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Governor Corbett Issues Executive Order 2012-11 Creating Permit Decision Guarantee for PADEP

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Earlier today, Governor Tom Corbett issued Executive Order 2012-11 which establishes a permit decision guarantee program for PADEP.  According to the Executive Order, it is designed to build upon the Money-Back guarantee that was put in place by Governor Ridge and Secretary Jim Seif back in 1995. 

While the new program sounds very similar to the Money-Back guarantee program, there are some differences and new points of emphasis.  First things first, nothing is in place yet.  Under this new Executive Order, PADEP is directed to establish a new policy "using an open and participatory process", so apparently the regulated community will have a chance to weigh in as the new program is developed.  Second, the new program will (1) establish processing times for permit applications covered by the permit decision guarantee; (2) require that PADEP reviewers meet those timeframes; (3) require that permit applicants submit complete and technically adequate applications; (4) return applications that are incomplete or severely deficient; and (5) establish performance standards for PADEP staff such that meeting these deadlines is considered part of their job performance evaluations.  The new Executive Order also directs PADEP to develop a new automated systems for notifications, applications and registrations.  It also directs the Department to coordinate the review of applications needing multiple permits.  

The Executive Order focuses the Department on one of the most important things that it can do for the state’s economy — ensuring that businesses get timely permitting decisions.  In that regard, its issuance sends out a strong message to companies looking to site new facilities in Pennsylvania that the state will do whatever it can to permit those facilities as quickly as possible.  On the other hand, it also sends a strong message to the regulated community, including environmental consultants and attorneys, that permit applications need to be thorough and complete.  It doesn’t make sense for either PADEP or applicants to play ping pong with applications.  If PADEP is going to take responsibility to get things done quickly, the regulated community needs to similarly take responsibility and present complete and technically adequate applications to the regulators.  The Executive Order makes clear that permitting is a two-way street. 

It will be even more important than ever to pick and chose your environmental consultants carefully, with an eye toward thoroughness and a reputation for excellence and good results with the Department.  Consultants with reputations for cutting corners are probably not going to do very well under this new policy.  

While it is not clear which permit applications will be covered under the permit decision guarantee, Section 1 of the Executive Order provides some clues.  It states that the permits covered will include "those with the most direct impacts on protection of public health, safety and the environment, as well as economic development."  My expectation is that projects that create jobs are likely to be at the top of the list, as they should be.  Competition among states is fierce and Pennsylvania needs to become, once again, a leader among states. 

Lastly, the new executive Order specifically rescinds the Money-Back Guarantee program created in 1995.  It is unclear what that means for the review times established under that program which many of us still use to advise clients regarding applicable timeframes for projects.  I would hope that this new program can be rolled out quickly so regulated entities can continue to have some sense of likely review times.