STOPPER
Newsletter
of the Raymond Proffitt Foundation, P.O. Box 723, Langhorne, Pa. 19047-0723
FALL
1997
Margaret Spanier,
President
THE KING (DEP) CAN DO NO WRONG
CLEAN WATER NETWORK ANNUAL MEETING
THE KING (DEP) CAN DO NO WRONG
In Merry Olde England, no one could challenge the Crown because of the presumption that government always acted to protect the public health, safety and welfare of the community. Although in America we have thrown off the rule of the monarchy, we have not thrown off the tyranny of government infallibility. In fact, Article 11 of the U.S. Constitution says that state government can only be sued in court if it allows itself to be sued. In Pennsylvania, our Commonwealth has allowed itself to be sued only in a limited number of circumstances, such as when it acts as a property owner.
Even when government allows itself to be sued, there are severe limitations on the extent of such relief. And even when government is caught breaking the law, little can be done to punish those who believe they are above the law.
A case in point is the recent handling by the DEP of the prohibition against chlorine discharges into Exceptional Value (EV) watersheds. This regulation was promulgated more than three years ago by the Environmental Quality Board. DEP, acting as the Crown, was supposed to require all dischargers into EV streams to dechlorinate their effluent.
At first, DEP created a policy requiring new, additional and existing dischargers to dechlorinate whenever their NPDES permit came up for review. In this way, every discharger would meet the new regulation within five years, since that is the renewal time for these permits. But then DEP changed its policy and exempted existing dischargers from this regulation.
Since existing dischargers are the vast majority of permit holders, this action emasculated this new regulation.
Remember that this regulation went through a several year process in which it was proposed, the public commented on its language, and the Environmental Quality Board, the legislative Independent Regulatory Review Commission, and the Attorney General's office all reviewed and approved its final form. And yet, a few bureaucrats working in the Crown's water quality division negated all this public effort and review, with a stroke of their quills.
The Proffitt Foundation got involved when it joined Valley Forge Trout Unlimited (VFTU) in an appeal of a permit renewal allowing a discharger to dump chlorine into Valley Creek, an EV watershed. The appeal was a simple one, alleging only that DEP was not allowed to issue such a permit because of the chlorine regulation. We did not argue whether or not the stream would be harmed, only that DEP acted illegally.
DEP knew that we had caught them violating the law, and they quickly changed the permit to require dechlorination. We knew, however, that DEP would continue to break the law, and so we requested a ruling from the Environmental Hearing Board (EHB) that DEP had acted illegally. DEP fought us tooth and nail to keep the EHB from making such a ruling. DEP filed a request to delay its requirement to submit an answer to our legal motion---and lost. DEP then filed a motion for reconsideration---and lost. Finally, the Crown did answer our legal motion, but did so by challenging our standing.
You must understand that no group has greater standing on any stream in the Commonwealth than VFTU has on Valley Creek. In fact, DEP requested VFTU to intervene on DEP's side in a case against Willard Rouse's proposed sewage disposal into Valley Creek that DEP was fighting. There, Commonwealth Court granted VFTU, the Proffitt Foundation, and others standing to intervene.
The problem in the chlorine case, however, is that we would have to prove standing again. We would have to respond to DEP's legal arguments, and probably even have to submit to testimony before the EHB. The problem is that we do not have the money to continue this endless fight.
Our decision, therefore, was to take our partial victory and go home. We stopped the chlorine discharge, and we got a statement from DEP that we can use against them should they attempt to issue another permit in this region. If, however, DEP chooses to issue a permit somewhere else in the state allowing chlorine discharges into an EV stream, then we (or someone else) will have to fight them again.
The individuals in DEP who made this illegal decision are free to keep making that same illegal decision, over and over. Anyone else who violates a law has to pay a fine or go to jail, but not those in DEP. Those working for the Crown can violate the law with impunity, because after all---they can do no wrong.
MEET SHAPE
PennDOT intends to build an 8.6-mile expressway between the retail centers of Montgomery Township and the rural town of Buckingham. We plan to STOP them. Promoted as a local solution to traffic congestion on US 202 in Chalfont, this $300,000,000 expressway is actually the second to last link in the 60-mile Outer Ring expressway around Philadelphia.
The final link from Buckingham to the Delaware River, is currently a two-lane road. PennDOT's claims that connecting an expressway with a two-lane road will not force construction of the final link have been met head-on by a coalition of conservation and civic organizations known as SHAPE (Sensible Highway Alternatives to Protect the Environment).
The coalition partners have developed a comprehensive position paper detailing the errors in the PennDOT study, the environmental impacts of the project and reasonable alternatives to the project. The position paper can be found at www.RayProffitt.Org.
This expressway embodies all that is wrong with the short sighted approach our planners take with transportation planning. It will destroy many acres of forest, productive farmland and wetlands. By providing access to the otherwise inaccessible green space of New Britain, Warrington and Doylestown, it will promote industrial and commercial development along its length.
The regulatory agencies stand ready, rubber stamp in hand, to approve this land development scheme. We feel that their refusal to address our issues demonstrates a reprehensible, institutionalized lack of caring.
(Editor Note: Many of of our newsletter readers have not seen our periodic internet publicalion, "Pollution UpDate". I thought I would include our most recent PU as an example of that publication).
"That loud crunching noise you hear is a paradigm shifting."
James M. Seif and Don Welsh from DEP Update Oct. 24, 1997
Crunching noises?? What crunching noises??? Since the beginning of the Ridge Administration, the sounds we have been hearing from Pennsylvania's Department of Environmental Protection (DEP) have been the rustle of bed covers, as DEP Secretary Jim Sief removed DEP's cloak of environmental enforcement and climbed into bed with polluters and big corporations. From the lack of enforcement, to the rollback of basic environmental protections, through his "Regulatory Basics Initiative", Jim Seif has indeed shown the citizens of Pennsylvania a paradigm shift--a shift away from protecting Pennsylvania's environment for our families and our future and towards protecting greedy corporate interests.
In a recent survey, 82% of Americans support tougher enforcement of existing environmental laws and/or the enactment of tougher environmental laws. Pollution is cited as the number one environmental concern by 77% of the public. What do you think Secretary Seif and DEP are doing in light of this public outcry, strengthening environmental regulations??? or increasing enforcement of basic environmental protections???
The answer is a resounding NO!. Believe it or not, but exactly the opposite is true in Secretary Seif's DEP.
The innocent sounding "Regulatory Basics Initiative", a brainchild of Secretary Seif, is actually designed to identify existing environmental regulations that are stricter than federal minimum standards, in order to weaken environmental protections in Pennsylvania. It seems Pennsylvanians are only entitled to a level of environmental protection equal to that of federal (EPA) minimum standards. And what if the EPA's mission were changed as Secretary Seif suggests in his blatant attack on EPA, would Pennsylvanians no longer be entitled to any environmental protections? Would the REAL elitist lobbyists who work Jim Seif's "bedfellows", the polluters and big corporations, be writing your environmental laws?
Aha! Now, that may just be the real answer to Secretary Seif's dilemma of how to run a Department of "Environment Protection" and at the same time protect the interests of polluters and big corporations. If the polluters actually wrote the environmental laws, that just might solve DEP's enforcement woes and explain why Secretary Seif has attacked EPA in first the place.
Last year, EPA cited DEP for woefully under-reporting significant air pollution violators in Pennsylvania which was just one more example of DEP's failure in the enforcement arena. DEP's general lack of enforcement of environment protections has not gone unnoticed by EPA, the public or the press. Comparisons of the Ridge Administration environmental enforcement record to that of previous administrations have dramatically shown DEP's pathetic environmental enforcement record. The number one priority concern identified by the citizens, sportsmen/women, environmentalists, scientists, and students who attended the 4th Annual Pennsylvania Environmental Congress (October 25-26, 1997) was, you guessed it, "tougher enforcement of existing environmental laws"!
When it comes writing environmental protection regulations, DEP again fails to make the grade. Pennsylvania's stream anti-degradation regulations, which protect our waterways for future generations, were mandated by a Federal Judge to be written by the EPA, because regulations proposed by DEP were woefully inadequate. This was the latest in a series of Federal Court action taken as a result of successful legal actions brought by Attorney John Wilmer on behalf of the Ray Proffitt Foundation.
DEP under Secretary Jim Seif has systematically rolled back environmental protections, has refused to adequately enforce existing environmental protection laws and has failed in its mission to create the types of environmental protection regulations that will truly safeguard Pennsylvania's environment for our families and our future.
Secretary Seif claims that the state environmental agencies are "mature and capable"... In Pennsylvania's case, DEP and Secretary Jim Seif have dramatically shown the citizens of Pennsylvania this is not the case. The crunching noises that Secretary Seif refers are not of a paradigm shift, but of the crunching, munching, and shredding of environmental protections in Pennsylvania under his leadership.
(ROUTE 220 PROJECT)
The Pa. Department of Transportation, with the help of DEP and U.S. Representative Bud Shuster, wants to replace a 2-lane section of this highway with 4 lanes, thus allowing those in Altoona more access to Penn State football games. By law, the government is required to evaluate and choose alternative routes. By practice, they have chosen the most environmentally destructive and the most expensive alternative, destroying hillside seeps, springs and wetlands, and over 3,000 acres of migratory bird habitat.
The major environmental agencies are against this alternative, including U.S. Fish & Wildlife, Pa. Fish & Boat Commission and Pa. Game Commission. The major environmental organizations are likewise against this alternative, including the Raymond Proffitt Foundation. On August 12, 1997 we sent a letter to the U.S. Army Corps of Engineers requesting that they deny the permit for wetlands destruction. If the Corps grants this permit then we will take a serious look at whether to file a lawsuit.
The United States is sinking under a "river of waste." Zero Waste America (ZWA) estimates that in 1997, Americans will dispose of more than 1.2 billion tons of domestic and imported waste. That amounts to approximately 5 tons of waste disposed for every person in the country. The cost to public health and natural resources is incalculable.
In 1970, Congress passed legislation establishing National Environmental Policy to "enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources."; That policy was a mandate from Congress. It should serve as a lifeboat to a sustainable environment, to no more landfills or incinerators, and to Zero Waste.
Instead, the U.S. has no effective national plan to eliminate or reduce waste. There is no government effort to create sustainable markets for recyclables. There is no national ban on the disposal of waste, compost, or recyclables into landfills or incinerators. There is no limit on the amount of waste imported from other countries. The EPA does not even track the total amount of waste that is generated, imported, or disposed in the U.S.
The free market has not provided a foundation this nation needs to reduce, eliminate, or recycle waste. Voluntary programs of waste recycling and reduction have not been sufficient to curb the ever-increasing need to build more landfills and incinerators.
Bucks County, Pennsylvania, is a good example of failed policies and enforcement by both federal and state authorities. Bucks County disposes of approximately 2,000 tons of county waste daily. Waste Management (WMX) is permitted by PA's Department of Environmental Protection (DEP) to dispose of 20,000 tons of waste each day in Bucks County. Federal law requires that states must have a "state solid waste management plan" to ensure maximum recycling and resource conservation, and to assess environmental impact of waste disposal facilities. Pennsylvania has no such state plan, yet the Environmental Protection Agency (EPA) allows the state to continue accepting waste and issuing permits for more disposal facilities. Currently, Pennsylvania is the leading importer of foreign and domestic waste in the nation.
Many states complain that waste imports undercut their efforts at waste reduction and recycling. For the last several years, states have looked to proposed federal legislation that promises states protection from imports. This proposed legislation will not protect states for three reasons:
The proposed legislation only applies to "unwanted" waste. A state cannot prohibit a municipality from accepting waste, if an agreement is reached between the host municipality and a waste disposal company. This invites the waste industry to "shop" for disadvantaged communities who may want the host fees to offset tax increases, or can't afford to defend themselves against well-funded waste industry legal action.
There is no limit on other types of disposal waste that can be imported from other states or nations. Only "municipal" waste will be affected by this legislation. That may account for as little as 20% of all waste disposed in a state.
This legislation will encourage the importation of more toxic waste, such as: hazardous, industrial, infectious, asbestos, sewage sludge, contaminated soil, and incinerator ash. Much of this waste is allowed in municipal landfills, as well as in private and commercial landfills and incinerators.
So, what's the answer? In the absence of Congressional action or federal enforcement of current environmental law, how do states eliminate waste and protect themselves from waste imports?
First, states can issue waste "disposal bans" for both in-state and imported waste. They can begin by banning compostables, such as food and yard waste. A general rule is that waste must be free from hazardous materials in order to be composted or recycled safely.
Second, states can legislate a variety of measures to sustain recycling markets. They can set minimum recycled content standards and establish bottle bills and other "take-back" legislation. With markets guaranteed, recyclables can be banned for disposal.
Lastly, states should store hazardous waste until it can be safely recycled. Never bury or burn waste!
In order to withstand legal challenge by waste importers, states must apply disposal bans equally to both in-state and out-of-state waste. In August 1995, The Federal Court of Appeal, 7th Circuit in National Solid Waste Association v. Meyer (representing Wisconsin), ruled that Wisconsin could ban designated waste and recyclables. However, Wisconsin could not discriminate against waste imports; it could not apply disposal bans only to out-of-state waste.
As a nation, we can turn this "river of waste" into a "reservoir of recyclables." We should do whatever it takes to eliminate waste. Zero Waste is our goal. A healthy and clean environment...let that be our legacy.
ZWA based its estimates on publicly available documents, including Biocycle Magazine's April 1997 issue which reported 1996 data of 235 million tons of mostly "municipal" waste disposed. We calculated that, in some states, "municipal" waste accounts for as little as 20% of total waste disposed.
Zero Waste America, Inc. is a non-profit environmental organization dedicated to the elimination of waste and pollution through legislative reform and the encouragement of "zero waste" business and practices. We provide analysis and a wide range of information on waste issues. Membership is free.
CLEAN WATER NETWORK ANNUAL MEETING
On October 18 and 19, 1997, I attended the Clean Water Network annual meeting in Washington, D.C., as the representative from the Raymond Proffitt Foundation. Membership in the Network is over 1,000 groups, and 160 members of those groups attended, some from as far away as Alaska. We celebrated the 25th anniversary of the Clean Water Act.
Saturday we attended a special meeting given by Vice-President Gore, EPA Administrator Browner, Secretary of Agriculture Glickman and U.S. Congressman Oberstar. These officials told us they were concerned about polluted runoff and its effect on our nation's waters. EPA and Agriculture agreed to work together; and Gore issued directives for strategy plans, cooperation between agencies and the public, and target dates for action plans and regulations.
Polluted runoff issues have at last sunk into the Washington mentality---especially those problems related to runoff from hog and chicken feedlot operations. This runoff has caused massive fish kills. When mixed with brackish water it produces the disease "Pfiesteria", which has caused skin lesions, memory loss and respiratory problems in people who have contact with the polluted waters. The Washington politicians are concerned because many of these incidents have occurred in their own backyard, the Chesapeake Bay.
Pennsylvania also is faced with polluted runoff from these operations, which are more accurately called factories. An operation with 70,000 animals generates the sewage equivalent of 450,000 people, without a treatment plant. We are getting calls from people in Bedford County and elsewhere about proposed hog factories.
Finally, I connected with lawyers from other states who have the same legal problems as we do in getting government to enforce the law. We have formed a lawyers' subgroup of the enforcement group, and have agreed to share information with each other. I made good contacts with lawyers from Illinois and Kansas, whose problems seem worse than ours.
The Clean Water Network is the first truly effective "national" organization I have seen that gets better as it gets larger. It works because it supports, and promotes, the grassroots purposes of its individual members while helping those members work together more efficiently.
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 (c) (3) corporation), P.O. Box 723 , Langhorne, PA 19047-0723.
Membership Application
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Officers
Ray Proffitt, Chairman..................................................................215-949-3936 RPFmail@Juno.Com
Margaret (Bunce) Spanier, President.......................................610-847-8244 obis@erols.com
Lynn Landes,Vice-President....................................................... 215-493-1070 lynnlandes@earthlink.net
Joe Turner, Sec/Tres......................................................................215-945-1329 jturner@voicenet.com
Rich Myers, Trustee.......................................................................215-598-7791 RPFmail@Juno.Com
John Wilmer,Esq., Legal Counsel...............................................610-565-2736 JWilmer@ix.netcom.com
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