"STOPPER" Newsletter of the Raymond Proffitt Foundation
FALL 96
EPA PROPOSES ANTIDEGRADATION LAWS FOR PENNSYLVANIA by John Wilmer,Esq.
On August 29, 1996, EPA published in the Federal Register proposed antidegradation regulations for Pennsylvania. These federal regulations will bring the Commonwealth’s Special Protection water quality standards into compliance with federal antidegradation laws. Pennsylvania now has ninety days to promulgate comparable regulations that meet minimum federal requirements. If the Commonwealth fails to do so in that time, then the law requires EPA to promulgate the published regulations for Pennsylvania.
EPA only published these proposed regulations because of a successful lawsuit brought by the Raymond Proffitt Foundation. Agreeing with the Foundation on April 16, 1996, Judge Bechtle of the United States District Court for the Eastern District of Pennsylvania issued an Order requiring EPA to "promulgate a federal [antidegradation] regulation setting forth a water quality standard for Pennsylvania." The water quality standards in dispute are found in federal regulations that require states to protect the existing uses of waters and to protect waters of high quality and waters that contain outstanding national resources.
This was the second lawsuit on this issue successfully brought by the Raymond Proffitt Foundation. The first case forced the EPA to deny Pennsylvania’s existing antidegradation standards. Although a reluctant EPA told the Commonwealth to comply, the federal agency did nothing to enforce compliance. This second lawsuit asked the Court to order EPA to take action. The Court responded by saying "[T]he time has come for the EPA to do what Congress has mandated."
Pennsylvania, for over a decade, has failed to have an antidegradation standard that meets minimum federal requirements. The EPA, which has the power and the duty to require states to comply with this law, did nothing. The federal court recognized EPA’s dilatory conduct and said that the agency "must begin to prepare and publish a water quality standard for Pennsylvania now." The Court also said "[T]hat is its duty!"
The Court rightly noted that the lack of this water quality standard has caused environmental harm to Pennsylvania’s waters. "There is the potential for the state’s water quality to degrade under the present standard, and that state officials operating under the present standard have issued permits that have directly caused harmful environmental effects."
Pennsylvania pleaded with the Court to allow it more time to develop its own regulations, but admitted that it would not be ready until March 1997. The Court found this unacceptable, and it told Pennsylvania that Congress required EPA to promulgate its regulations no matter what independent course of action Pennsylvania pursued. The Court said "I’ll not allow the EPA’s timetable to be put off one day because of anything that the Commonwealth does at the moment."
Meanwhile, Pennsylvania’s "Reg-Neg" process for promulgating these regulations broke down without reaching a consensus. The conservation groups charged DEP with bad faith for attempting to promote a signed interim report as a final report.
DEP also committed bad faith by claiming that the proposed federal regulations would provide less protection for Pennsylvania’s waters. The proposed federal regulations only set the minimum requirements for stream protection. Pennsylvania is still free, as it has always been, to promulgate its own more stringent regulations. In fact, the proposed federal regulations specifically preserved Pennsylvania’s more extensive Exceptional Value regulations.
The comment period ends on October 16, 1996, and all comments should be sent to: Evelyn S. MacKnight, Chief, PA/DE Branch, Office of Watersheds, 3WP11, Water Protection Division, EPA, Region 3, 841 Chestnut Street Bldg, Philadelphia, PA 19107. We would request that you simply tell EPA that you support the proposed regulations for Pennsylvania.
We wish we could say that it were over, but it is not. EPA could still refuse to promulgate the final regulations, and given its outright defiance of the law it probably will do nothing again. The Proffitt Foundation would then file a 60-Day Notice (required by law). If EPA failed to act within those 60 days then the Proffitt Foundation would again sue EPA and force it to comply with the law.
It is shocking that we must keep suing a federal agency for failure to obey the law. What would happen if a citizen refused to obey the law? They would be fined and put in jail, of course. This agency, however, says it has discretion to comply with the law. Judge Bechtle did not agree this time, and we hope he will not agree next time.
We once thought we were the backbone of EPA, but now we know that we also are its conscience. Like a conscience, we will not go away until all our streams have the maximum protection they deserve, not the minimum protection given by the so-called environmental agencies.
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SAMPLE LETTER
Ms. Evelyn S. MacKnight, 3WP11
Chief, Pa/De Branch
Office of Watersheds
Water Protection Division
Environmental Protection Agency, Region III
841 Chestnet Building
Philadelphia, Pennsylvania 19107
Date:
Dear Ms. MacKnight:
I support the proposed Federal antidegradation policy for Pennsylvania (August 29, 1996 Federal Register, Volume 61, Number 169, page 45379-45385). The state has for too long denied adequate protection to our waters. I especially support the provision that the antidegradation policy applies to wetlands. The "open season" on wetlands declared by the Ridge administration must end.
While I prefer that Pennsylvania’s "Exceptional Value" category be the equivalent of Tier 3, I understand EPA’s action in light of the loopholes in Pennsylvania’s EV program that allow water quality degradation. I urge EPA and Pennsylvania to resolve their differences so that EV can truly mean "no degradation" and satisfy the Federal requirement.
If the state proposes its own rules to take the place of the Federal regulation, then EPA must ensure that Pennsylvania’s regulation is at least as stringent as the Federal one. In any event, EPA must now insure that the state implements this new policy so that our waters, wetlands, and aquatic life are given the proper protection.
Yours truly,
Name
Address
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VALLEY FILLS UPDATE
The federal Office of Surface Mining (OSM) is still reviewing Pennsylvania’s law that allows Valley Fills. The submission occured because the Raymond Proffitt Foundation filed a 60-Day Citizen Lawsuit Notice against the Commonwealth. (See Fall 1995 issue of the STOPPER)
If OSM approves the law, then we intend to challenge that approval in federal court. The recent decision in out Antidegradation lawsuit against EPA should help our arguments. There, Judge Bechtle agreed with us that Pennsylvania ‘s issuance of permits under its Valley Fills law destroys the existing uses of streams.
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Margaret’s Corner by Margaret Spanier
I was asked to write a little something on what I thought was of importance. Well the first thing that comes to mind is the Anti-degradation Law suit. It’s of major importance to me and all of Pennsylvania. It may prove to significantly change the way we do things in the Commonwealth; progressive and for the better, much better. Enough said.
What I believe has gone unsaid are the words of appreciation and gratitude to our Attorney John Wilmer. This suit, which has not yet concluded, has required an investment of about 5 years, untold hours, ingenuity and unswerving dedication, to say the least.
Though, now it may seem to have been a relatively straight forward case, it was not. There was a tremendous amount of wheat from shaft sorting that was required.
Many of us knew something was amiss with this states program, but very few could pin point exactly what. And far fewer were flocking (or prepared) to make the legal arguments.
This suit may change the way we do things in Pa. We may see pristine water kept pristine, we may see what we and others before abused and misused restored. We may see the advantages to zero discharge. We may even see Pa, with its abundance of outstanding water resources, as an ideal state to live, play and invest in.
John Wilmer Attorney at Law has, through his 5 year investment, opened the door to that vision. John hear our applause, a standing ovation, and feel our continued support, gratitude and appreciation!
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FROM THE SECRETARY
At the spring meeting annual elections were held.
The new officers are:
Raymond Proffitt .............................Chairman
Margaret (Bunce) Spanier......................President
Lynn Landes .............................Vice President
Joe Turner...........................Secretary/Tresurer
John Wilmer...............................Chief Counsel
SPECIAL NOTE
Our sincere thanks go to our outgoing President Joe Kohler. Joe is one of the forming members of the foundation, under who’s guidance we have progressed to our current position. He has been involved in several non-profit organizations for many years, holding office in most of them. They say give the job to a busy person, if you want it done. That busy person is Joe Kohler. Joe did not accept nomination to office this year, in order to take some well deserved time for himself, and to pursue some new ventures. Our best wishes are with Joe, and we would like to see him back soon.
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PENNSYLVANIA’S FUTURE............ZERO WASTE by Lynn Landes
A ZERO WASTE PLAN IS THE KEY TO CONTROLLING WASTE
IMPORTS, protecting the environment, and saving taxpayers the cost of cleaning up after leaking landfills and polluting incinerators.
"The only acceptable waste is ZERO WASTE," said Ray Anderson. This is not the statement of a crazed environmentalist. Mr. Anderson is the CEO of Interface, an $800 million corporation. He is organizing an environmental summit for businesses this November in Lake Placid, New York. He wants business, and society, to look at future without landfills and incinerators...without waste. Countless businesses, governments, and academic institutions are engaged in ZERO WASTE efforts.
Pennsylvania is the nation’s largest importer of hazardous and municipal waste. The PA Department of Environmental Protection (DEP) has permitted 3.3 times more waste disposal capacity for municipal waste facilities, than we need, according to a former DER official. Sec. Seif reported that 18 permit applications are pending and 18 more expected to be filed. He told reporters that he did not know the amount of capacity these permits represented. The DEP has never released the total waste disposal capacity for non-municipal landfills and incinerators.
Waste management is out-of-control under DEP’s leadership. We are in a crisis. We need a plan.
Canberra, Australia is developing a NO WASTE BY 2010 plan. In 1992, all Australian Governments made a commitment to a 50% reduction in the amount of waste going to landfills by the year 2000. By 1995, they reached their 35% recycling goal. Now, Canberra wants to achieve ZERO WASTE.
"We live in a society where it is easy to use things once and then throw them away. The goal of a wasteless society by the year 2010 is ambitious, but achievable by a community that is committed to conserving resources and protecting the environment," said Tony Domenico, Minister for Urban Services in Canberra.
One tool in a ZERO WASTE plan is the use of LANDFILL BANS. The U.S. Supreme Court decided that it is a violation of the Commerce Clause of the Constitution, to discriminate against out-of-state waste. However, the U.S. Court of Appeals, 7th Circuit, decided in Aug. 1995 in the National Solid Waste Management Association v. Meyer (representing Wisconsin), that a state may prohibit waste imports, if the same types of wastes are banned for disposal in the state’s landfills and incinerators.
The more we ban, the less we import.
Pennsylvania bans wastes that New York allows to be collected. The Pennsylvania legislature should consider if we already have a case against accepting New York’s trash; if its trash contains materials that are banned from PA landfills and incinerators.
There are countless ways to discourage waste imports. But, it is more important to understand that landfills and incinerators are dangerously polluting technologies. It is a crime against basic human and environmental rights to permit their use. The environmental clean-up and health costs are enormous. Pennsylvania can say "no" to waste. We can be the first state in the nation to adopt a ZERO WASTE plan.
Website locations for ZERO WASTE:
Canberra:
http://actg.canberra.edu.au/actg/dus/csg/org4/act12/wastestr.htm
Ray Anderson:
http://www.mediapool.com/offtherecord/ray.html
UN University:
http://www.zeri.org/zv_charter.html
Dupont: http://www.dupont.com/corp/r-and-/environ/zerowast.html
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JOIN
Join the Raymond Proffitt Foundation to protect your Pennsylvania constitutional rights to clean air and water. The annual membership dues are $25, $15 for students and senior citizens. Make out your check or money order to the Raymond Proffitt Corporation (a non-profit 501 © (3) corporation), P.O. Box 723 , Langhorne, PA 19047-0723.
Membership Application
Name..................................................
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......................................................
City .....................State ....... Zip..........
Phone.................................................
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Officers
Ray Proffitt............................215-949-3936
Margaret Spanier........................610-847-8244
obis@erols.com
Lynn Landes.............................215-493-1070
lynnlandes@earthlink.net
Joe Turner..............................215-945-1329
jturner@voicenet.com
John Wilmer, Esq........................610-565-2736
jwilmer@ix.netcom.com
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