What A Difference Sixty Days Make!

In 1994, Region III of the Environmental Protection Agency disapproved the part of Pennsylvania’s Water Quality Standards known as the "antidegradation policy." There are three parts to the Federal antidegradation policy and states are required to have something at least as good as the Federal language. In June 1994, EPA said that Pennsylvania flunked in all three. "Tier 1," as it is known, protects "existing uses," which is the "floor" of water quality protection. "Tier 2" protects "high quality waters" and only allows degradation given certain "social or economic" circumstances. "Tier 3" protects "Outstanding National Resource Waters" and water quality must be "maintained and protected." EPA found that Pennsylvania had deficiencies in all three areas. The existing use protection regulatory language simply did not exist and the high quality waters protection language was pretty low quality because it was too exclusive; Pennsylvania would not extend the protection to enough waters.

Tier 3 was different. Pennsylvania called their Tier 3 category "Exceptional Value Waters" and included more examples in their regulation than the feds did in theirs. EPA praised Pennsylvania’s regulatory language. EPA’s beef was that Pennsylvania allowed discharges into their Tier 3 waters, and said that was against EPA policy and guidance.

In September 1994, Pennsylvania replied and made some promises to fix things eventually (one result was the infamous "reg-neg" of 1995-1996 that ended with no agreement). But the state was rather indignant about the Exceptional Value (EV) program. They maintained that the federal regulation did not prohibit discharges, but did require that water quality be maintained. Pennsylvania claimed that they could allow discharges into EV waters with very stringent permit limits. They stated that this flexibility resulted in many more streams receiving this top level of protection than other states whose Tier 3 program prohibited discharges but never extended that protection to any waters. They claimed that the "no discharge" position was not in any EPA regulation but only in EPA policy and guidance. The state was quite miffed and threatened to go to Federal court over the matter if EPA continued to press them.

This was not the DEP of Tom Ridge and Jim Seif, this was the old DER headed by Art Davis, and DER was pretty proud of the EV program Whether the current DEP actually maintains water quality in EV waters is the subject of another PU (suffice for now to say that the Raymond Proffitt Foundation is going to court over the continued degradation of Valley Creek, an EV stream in Chester County flowing through Valley Forge National Historical Park). The subject of this PU is EPA’s behavior.

EPA, in an October 1994 letter, tried to calm the state’s ruffled feathers and said that DER "correctly notes" that the federal regulatory language did not prohibit discharges, but the "no discharge" policy was in a number of documents and a good way to protect our best waters.

The point of this history lesson is to show that how, in 1994, EPA was willing to disapprove Pennsylvania’s regulation on the basis of EPA policy and guidance documents. They said that they had no trouble with Pennsylvania’s regulatory language, and actually praised the state for having a broader regulation that allowed more waters to be given this highest level of protection.

To make a long story short, Tom Ridge became governor running against DER. He put Jim Seif in charge and Seif headed up the new DEP and began stalling. They started the "reg-neg" process that ended in failure because conservation interests would not give into business and industry interests (and DEP pressure) and end up with less protection than before. EPA ended up promulgating regulations for Pennsylvania which remain on the books today (40 CFR 131.32). The language is almost identical to the federal language.

After "reg-neg" crashed and burned, DEP proposed regulations that were essentially the industry position, which generated a fair amount of public outrage. They went back into their shell and rewrote them and came back early in 1999 (that’s how slow government is in protecting your resources, folks) with a new set that were not too bad, but in many ways, not much different from what Art Davis’s DER had in 1994 (we attribute this to the sudden "greening" of Tom Ridge). But the particular thing about EV waters that EPA praised in 1994, the broad, inclusive definition of "Exceptional Value Waters," was replaced with something less. It did not even come up to the Federal minimum. DEP’s announcement was confusing in that the preamble said that National Parks and National Forests were included as EV, but the regulatory language did not say so.

Conservationists pointed this out during the public comment period and were quite explicit that these public lands deserved protection as EV, and that they could support the regulations if that small change was made. DEP, in the "comment/response" document said that they would do so. In May 1999, DEP made their final pitch to the Environmental Quality Board (for the most part, a rubber stamp group loyal to the governor), said that conservationists, including the Raymond Proffitt Foundation, supported the regulation (failing to point out the significant qualification), The EQB passed them--without making the change. To tidy things up, though, they deleted the National Parks and National Forest language from the preamble after the meeting.

DEP, in a later press article, said that extractive industries feared greater costs, so the public lands were deleted. They did all the usual Harrisburg rubber stamps and sent them down to EPA in Philadelphia for review and the Federal rubber stamp. Last fall, we heard that EPA was getting ready to approve Pennsylvania’s regulation, despite the very deliberate snub to National Parks, National Forests, and State Parks (which weren’t even included in the preamble language the first time).

We asked to meet with EPA and were not reassured by their trust in Pennsylvania’s unstated intention to include these waters just like they did before. It would be all in the "implementation methods" EPA said. EPA has not moved on the regulations as of yet.

It just struck us the other day that EPA, in 1994, disapproved Pennsylvania’s EV program because it allowed discharges, which was contrary to EPA policy and guidance. Now in 1999, EPA is ready to let the state regulation slide by even though it is clearly deficient compared to the EPA regulation which has the force of law (unlike policy and guidance) and when the state deliberately removed the language!

What could cause such a difference in an agency’s attitude? After all, Bill Clinton and Al Gore were in office in 1994 and are there now. You wouldn’t think the Administration would want to allow such a major backslide in an election year. We are talking here, folks, about the nation’s best waters, the ones that flow through the parks that millions of Pennsylvanians and out of state visitors enjoy every year.

What a difference sixty days make! Wait a minute, from 1994 till 1999 is five years, over 1800 days; what sixty days?

The sixty days that represent the notice that citizens must give the federal government when it is about to file a lawsuit under the Clean Water Act.

In 1994, the Raymond Proffitt Foundation was poised to file suit against EPA for failing to do anything about Pennsylvania’s antidegradation policy, even though they had time and time again said that the program was deficient. EPA disapproved under threat of suit, and we settled.

In 1995, it was clear that EPA was doing nothing toward fulfilling its duty and writing regulations for the stubborn state. They thought we would go away after they disapproved, and were content to sit back and let the doomed reg-neg process, no matter how long it took.

Wrong. We filed another 60 day notice. The Clean Water Act says that if states don’t make the change, EPA must "promptly" take action--write regulations for the state. EPA dawdled for over a year. EPA disagreed with us and liked their chances with a judge (remember this is using taxpayer funds). Wrong again. The law was upheld. EPA lost and was ordered to get with it. They finally did.

Now, the state submits regulations that don’t measure up. EPA is ready to rubber stamp them and move on, jeopardizing protection on our best streams in our best parks. They are brought up short again by another 60 day notice.

What is going on here? Why do citizens have to go to court not once, not twice, but three times, to get their government to do what we pay them for? What is with the so-called "Environmental Protection Agency?" Are they so afraid of brusing the sensitive feelings of state bureaucrats that they can’t say, "Hey, your regulations don’t cut it! Come back when they are right!" No, it’s indicative of the lap-dog nature of EPA that the state brazenly throws a bone to extractive industry lobbyists in a public meeting and figures--no, the state knows-- that EPA won’t object.

Well, EPA, you better, or you will be oh-and-three.

Al Gore wrote a book called Earth in the Balance. He didn’t have to be so expansive in his vision--he could have come up here. We are fighting yet another battle, the third one, against people that he is supposed to have some influence over. We expect delay, obfuscation, and downright double-dealing from the state. But this administration is supposed to be a friend of the environment. We can certainly use things like greater protection of western wilderness, billions of dollars for the Everglades, and the like. We could also use some simple, but far less splashy, obediance to the laws that the Federal bureaucrats are supposed to be upholding.

Send this message to Vice President Gore at;

e-mail: environment@algore2000.com or vice-president@whitehouse.gov

The Vice President
1600 Pennsylvania Ave.
Washington, D.C. 20500
fax 202-456-2461

Dear Vice-President Gore:

Please direct the Environmental Protection Agency to disapprove water quality standards for Pennsylvania. The state, at the bidding of extractive industries, deliberately removed waters of National and State Parks from the category of waters that receives the highest protection, directly contrary to Federal regulations. Conservation groups requested that parks be protected, but those responsible, who answer to Governor Tom Ridge, ignored conservation of public lands over special interests. We are also making a last appeal to the state, but we haven’t much hope, despite Gov. Ridge’s recent "greening."

Unfortunately, EPA has dragged its feet, apparently because they value their "working relationships" with the state over executing their statutory duties and protecting our best waters. Please take action so that conservation groups do not again have to take EPA to court. The first step in protecting our environment is ensuring that government obeys the laws.

Thank you.

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