Independent? Independent of Whom?

How would you like to have your own set of eyes and ears in Harrisburg? How about five sets, with staff and an office? These folks would alert you when any old nasty state agency would propose regulations you don't like. Well, you can! All you have to do is... become Governor, or be in one of the leadership positions of the state House or Senate!

There's a group in Harrisburg known as the "Independent Regulatory Review Commission" that goes through each proposed and final state regulation and comments back to the appropriate agency or, when they really get their bloomers in a knot, they DISAPPROVE the regulation. The five "independent" reviewers are appointed by Gov. Ridge and House and Senate leaders-- and in many cases, reappointed time and time again. Makes one wonder how these folks are "independent" when some of these reviewers have been appointed numerous times and are getting close to 20 years service.

This group reviews all the regulations as far as we can tell, yet another step of the complex Pennsylvania regulatory process [enter IRRC's site at http://www.state.pa.us/PA_Exec/IRRC/irrc.htm and click on "Regulatory Review Process"]. When IRRC "disapproves," it doesn't automatically kill the regulation, but if the House and Senate "standing committees" responsible for the particular state agency act in accordance with IRRC, and ultimately, the governor doesn't veto an Assembly-passed resolution killing the regulation, then the regulation is dead. IRRC serves as a barking dog for certain elected officials. Sometimes you get up when the dog barks, other times you tell it to be quiet and go back to sleep.

IRRC reviews environmental regulations, including stream designations. Some time ago, they commented unfavorably on a proposed upgrade of Trout Run in Westmoreland County to Exceptional Value [click on "comments" at IRRC's site and look for the comments entitled "Stream Redesignation; Buck Hill Creek, et. al."]. Then last month, when they reviewed the final regulation, they DISAPPROVED the final regulation [we were only able to view the order from the "text" version of IRRC's site: [http://www.state.pa.us/PA_Exec/ IRRC/nonframe/orders/orders.html scroll down to the 5/25/00 meeting and click on Trout Run]. IRRC says it doesn't like the way DEP studied the biology of the stream; IRRC thinks they should have taken more samples. If DEP had, IRRC reasons, the results might have been different. Maybe in the future, DEP will have to take as many samples as they need to until the stream fails. That will probably be enough for IRRC.

IRRC's disapproval by in itself would not kill the regulation, as the General Assembly has to act also. But that process has started. The Senate "standing committee," alerted by the barking dog, along with complaints by folks wishing to develop (a quarry and a four-season resort) high up in the watershed and the usual complaints from the anti-EV groups, drafted a resolution disapproving the regulation on Friday June 2, and passed the resolution on Tuesday June 6. Good old-fashioned democracy, Harrisburg-style. Get a phone call, draft a resolution over a week-end, pass it quickly. The quarry people win (so far) and the drinking water for the city of Blairsville (the city municipal authority proposed the EV upgrade) loses. At this point in the year, it is unclear if the House will have time to act against the upgrade, so Trout Run's final status might be put on hold.

What, you didn't hear about it? Maybe you need your own "independent" eyes and ears in Harrisburg -- but don't count on IRRC. Our "independent" review of IRRC's recent (since Tom Ridge has been governor) comments on water regulations indicates IRRC is most concerned about how the regulations will affect development, not how well they will protect our water resources.

For instance, IRRC repeats back the old claims of industry lobbyists that an EV designation shuts down economic activity in a watershed. In one comment, they asked DEP to provide a list of permits approved in EV and HQ waters and a list of permits denied. This would be good information to have, but we will likely never see any of it because 1) DEP could choose to ignore the request, or provide the information in a different way, and 2) if provided, it will probably show that economic activity as measured by DEP permits is probably the same in EV and non-EV watersheds. This is almost certainly the case in HQ watersheds. The data won't fit IRRC's (industry's) argument and therefore won't be brought up again.

Think about it for a second. The argument is industry's -- the same folks that employ, in Harrisburg and elsewhere, many lawyers, economists, spin doctors and others to argue their points. Don't you think that if EV designations would be hampering the state's economy, industry would have prepared their own report by now and would be crowing about it from Presque Isle to Marcus Hook? Instead they find one or two instances of someone having to provide some additional treatment (gasp! never mind that the Clean Water Act envisioned zero discharge by the mid-1980s) in an EV watershed and then repeat the anecdotes while claiming that the Commonwealth's economy is nearing collapse because of the EV regulations. The fact is a number of nationwide studies have shown that states with the stronger environmental policies have the stronger economies.

IRRC, when commenting on the water quality standards regulations, swallows the industry argument that Pennsylvania's EV regulation goes "far beyond" the Federal regulation-- swallows it hook, line and sinker. They (industry, and then IRRC in turn) really dislike the fact that a watershed can become EV even if it is mostly privately owned. Industry says that goes far beyond the Federal regulation and IRRC repeats that back to the Environmental Quality Board (EQB), the group that passes DEP's regulations. IRRC seems to forego an "independent" analysis of the U.S. Environmental Protection Agency guidance and instead relies on industry's interpretations of EPA's publications. A quick first-hand read of EPA's stuff would indicate that EPA does not consider EV to apply to only publicly-owned lands, although those are the ones that first come to mind. That must not be on IRRC's agenda, however. Instead of considering the long-standing proposition that water quality is a public resource, and therefore, degradation of it is a privilege (a permit to discharge is a gift of a public resource), IRRC joins in the age-old industry chorus that environmental regulations are taking property rights. In the recent Trout Run case, IRRC never went out to the watershed. They merely repeated what the anti-EVers had to say.

So what's my point here? Yeh, industry will always have those elected officials and Harrisburg- based independent reviewing poo-bahs ready to return their phone calls and repeat their arguments. Making a buck will usually win over protection of a watershed. No matter how good our laws, how strong the regulations, how clear and explicit the guidance, environmental protection is always at risk if some economic interest is against it. The point is that we will never get more than the law allows, but often less.

In our fight over antidegradation regulations, we were accused (by a DEP official no less) a few years back of being concerned with "words on paper" and not protection of resources. We were and are concerned with the regulation, and the language. Why? Not for their own sake, but because we know that the regulation represents the MOST we will EVER get. Take Trout Run. Even when DEP act in accordance with the guidance, the phone calls are made and a couple of complaints to the right folks in Harrisburg... and presto! A correct upgrade to EV status is in danger. When was the last time an environmental agency gave more protection than the regulation allows? But go back through some past PUs if you want to find examples where the agencies did LESS than they are supposed to!

And take a look at some past PUs to see what citizens have had to do and how long it takes to get a stream upgraded. What's that? You are looking to downgrade a stream? A coal company in western PA recently asked DEP to classify (in the mining regulations) 18 streams as "intermittent" rather than "perennial," meaning that they do not flow year-round. The change would mean that the streams would get less protection from mining activities. Never mind that the coal company may have already robbed water from the streams by mining below them, and did the stream flow measurements during last year's drought. DEP was happy to oblige-- no long wait for a coal company!

Regular readers of PU know that DEP and the EQB passed regulations that give short shrift to certain types of public lands when determining if they qualify for EV. We are trying to change the regulation, so that it meets minimum Federal standards. Although we've seen where many good or adequate regulations are not always effective because they are not enforced, good regulations are the foundation, because we will get minimal or no protection from a bad regulation. Our petition to change the way those public lands are treated for EV upgrades is being heard by the EQB next week. Watch for a PU in a couple of days to learn what you can do to help.

In the meantime, Trout Run's EV status may still have a chance, although we have heard that the Senate might want to hold hearings on the entire antidegradation program. Then we can expect industry lobbyists to re-hash all their old arguments and try to convince the Senate that DEP is way out of control, and the minimum Federal regulations (as interpreted by the industry lobbyists, of course) are all we need. Their arguments have nothing to do with water resource protection-- they are looking for some arbitrary way to limit the number of streams in the HQ and EV classifications, nothing more complex than that. All of you interested in protecting our waters should let your elected officials know your opinion.

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