Summary of Legislation | January 2018 – Pennsylvania Society of Professional Engineers

State Registration Board for Professional Engineers, Land Surveyors and Geologists January 10 Meeting Highlights

The State Registration Board for Professional Engineers, Land Surveyors and Geologists met on January 10 in Harrisburg. Following are the highlights.

Board President Theodore Tesler, PG, welcomed Board members and guests, and thanked them for their service. He acknowledged the guests and invited them to share any concerns. Ted Mowatt reported on the status of HB 1106, on behalf of PSPE and PSLS. Tesler had no further report.
Board Prosecutors Robert Armour reviewed 3 Consent Agreements for deliberation in Executive Session, and noted the Board had scheduled two hearings with licensees later in the meeting.
BPOA Commissioner Ian Harlow did not attend the meeting. Deputy Commissioner Kathy Waters had no report.
New Board Administrator Jeannie Bronshtein was introduced. She noted that she had prior experience in BPOA, and had worked with geologists while at DEP. Her father was an engineer.
New Board Counsel Ariel O’Malley was introduced as the permanent counsel

The Board held two hearings.

Regulatory Counsel Tom Blackburn presented a revised version of the long-awaited Seals regulation, based on the board discussion in November. Blackburn explained the new version was scaled down from previous drafts, to only deal with electronic filing, and add some definitions of terms using the NCEES model. Tesler expressed concern over the length of time the process has taken, and that some terms and concepts may now be obsolete from when they started. He stated on behalf of the Board that the language should be “flexible’ and general so they don’t need to be updated as frequently. There was some discussion about whether there was a need, in the interest of saving time, to send an “exposure draft” to the professional societies, DEP and PennDOT. It was agreed that it may be more time consuming to deal with comments after publication, so Blackburn was instructed to distribute the draft to the interested parties, and he said he would.

Next meeting is March 14, in Harrisburg. Future 2018 meeting dates: May 9, July 11, September 12, and November 14.

House State Government Committee Holds Hearing with DGS on Obsolete Regulations

The committee held an informational meeting January 30 to receive a presentation from the Department of General Services (DGS) regarding final omitted regulations #8-21, #8-22, #8-23 and #8-25, which were said to repeal obsolete provisions of various procurement-related regulations.

Matthew Bembenick, chief of staff of DGS, explained the four final-omitted regulatory packets, which have been submitted to the committee, and also provided a general overview of the regulatory process. He stated an agency may submit a final-omit regulation, that which is promulgated without prior publication of a notice of a proposed rulemaking, under three circumstances and the regulation must also be submitted to several agencies for approval. Once an agency satisfies one of the three circumstances that would allow promulgation of a final-omitted regulation, it prepares the regulatory packet consisting of a Regulatory Analysis Form, Preamble, and Annex A containing the proposed statutory changes and submits these documents to the Office of General Counsel and the Governor’s Office of Policy and Planning for review and to the Governor’s Office of the Budget to obtain a fiscal note. Once the final-omitted regulatory packet has been approved by the Office of General Counsel, Governor’s Office of Policy and Planning, and Office of the Budget, the agency submits the regulation to the Office of Attorney General, Independent Regulatory Review Commission (IRRC), and the standing committees (in DGS’s case the State Government Committees) for the House of Representatives and the Senate, he explained.

With regard to the four regulations before the committee, Bembenick stated they are scheduled to be considered by IRRC on February 22, 2018. The regulations are necessary, he explained, because of changes made by the legislature to the Procurement Code in 1998. Those changes, he continued, included the four chapters addressed by the regulations before the committee, which laid out procedures for the Committee on Construction Contract Documents, for the Selections Committee, for Emergency Construction Repairs, and Methods of Awarding Contracts. Bembenick stated that these four chapters detailed how these procurement processes would proceed, but with the 1998 enactment of the Procurement Code, the legislature repealed the legislation that created those four sections and incorporated the substance of each of these chapters into various sections of the Procurement Code.

“Because these four chapters have been effectively abrogated by statute, the Department of General Service found that public notice of intention to rescind the regulations was unnecessary. The Department therefore proceeded with these regulatory packets as final-omitted regulations,” Bembenick stated. “These four regulatory packets seek to rescind what are now fully obsolete regulation.”

Rep. Mary Jo Daley (D-Montgomery) asked about the enactment of the Procurement Code and opined there was a long time between the passage of the code and the effective date of the regulations. She wondered if it is a difficult process to find outdated regulations and eliminate them. Bembenick confirmed ideally they would have been rescinded earlier, but they have now been found and brought forward. Rep. Daley continued to wonder if that is something that usually happens automatically. Bembenick confirmed that ideally would happen at the time regulations are put into statute, “but for whatever reason that did not happen through several administrations.”

Chairman Daryl Metcalfe (R-Butler) questioned if there are other obsolete regulations that DGS is working through and will bring forth. Bembenick replied that the majority of things the department is aware of have been brought out, but confirmed as any future ones are identified they will be brought forth. Chairman Metcalfe asked when the agency last rescinded regulations. Bembenick did not know but offered to find out.

Rep. Brett Miller (R-Lancaster) said he has no problem with eliminating the obsolete provisions, but asked about the phrasing of “final-omitted.” Bembenick confirmed that is IRRC language and explained a final-omitted regulation is one brought forward without an initial public comment period because they have a minimal effect on the public. This, he said, is a faster process than the “regular” process. Rep. Miller commented that it seems like “odd language” to call the process “final-omitted.”

Rep. Cris Dush (R-Jefferson) asked for clarification on if the regulations apply to things which are no longer being done and no longer required, “so in effect there is no effect,” and that’s why an expedited process is permitted. Bembenick responded “generally yes,” but clarified items in this particular package are already in the Procurement Code and the law supersedes regulation. This, he added, clears up any potential public confusion.

Governor Wolf, DEP Taking Action to Reduce Backlogs, Improve Oversight, and Modernize Permit Process

Governor Tom Wolf and Department of Environmental Protection (DEP) Secretary Patrick McDonnell held a press conference January 26 to announce the administration’s plan to “reduce permit backlogs, modernize permitting processes, and better utilize technology to improve both oversight and efficiency”. The Governor said this program action is a result of a yearlong effort to identify and implement strategies that will help DEP meet the goals of the Permit Decision Guarantee, “while continuing to issue strong permits with strict environmental protections”. Governor Wolf also announced the administration will bolster DEP staffing, which has been deeply eroded in past budget cuts, to boost these efforts.

“Working with Sec. McDonnell, I tasked DEP with looking at ways to reduce backlogs and wait times responsibly, so that we could meet the ambitious goals of the Permit Decision Guarantee, while providing even stronger environmental protections for our citizens,” said Governor Wolf. “Secretary McDonnell and his team have implemented a number of changes and the results have been remarkable.”

To capitalize on the success to date, DEP will continue to implement new approaches to its permitting processes by simplifying bureaucratic and outdated procedures, while continuing its mission of protecting the environment. New initiatives include:

Expanding the e-permitting system to include several key development permits, reducing the time spent trading paper between DEP and industry;
Creating a new analytics program that helps managers track progress on open permit applications – allowing them to know how long permits have been in the system;
Releasing new review processes and registration practices for key development permits for clarification on what is needed to complete an application and make it easier to apply for these permits; and
Supporting common sense legislation that will bring the permit process in line with the industry it is engaged with, such as extending permit terms and allowing multi-well pad permitting.

“Governor Wolf has made a strong commitment to strengthening the DEP and helping us rebuild after a decade of cuts that led to bigger backlogs and longer wait times,” said DEP Secretary Patrick McDonnell. “By investing in additional staff for the department across all programs, Governor Wolf is helping us better protect the environment of our commonwealth and more efficiently process permit applications on their merit in a timely manner.”

“The initiatives implemented at DEP will undoubtedly have positive impacts for Pennsylvania’s economy, while demonstrating that the economy and environment don’t have to be at odds,” said Department of Community and Economic Development Secretary Dennis Davin. “From an economic development perspective, these efforts will strengthen communities by empowering businesses, which creates jobs and grows local economies across the commonwealth.”

Following a comprehensive review across programs, DEP implemented several new initiatives to streamline processes and modernize practices, including an innovative new permit review approach to shrink review timelines of the Erosion and Sediment Control General Permit (ESCGP), a key development permit, to under 100 days while reducing backlogs for well permits in the southwest region. Since implementing the new approach, DEP’s Southwest District Office reduced its permit review timeline for the ESCGP by over 220 days, and has cut its permit backlog in half.

Since the summer of 2017, the department has reduced the overall permit backlog by more than 6,000 permits. Additional efficiencies implemented include:

Rotating pending permits to regions with the capacity to review additional applications;
Reallocating positions within the Office of Oil and Gas Management to equalize the permit review workload and improve permit review consistency;
Providing updated technical guidance documents and improved permit application forms and instructions to clarify regulatory requirements to permit applicants and facilitate the submission of adequate permit applications; and
Targeting new hires in key permit review areas.

To continue to provide high-quality, responsive oversight, the governor will allocate $2.5 million in the 2018-19 budget for additional staffing at DEP. This investment will allow the department to hire new employees in high priority positions across programs and regional offices and will help the department fulfill its mission to protect the natural resources of the commonwealth. For a more detailed overview of DEP’s Permit Reforms visit:
http://files.dep.state.pa.us/LicensingPermitsCertification/PermitDecisionGuaranteePortalFiles/Permitting_Reform_01262018.pdf

State Supreme Court Orders General Assembly Back to the Drawing Board for Congressional Districts

That’s the order that the state Supreme Court gave to the General Assembly regarding Pennsylvania’s congressional map. In a 4-3 decision, the court ruled the current map unconstitutional – adding a new level of upheaval to what already was promising to be an intense Congressional election year in the Keystone state. The court gave the House and Senate until February 9 to get a new map to Gov. Tom Wolf for his approval. The governor then has until February 15 to submit the final plan to the Supreme Court. According to PoliticsPA, if these deadlines aren’t met “the maps will be drawn by the court after hearing from all parties in the current case.” The court also said that the Department of State may adjust the deadlines for petitions (currently scheduled to go from February 13 – March 6), in order to ensure the new maps are ready for the May Primary Election. Not surprisingly, legislative GOP leaders did not take kindly to the court’s ruling. Yesterday, Senate President Pro Tempore Joe Scarnati, R-Jefferson, and Speaker of the House Mike Turzai, R-Allegheny, filed an emergency application with the U.S. Supreme Court hoping to block the state court’s decision. With a number of open congressional seats in this year’s election, this issue is sure to be the No. 1 topic of conversation among PA politicos…

Meehan, Brady Out

Not that Brady. Congressman Bob Brady (1-D) announced January 31 that he would not seek re-election to a 12^th term in the US House of Representatives. Brady, who had struggled with legal accusations over the past year, stated that he believed he could have won handily, based on polling, but it was time for someone else to take over.In the suburbs, this past month’s worth of negative press surrounding Cong. Pat Meehan, R-Delaware, was capped off with his announcement that he will not be running for re-election.

Pennsylvania will now have five open Congressional seats in the upcoming election – a fact that is not lost on both political parties who are looking for any opportunity to swing control of the U.S. House to their side.

Legislation Shrinking the Legislature Advances

Earlier this week, bills to reduce the number of elected officials in both the House and Senate passed out of the House State Government Committee by votes of 14-10. The respective bills would reduce the House from its current size of 203 to 151 and the Senate from 50 to 38. Pennsylvania, notably, has the second-largest, full-time legislature in the country. While government reformers have championed these proposals as a way to cut costs, opponents worry that it would result in legislative districts that have too large of a geographical land mass to effectively represent on the state level. There are still major hurdles to climb before these proposals would become the law of the land. In order to change the state constitution, the same legislation must pass during two consecutive sessions before being presented to the voters as a ballot referendum.

Davis Wins Special Election

Democrat Austin Davis won a special election this month in the 35th House District. Davis succeeds former state Rep. Marc Gergely, D-Allegheny, who resigned in November after pleading guilty to two misdemeanor charges related to his role in an illegal gambling ring. Davis easily defeated Republican Fawn Walker-Montgomery, garnering 73 percent of the votes. Davis has served as vice chairman of the Allegheny County Democratic Committee and assistant to County Executive Rich Fitzgerald. Davis has said that jobs and infrastructure are his two top priorities in his new role as a state legislator. He will be sworn in in February. Legislative Activity

The following bills of interest to PSPE have been introduced and/or acted upon in the past month.

Bidding / Contracting

HB 566 RE: Contractor and Subcontractor Payment (by Rep. James Santora, et al)

Amends the Contractor and Subcontractor Payment Act further providing for owner’s payment obligations and for contractors’ and subcontractors’ payment obligations. If payment is not received by a contractor or subcontractor as required, the contractor shall have the right to suspend performance of any work, without penalty, until payment is received in full. Stipulates that the provisions of the act cannot be waived in a contract. Requires a written explanation of a good-faith reason to be given when the payment is retained for a deficiency item. Provides that a contractor or subcontractor to facilitate the release of retainage on its contract before final completion of the project by posting a maintenance bond with approved surety for 120 percent of the amount of retainage being held; and provides that if the withholding of retainage is longer than 30 days after the acceptance of the work, a written explanation must be provided.

Reported as committed from Senate Labor and Industry Committee, and read first time, 1/30/2018

HB 1849 RE: Public Works Open Contracting Act (By Rep. Stephen Bloom, et al)

Provides for open contracting by the Commonwealth and its political subdivisions and their agencies and authorities. It establishes that a party who is aggrieved by an act committed by a public body in violation of prohibited practices or discrimination prohibited may file an action in a court of competent jurisdiction to enjoin the act.

Public hearing held in House State Government Committee, 1/24/2018

SB 799 RE: Pennsylvania Clean Water Procurement Program Act (By Sen. Rich Alloway, et al)

Establishes the Pennsylvania Clean Water Procurement Program to provide for the purchase of verified TMDL nutrient credits from certified nutrient credit generators through a competitive bidding process consistent with 62 Pa.C.S. Pt. I (relating to Commonwealth Procurement Code) and any other competitive process determined to be appropriate by the Department of Environmental Protection and the State Conservation Commission; provides for powers and duties of the State Conservation Commission; and establishes the Watershed Improvement Fund. The department shall transfer the nutrient reduction mandates of a permittee to a competitive bidding program to enable all certified nutrient credit entities that can generate verified TMDL nutrient credits to participate in an RFP on a voluntary basis. In return for being absolved from the TMDL nutrient reduction mandate, the aggregate number of permittees may pay into the program $50,000,000 annually for 10 years, subject to annual adjustment. Transfer payments shall be paid into the Watershed Improvement Fund, to be used by the commission for the purchase of verified TMDL nutrient credits. Winning bids will offer 20 percent of total nutrient reduction allotment to be available for participation for 30 days by small sources that did not participate in the bidding process so that a small producer who installs a BMP can subscribe to sell their credits into this pool and receive the winning bid price absent the need to participate in the bidding process.

Amended on Senate floor, 1/30/2018

Read third time, and passed Senate, 1/30/2018 (47-2)

Budget Related Bills

HB 2002 RE: PIT Reduction (by Rep. Jason Ortitay, et al)

Amends the Tax Reform Code, in personal income tax, lowering the personal income tax rate to 2.82 percent (changed from 3.7 percent). Effective immediately.

Introduced and referred to House Finance Committee, 1/8/2018

Environmental Building Standards

HB 1486 RE: High Tunnels (by Rep. David Zimmerman, et al)

Amends the Storm Water Management Act, further providing for definitions and for effect of watershed storm water plans. The bill defines “high tunnel” and establishes when a high tunnel shall be exempt from provisions. It also states that any municipality that has adopted a local ordinance or regulations that regulates high tunnels following a watershed storm water plan prior to the effective date shall amend the ordinance or regulation to comply with the subsection.

Reported as committed from Senate Environmental Resources and Energy Committee, and read first time, 1/30/2018Liability

SB 954 RE: Reducing the Statute of Repose for Construction Projects (by Sen. Scott Wagner, et al)

Amends Title 42 (Judiciary and Judicial Procedure), in limitation of time, further providing for construction projects stipulating that a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within six years (changed from 12) after completion of construction of such improvement to recover damages. Timeframes for exceptions are similarly adjusted. The stated intent is to reduce the statute of repose for construction projects.

Introduced and referred to Senate Judiciary Committee, 1/22/2018

Local/State Government/Regulations

HB 913 RE: Storm Water Fees (by Rep. Garth Everett, et al)

Amends Title 8 (Boroughs & Incorporated Towns) adding provisions related to incorporated towns and providing for storm water management plans and facilities. The bill adds language allowing an incorporated town council to assess fees for storm water management activities and facilities without the need to establish a municipal authority.