Fed Petitioned to Withdraw Pa's NPDES Program

Bill Belitskus, along with his wife and neighbors, have petitioned Region III of EPA to withdraw the authority DEP now has to issue stormwater permits under the Clean Water Act. The basis for the petition is information that came to light with regard to the Northwest Office of DEP's issuance of two stormwater permits to Willamette Industries, Inc. for a chip mill to be located in McKean County. The plant was up and operating before either permit was granted. Yet the purpose of the permit program is, in part, to prevent water quality problems from arising in the first place. Moreover, there is no evidence that DEP concerned itself with the water quality impact of the plant (or the environmental compliance record of Willamette) even when it would have been very easy for it to sample the runoff water into Lanigan Brook, a stream that has traditionally been clean enough to support a trout population.

Region III has now responded by indicating that it has begun an investigation of the petition.

If anyone knows of situations where DEP similarly failed to protect water quality in issuing stormwater permits, please contact the attorney who is representing the petitioners, William V. Luneburg (luneburg@law.pitt.edu).

CERTIFIED MAIL/RETURN RECEIPT REQUESTED

Carol M. Browner                                                                      26 January 1999
Administrator
U.S.Environmental Protection Agency
Washington, D.C. 20460

W. Michael McCabe
Regional Administrator
Region III
U.S. Environmental Protection Agency
1650 Arch Street
Philadelphia, PA 19103-2029
 

Dear Administrator Browner and Regional Administrator
McCabe:

This is a petition, filed pursuant to 40 C.F.R. 123.64(b)(1)(1997), requesting that you immediately commence proceedings to withdraw approval of the NPDES permit program administered by the Commonwealth of Pennsylvania, or at least that portion dealing with issuance of general storm water permits. Specifically, as more fully set forth hereinafter, available information suggests that in administering that program the Department of Environmental Protection has "fail[ed] to exercise control over activities required to be regulated," id. 123.63(a)(2)(i), has "fail[ed] to inspect and monitor activities subject to regulation." Id. 123.63(a)(3)(iii) and has otherwise failed adequately to implement its program for issuance of general NPDES permits for storm water discharges into
the waters of the United States located within the Commonwealth. The facts of central relevance to this request can be simply stated, though a more elaborate treatment can be found in Attachment I hereto.

This petition arises out of a case litigated before the Pennsylvania Environmental Hearing Board entitled Belitskus v. Department of Environmental Protection and Willamette Industries, Inc. ----EHB----, 1997 WL 661926 (Oct. 21, 1997)(Attachment II) and 1998 WL------ (Aug. 20, 1998) (Attachment III).That matter involved an appeal of DEP's approval of general permit coverage for a wood chip plant's discharge of storm water into an exceptionally clean tributary (Lanigan Brook) of the West Clarion River located in Hamlin Township, McKean County. (We can make the transcript of the EHB hearing available if requested to do so.)

On or about October 6, 1993, Willamette filed a Notice of Intent (Attachment IV) for coverage under the Pennsylvania general permit for discharges of storm water from construction activities (PAG-2)(Attachment V). That application was necessitated by the construction of the Chip Plant. The general permit itself was issued by DEP pursuant to Title 25, Section 92.81 of the Pennsylvania Code. According to PAG-2, newly proposed dischargers, such as the Chip Plant, are required to file "an administratively complete acceptable NOI . . . at least 30 days prior to commencing a construction activity." Attachment V at p. 3 (emphasis added).

The NOI submitted by Willamette indicated that construction would in fact begin during October 1993, or less than 30 days after submittal of the NOI. See Attachment IV at p. 2. In addition, the primary mechanism for protecting water quality during construction activities is an Erosion and Sedimentation Control Plan (ESCP). However, by letter dated November 24, 1993, DEP informed Willamette that its NPDES permit application was incomplete on the basis of the failure to include an ESCP. (Attachment VI). In fact, the ESCP was not submitted until February 4, 1994 (see Attachment VII) and DEP's approval of coverage under PAG-2 was not forthcoming until March 4, 1994. See id. In other words, construction activity occurred for several months during which there was no administratively complete NOI on file with DEP and no DEP-approved plan for limiting the environmental impact of storm water discharges at the Chip Plant site. Such unpermitted discharges constituted violations of both the Clean Water Act and the Pennsylvania Clean Streams Law. See, e.g., 35 P.S. 691.307(a); id. 691.401. Moreover, publicly available documents do not demonstrate any efforts whatsoever by DEP in insure that appropriate practices were instituted and complied with by Willamette to minimize the adverse impact on Lanigan Brook, whose headwaters are located in close proximity to the construction site.

More than two years later, on June 25, 1996 Willamette finally submitted to DEP's Northwest Regional Office an NOI (Attachment VIII, NOI signed June 19, 1996) for coverage of the Chip Plant under NPDES general permit (PAG-3)(Attachment IX) for discharges of storm water associated with industrial activities from the timber and forest products industry. Such an NOI was required to be submitted "at least 30 days prior to commencement of the industrial activity which will have a storm waster discharge." See Attachment IX at p. 2 (emphasis added). Since the plant had been up and running since no later than the winter of 1994, the NOI was more than two years late. Indeed, since both the Clean Water Act and the Pennsylania Clean Streams Law and implementing requlations require an NPDES permit to authorize a discharge of a pollutant by a point source into the waters of the Commonwealth, see, e.g., 33 U.S.C. 1311(a), 25 Pa. Code 92.3, the unpermitted discharge of storm water associated with the operation of the Chip Plant constituted a continuing violation of federal and state law.

Moreover, despite the fact the Chip Plant had been completed and operational for more than two  years, the June 25 NOI failed to contain any sampling or other data indicating the amount or composition of the storm water discharge or its impact on Lanigan Brook. See Attachment VIII at p.2. And without requesting any such data from Willamette or undertaking its own investigation of the storm water discharge, see Attachment I at pp. 2-3, the DEP's Regional Office approved coverage for the Chip Mill under PAG-3 on August 14, 1996. See Attachment X. This action was taken in the face of not only the provisions of the Clean Water Act and its implementing regulations designed to protect existing water quality and to attain and maintain applicable water quality standards but also DEP's own regulations (25 Pa.Code 92.83) and the provisions of PAG-3 which prohibit approval of coverage under a general permit for discharges having "the potential to cause significant adverse environmental impact" and discharges which "will not, result in compliance with applicable . . . water quality standards." See Attachment IX at p. 3. In addition, despite its regulations requiring an examination of the compliance history of general permit applicants, see 25 Pa. Code 92.83(b)(2), DEP failed entirely to conduct that examination in determining to approve coverage under PAG-3 for the Chip Plant when there existed a history of serious air and water quality violations at Willamette's Johnsonburg Paper Mill. See Attachment I at pp. 31-47.

The fact of the matter is that, following completion of construction of the Chip Plant and continuing at an accelerating pace thereafter, the storm water runoff from the premises of the Chip Plant fouled the waters and environment of Lanigan Brook (see Attachment I at pp. 5-12), a stream that supported a native trout population (see Attachment XI) and one that had not, from all that appears, been previously impacted by industrial activity of any kind. Despite our consistent attempts to bring this situation to DEP's attention, the only water quality sampling of Lanigan Brook performed since 1993 was done on our initiative and at our expense as persons adversely impacted by the operation of the Chip Plant, not by Willamette or DEP. See Attachment I at pp. 2-4. The data resulting from that sampling confirms visual observations that Lanigan Brook has indeed been significantly degraded by the storm water runoff from the plant site. See Attachment XII.

In response to the facts appearing of record in the appeal to the EHB, the Board found that the DEP had failed to comply with its own regulations for administering the general storm water permit program. See Attachment III at pp. 9-11, 16. While, in the Board's judgment, the record evidence did  not establish that the storm water discharge had adversely impacted Lanigan Brook, the EHB did not venture beyond that finding to determine that DEP had in fact carried out its responsibilities prophylactically to protect the quality of receiving waters in approving coverage for Willamette under the general storm water permit.

Succinctly stated, the Willamette Chip Plant case involved DEP's passive acceptance of continuing unpermitted and illegal discharges, its failure to comply with its own NPDES regulations, and its  refusal to take timely and aggressive action to determine and mitigate potential adverse impacts of storm water discharges on pristine waters of the Commonwealth. If symptomatic of DEP's administration of the general permit program, EPA should withdraw its approval of DEP's NPDES general permit program, or at least that portion which relates to storm water discharges. At a minimum, the history of this case as documented in this petition and attached materials requires EPA to commence an "investigation of the allegations in [this] petition to determine whether cause exists to commence proceedings" to withdraw program approval. 40 C.F.R. 123.64(b)(1).

In addition to being a Section 123.64(b)(1) petition, this letter is also submitted as an "application, petition, or other request" for agency action within the meaning of the Administrative Procedure Act, 5 U.S.C. §§551 et seq., and is, therefore, subject to the requirements of 5 U.S.C. 555(b) and (e)

We would appreciate your prompt response which may be sent to our attorney, William V.  Luneburg, 3900 Forbes Ave., Pittsburgh, PA 15260, who is representing us in this matter.
 

Sincerely,

William Belitskus
Mary Belitskus
Ronald Housler
Anita Housler
 

cc James Seif
Secretary, Pennsylvania Department
of Environmental Protection
 

(EPA's RESPONSE)
 

Thank you for your recent letter to Administrator Carol Browner and me on behalf of Mary and William Belitskus, and Ronald and Anita Housler. Your letter petitions the U. S. Environmental  Protection Agency (EPA) pursuant to 40 C.F.R. 123.64(b)(1) and 5 U.S.C. 551 et seq., requesting that EPA commence proceedings to withdraw approval of the National Pollutant Discharge Elimination System (NPDES) permit program for general storm water permits, as administered by the Commonwealth of Pennsylvania, Department of Environmental Protection (PADEP). Your petition was made by letter dated January 26, 1999.

Your petition raises several specific concerns about coverage for the Willamette  industries-Johnsonburg Mill, North Chip Plant in Hamlin Township, McKean County, Pennsylvania under the two NPDES general permits issued for site construction and storm water discharge. In addition, your letter raises issues concerning PADEP's administrative processes in approving the referenced permits, along with all general storm water permits in Pennsylvania.

EPA will require a reasonable amount of time to review your petition request along with the facts related to the issuance of the referenced permits. EPA will also need to evaluate PADEP's administrative process for issuing general storm water permits. As you are aware, approval of the Willamette permits was previously upheld by the Pennsylvania Environmental Hearing Board, and this legal finding must also be reviewed in light of your petition.

We will advise you in writing of the findings of our review, and our decision regarding your petition. Formal notice will be given if EPA decides to commence proceedings for withdrawal of PADEP's program for NPDES permit approval for general storm water permits.

If you have any questions or need additional information regarding this matter, please contact Cynthia Yu-Robinson, Pennsylvania State Liaison at (215) 814-5557.

Sincerely,

Michael McCabe
Regional Administrator

cc: Carol Browner, Administrator, EPA
James Seif, Secretary, PADEP
Steven Beckman, Northwest
Regional Director, PADEP
Matt Wolford, Office of Chief Counsel,
Northwest Regional Office, PADEP

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