January 19, 2017
Recently, the Pennsylvania Department of Environmental Protection (DEP) issued a press release announcing its internal review of the expedited review process for the Erosion and Sediment Control General Permit (ESCGP-2). At the same time DEP made available an Internal Review document discussing its audit of the expedited review process.1 The expedited process is available for earth disturbance activities of 5 acres or more for oil and gas projects, if certain criteria are met and if certain disqualifying circumstances are not present. The expedited process anticipates a permit decision within 14 days. Projects that do not qualify for the expedited process are reviewed under the standard process, with an expected permit decision in 60 days.
The Internal Review only looked at the expedited process and concluded that 59% of the applications “were disqualified from the expedited review process because they were either administratively incomplete and/or technically deficient…” However, it appears that, except for a very small number of the applications, the initial staff determination that an application was deficient was taken at face value. Except for 23 larger projects (15 acres or more) in the program that were independently evaluated, it does not seem that there was any attempt to review or independently evaluate the legitimacy of the initial determination to disqualify the application. Even the larger projects were not reviewed by an independent third party, but by other DEP personnel.
One can, of course, be cynical regarding a self-evaluation that concludes that most of a program’s problems rest with someone else. However, cynicism aside, the real value of the report may lie in the recommendations that were made to refine and improve the program. These are:
- Establish more objective and clear standards for expedited permit NOI review eligibility so that they can be implemented consistently statewide.
- Establish more objective and clear standards for DEP’s return or denial of ESCGP-2 NOIs so that program staff can take consistent action statewide regarding permit application return and/or denials.
- Create and implement internal program staff education to ensure that DEP staff consistently applies standards for qualification for expedited review and standards for issuance of expedited ESCGP-2 permits.
- Conduct industry and third-party technical training for those entities and persons preparing and submitting applications. Sessions should be standardized and offered in at least three locations across the Commonwealth in 2017.
- Conduct regular internal reviews for consistency, technical sufficiency, and proper implementation on a 2-year interval beginning in 2017 (year 1) after staff training referenced in #3 above is completed (i.e., another audit should be conducted in November 2017, and internal reviews should occur in every odd year thereafter.) 2
The industry should welcome, encourage, and assist DEP in implementing these recommendations. In fact, they should be applied to the entire ESCGP-2 program, not just the expedited process. Objective standards, consistency, and training of both DEP staff and third parties, are all things the natural gas industry has sought. While one may disagree with the audit methodology and conclusions, one would be hard hard-pressed to disagree with the recommendations. One can only hope they are implemented promptly.
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
About the Author:
Terry R. Bossert is Principal in the Firm's Environmental Practice Group. He counsels clients on environmental regulatory matters and compliance programs, represents them in related civil and criminal litigation brought by environmental regulators, and provides government relations counseling and advocacy related to environmental regulations in the Commonwealth of Pennsylvania. Learn More >
1 “Expedited ESCGP-2 Process Internal Review”, December 27, 2016, Office of Oil and Gas Management.
2 Id, 6.