cost on taxpayers.

The bill has many fatal flaws, including no conflict of interest provisions that would prohibit a third party permit reviewer from reviewing their own permit applications.

It sets a standard 30-day window for agency review of permit applications which eliminates the ability of the public to comment on permit applications required by other state and federal laws.

The bill also lacks any deadline for a review and decision by the third party permit reviewer on applications, which is allegedly the reason for the legislation in the first place.

If legislators are worried about delayed permit reviews, at a May 2019 hearing by the House Environmental Resources and Energy Committee, the Cumberland County Conservation District testified it took an AVERAGE of 33 business days (more than 6 calendar weeks) for a consultant to get back to the District with corrections.

A month and a half, let that sink in.

Another fundamental flaw deals with permit appeals.

Since the bill takes the review of permit applications away from DEP, there are also basic issues of what happens when a permit decision is appealed by either the applicant or the public.

Who defends the permit review and the decision and who pays for that?

Across state agencies there are thousands of different types of permits, each with their own requirements with review times meeting hundreds of state and federal laws that can vary from one page to many pages.

Legislators interested in solving the permit review issue could do things like invest in electronic permitting systems that help eliminate application errors going in and encourage a publicly accessible review process. But they haven’t.

This bill is simply a political statement. It would not work in the real world.

— Shields Violators From Enforcement Actions: House Bill 288 (O’Neal-R-Washington) would create a Regulatory Compliance Officer in each state agency to, among other duties, develop guidelines to waive penalties if a business or other entity if they just “attempt to comply” with a regulation.

The officers could also offer advisory opinions that would offer violators a complete defense from enforcement without any involvement of the public. If the officers failed to respond to a request for an opinion serves as an automatic defense to the violator’s actions.

Similar legislation was introduced in the Senate– Senate Bill 29 (Phillips-Hill-R-York)– on Jan. 20.

The bills now go to the full House for action.

Some thoughts.

These bills are now part of a Republican effort to promote “economic recovery” from the pandemic, but in reality these initiatives seeking to attack regulations and restrict environmental protection and safety efforts have been around for years from Republicans.

They just gave themselves a new reason to pass bad bills.

With respect to “recovery,” let’s not forget Pennsylvania’s businesses have so far received direct, taxpayer-funded payments of over $32 billion– that’s BILLION dollars– from the federal government through the Paycheck Protection Program to get them through the pandemic, according to the Independent Fiscal Office.

It was certainly needed in these unprecedented times, but just saying.

Rep. Daryl Metcalfe (R-Butler) serves as Majority Chair of the House Environmental Committee and can be contacted at 717-783-1707 or by email to dmetcalf@pahousegop.com. Rep. Greg Vitali (D-Delaware) serves as Minority Chair and can be contacted at 717-787-7647 or by email to gvitali@pahouse.net.

David E. Hess is former director of the Pennsylvania Department of Environmental Protection. He is editor of the Pennsylvania Environmental Digest newsletter.

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