Swamp dwellers are recoiling in horror that the Pennsylvania House Environmental Resources and Energy Committee has just approved a series of bills that restores some sanity in how environmental regulations are made and paid for in the Keystone State. The bills begin, in a small way, to take back control of our system of creating laws, returning authority for making laws to the PA legislature, instead of creating and forcing laws on citizens by unelected, nameless, faceless, swamp-dwelling bureaucrats in regulatory agencies like the Dept. of Environmental Protection (DEP). Let us explain.
Last year the PA House debated and voted to approve a slate of five bills aimed at fixing not only the slowmo way the DEP approves shale permits, but also roll back some of the egregious regulatory overreach that now exists in PA (see PA House Passes 5 Bills to Fix Broken DEP, Environuts React). That vote alarmed and angered Big Green and its supporters. Ultimately the Senate did not vote on the bills, and they died.
This year those same bills in various forms have reappeared. Yesterday the House Environmental Resources and Energy Committee voted to report the bills out so they can be voted on by the full House. Once again, environuts are having a cow. Bad metaphor–cows produce methane. 🙂
David Hess, former Secretary of the DEP, files a biased report on his blog about the bills. We’ve decided to slice his post apart and provide commentary on each section, to give you the other side.
This is how Hess introduces the post:
On April 16, the House Environmental Resources and Energy Committee reported out a series of bills making fundamental changes to the way regulations are adopted, permits are reviewed and authorizing the arbitrary waiving of penalties and fines.
One bill in particular– House Bill 806– would authorize the House and Senate to kill an “economically significant” final regulation of any agency by doing nothing.
The bills were reported out on a party-line vote, Republicans supporting.
Also reported out were bills setting deadlines on reviews of erosion and sedimentation permits if they were submitted by a registered engineer and requiring DEP to forward waste violation notices to municipalities. (1)
So far so good. He identifies the things that really get under his skin: a bill that provides more legislative oversight of bloated regulations that cost big bucks, and a bill that puts the spurs to the DEP to get off its rear-end and approve erosion and sedimentation permits (which all shale wells need) in a more timely manner.
The first bill up that Hess misrepresents is House Bill (HB) 806:
Kill Regulations By Doing Nothing: House Bill 806 (Keefer-R-York) would authorize the General Assembly to kill an economically significant final regulation by doing nothing. It would require all final regulations with an estimated economic impact of $1 million or more to be submitted to the General Assembly for a vote by concurrent resolution. If the House and/or Senate fail to take action to approve the final regulation, the regulation is deemed not approved and the regulation shall not take effect. (The sponsor summary inadequately describes the content of this bill.) (1)
Actually, the sponsor summary does a great job of accurately describing the bill:
In the near future, I intend to reintroduce legislation that will give the General Assembly a greater oversight role in the regulatory process. Interest in relieving regulatory burdens is strong and this proposal would serve to give the legislature more tools to perform this vital role.
My proposal is modeled after the proposed federal REINS Act (Regulations from the Executive in Need of Scrutiny Act). This federal legislation requires Congress to approve all new major regulations before they can go into effect. Under the federal REINS Act, a major regulation is one that imposes $100 million or more in costs on the economy.
Like the federal proposal, my legislation will establish an enhanced review process for major regulations that impose a substantial cost burden on the Commonwealth. A major regulation – or economically significant regulation – is defined as having an impact on the state, municipalities and/or the business community of $1 million or more per year.
Under my bill, the General Assembly will be required to vote on a concurrent resolution to approve an economically significant regulation, in order for that regulation to go into effect. Specifically, if IRRC has approved the regulation or the agency has decided to implement the regulation without IRRC’s approval, a concurrent resolution is introduced in the legislature and must be considered and passed by the House and Senate.
During the 2017-18 session, this proposal (in the form of HB 1237) passed the House as part of a regulatory reform package. I believe that my legislation will create a freer market in which businesses can thrive and become job-creating engines like they once were. I hope you will consider sponsoring this legislation. (2)
Here’s how to think about HB 806: When this country was founded, new laws (i.e. regulations) were voted on by an elected body. And the people voting on them would then return to their homes after a legislative session and live under the laws they voted to create. Somewhere along the way, both federal and state legislatures began delegating some of their authority to make laws/regulations to various agencies. Like the federal EPA and the PA DEP. Those agencies have the power, vested in them by the legislature, to create “regulations.” It’s assumed lawmakers don’t have the time or expertise to consider every nuance of environmental science, therefore let the “experts” do it. Tragic mistake, in our opinion.
As with all bureaucracies, over time the bureaucrats expanded their power and reach. HB 806 seeks to trim some of that overreach. If the DEP (or other government agency) drafts up a new “regulation” (i.e. law) that requires taxpayers or businesses to end up paying more than $1 million, the House and Senate would both have to approve the reg by voting on a resolution. If they fail to approve it, the regulation “dies”–so Hess calls it “kill regulations by doing nothing.” A very biased and unfair way of stating the intent of the law.
Next up is HB 430:
Repeal Any Regulation At Any Time: House Bill 430 (Benninghoff-R-Mifflin) authorizes the General Assembly to repeal any regulation at any time by concurrent resolution, with review by the Governor (sponsor summary). (1)
This bill provides independent oversight and review of regulations by creating an Independent Regulatory Review Commission. In essence the bill gives the legislature the ability to repeal any state regulation by a concurrent resolution with a single vote in the Senate and House. Regulations are almost never eliminated. They go on for decades–generations. Long after the original purpose of the regulation has expired. This is a way to actually trim back some of the bloated regulations that exist in PA.
HB 509:
Require Third Party Permit Reviews: House Bill 509 (Rothman-R-Cumberland) requires all state agencies to establish a new bureaucracy in the form of third party permit review programs that delegate decision-making authority to persons other than the public agency with the legal authority to make those decisions with no conflict of interest or other protections for the public or applicants. (The sponsor summary inadequately describes the content of this bill.) (1)
This bill requires all state agencies that issue permits to create a tracking system, and in the case of rejected permits, requires them to respond back with the reasons the permit was rejected, chapter and verse. It also creates a program of using independent third parties to handle the load when the agency can’t get it’s crap together and actually turn around permit applications in a timely manner (as happens constantly with the DEP). It is that particular aspect of this much larger bill that Hess takes issue with. He thinks only insulated bureaucrats inside the DEP are capable of making unbiased decisions about permits. He’s wrong. And if DEP can’t get its act together, this bill ensures companies doing business in the state won’t suffer because of it.
HB 1055:
Office Of The Repealer/ Vote To Approve Regulations: House Bill 1055 (Klunk-R-York) establish the Office of the Repealer, General Assembly must vote to approve economically significant regulations, reauthorize repeal of any regulation by resolution (sponsor summary). (1)
Seems to be similar to HB 430, but this bill creates a special “Office of the Repealer” meant to evaluate old/existing regulations and find those that don’t measure up any more and get rid of them. Here’s how it’s described in the sponsor summary:
In the near future I will introduce a proposal to address the growing regulatory burdens facing the Commonwealth. Pennsylvania has thousands of regulations on the books. Many of these acts and regulations were enacted several decades ago, and have yet to be re-examined and evaluated in the intervening years as to their relevance, effectiveness and cost. According to the World Bank and the Mercatus Center at George Mason University, over regulation consumes between .8 to 2.3% of GDP. Based on those numbers alone, over regulation has consumed much of the Commonwealth’s economic growth.
Regulations are a self-made problem that are in part the result of choices made by the legislative branch of government. Legislation that is passed often states that “The Department will promulgate regulations” which allows state agencies to develop new rules and regulations to implement the laws passed by the General Assembly. The regulations formed by these laws and their economic impact are too often ignored by the General Assembly as the legislative branch moves on to the next topic. We must reverse this trend of growing regulations and the negative impact that it has on our economy.
The General Assembly must adopt reforms to reintroduce the legislative branch into the regulatory process and this piece of legislation will take several steps to address that growing need. This bill will do several things. First, it will contain HB 209 of last session which will establish the Independent Office of the Repealer within the Independent Regulatory Review Commission to review regulations, receive and process recommendations, evaluate the merits of recommendations in accordance with decision rules and quantitative and qualitative criteria, and make recommendations to the General Assembly and the Governor and Executive agencies for repeal, modification, or revision. Additionally, this will also implement a one-in, two-out model for new regulations. For every new regulation added, two must be repealed.
Second, this bill will establish an enhanced review process for major regulations that impose a substantial cost burden on the Commonwealth. An economically significant regulation is defined as having an impact on the state, municipalities, and/or the business community of $1 million or more per year. The General Assembly would be required to vote on a concurrent resolution to approve an economically significant regulation, in order for that regulation to go into effect.
Third, this piece of legislation will give the General Assembly the ability to initiate the repeal of any regulation in effect in Pennsylvania by a concurrent resolution. Under current law, the Regulatory Review Act allows the General Assembly to block the implementation of regulation before it takes effect. Both the House and the Senate as well as the Governor would need to approve the resolution.
Fourth, this bill will also reform the permitting process. It will require all agencies that issue permits to increase transparency throughout the process. The legislation will require agencies to post information about the permits that they grant on their website, to create an accessible tracking system for applicants to check the status of their applications and to clearly state the legal authority that the agency relies on when rejecting a permit application.
Finally, this bill will require each agency to designate an employee as the agency’s regulatory compliance officer. This officer would be tasked with being accessible to the regulated community and working with them to explain regulations and resolve noncompliance issues before imposing penalties.
Presently there is no legislative authority providing for an independent, regular and systematic review of existing statutes and regulations to a) reduce or eliminate unreasonable, unduly burdensome, duplicative, onerous, outdated or conflicting statutes that hinder efficiency, understanding, liberty or are detrimental to economic well-being; b) bring statutes up to date to be in harmony with modern conditions; c) foster a more business friendly climate; d) make laws easier to read and understand by a layman.
Whereas proposed new regulations are already addressed by legislation and an executive order [Act of June 25, 1982 (P.L. 633, No.181) providing for oversight and review of proposed/new regulations by the IRRC; Executive Order 1996-1 on review and issuance of regulations in PA signed by Gov. Ridge; and the Regulatory Review Act of June 29, 2012, P.L. 657, No. 76 from HB 1349], this bill will begin to address the tremendous body of existing acts and regulations which have accumulated since the founding of our Commonwealth.
The bill will include a sunset date of five years specifically for the Independent Office of the Repealer to ensure it is able to properly review all regulations and make necessary recommendations while still allowing the other provisions of the bill to remain in place and prevent future over regulation.
Please join me in co-sponsoring this important piece of legislation to help foster effective, efficient and responsive government. (3)
HB 762:
Waiving Penalties/Providing Defenses To Violators: House Bill 762 (O’Neal-R- Washington) requires all state agencies to establish a new bureaucracy in the form of a Regulatory Compliance Officer with no oversight of any kind giving him the ability to issue an opinion on what any person’s obligations are under the laws administered by that state agencies which can be used as a “complete defense” against any enforcement proceeding. The Officer can also review any fine or penalty issued by the agency before it is imposed and set guidelines for waiving that penalty if the person being penalized “has taken or will take [steps] to remedy the violation.” (The sponsor summary inadequately describes the scope and content of this bill.) (1)
So often state agencies are anti-business, “You jump through all these hoops or else.” And have you ever dealt with a truly friendly bureaucrat? Doesn’t happen often. This bill, as the sponsor summary accurately describes, creates a kind of ombudsman or champion for businesses that have to jump through all those hoops. A friend on the inside to help.
It often seems as if state agencies view their roles as adversaries to the business communities which they regulate. Instead, I believe that agencies should collaborate with businesses to assist them in navigating their regulations instead of acting punitively towards them.
In the near future, I will be re-introducing legislation (HB 1960) to encourage such collaboration by requiring that each agency designate an employee as the agency’s regulatory compliance officer. This officer would be tasked with being accessible to the regulated community and working with them to explain regulations and resolve noncompliance issues before imposing penalties.
Additionally, the legislation will contain a safe harbor provision allowing an individual or business to request an advisory opinion from the compliance officer regarding the requester’s duties under a regulation. The requester would then be protected when they act in reliance on any advice provided.
Please join me in cosponsoring this important piece of legislation. (4)
HB 414:
Erosion & Sedimentation Permits: House Bill 414 (Zimmerman-R-Lancaster) requiring an erosion and sedimentation permit application submitted to DEP or conservation districts “shall be approved within 20 days of receipt” if it was submitted by a state licensed engineer. If an application is denied, the agency shall notify the applicant why it was denied (sponsor summary).
[Note: Almost all erosion and sedimentation control permits are submitted by engineers presently. DEP studies of erosion and encroachment permits outside of oil and gas program found 80 percent of the applications were not complete and 30 percent had technical deficiencies in 2016.
[A DEP review of erosion and sedimentation permits related to oil and gas operations found 60 percent of the applications were incomplete or had technical deficiencies in 2017.
[Since these reports, DEP has worked with the consulting community to improve the applications they submit and has taken steps toward converting to electronic permit submissions to cut down on the number of incomplete and deficient applications received by DEP from engineers.]
The bill was amended the provision related to an annual report and reported out by nearly a party-line vote, Republicans supporting. (1)
Delays with the DEP in approving simple erosion and sediment control permits have been horrendous. DEP delays constantly hold up shale projects. This bill fixes that problem. The sponsor summary:
As you know, pollution from storm water runoff, erosion, and sedimentation can lead to significant pollution in our waterways. Accordingly, our Department of Environmental Protection regulates earth disturbance activities as sources of these problems through its 25 Pa Code, Chapter 102 Erosion and Sediment Control program.
However, we have all heard concerns regarding the timeliness of permit reviews for these projects. Likewise, we have all heard concerns about DEP staffing and funding. Accordingly, in the near future, I will reintroduce legislation that requires DEP to complete its permitting approval or disapproval within a reasonable 45 days so that our industries have a predictable timeframe to use for their planning purposes.
In addition, this legislation requires that any permit application submitted by a license engineer, licensed under the Engineer, Land Surveyor and Geologist Registration Law (Act 367 of 1945) shall be approved within 20 days of receipt. These folks are putting forth their license and reputation when submitting permit applications and therefore their applications should require less review. This would then allow more staff time for other projects.
We have to protect our waterways. There is no other choice. But we can add sensible timeframes for permit reviews and allow our licenses and licensed professionals to stand on their merits.
Please join me in cosponsoring this important piece of legislation. (5)
There was a final bill approved not really impacting the shale industry which we’ve omitted.
(1) PA Environment Digest Blog (Apr 16, 2019) – House Environmental Committee Reports Out Bill Authorizing The General Assembly To Kill Regulations By Doing Nothing
(2) Pennsylvania House of Representatives (Jan 15, 2019) – House Co-Sponsorship Memoranda – REINS ACT
(3) Pennsylvania House of Representatives (Dec 5, 2018) – House Co-Sponsorship Memoranda – Comprehensive Regulatory Reform for Pennsylvania
(4) Pennsylvania House of Representatives (Feb 20, 2019) – House Co-Sponsorship Memoranda – Regulatory Compliance Advisor
(5) Pennsylvania House of Representatives (Dec 31, 2018) – House Co-Sponsorship Memoranda – DEP Permitting Review Timeframes – Erosion & Sediment Control Program
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