In a recent PA Bulletin Notice. PADEP released proposed revisions to its existing policy on PNDI reviews to clarify PNDI coordination within the Department’s permit application review process.
For those not familiar with PNDI, it stands for the Pennsylvania Natural Diversity Inventory. It is the review that is done to determine if a project requiring PADEP permits impacts threatened or endangered species or species of concern.
For those attorneys and consultants who work with brownfield developers, you know that the PNDI review can cause delays, especially if the electronic database shows a "hit" that needs to be cleared. The PADEP policy explains the process for performing the PNDI review, including using the PNDI ER Tool, which is an electronic database, or alternatively submitting a hard copy Large Project Form for projects that are too large to be drawn in the PNDI ER Tool.
What appears to be new in the proposed policy is the description of the interplay between the PNDI policy and the Department’s new Permit Decision Guarantee Policy. The draft PNDI policy notes that the Department won’t issue a permit until a potential impact identified in a PNDI review has been resolved. In some cases, the deadlines set for Department review under the Permit Decision Guarantee Policy may no longer apply depending on the length of the processing delay triggered by the PNDI review. Additionally, if resolving a PNDI hit involves making substantive changes to the permit application, that could trigger the need for a new application under the Permit Decision Guarantee Policy and a new review deadline and a new permit application fee. That’s probably the most significant thing in the proposed PNDI policy for brownfield developers, although I can’t say that for sure. Developers need to be aware of the risks of proceeding concurrently with a PADEP permit application review and the PNDI review, especially when a potential impact has been identified. It’s probably much less risky to run the PNDI search and complete all coordination with the appropriate jurisdictional agencies prior to submitting the PADEP permit application. Again, the risk is that if you submit a PADEP permit application before the PNDI review process is completed, if a potential impact is later identified and it causes substantive changes to the PADEP permit application, the new Permit Decision Guarantee policy will likely require the submission of an entirely new (rather than a modified) application (and trigger a new review clock) and the submission of a new application fee.
As with most things relating to the implementation of PADEP’s new Permit Decision Guarantee, the interplay between the PNDI policy and the Permit Decision Guarantee Policy should be considered a work in progress. Having spoken with many program personnel at PADEP regarding the Permit Decision Guarantee, I can say that everyone appears to be fully committed to its successful implementation, and the Department is making every effort to educate the regulated community regarding that implementation process.
On another note, I assume that the Department will do its best to make sure that the Permit Decision Guarantee doesn’t delay the redevelopment of brownfield sites, which often include both environmental (by way of cleanup and remediation of a blighted property) and economic benefits (by way of both construction and permanent jobs at the reclaimed brownfield site). I’ll note that when the Commonwealth enacted Act 2 back in 1995, it dealt with the issue of squishy review times by imposing strict deadlines upon the Department for reviewing Act 2 plans and reports. In that regard, one of the goals of the Permit Decision Guarantee Policy, of creating firm deadlines for Department action, was realized a long time ago for the state’s brownfield program. You certainly don’t hear many complaints from the brownfield development community about the deadlines in the Act 2 program. And you know what they say – If it ain’t broke, don’t fix it. That’s just my two cents on whether something similar to the Permit Decision Guarantee needs to be implemented for the Act 2 program.
The PNDI Policy was released as a draft technical guidance document on November 10, 2012 and for those interested, comments can be submitted up until December 10, 2012.