DEP favors sister agencies

Memos direct staff to get OK before issuing sanctions

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A previously undisclosed state Department of Environmental Protection policy gives Harrisburg administrators sole power to approve environmental violation notices in cases involving other state or federal government agencies.

The policy change, detailed in an internal DEP memo obtained by the Pittsburgh Post-Gazette, covers environmental violations and enforcement actions that can involve state or federal prisons, parks and hospitals, and state universities or road building projects.

It extends prior policy that encouraged DEP field staff to avoid issuing a formal "notice of violation" to government agencies.

According to the March 2 memo, DEP field inspectors, regional program directors and regional directors are prohibited from issuing any "notice of violation" to the government agencies without receiving prior approval from the department's deputy secretary of field operations in Harrisburg.

The previous policy allowed many such decisions to be made at the district level. Among the agencies covered by the directive are the state Department of Corrections, Department of Conservation and Natural Resources and the federal Department of Military and Veterans Affairs.

The procedural change in the March 2 memo is similar to one contained in a March 23 internal email that directed DEP field inspectors to take no enforcement actions against Marcellus Shale drilling operations until they were approved by top DEP administrators in Harrisburg.

That change, specific to Marcellus Shale operations, caused grumbling in DEP offices and was widely criticized for undercutting public confidence in environmental enforcement. It was eventually rescinded and disavowed by the DEP at the beginning of May.

But the March 2 memo shows that the now-abandoned procedural change for dealing with Marcellus violations seems to have been part of a pattern to move enforcement actions from field staff and regional offices to top administrators in DEP's Harrisburg headquarters.

The two-page March 2 memo, signed by Kelly Jean Heffner, then the acting deputy secretary of field operations and now deputy secretary for water management, also continues, re-enforces and expands an existing DEP directive to avoid issuing formal violation notices to those government agencies.

Addressed to "field operations staff," the March 2 memo echoes a June 2006 DEP directive by saying that the Office of Field Operations' "preferred course of action is to identify and correct violations without a formal NOV having to be written."

But the March 2 memo goes further by mandating that regional field inspectors, program directors and regional directors contact the director for regional coordination, a post currently held by Jeffrey Means, "to determine if it is prudent to develop a written NOV."

Jan Jarrett, president and chief executive officer of Citizens for Pennsylvania's Future, a statewide environmental group, said that DEP policy would create an incomplete regulatory record of problems at state or federal facilities and would hamper the public's ability to track violations and determine if legal action is needed.

"It's very important to get all the information and a complete record of the actual compliance and violation history in a facility's file," Ms. Jarrett said. "The potential to pollute or contaminate our air or water is the same whether it's a state agency or a private industry."

But Katy Gresh, a DEP spokeswoman, characterized the March 2 memo as, "just updated guidance meant to ensure effective coordination among commonwealth and federal agencies, which benefits the citizens we all serve.

"The assertion that instances in which an NOV is not issued cause the facility's file to be incomplete is directly contradicted by the words in the [March 2] memo which instruct field staff to document everything."

Ms. Gresh said the March 2 memo and the June 2006 memo are "virtually identical," and noted that the DEP had worked with other agencies to resolve violations and avoid writing NOVs for years.

But those violations, which could previously be handled at the regional level, must now be submitted to and approved by the deputy secretary for field operations. Dana Aunkst, a longtime DEP administrator, holds that title now.

John Hanger, who was DEP secretary in the Rendell administration until January, said state institutions should be held at least as accountable as others in the regulated community.

The 2006 memo was issued before he took over at DEP, but he said he was aware of it. DEP did not routinely grant preferential treatment to other agencies during his tenure, he said, adding that he was philosophically opposed to a two-tier system.

"I get uncomfortable carving out too much of a different approach when compared with other permit holders," he said. "I would not support giving state and federal institutions separate, almost VIP treatment before any action is taken against them.

"I hope the new administration will push hard to apply the law uniformly. To the extent that state agencies are treated with kid gloves, the administration should think long and hard about that. State agencies should be role models."

Jeff Schmidt, director of the Sierra Club Pennsylvania Chapter, one of 42 environmental, business and church organizations that urged Gov. Tom Corbett to roll back the procedural change contained in the March 23 email, said NOVs provide documentation that citizens or journalists can use to evaluate agency actions.

"If an NOV never gets issued, does anyone know there's a problem?" he said. "We would be concerned if the new policy would reduce the public's knowledge of what's going on in the agencies."

Also, the memo directs that the DEP's Bureau of Regional Coordination and Program Evaluation director get involved in any violations involving the federal Department of Military and Veterans Affairs. And should any meetings be needed, the "special deputy secretary for external affairs" will be invited to attend.

That post is held by Alisa Harris, who previously was the environmental policy manager for Exelon Generation, an electric power company where DEP Secretary Michael Krancer, a former Pennsylvania Environmental Hearing Board judge, was assistant general counsel in 2008.

Mr. Hanger said the DEP has regulatory oversight over state universities, prisons, mental hospitals and parks for air emissions from their heating facilities and incinerators and water discharges from sewage treatment facilities, and deals with erosion and stream degradation issues that may result from state Department of Transportation road projects.

Don Hopey: or 412-263-1983.


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