What is the role of the Automatic Stay in DHEC Permitting?

February 20, 2017

We’ve been talking a lot about the automatic stay at the State House and in Rebecca’s weekly hotlist (see the latest here). Two bills being considered this week, S.105 and H.3565, seek to limit the use of the automatic stay.

The automatic stay is an important part of the checks and balances in the permitting process. Because these bills seek to undermine these checks and balances, CVSC is opposed to S.105 and H.3565. Please join us in opposition and contact your legislator today about these bills.

While we aren’t all experts on permitting, many of us have at least experienced the process of getting a driver’s license.

I don’t know about you, but I’m thankful that the state has a system of checks and balances in place to ensure that drivers not only know the rules of the road, but can actually follow them when behind a wheel. Having a universal system for vetting drivers ensures that there is a least a base level of knowledge and experience out on the road.

To get a license you learn the rules, pass a written test, and prove your knowledge behind the wheel. The written test acts as a check to make sure you learned the rules; and the driving test acts as a check to make sure you actually know how to apply the rules in real life.

The environmental permitting system isn’t much different – just a bit more complex. It has a series of checks and balances to ensure that projects that might harm our air, land, and water are done according to current laws and regulations.

Similar to getting a driver’s license, getting an environmental permit can be divided into three phases:

1. Drafting the permit: Agency staff review a permit application and determine if it complies with the applicable laws and regulations. The applicant is involved throughout the process with agency staff. This phase is like learning the rules of the road – collecting all the appropriate information before the first external review. At the end, there is a draft permit for the public to comment on.
2. Public notice and comment: Once there is a draft permit, neighbors and affected parties are notified and can weigh in. The intent is for citizens to act as a check against agency staff. Because, just like when learning the rules of the road, things will get overlooked, missed, or just accidentally not covered in the first phase. Staff then do a final review to see if comments highlight an oversight or error and may affect the outcome of the permit decision. The written driving test  – or public comment phase – addresses these errors and confirms you know enough of the rules to proceed. Following public comment, the agency issues a permit decision.
3. Administrative review: This is a phase that is triggered by a citizen request to challenge a permit within 15 days of the agency decision. Essentially, a citizen asks that the staff decision be reviewed to ensure the permit appropriately interprets and applies the law and regulations. At DHEC, this can be reviewed by the DHEC Board or may proceed to an Administrative Law Judge. This is like the driving test – having an expert who knows the rules and procedures check to make sure that a critical item wasn’t overlooked in any of the earlier phases. When this phase is over, the permit is finalized.

The automatic stay is a key part of this third phase to making sure that the check and balance of the administrative review process actually works. The stay is a pause button that essentially says that work cannot begin before the permit is finalized. At any point, the permit applicant can ask for the stay to be lifted if they can show that starting work on their permit will not cause irreparable harm. Their request must be heard by the judge within 30 days and the judge must decide within 15 days.

As proposed in the bills, eliminating the automatic stay after 30 days would allow work to begin on an unpermitted activity before the administrative review process is complete. This would open the door for ill-intentioned actors to cause irreversible damage prior to having a permit approved. Put another way, eliminating the stay is like allowing an unpermitted driver to get behind the wheel and go wherever they please before they take their driving test and prove that they aren’t going to cause harm on the roadways.

S.105 and H.3565 seek to limit the automatic stay and dismantle the system of checks and balances in our permitting system. We hope you will join us in opposing S.105 and H.3565 by contacting your Senator and Representative today.

Please, help us maintain the checks and balances in our permitting process and ensure we protect the air, land, and water we love.