PA DEP Publishes Draft Guidelines for Permit Decision Guarantee Program

October 2012Articles In the Zone

As a result of Pennsylvania Governor Tom Corbett’s Executive Order 2012-11 , the state’s Department of Environmental Protection (DEP) published draft guidelines creating a Permit Decision Guarantee (PDG) policy in September. The guideline has the dual goals of elevating the quality of environmental permit submissions as well as increasing the review and turn-around time on applications before the DEP.

At the center of the PDG policy is the creation of a guaranteed timetable on environmental permit application decisions. The policy impacts a variety of state-issued permits as well as permits issued via delegated agencies, such as a county conservation district or health department. Each permit classification has a different “guaranteed” turn-around time ranging from several weeks to several months. Indeed, the DEP is attempting to adopt a new mindset of “how long have we had the application” versus “how much time do we have left to take action on a permit” with an eye to reaching a decision as quickly as possible. Failure of DEP reviewers to achieve those PDG deadlines would prompt a meeting with the DEP Secretary to determine why the deadline was missed.

Citing the results of an internal audit, DEP has claimed 40 percent of the environmental permit submissions received are deficient, which requires DEP staff to spend additional time helping applicants bring those submissions into compliance. Under the draft PDG policy, several significant changes would be made to the application process that will surely impact the regulated community.

Applicants will be encouraged to schedule pre-application meetings with the DEP to the greatest extent possible. Such meetings will include not only the applicant and the applicant’s consultants, but also representatives from all appropriate regulatory programs to ensure clear design and permitting expectations.

Upon submission, the permit application will be reviewed for administrative completeness within 10 business days. While minor changes can be made by telephone, any meaningful errors or omissions will cause the application to be deemed incomplete and the application will be denied. Likewise, if the applicant amends the application and resubmits it, the DEP will treat the package as a new application.

Following a successful completeness review, submissions will be reviewed for technical adequacy. However, DEP staff reviewers are expressly prohibited from relying on personal preference or a regional interpretation of regulation/statute that is inconsistent with DEP’s statewide interpretation. Only one technical deficiency letter will be sent during the review process. If the applicant receives one technical deficiency letter, the PDG timetable is voided. Applications that continue to possess technical deficiencies after two technical reviews may be denied. If denied, the application will need to be re-submitted and will be treated as a new application.

If qualified as a “technically complex project,” some plan approvals may receive additional deficiency reviews as appropriate.

In those instances where applications are technically deficient, and for which the deficiencies have not been resolved within the established PDG response timeframe, the package will be subjected to an elevated review process. The elevated review entails engaging the Regional Director and/or the Bureau Director to evaluate a final review strategy. The elevated review process may include more face-to-face meetings with the applicant as well as granting the applicant an additional 10 days to implement a resolution.

Finally, the PDG will implement a permit review hierarchy to inform which applications are prioritized for review ahead others. Instead of a “first-in, first out” method of reviewing submissions, the DEP will place a premium on reaching a decision for certain types of environmental permits.

The hierarchy consists of: (1) applications necessary for the protection of public health, safety or environment from imminent threats; (2) applications necessary for economic development projects that create/save jobs, leverage private investment or provide significant economic benefits; (3) applications within the PDG that meet either (1) or (2) above; (4) applications not covered within the PDG but necessary for economic development; and (5) applications that do not meet any of the above criteria will be completed on a “first-in, first-out” basis.

The hierarchy further delineates permit prioritization based upon the application type: new applications, amendments/modifications/transfers and renewals.

Executive Order 2012-11 rescinds the Department’s “Money Back Guarantee Permit Review Process” and replaces it with the new Permit Decision Guarantee policy.

The Department anticipates draft PDG policy by year’s end. Those applications submitted prior to final adoption of the policy will still be reviewed under the existing standards.

Additional information on the draft PDG policy (including FAQs, recorded webinars and PowerPoint presentations) is available on the Department’s website.