Wake-up EPA

JOHN WILMER 
ATTORNEY AT LAW
21 Paxon Hollow Road, Media, PA  19063  (610) 565-2736  fax (610) 565-4825  E-Mail- jwilmer@ix.netcom.com

November 26, 1999

NOTICE TO: 
Carol Browner, Administrator, U.S. EPA; 
Michael McCabe, Regional Administrator, Region III, 
U.S. EPA; Hon. James Seif, Secretary, Pennsylvania DEP; and 
Hon. Janet Reno, Attorney General of the United States.

RE: Notice of Intent To Sue Pursuant to the Citizen Suit Provision of the Clean Water Act for Failure to Require the Commonwealth of Pennsylvania to Adopt an Antidegradation Policy Consistent with Federal Regulations

Dear Sirs:

On behalf of the Raymond Proffitt Foundation, I am serving you with a sixty (60) day Notice of Intent to Sue pursuant to the Citizen Suit provision of the Federal Water Pollution Control Act, 33 U.S.C. 1365 (a)(2), for failure to perform acts or duties not discretionary under 33 U.S.C. 1313, and its Regulations.

Federal Regulations (40 CFR 131.5) promulgated pursuant to 33 U.S.C. 1313, require all states to include an antidegradation policy consistent with 40 CFR 131.12 in the water quality standards submitted to EPA for review. 40 CFR 131.5 requires EPA to disapprove the state water quality standards and to promulgate federal standards if state adopted standards do not contain an antidegradation policy consistent with that found in 40 CFR 131.12.

Further, 33 U.S.C. 1313 (c) (3), requires the Administrator to either approve state submitted water quality standards within sixty days of submission or deny said water quality standards within ninety days of submission.

On August 17, 1999, Pennsylvania submitted its revised antidegradation regulations to EPA. These regulations are known as "Amendments to 25 Pa. Code Chapters 93 and 95 Water Quality Standards - Antidegradation." They were published in the Pa. Bulletin on July 17, 1999. These regulations are in response to EPA's promulgation of antidegradation regulations for Pennsylvania that were published at 40 CFR 131.32 (December 9, 1996) (61 Fed. Reg. 64816).

It should be noted that the federal promulgation of antidegradation regulations was done pursuant to a successful lawsuit filed by the Raymond Proffitt Foundation (RPF) against EPA.

Pennsylvania has once again submitted proposed regulations that do not meet minimum federal requirements, and as such should be denied. Specifically, RPF is most concerned about Section 93.4b (1) which sets forth the requirements for qualifying as an Exceptional Value Water, which is the Commonwealth's equivalent of the federal Tier 3.

Both 40 CFR 131.12 and 40 CFR 131.32 describe Tier 3 as including high quality waters which meet one or more other factors. These factors include "waters of National and State parks and wildlife refuges." Pennsylvania has excluded this category, thus depriving high quality streams that flow through parks and refuges the highest protection under the law.

It is no stretch of the imagination to understand why such waters should receive the highest protection. A high quality water that flows through a park or refuge will be used by the public far more than a similar stream flowing through private land. Protection of this resource, therefore, benefits the public at large.

Pennsylvania, instead, has carefully carved out only selected types of National or State parks and wildlife refuges. While this may be allowed under state law, it violates minimum federal antidegradation requirements.

We would suggest an outright denial of this provision. EPA can merely keep in place its federal regulations at 40 CFR 131.32 which include "waters of National and State parks and wildlife refuges."

On February 16, 1999, RPF submitted comments to Pennsylvania regarding its proposed antidegradation regulations. You should have a copy of those comments, but if you do not then please let us know and we will forward a copy to you. As you can see by the comments, we have other concerns. But the "National and State parks and wildlife refuges" is of paramount concern.

The Raymond Proffitt Foundation, is located at P.O. Box 723, Langhorne, PA 19047. All communications should be directed to John Wilmer, Esq., Attorney for the Raymond Proffitt Foundation, 21 Paxon Hollow Road, Media, PA 19063, (610) 565-2736.

Very truly yours,

JOHN WILMER

Attorney for the
Raymond Proffitt Foundation

cc: Evelyn MacKnight 
     William Gerlach, Esq.

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