"STOPPER" Newsletter of the Raymond Proffitt Foundation
Spring 1997
DEP’S ANTIDEG REGS ARE ANTI-STREAM by John Wilmer, Esq.
The Pennsylvania Department of Environmental Protection (DEP) has proposed antidegradation water quality standards that are far worse than its original standards, recently replaced by the federal Environmental Protection Agency (EPA). If you recall, DEP’s antidegradation standards did not meet federal law. The Raymond Proffitt Foundation sued the EPA twice, forcing it to promulgate tougher standards. EPA left the door open, however, by saying it would withdraw its regs if DEP came up with new ones that meet federal requirements. DEP is now proposing antidegradation standards that would close the door on stream protection.
DEP Wants Weaker Regs
DEP’s proposed regs would take away existing use protection of streams and replace it with DEP’s designated use. A stream’s best use, therefore, would be what DEP decides, not good science or past best use. DEP also would make it more difficult for streams to be designated as High Quality or Exceptional Value by requiring a stream to meet two different and tough standards. Failure to meet one would doom a stream to less protection than it now gets.
DEP also proposes a system where it could go back and redesignate streams to lower categories than current uses, all without EPA being able to object. Imagine all the work done to upgrade the uses, and therefore the protection, of streams in this Commonwealth. DEP wants to give itself the power to undo that work, and therefore undo all the protection that all of us have fought so hard to achieve.
DEP’s proposals occupy seventeen confused pages of regulations that are meant to replace less than one page of tough, simple federal regs. Here, more is not better. The DEP regs eviscerate the plain, federal language that sets water quality standards based on the goals of the Clean Water Act---to protect and restore our Nation’s clean water. DEP wants to weaken and change the existing laws thereby promoting the state’s goals---to make an industry friendly Pennsylvania.
Existing Uses Of Streams Will Be Threatened
Our specific objections start with proposed changes to the current Tier 1 which protects the existing uses of all streams. DEP wants to give that protection based on its determination of existing uses. The federal language does not allow DEP that option, rather it requires existing uses to be determined by those uses the stream has attained since 1975 or better. The difference is that now a stream is protected at its highest use, whether or not DEP analyzes the stream.
Under the proposed scheme, though, DEP would protect a stream based on its analysis of that stream. If industry ruined a stream, then the level of protection would be that ruined level---not its best use. In addition, DEP could choose not to examine a stream, thereby depriving it of any existing uses.
Protection of existing uses is important, because it preserves the best use of a stream, not some designated use traded for political favors. If a stream has an existing use independent of government designation, then that stream cannot be destroyed or eliminated.
New Regs Will Eliminate High Quality Streams
DEP’s Tier 2 also is seriously flawed. The biggest problem is that before a stream would receive special protection it would have to pass two separate tests, one chemical and one biological. The current law only requires the chemical test. We do not object to the biological test as an alternative to the chemical one because some high quality streams might have good biology but problems with chemistry. We would prefer that if DEP uses a biological test then it be instead of, not in addition to the chemical test. Thus, a stream could be considered high quality if it met either the chemical test or the biological test, but would not need to meet both tests.
We do agree with DEP that the standards for its chemical test are that the water is generally of high quality. This allows some discretion when one or more chemical parameter may not be higher than standards. We disagree, however, with DEP’s score for its biological test. Based on recent studies, the DEP score of 83% would eliminate many current and potential high quality streams.
Our Best Streams Will Get Less Protection
DEP’s new Tier 3 likewise lacks the protection offered by existing laws. Currently, DEP has a Tier 2« modeled after its previous definition, which is broader in scope than the federal Tier 3 and which applies to more streams, such as those in state forests. The current DEP Tier 3 contains the federal language, and while it includes fewer types of streams, its protection is absolute because it prohibits all discharges. DEP’s new Tier 3 eliminates the current federal requirements that there be no new or additional discharges.
The new Tier 3 will prevent streams from getting the highest protection by weakening current Tier 2 « language. First, DEP will require a candidate for Exceptional Value to meet both the chemical and the biological tests, although with impossibly higher scores than for High Quality streams. Some current Exceptional Value streams would not meet these new standards. Next, they give no weight to public forests, parks, etc., as exists now in DEP policy. Finally, other ecological features that formerly they gave weight to, such as endangered species, will no longer be considered.
DEP Wants To Undo Current Stream Designations
One of the scariest aspects of the proposed standards is that DEP wants to eliminate the categories of High Quality and Exceptional Value as "use" categories. This is dangerous. When a stream has a use, then under federal "antibacksliding" laws that use cannot be lowered. But if the stream category is not a use then not only can DEP downgrade it, but DEP does not need EPA approval, as they do now.
This means that DEP can lower the use, and therefore the protection, of High Quality or Exceptional Value streams without approval from EPA. Valley Creek in Chester County, for example, is an Exceptional Value stream that would be in jeopardy. It would have problems passing both the new chemical and biological tests because they are too demanding for such a stream. Exceptional Value biology scores, for example, require a 93% rating.
If a developer wanted to downgrade this valuable stream, then it could petition DEP to review the numbers under the newer, tougher standards. Given the current attitude at DEP, and its coziness with industry, guessing which way the royal thumb would point is not hard.
Other Parts Of New Regs Are Bad
We oppose many other parts of these new regs. DEP wants to allow General Permits in High Quality waters, which means no meaningful review or requirement that a discharger prove that its need is greater than the degradation of the water quality. DEP wants to limit antidegradation to covering discharges, despite court and agency rulings that activities other than discharges can affect water quality, such as water withdrawal. DEP wants to narrow the protected areas from "watersheds" to "surface waters." DEP wants to allow a discharger to degrade up to 25% of the stream’s assimilative capacity, without justification. DEP wants to allow some sewage plants the right to discharge into High Quality Waters without having to balance need versus pollution, as is now required.
Flush These New Regs
Although these proposed regs have some good elements, unfortunately they are intertwined with the bad ones in an unhealthy way. We do not have a knife sharp enough to cut around the putrid parts to save the few good sections. This is not our fault. It is DEP’s. It put forth this proposal with a "take it or leave it" philosophy. It created this doublespeak language that pretends to protect our waters while actually making it easier for industry to keep our streams from improving. DEP has forced us to choose with a broadsword.
The bottom line is that we cannot support these proposed regulations. It would be different if DEP was putting forth laws that went beyond the current protection. It would be different if these proposed laws met minimum federal requirements, with a few troublesome areas. These regs, unfortunately, will gut antidegradation and not only prevent streams from receiving protection, but undo the good work that has already been done. These proposed regs belong in the toilet.
We recommend opposition to the entire package, leaving the current federally mandated system in place.
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FEDERAL REQUIREMENTS
The Federal Clean Water Act mandates that states develop "water quality standards" that include an "antidegradation policy." The purpose of the policy is to ensure that waters are not unnecessarily degraded, and to provide for public input before waters are degraded. This policy has three "tiers" to it.
Tier 1 protects "existing instream water uses," which are the values of the water, such as aquatic life, wildlife, recreation, and as water supplies. All waters must get this protection.
If the quality of a stream, lake or river is better than that needed to support aquatic life, wildlife, and recreation, then the waters qualify for Tier 2 and get additional protection. No degradation shall take place in these waters unless it is "necessary to accommodate important economic or social development in the area." Even if permission is granted, discharges must employ advanced treatment. Most reasonably clean streams should get Tier 2 protection.
Outstanding National Resource Waters make up Tier 3. These are waters of National Parks, wildlife refuges, and waters of "exceptional recreational or ecological significance." Water quality in these streams must always be "maintained and protected." These should be our best streams.
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DEP’S POOR ANTIDEG HISTORY
The Raymond Proffitt Foundation sued EPA in 1993 for its failure to require Pennsylvania to have antidegradation standards at least as stringent as minimum federal requirements. EPA finally agreed with the Proffitt Foundation and settled the lawsuit by denying Pennsylvania’s long overdue Triennial Review in June, 1994.
Denial of that Triennial Review, however, was all that was done by EPA. The Pennsylvania DEP had 90 days to make the changes, or EPA was supposed to promulgate its own regulations. DEP, instead, formed a "stakeholders" group to discuss the program. That group, made up of business, conservation and public interest groups, and resource agencies, broke up in August 1996 without a final agreement.
EPA waited for the stakeholders’ group rather than make changes for Pennsylvania, although the Clean Water Act required EPA to act "promptly" if the state did not. The Proffitt Foundation sued EPA, for the second time, and was successful in forcing EPA to promulgate regulations for Pennsylvania, which went into effect on January 8, 1997. The regulations currently in place are the tough, no-nonsense federal regulations.
After the stakeholders’ group broke up, DEP accepted a final report from two factions: 1) business, and 2), conservation and public interest groups, and resource agencies. Some stakeholders did not sign either report. DEP solicited public comments in May 1996, when a "draft proposed rulemaking" was published. All of this input was supposed to be reflected in this proposal, but DEP took the side of business and ignored the views of conservationists and the public when it made every major decision for these new regs.
Now, DEP wants to replace the tougher federal regulations with weaker, less stringent ones, that give DEP almost absolute discretion to refuse to protect existing uses of streams and to keep high quality and exceptional value streams from receiving the protection they now receive. In addition, DEP wants to give itself the power to undo the previous protection that all of us fought so hard to achieve.
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ANALYSIS OF DEP’S NEW REGS
EPA disapproval of DEP’s old regs was based on 1) no existing use language, 2) a too restrictive Tier 2 category and 3) inadequate protection for Tier 3. DEP is now trying to tailor a program that not only fails to meet minimum federal requirements, but actually rolls back some of the existing good features of Pennsylvania’s program.
General Provisions
1. DEP proposes to get rid of High Quality and
Exceptional Value as "protected water uses." This will remove the redesignation of streams from EPA oversight. Once our streams are designated for greater protection, they should stay that way. Under the proposal, polluters could damage them, then claim that they don’t meet the standards, and then ask for a roll back. The proposal intends to make receiving the HQ or EV designations much tougher. Dischargers will petition DEP to re-assess these streams with the new standards. With this proposal, DEP will help polluters to roll back protection on our best streams.
2. Also, DEP only plans on extending antidegradation
protection in HQ and EV watersheds when considering "discharges." Proper antidegradation protection would require that DEP consider all activities, not just discharges.
3. DEP did not mention wetlands in its antidegradation
proposal. The current regulation, put into place by EPA, gives this protection to wetlands. How can wetlands be given HQ or EV protection if the criteria to designate a "surface water" HQ or EV are based on streams, lakes and rivers? DEP needs to integrate wetland protection and antidegradation.
4. DEP has recently settled the TMDL lawsuit, and plans
to "assess" the one-half of our streams that are currently "unassessed." Even with DEP’s "best efforts," that is estimated to take 10 years. The proposal does not address the 29,000 miles of unassessed streams. DEP plans on continuing only basic protection for these streams. DEP should instead protect these unassessed streams at a Tier 2 level, unless a permit applicant can demonstrate otherwise. The public’s resources should get the benefit of the doubt.
5. Currently DEP designates "watersheds" as HQ or EV.
The proposal makes it easier to ignore, springs, seeps, wetlands and tributaries, because HQ and EV are defined as "surface waters" rather than "watersheds." While seeps, springs, and wetlands are in the definition of surface waters, DEP also has no mechanism for these other surface waters (springs, seeps, and wetlands) to pass the biological test needed for an HQ or EV designation.
Tier 1 (Existing Uses)
1. The proposal tinkers with the current regulation
protecting the "existing uses" of our waters. Right now, we have language protecting existing uses because DEP failed to include such language, and EPA was ordered to write a regulation by a Federal judge. At last we have protection that the Clean Water Act intended. Unfortunately, the proposal says that the existing use will be protected only after DEP evaluates the technical data. Until then, DEP is under no obligation to protect the existing uses. With DEP’s misguided "money back guarantee," DEP will not have time to evaluate "existing uses" and will simply not do so. Under the regulation, the protection is qualified, so the regulation will not be violated.
2. DEP only plans on protecting endangered species from
discharges. Endangered species merit protection from any activity that will eliminate them. Existing use protection applies to activities, not just discharges. Endangered species habitat needs to be protected also.
Tier 2 (High Quality)
1. The new rules make it more difficult for streams to
receive an HQ designation. DEP wants only to give the HQ designation to streams that pass a chemistry and biology test. EPA considers only a water chemistry test. How will wetlands, seeps, and springs be assessed when the methods were designed for streams?
2. DEP now proposes to allow "general NPDES permits" in
HQ streams. These are not tracked by DEP, and will allow degradation of these waters without any type of social or economic justification. This is not permitted by the current regulation.
3. DEP also plans on allowing the first 25% of the
stream to be degraded without any social or economic justification. This has no basis in federal regulation. One of the points of High Quality is to ensure that the degradation has a good reason, and that the public interest is served. DEP included social or economic justification language that mentions the public interest, but then exempted many dischargers from it.
4. Also, the language mentioning non-point source
pollution is weaker than the current language for HQ streams. Our good streams are under pressure from developments and agriculture, so strong non-point source language is essential.
Tier 3 (Exceptional Value)
1. The definition of"Exceptional Value" streams still
mentions State Parks, Forests, Game Lands and other public lands, but the "selection criteria" in the proposed Chapter 15 does not consider public lands in any way. The old "Special Protection Waters Implementation Handbook" considered all these things and more, like endangered species. It is vastly superior than the present proposal. Currently, we have regulations that consider many streams on public lands to be "Outstanding National Resource Waters." Why are we giving our best streams less consideration than before?
2. EPA believes that DEP’s EV program does not "protect
and maintain" water quality. DEP should close the major loophole that allows water quality degradation, but calls it "no measurable change." It is hocus-pocus.
3. As far as "public participation" in EV waters is
concerned, the guidance should be set up and the streams given the designation if they merit it. We don’t need hell-bent for development local governments or profiteers wanting to degrade our streams having a "veto" power over protecting our best streams.
Summary
This regulation should be rejected or completely re-written so that it is as least as good as the old DER’s regulations and guidance, but incorporating the minimum Federal features that we have now. The EQB should reject this regulation.
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"NO" Is The Vote On Fluoride by Lynn Landes
An aggressive campaign, to protect the municipal water of Yardley, Lower Makefield, and Falls Township from fluoridation, has resulted in victory. The anti-fluoride side won thanks to the support of local community leaders, the regional newspaper, and a few dentists, as well. Lynn Landes, and Maria Bechis, organized the campaign using research sent to them from all parts of the United States and Europe.
Only 2% of municipal water is consumed by the public. The environment gets the other 98%. The type of fluoride used to fluoridate is a hazardous waste by-product of such manufacturers as the aluminum, uranium, and phosphate fertilizer industries. However, public health concerns dominated the debate.
"We tried to simplify the issues.
1. All drugs should be "FDA approved" and controlled in their delivery. This is not the case with fluoride. It is listed as "an unapproved new drug" by U.S. Dept. of Health and Human Services. Rampant, uncontrolled over-exposure has been documented in the Journal of the American Dental Association in 1995 and 1996. The Academy of General Dentistry is warning parents to limit their children’s intake of fruit juice due to fluoride content.
2. The Choice Issue: In the absence of a public health crisis, people should not be mass medicated against their will."
Other issues also surfaced. Baby-boomers entering their 60’s will be the first generation to experience a life-time of exposure to artificially fluoridated water, food, and beverage products. Therefore, long term harmful health effects of fluoride exposure, such as brittle bones, will begin to manifest themselves and impact health care costs around the year 2005.
In addition, the credibility of the government and medical associations to place public health over private profit was questioned. Asbestos, lead, and DDT were used as a few of the many examples of dangerous products that were allowed to remain in the marketplace long after serious health concerns were raised.
A manual will soon be produced to help other groups fight fluoridation. Contact Lynn Landes at; http://www.ZeroWasteAmerica.Com, e-mail at LynnLandes@EarthLink.Net , or phone at 215-493-1070.
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VALLEY FILLS UPDATE by John Wilmer, Esq.
We must have caught somebody’s attention. In a recent article in Water Policy Report (a nationwide publication), Valley Fills were a hot topic. "[A]n EPA Region III controversy regarding a disposal method for coal mining wastes in Pennsylvania is raising significant issues that will likely be addressed as the agency undertakes a national survey on water quality problems associated with these and other mining wastes." The article acknowledges the Proffitt Foundation and its arguments that Valley Fills violate antidegradation laws.
Back in the summer of 1995 we filed a 60-Day Notice telling DEP to stop issuing Valley Fill permits and to submit its new program to the federal Office of Surface Mining (OSM) for approval. On the 55th day DEP caved in and reluctantly asked the feds for approval. OSM is still examining the issue, after numerous comments, a public hearing, and correspondence between it and U.S. Fish & Wildlife (the good guys) and EPA (the waffle guys).
In fact, the correspondence between OSM and EPA would be funny if it did not involve such incredible destruction of our natural resources. OSM asked EPA for its advice on how to deal with this situation because the issue we raised (antidegradation) is under the Clean Water Act, which is EPA’s province. EPA’s response was vague and noncommittal. I spoke with an OSM representative about this and he thought that EPA was deliberately evading this controversial issue.
At this point we can only wait to see what these two giant agencies will do. It is possible that DEP might try to issue a permit during the confusion. We will be watching closely and will move immediately to keep DEP an honest agency---as we always do.
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SAMPLE LETTER
Your Name
Your Address
Date
Environmental Quality Board
P.O. Box - 8477
Harrisburg, Pa. 17105-8477RE: Proposed Antidegradation Regulations
Dear EQB Member:
I am completely opposed to your gutting everything that is good about the current antidegradation regulations and replacing them with weaker laws that will not protect our streams. These new regs will not protect existing uses, will make it harder for streams to get protection as high quality and exceptional value streams, and worst of all, will allow the redesignation of existing streams to lower categories that offer less protection.
The few good elements of your proposed scheme cannot be separated from the overall bad language. I would suggest, therefore, that you withdraw the entire package and rewrite it so that it protects the environment. In the alternative, keep the regulations now in place.
In addition, these proposed regulations do not meet minimum federal requirements, and you know that they do not. You were hired to protect the environment, so please do your job and stop wasting taxpayer money by refusing to comply with the law.
Name and Signature
cc: Michael McCabe,
EPA Regional Administrator
841 Chestnut Building
Philadelphia, PA 19107
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Officers
Ray Proffitt, Chairman..................215-949-3936
Margaret (Bunce) Spanier, President.....610-847-8244
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Lynn Landes,Vice-President............. 215-493-1070
lynnlandes@earthlink.net
Joe Turner, Sec/Tres....................215-945-1329
jturner@voicenet.com
John Wilmer,Esq., Legal Counsel.........610-565-2736
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