Wolf administration still hasnâ€™t disclosed which Pennsylvania businesses got waivers to stay open during coronavirus emergency
April 18--Nearly a month after Pennsylvania began accepting requests from businesses seeking to remain open during the coronavirus pandemic, Gov. Tom Wolfâ€™s administration has not shared those requests, releasing only sparse details on the winners and losers or how the requests were evaluated.
Businesses need waivers to keep physical workplaces open if theyâ€™re not among the industries the administration defined as life-sustaining. The state Department of Community and Economic Development has declined to disclose the names of the more than 42,000 waiver applicants, though spokeswoman Casey Smith said it will at some point after the department has finished reviewing applications. As of Thursday, the administration had reviewed all but about 1,000 applications -- approving about 8,000, denying about 19,000 and dismissing more than 14,000 that were filed unnecessarily by businesses that didnâ€™t need an exemption.
Wolf said Friday that he will provide more specifics next week on the plan to reopen the state economy.
Numerous media organizations, including The Morning Call, have used the stateâ€™s Right-to-Know Law to ask for a list of businesses that received or were denied waivers, but the administration and DCED have said the requests wonâ€™t be addressed while the stateâ€™s physical offices are closed.
â€œThereâ€™s enormous public interest, but we still donâ€™t have access to the most basic information,â€? said Melissa Melewsky, an attorney for the Pennsylvania NewsMedia Association.
She said the organizationâ€™s legal hotline has never been busier and that most of the questions are from reporters who want to see the waivers.
The opaque waiver process also has frustrated business owners who want to get back to work and think theyâ€™re as essential as those that remain active. And itâ€™s confused some workers, who arenâ€™t sure why they were deemed essential and are concerned about exposing themselves and their families to the virus.
Monogram Custom Homes and Pools of Upper Saucon Township had about 30 pool projects ready to start and seven homes under construction when work was shut down, President Tony Caciolo said.
His company immediately applied for a waiver, hoping the exemptions would be based on how safe they could keep a job site for workers through social distancing and other precautions. But, it turned out, it was based on whether the construction project itself was considered life-sustaining, Caciolo said.
That meant Monogram couldnâ€™t resume construction, even if it was smaller tasks such as having two workers on site doing shingles or an employee in an excavator digging a hole for a pool project.
Meanwhile, he noted, landscapers are allowed to operate. According to the stateâ€™s list, landscaping services fall within the essential category of â€œservices to building and dwellings.â€? So while Monogram canâ€™t get its hands on a building permit, Caciolo said a landscaper could get a permit from a township to build a deck.
â€œThe waiver process seemed to be a little broken, and I know it got overwhelmed,â€? he said. â€œBut why is one trade allowed to do a job while another trade isnâ€™t?â€?
Businesses requesting an exemption represent about 4% of all businesses in the state, Smith said, adding that DCED is â€œworking to ensure that those exemptions are properly processed and align with our most current guidance.â€?
She said Pennsylvania was the only state to implement a process that allowed businesses initially deemed non-life-sustaining to seek exemptions.
â€œWe recognize that the entire business community has been impacted by the governorâ€™s order, but itâ€™s critical to remember that the governorâ€™s highest priority is protecting Pennsylvaniansâ€™ health and safety,â€? she said. â€œWe are not the only state that has implemented business guidance, and the vast majority of businesses are complying with the order."
Typically, agencies are required by the Right-to-Know Law to respond to requests for records within five business days, though they might take an additional 30 days to gather the information.
â€œAny Right-to-Know Law requests submitted during the period of closure will be docketed and processed when offices reopen,â€? Smith said.
The administration appears to be operating within the scope of the Right-to-Know Law. The state Office of Open Records has asked record requesters to be patient during the pandemic and has advised agencies to continue processing Right-to-Know requests â€œto the greatest extent of their ability to do so.â€?
Erik Arneson, director of the open records office, said Wednesday that the time has come for agencies that suspended records request processing to â€œreevaluate that position."
â€œTransparency is always important, and one of the fundamental reasons why the Right-to-Know Law and Sunshine Act exist is to build trust,â€? he said. â€œIn the middle of any emergency, and especially one with the scope of this pandemic, itâ€™s important for the public to trust government institutions, and being transparent about decision-making is critical to building that trust.â€?
The open records office recommends agencies address how they will handle records in their official Continuity of Operations Plans. The Wolf administration refused to share those plans with The Morning Call, citing safety and security concerns.
Arneson declined to comment on the administrationâ€™s business waiver process, noting that his office is reviewing at least one appeal of the administrationâ€™s decision not to disclose names of businesses seeking waivers.
The lack of information on who has and hasnâ€™t received an exemption as well as the criteria used to judge each request keeps the public from knowing if the requests are being evaluated consistently, Melewsky said.
â€œItâ€™s vital for the government to disclose to the public why a specific business did or did not get a waiver,â€? she said.
On its website, DCED says it determines waiver requests based on the initial federal guidance defining critical industries that was issued on March 19. A later version of the federal guidance broadened the scope of operations deemed critical.
The Legislature on Wednesday passed a bill that would require the Wolf administration to fall in line with 45 other states and adopt those broader federal guidelines in determining which businesses can be open during the coronavirus emergency.
Republican senators expressed frustration that Wolf shut down industries that remain open in adjacent states and created an exemption process they consider â€œchaotic,â€? â€œsecretiveâ€? and ripe for abuse. Reforming those policies while also protecting public health are the Legislatureâ€™s goals, said Sen. Scott Martin, R-Lancaster.
â€œWe have so much to fix in order to make these two goals happen,â€? he said. â€œIf thereâ€™s a single person in [the Legislature] who thinks this process has been fair and transparent, they are kidding themselves.â€?
Wolf said he will veto the bill, which state Health Secretary Dr. Rachel Levine called â€œreckless,â€? â€œirresponsibleâ€? and destined to spread the virus further. Neither chamber appears to have the two-thirds votes needed to override the veto.
Wolf said he would also veto a separate measure passed in the Senate that would delegate business closure decisions to counties.
Construction has been among the more controversial topics since the stateâ€™s list of essential businesses was issued last month. Building across the state abruptly came to a halt as construction was deemed nonessential, allowing only for emergency repairs or health care facility construction.
That set off a rush of waiver requests to the state.
The latest confusion, said Caciolo of Monogram Custom Homes and Pools, is over the most recent guidelines from the state, which allow work to continue on a home if a certificate of occupancy has been issued. He said that could allow contractors to be inside a home, doing carpeting, drywall or other finishes while the homeowners are living in it.
â€œThe criteria determining whatâ€™s allowed should be based on whatâ€™s safe and keeps people safe as opposed to, Is the building life-sustaining?â€? Caciolo said.
Smith, from DCED, said residential construction is only allowed to stabilize a site, prevent weather damage or make emergency repairs. Also, projects that are substantially completed and issued a final occupancy permit may continue to completion.
In general, Smith noted, nonresidential construction must be suspended unless itâ€™s for emergency repairs or health care facility construction.
The exemptions are for specific projects and not for companies as a whole, Smith said. Companies have been allowed to continue projects on life-sustaining businesses but not other types of construction.
Thatâ€™s why work is continuing at Freshpetâ€™s manufacturing expansion in Hanover Township, Northampton County. The project did not need a waiver. It was allowed to continue because Freshpet, as a pet food manufacturer, is considered life-sustaining.
â€œOur general contractor applied to the state for a waiver and received a response that indicated that as long as they are working on our business -- an essential life-sustaining business -- that they could continue on that project,â€? Freshpet CEO Billy Cyr said. â€œSo we are continuing construction.â€?
That contractor is Penntex Construction of Montgomery County. Company President Jim Hoolehan did not respond to an email seeking comment.
A construction worker at the site, who requested to remain anonymous for fear of repercussions, said work resumed April 6. The worker estimated that 75-80 workers were on site as of Tuesday, down from when the project was running at full tilt with more than 100 people.
When construction resumed, the worker said a sink with hot water and a bottle of Gojo hand cleaner was installed along with a hand sanitizer stand. Those on site are wearing makeshift masks, the worker said.
But staying 6 feet apart can be a challenge, the worker said, noting some tasks have people shoulder to shoulder.
â€œItâ€™s inherently a close profession, you have to work next to people,â€? the worker said. â€œItâ€™s almost impossible not to be in close proximity to people for an extended period of time.â€?
The workers enjoy their jobs and some need the money, the worker noted, especially with the backlog in the stateâ€™s unemployment benefits system. Still, many feel uncomfortable and some have opted to stay home to protect their fellow workers, themselves and loved ones.
Many, the worker said, also donâ€™t see the immediacy in the project, since it wonâ€™t be up and running until later this year and would provide more manufacturing capacity to the fast-growing Freshpet.
â€œThe project isnâ€™t near ready to go, but weâ€™re there putting our families at risk for something that isnâ€™t ready to be operational,â€? the worker said.
Cyr countered by saying the $100 million expansion is close to completion, expected to come online within the next few months so Freshpet can meet anticipated demand. He also noted that when construction stopped, millions of dollars of manufacturing equipment had been delivered to the site but was not protected from the elements.
Cyr stressed that Freshpet and Penntex have safety practices in place at the site and would not be continuing construction if it couldnâ€™t be done safely.
â€œWe believe that is the purpose of the governorâ€™s order and their decision to allow our project to continue -- to ensure that companies could continue to meet the demand for life-sustaining foods,â€? Cyr said. â€œIf the project were not completed, we would be risking our ability to meet the demand for our pet foods within the next few months.â€?
Morning Call reporter Ford Turner contributed to this article.
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