PaDEP Implements Permit Decision Guarantee Policy

PaDEP Implements Permit Decision Guarantee Policy

John R. Embick, Esq. -- November, 2012

Co-Chairman, CCBA Environmental Law Section

On July 24, 2012, Governor Corbett issued Executive Order 2012-11.  EO 2012-11 authorizes PaDEP to adopt policies which improve the permit review and coordination process.  EO 2012-11 rescinded a similar policy issued by Governor Ridge in 1995 (EO 1995-5, entitled “Money-Back Guarantee Permit Review Program for the Department of Environmental Resources”).

The Department issued draft policy guidance on September 1, 2012, which included a 30 day public comment period that expired on October 1, 2012.  On November 3, 2012, PaDEP issued a notice in the Pennsylvania Bulletin, which promulgated the final policy guidance and provided access to the public comment and response documents.  The new Permit Decision Guarantee (“PDG”) policy goes into effect on November 14, 2012.

Almost since its inception in 1970, the environmental agency has wrestled with permit review and coordination, attempting to balance speed and efficiency on the one hand, and careful and transparent review on the other.  Scarce resources, regional office differences, central office control, complex project permit coordination demands, and the vagaries of permit application quality have all led to a series of efforts to improve the permit review and coordination process.

In issuing the new permit review and coordination policies, Secretary Krancer emphasized that the Department is demanding that the quality of applications be increased.  In its press release of November 2, 2012, the Department asserted that 40 percent of permit applications submitted to the agency were deficient in some way (the Department did not disclose how and on what basis the number was calculated).

A centerpiece of the new policy is increased emphasis on pre-application meetings with PaDEP.  In these meetings, applicants and regulators will have an opportunity to discuss various approaches to proposed activities, and feedback can be provided.  In this way, applications are expected to be better in terms of administrative completeness and technical quality.

The new policy requires that a permit application be reviewed for administrative completeness within 10 business days.   Significant errors or omissions will cause the application to be deemed incomplete and the Department will deny the application. Subsequently, if an applicant reworks the permit application and resubmits it to the Department, the agency will treat the revised submission as a new application.

Once an application is deemed to be administratively complete, the application will be reviewed for technical adequacy.  The new policy establishes review time limits for various kinds of permits and prohibits agency technical staff from employing regional interpretations of regulations or laws that are inconsistent with DEP’s statewide interpretation. The new policy indicates that one technical deficiency letter will be sent during the review process. If the applicant receives one technical deficiency

letter, the PDG timetable is voided. If technical deficiencies continue to exist after two technical reviews have been completed, the application may be denied.

The PDG policy also provides for an elevation process which may involve the Regional Director or Bureau Directors in order to resolve problems or to develop a review and decision strategy.

The policy also establishes a new priority system for certain permit reviews.

Please keep in mined that all of these new decision points are likely appealable to the Environmental Hearing Board.  

It will be interesting to see how this new program is implemented and whether it reduces permit review times and improves permitting decisions and outcomes.