RAYMOND PROFFITT FOUNDATION
REVISED COMMENTS ON
PENNSYLVANIA'S PROPOSED
ANTIDEGRADATION REGULATIONS

PART 1 OF 2 PARTS

I. INTRODUCTION

The Department of Environmental Protection (DEP) has requested comments on proposed changes to the Commonwealth's antidegradation regulations. The following comments are on behalf of the Foundation and on behalf of the Delaware Riverkeeper Network. Part 1 deals with the history of Pennsylvania's antidegradation laws and with guidelines that must be used in evaluating DEP's proposed changes to the antidegradation laws. The two guidelines are that the new regulations must be consistent with minimum federal regulations and they must keep clean waters clean. Part 2 will comment on specific parts of the proposed regulations.

II. HISTORY OF PENNSYLVANIA'S ANTIDEGRADATION REGULATIONS

The Raymond Proffitt Foundation sued EPA in 1993 for its failure to require Pennsylvania to have antidegradation standards at least as stringent as minimum federal requirements. EPA finally agreed with the Proffitt Foundation and settled the lawsuit by denying Pennsylvania's long overdue Triennial Review in June, 1994.

Denial of that Triennial Review, however, was the only thing done by EPA. The Pennsylvania DEP had 90 days to make the changes, or EPA was supposed to promulgate its own regulations. DEP, instead, formed a "stakeholders" group to discuss the program. That group, made up of business, conservation and public interest groups, and resource agencies, broke up in August 1996 without a final agreement.

EPA waited for the stakeholders' group rather than make changes for Pennsylvania, although the Clean Water Act required EPA to act "promptly" if the state did not. The Proffitt Foundation sued EPA, for the second time, and was successful in forcing EPA to promulgate regulations for Pennsylvania, which went into effect on January 8, 1997. These regulations have been in place for two years, and provide the type of water quality protection that was envisioned by the federal Clean Water Act.

After the stakeholders' group broke up, DEP accepted final reports from two factions: 1) business, and 2), conservation and public interest groups, and resource agencies. Some stakeholders did not sign either report. DEP solicited public comments in May 1996, when a "draft proposed rulemaking" was published. All of this input was supposed to be reflected in the first proposed antidegradation regulations, but DEP took the side of business and ignored the views of conservationists and the public when it made every major decision for the first proposed regulations.

DEP wanted to replace the tougher federal regulations with weaker, less stringent ones, that gave DEP almost absolute discretion to refuse to protect existing uses of streams and to keep high quality and exceptional value streams from receiving the protection they now receive. In addition, DEP wanted to give itself the power to undo the previous protection that all of us fought so hard to achieve.

The public outrage was loud and numerous. DEP took the first proposed regulations off the table for almost two years. It is now offering a second package of proposed antidegradation regulations.

III. AGREEMENT WITH CERTAIN CHANGES

Certain changes between this second package and the first package are acceptable to the Foundation and the Riverkeeper. These are changes that we requested, and DEP has listened to our collective voices. Specifically, we agree with the following decisions:

1. Withdrawal of provision allowing general permits in HQ waters;

2. Withdrawal of provision to eliminate HQ and EV as protected uses;

3. Withdrawal of 25% assimilative capacity provision;

4. Change of HQ qualifying test from chemical and biological to chemical or biological;

5. EV test that requires either 1) meeting HQ criteria and a specified objective criteria         such as being in a National Wildlife Refuge or 2) Meet certain definitions;

6. The process for protecting existing uses when such a stream is considered for permits,     approvals or petitions; and

7. The public participation opportunities.

IV. REGULATIONS MUST BE CONSISTENT WITH MINIMUM FEDERAL REQUIREMENTS AND MUST KEEP CLEAN WATERS CLEAN

While we agree that this package is an improvement upon the first package, there are still areas that need improvement. Before we comment on specific areas, however, we must discuss two important guidelines that should color the logic behind every regulation DEP proposes in this package. First, the regulations must meet minimum federal requirements. Second, the regulations must fulfill the goal of antidegradation: to keep clean waters clean. We are evaluating these regulations under the above two guidelines, and so should DEP

A. Regulations must meet minimum federal requirements

The best way to meet minimum federal requirements is to simply incorporate them word for word into the new package. DEP only does this to a certain extent. Its language in Section 93.4a(b) for Existing Uses meets Tier 1 federal requirements. We agree with this language.

DEP's language for Tiers 2 and 3, however, does not repeat the federal language. We understand that DEP feels a need to write the regulations in its own language, but when it does so it runs the risk of not meeting minimum federal standards. By including only part of the federal language in one part of the regulations, and different versions of the remaining parts in other parts of the regulations, DEP creates a confusing document. It is very difficult to compare this package with minimum federal requirements.

It also is difficult to believe that DEP's versions of the federal language is more protective or even meets the minimum requirements. Because of DEP's past history and current attitudes, we must examine its language carefully. Remember, DEP has fought the EPA and citizen groups for over twenty years to keep Pennsylvania's antidegradation laws from meeting the federal requirements, and the only reason this Commonwealth is meeting those requirements today is because of two lawsuits.

We would ask, therefore, that in Section 93.4a (b), (c) and (d) DEP simply recite the federal language found at 61 FR 64816. This will insure that it meets federal requirements. Certainly, reciting the federal language will do no harm to the regulations.

We would interpret the failure to include the federal definition, as found above, to signal an intention to not comply with minimum federal requirements. We would look closely at any language different from the federal language for failure to meet these minimum requirements. If the failure to incorporate such language was approved by the EPA, then we would consider going back to federal court and seek to re-open the previous lawsuit, or possibly file a new one.

We cannot say this strongly enough: DEP's antidegradation regulations must meet minimum federal requirements for antidegradation.

B. Regulations must advance the goal of antidegradation which is to keep clean waters clean

The goal of antidegradation is to keep clean waters clean. It is not to find a way for industry to discharge into waters. We certainly know this administration's attitude toward the environment is less protective than it should be. The Regulatory Basics Initiative alone has resulted in less environmental protection by eliminating regulations more stringent than the federal law, which itself was only meant to be the minimum level of protection while leaving the job of passing tougher laws to the states.

DEP must write regulations that keep clean waters clean because that is the law, regardless of how the administration may wish to favor industry. A choice was made in this country over twenty-five years ago to favor protection of clean waters over industry. If DEP wants to change the choice, then it must do so through the Clean Water Act. DEP has no problem taking federal money for much of its programs. It should have no problem complying with the goal of federal law. DEP must obey the rule of law.

Every part of these regulations, therefore, must be analyzed by whether they satisfy the goal of keeping clean waters clean. If these regulations will extend environmental protection to our best streams, then we will support them. If, however, these regulations fail in that goal, then we will oppose them. We have a measuring stick: Does the regulation keep clean waters clean.

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