DEP Finalizes Permit Decision Guarantee Policy

November 5, 2012
MGKF Special Alert

In a move that could significantly alter environmental permitting approaches across Pennsylvania, on November 2, 2012, the Pennsylvania Department of Environmental Protection (DEP) announced that it has finalized its new Permit Decision Guarantee policy. This policy establishes a new permitting process starting November 14, 2012, that is intended to reward applicants who spend time and resources submitting what DEP considers to be high quality applications for projects with verifiable, positive economic impacts, while significantly extending review times and adding procedures for applications that fail to meet established legal or technical standards in the initial application. Through these new procedures, the Permit Decision Guarantee policy places greater emphasis on submitting high quality applications in the first instance and positioning those applications in a way to take full advantage of the streamlined review procedures and review hierarchy established by the policy.

The Permit Decision Guarantee policy applies to over 240 types of environmental permits issued by each of DEP's four major program offices and provides a corresponding "Permit Decision Guarantee timeframe" for each permit by which DEP is supposed to complete its review. The new policy also applies to local agencies, such as County Conservation Districts and County Health Departments, that have been delegated authority to issue any of the permits subject to the policy. Importantly, the Permit Decision Guarantee policy does not affect approval timeframes and frameworks established by statute or regulation. For example, approvals associated with cleanups pursued under Pennsylvania's Act 2 Land Recycling Program are not subject to the Permit Decision Guarantee policy because Act 2 establishes its own review timeframes.

As an initial step, the Permit Decision Guarantee policy strongly encourages applicants to contact DEP and arrange a pre-application conference involving any consultants or other advisors that will participate in the permit process—especially for large-scale or complex projects—going so far as to state that the Permit Decision Guarantee may be "void" if an applicant chooses to forego a pre-application conference when one has been advised by DEP.

Following the pre-application conference, the applicant must submit a "complete and technically adequate application which meets all applicable and regulatory and statutory requirements and contains all information needed by the Department to make a final permit decision." After receiving the application DEP will undertake a "completeness review" within ten business days. If DEP finds the application to be complete, then DEP will send an initial acceptance letter and begin its "technical review" of the application. If, however, DEP finds that the application is incomplete, then DEP will deny the application, send the applicant a denial letter that sets forth DEP’s explanation including citations to specific statutory and regulatory provisions, and keep the permit application fee. Any resubmissions after an incompleteness determination are treated as new applications.

Once DEP has found the application to be complete, the application is eligible for the Permit Decision Guarantee policy, and DEP is supposed to complete its technical review and issue or deny the permit within the specific timeframes listed in the policy. The Permit Decision Guarantee policy states that if DEP fails to meet the Permit Decision Guarantee timeframe for a complete and technically adequate application, then DEP has five additional business days to approve or deny the permit. If that timeline is not met, then a meeting is scheduled with the DEP Secretary to determine why the deadline was missed.

There are a number of off-ramps, however, that could potentially remove the application from the Permit Decision Guarantee policy and associated timelines. First, applications that are found during the technical review to contain "technical deficiencies" are not eligible for the program. In this regard, DEP will apply a "two strikes" policy, meaning that applicants will have one opportunity to correct all deficiencies listed in what is supposed to be a single comprehensive deficiency letter from DEP. If the applicant fails to address the technical deficiencies to DEP's satisfaction, then the application is brought to the applicable DEP Program Manager and Regional Director for an elevated review to determine a path forward that may include denial of the application. The policy does allow for more than one deficiency letter for certain technically complex projects and permits.

Second, while the Permit Decision Guarantee prescribes specific timelines for the technical review of environmental permits, it also recognizes that certain "ancillary activities" may delay final permit issuance beyond the listed timeframe. These include issues related to financial assurance, resolution of outstanding violations, coordination with other federal, state or municipal agencies (or even other DEP programs) and other complex technical factors including air modeling, risk assessments, or harms-benefit analyses.

In addition to providing outside timelines and procedures for DEP's review of permit applications, the Permit Decision Guarantee policy also establishes a new hierarchy to determine which types of applications are reviewed first. The policy replaces the "first-in-first out" framework with one that, after considering permits that are necessary to address imminent or broad-based environmental issues, prioritizes those that are necessary for projects that can be shown to have some positive economic benefit for the Commonwealth or local communities.

Implementing the new Permit Decision Guarantee policy will undoubtedly be an iterative process for both DEP and applicants, and DEP plans to re-evaluate the policy on a quarterly basis over the next year, starting in February 2013. If you would like to learn more about the new Permit Decision Guarantee policy, Manko, Gold, Katcher & Fox is hosting a seminar where DEP’s new Regional Director of the Northcentral Office, Marcus Kohl, will speak about the policy on November 14, from 4 to 5 p.m., at the Eagle Rock Winery, located at 414 W 4th St. in Williamsport. The seminar will be followed by a reception at the winery from 5 to 7 p.m. to celebrate our new Williamsport office. Space is limited, so please RSVP to Julie Hayes at 484-430-2352 or jhayes@mgkflaw.com if you wish to attend.

If you have other questions about the Permit Decision Guarantee policy, please contact Todd Kantorczyk at 484-430-2359 or tkantorczyk@mgkflaw.com.