New DEP Pick Says He Will 'Apply the Law'
Pittsburgh Post-Gazette
20 March 2011
By Laura Olson, Post-Gazette Harrisburg Bureau
HARRISBURG -- When Michael Krancer found himself the deciding vote on a
mine-safety case in 2001, he went to the bottom of a Washington County
mine to make sure he understood the issues at hand.
The United Mine Workers were appealing an exemption approved by the
Department of Environmental Protection regarding methane testing at 84
Mining Co.'s mine in South Strabane. The union said the exemption was
unsafe, despite DEP's consent.
Mr. Krancer was two years into his initial term as a judge on the
state's Environmental Hearing Board, which considers appeals on certain
DEP decisions. And he had never been in a coal mine, recounted Don
Carmelite, his first law clerk at the board.
"The guy suited up in all the gear and got the training, and he walked
around in a mine a mile below the surface, in thigh-high water," Mr
Carmelite said in a recent interview. "It was consistent with what he
did to get it right."
The judge later sided with the miners' position, on a 3-2 decision.
But now instead of adjudicating whether the state Department of
Environmental Protection made the right decisions, it's Mr. Krancer who
is managing the agency's closely watched choices. He is Gov. Tom
Corbett's pick to lead the oversight agency.
The 53-year-old Bryn Mawr lawyer comes to the agency at a pivotal time:
Natural gas drilling in the Marcellus Shale has grown so quickly that
the topic overshadows much of the department's other responsibilities.
Discussions on how government should regulate the industry and manage
its risks often can become heated and hyperbolic.
He also is working for a governor who has drawn skepticism from
environmental advocates regarding his commitment to protection, in
light of significant campaign contributions from gas drillers and his
opposition to a severance tax. Mr. Krancer himself was at times harshly
critical of the agency in his hearing board opinions.
Colleagues and friends say he's the right man for the job:
intellectually curious, hard-working, and someone constantly in search
of facts and science to back up his decisions.
They and others also note that he is not afraid to voice disagreement,
and some of his hearing board dissents show fiery language when he
believed that a decision was made in error.
Mr. Krancer has said he will approach his role as secretary much as he
did his nine years as an administrative judge.
"We apply the law -- that's our job," he said during his Senate
confirmation hearing, adding that it is "also my job to listen to all
sides of an issue and consider all of the facts and have an open mind."
Chief Judge Tom Renwand, who has served on the board since 1995, echoed
that sentiment in describing his colleague: "He's fair and likes to
hear all sides in an argument. I think he will really be guided by
science."
Mr. Renwand said the Environmental Hearing Board functions with a lot
of "back and forth" on cases that are under consideration. He talked to
Mr. Krancer almost daily from the time Mr. Krancer joined the board in
1999, often to bounce around ideas about a case.
"His opinions contained great detail and always delved into the nuts
and bolts of testimony and were greatly supported by facts, which is
the key to not getting reversed," Mr. Renwand said.
Attorneys who try cases before him see that attention to detail in his
questions.
"The kind of things you think are questionable in your case, he'll go
right for them," said Joe Manko, an environmental lawyer with the
Philadelphia firm Manko Gold Katcher & Fox.
The Environmental Hearing Board is the first stop for appeals on DEP
decisions, explained former DEP secretary John Hanger.
He said it functions as a check on the agency, which "can make
mistakes, misread the facts."
Those cases give the judges insights on the agency's legal
decision-making, Hanger said, though "hardly a full view of what the
department does."
Some of Mr. Krancer's opinions also show insights into his own
decision-making. A review of those decisions shows a mix that both
supports strong regulations and criticizes agency actions.
In a 2001 case involving penalties imposed against a construction
company, his concurring opinion voiced concern that the company may
still have profited from its illegal action, despite a $258,500 fine.
He wrote that the approach in cases that "involve such a flagrant and
volitional course of chronic violative conduct should be at a minimum,
to make sure that any and all profit that the violator may have made on
the job on which it engaged in its pattern of illegal conduct is
totally disgorged."
Mr. Carmelite said the opinion is an example of his "strong position on
enforcement on people who are bad actors."
That same year, in a dispute over air regulations between DEP and the
North American Refractories Co., Mr. Krancer broke from the other
judges to write a dissent that the Commonwealth Court later validated.
That decision states that when the department and the defendant both
have reasonable positions, the department's position should be given
deference.
Under state law, he wrote, "the Department is the 'king of the hill'
going into the proceeding because NARCO has the burden of proving that
its position is correct and the Department's is incorrect. Under the
circumstances here, I do not think that NARCO has knocked the
Department off the top of the hill."
However, Mr. Manko said he is "not somebody who would always toe the
line of the department. I'm sure there are cases where they were
disappointed."
One such case involved how DEP was overseeing mine safety, and whether
it or the Board of Coal Mine Safety was empowered to expand mine
regulations.
In that 2009 case, the majority, including Mr. Krancer, ruled that the
agency had overstepped its bounds. But in a concurring opinion, he went
beyond his fellow judges' tone to call DEP's attempt to expand
regulations "a naked power grab" that was "inappropriate and offensive
to the rule of law and the democratic process."
That language upset some in the department as improper and
unprofessional.
He never shied away from making the decision he felt was right, even
under pressure for unified 5-0 decisions, Mr. Carmelite said
"The fact that he wrote a couple of dissents early on challenged his
compatriots and bred an atmosphere of discussion and dialogue," Mr.
Carmelite said. He added that the other judges initially viewed Mr.
Krancer's approach as "grandstanding," though later became more
accepting.
His legal background goes beyond the Environmental Hearing Board: He
started his career at the Philadelphia firms Dilworth Paxson and Blank
Rome. In 2007, he left the hearing board to run for the state Supreme
Court on the Republican ticket.
He lost that bid, which was largely financed by his father, GOP
philanthropist Ronald Krancer. His father also has been a major donor
to both Mr. Corbett and Gov. Ed Rendell, and is the nephew of the late
Walter Annenberg.
After his Supreme Court bid, Mr. Krancer spent a year as assistant
general counsel for the energy company Exelon. Mr. Rendell reappointed
him to the Environmental Hearing Board in 2009.
He has a strong interest in history, particularly U.S. naval history
and spends off-work hours as a civil war re-enactor.
As acting secretary, Mr. Krancer already has made and defended several
regulatory changes from the previous administration.
He revoked a coordination policy with the Department of Conservation
and Natural Resources that he said was redundant, and erased guidance
on air pollution policy that he said "did not instruct anybody to do
anything."
He also has echoed his boss on viewing Marcellus gas drilling as an
opportunity for jobs that will last decades, and something that
government needs to manage in a way that does not scare away investment.
"We're at the beginning of what I hope will be a very, very successful
industry that has geopolitical impacts," he told House lawmakers during
a recent hearing.
Much of his message on how he will manage the department has been a
promise for openness between DEP staff, other arms of state government
and the public. He's greeted DEP employees on their way into work at
the Harrisburg headquarters, visited regional offices and is soliciting
ideas from lawmakers.
Mr. Renwand said he thinks Mr. Krancer will be a "strong leader" at DEP.
"Will he take a different tack [than Hanger]? I don't know," Mr.
Renwand said. A lot of people try to politicize things but I'm not
sure, if you look back over the last 15 years, that people in charge
handle things much differently except maybe around the edges. I think
he'll uphold the law. He always did on the board."
Laura Olson: 717-787-4254 or lolson@post-gazette.com. Don Hopey
contributed to this report.