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Can PA DEP Ever Win? Who Will Win When It Comes to the Proposed General Permit 5/5A?

  Summer 2017

Can PA DEP Ever Win? Who Will Win When It Comes to the Proposed General Permit 5/5A?
By: Teresa Irvin McCurdy, President of TD Connections, Inc.
Andrew J. Ritter Jr., Senior Associate at Capital Associates, Inc.

 

If a survey was done, people would not respond that they are against protecting the environment, that they are for pollution, and that they don’t care about clean water, clean air, and a clean place to raise their families. Yet that is often how individuals who support the oil and gas industry are portrayed. Whereas, people who publicly seek tighter environmental regulations and oppose the use of fossil fuels are referred to as an “environmentalist.”

A friend once told me that she likes to refer to “environmentalists,” as described above, as the “opposition” because they are opposing something. She considers herself an environmentalist because she too wants to protect the environment and does so working for a gas company to ensure that it protects the environment by meeting or exceeding federal and state regulations. Therefore, I will refer to them as the Opposition.

Pennsylvania’s Department of Environmental Protection (DEP) has the difficult task of balancing the two sides. Even though DEP believes they have tried to work with both sides on promulgating new regulations, general permits, or other binding documents, they are often still accused by one side or the other (or both) that they are failing in their mission or, on the other hand, impeding development. They can’t seem to win.

As example, look at the promulgation of Chapter 78a regulations which regulated the unconventional natural gas industry and became effective in October 2016. The regulation went through the normal regulatory review process and then some as it took almost 4 years to complete, went through numerous public hearings, two public comment periods, several DEP work group meetings across the state, and various other stakeholder meetings.  In the end, neither side was happy and DEP is still in the middle of a lawsuit. DEP couldn’t seem to win.

During the process, the conventional natural gas operators lobbied legislators to pass a law to require DEP to promulgate regulations that were specific to be conventional industry. Due to that action, DEP and the conventional operators are now in the process of drafting those new regulations. For this to be successful, all sides will need to find a “win.”

Then in late December 2016, DEP published the proposed general permit for methane/air emissions – GP-5/5A which replaces the existing Exemption 38 that regulates these emissions. However, as drafted some of the requirements such as those for hauling brine and requiring a pre-construction permit for temporary equipment and numerous other items, has a real potential to halt industry or at the very least slowdown drilling drastically. Industry, legislators and the opposition have all been making their voices heard loudly prior to the public comment period ending on June 5th. The fate of this permit now rests in DEP’s hands as the next step in the process is for DEP to provide a comment response document, make any changes they want to or not, then finalize it for publication in the Pennsylvania Bulletin which is when it would then become effective. For this to be successful, all sides will need to find a “win.”

So how can DEP win?

I have participated in hundreds, if not thousands, of DEP meetings ranging anywhere from public hearings where people are simply presenting testimony, to agency advisory/committee meetings where the members discuss environmental topics and/or regulations and from small group meetings with DEP to client meetings with DEP. Some of the public hearings have been quite contentious and heated to the point that police removed people.

So now what? This doesn’t mean there is no action going on behind the scenes or publicly. The opposition uses public forums and organizes its own events to voice its support of stricter regulations on anything fossil fuels to halt current and future development. In May, one group held a rally at the Capitol to lobby legislators and met with them in their offices. When the opposition lobbies their legislators, they say it is their Constitutional right; but when industry does the same thing they are accused of colliding with dirty politicians. That’s simply not fair and not true.

Industry continues to push back by having one-on-one or small meetings with DEP and legislators. But perhaps industry should take the fight to the public. Like the opposition, perhaps industry should be attending more public hearings and holding more public events to clearly deliver these implications to the public and provide additional education.

So, is a win-win possible when caught in the middle of a trifecta?

I hope yes, but all sides need to take a different approach and try to work together rather than against each other. Whether anti-fossil fuel folks like it or not, the world depends on fossil fuels for so many things besides generating electric, powering vehicles, etc. Its byproducts are used to create plastic, coat candy, shoes and so many more items we use daily.

In speaking with DEP staff, although I sense a willingness to want to work with stakeholders from both sides, they continue to want to do so with a “trust us” mentality. We meet, they say they understand with no commitment of making any changes, ask us to submit comments, and then we wait to see what makes it to the final version. Unfortunately, due to past experiences, the trust is broken. What needs to be done next is for DEP staff and stakeholders from both sides to sit in a room together and work on the document one line at a time. Various stakeholders should be intermingled and in a constructive, not adversarial setting, to come to an agreement one line at a time. During Secretary McDonnell’s confirmation hearing, he stated that industry and stakeholders would have a chance to see the revised version and to provide input before it becomes effective. We hope that is true.

Working together is the only way, given past actions and patterns, for DEP’s efforts to result in a win-win.

For more information contact:
Teresa at Teresa@TDConnection.com or 717-329-6402, or
Andrew at Ritter@CapitalAssoc.com or 717-919-6628

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