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STOPPER Raymond Proffitt Foundation P.O. Box - 723, Langhorne, Pa. 19047-0723 gateway@rayproffitt.org |
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| FALL 1998 | http://www.rayproffitt.org | Margaret Spanier, President |
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STOPPER Raymond Proffitt Foundation P.O. Box - 723, Langhorne, Pa. 19047-0723 gateway@rayproffitt.org |
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| FALL 1998 | http://www.rayproffitt.org | Margaret Spanier, President |
RPF SUES U.S. ARMY CORPS OF
ENGINEERS
TO STOP VALLEY FILLS IN PENNSYLVANIA
On September 22, 1998, the Raymond Proffitt Foundation sued the U.S. Army Corps of Engineers in Pittsburgh federal court. The Corps had approved Vesta Mining Company's permit to destroy over three acres of wetlands and two miles of stream so it may dispose of coal refuse. Vesta plans to create a valley fill in Scenery Hill, PA to handle over 30 million tons of coal refuse from a proposed longwall mine that will affect over 8,000 acres.
The Foundation believes the permit was issued illegally because the Corps does not have authority to allow the conversion of waters of the United States into a waste disposal site. The Corps can only allow for the discharge of dredged or fill material to elevate the bottom of a wetland or stream. Typically, Corps permits are issued so that marinas or housing developments can be built---not landfills.
Disposing of coal waste, even on a lined site, should require a pollution discharge permit issued by the state. While the state has issued a discharge permit to Vesta to discharge from the site, it has not issued a permit to discharge onto the site.
The Foundation also alleges that the Corps cannot issue the permit because it would violate state water quality standards. Pennsylvania and federally imposed antidegradation water quality standards prohibit the destruction of streams. Other allegations are that the Corps failed to consider the effects of the overall project, which will affect other wetlands and streams; and that the proposed mitigation is inadequate.
This is the fourth lawsuit the Foundation has filed opposing valley fills. The Foundation appealed the issuance of the Vesta permit (State Hearing Board), Pennsylvania's issuance of permits without Office of Surface Mining (OSM) approval (Pittsburgh federal court), and OSM's conditional approval of Pennsylvania's valley fill program (Harrisburg federal court).
Joe Turner, a Director and Officer of the Foundation, says that "we fought for over four years to successfully make antidegradation the law in Pennsylvania, and valley fills violate that law. We will keep filing lawsuits until both state and federal governments decide to obey the law."
VALLEY CREEK THREATENED
BY PENNDOT STORM WATER
The Raymond Proffitt Foundation is a member of the Valley Creek Coalition (VCC), which is opposing the storm water discharge into Valley Creek from the proposed Route 202 expansion project in Chester County. VCC is a coalition with a combined membership of over 2,000 members and also includes the following organizations: Green Valleys Association, Open Land Conservancy, Schuylkill River Keeper, Valley Forge National Historical Park, Valley Forge Trout Unlimited and West Chester Fish, Game & Wildlife Association.
VCC's opposition is based upon Valley Creek's status as an Exceptional Value (EV) watershed. EV streams are under the Special Protection regulations, represent our best streams, and are approximately 1 percent of Pennsylvania's waterways. VCC's position is that EV streams must be treated differently than regular streams. They must be given the special protection they deserve.
PennDot is planning to add two lanes to Route 202 in Chester County. These new lanes will increase the hard surface area of the roadway. To accommodate the additional storm water run-off, PennDot plans to build several storm water sedimentation basins that would capture road run-off. The sedimentation basins would allow the sedimentation to settle to the bottom and allow the water to flow out the top. This excess water would be discharged to tributaries of Valley Creek, which also are EV.
VCC is concerned about this plan for several reasons. First, this plan is no different from the way PennDot, or other developers, would handle storm water for any stream. Valley Creek and its tributaries are all EV and should be treated differently.
Next, there is concern that sedimentation basins will allow concentrated sediment to flow out, especially during storm events. Besides sediment, these basins will be holding untreated oils, grease, and pollutants from the highway. There are no provisions to treat this contaminated soup before it flows into Valley Creek.
Another concern is that the storm water will be heated to air temperature, and during the summer this can be quite hot. Releasing this hot water into the cooler waters of Valley Creek constitutes thermal pollution, thereby harming the trout who need cooler water, especially in the summertime.
Yet another concern is the sudden release of this volume of water. Too much water released at one time can erode the banks of the tributaries and of Valley Creek. Please see the erosion on the banks of Valley Creek just before it enters the Schuylkill River.
Finally, the water that will be captured from the entire roadway and released will flow out to the Schuylkill River, and not to Chester County. If the highway were not in place then the rainwater would be absorbed into the groundwater system and recharge the streams and water supplies of the County. Discharging this water from sedimentation basins deprives the residents of Chester County of this valuable resource.
VCC is opposed to the way PennDot is treating Valley Creek. This watershed is more than in the top 1 percent of Pennsylvania's streams. The vast majority of EV streams are in wilderness areas where they are seldom visited, let alone threatened. Valley Creek is a unique EV stream because of its location, so near a heavily populated area. This EV stream is used by many people, and on a regular basis.
If we are not going to protect this stream, then what streams are we going to protect?
STATES CAN CONTROL WASTE IMPORTS
Contrary to statements made by Gov. Ridge of Pennsylvania and the governors of other waste importing states, the Supreme Court and Seventh Circuit clearly gave the states the authority to control waste imports, says Lynn Landes, Director of Zero Waste America (ZWA), an Internet-based environmental organization. Landes notes that the Courts' decisions specifically allows states to implement regulations that may impact waste imports without discriminating against imports.
For example, ZWA has long recommended the implementation of Waste Disposal Bans as a constitutional way to permanently downsize the number of waste imports. The bans would prohibit designated wastes from all disposal facilities and would apply equally to both in-state and out-of-state waste. As the number of waste bans increase, waste imports decrease. Waste bans currently employed by the states are often partial, not comprehensive, bans.
Why are the governors insisting that states cannot stop waste imports without Congressional legislation?
"Either the governors and their staffs haven't read these decisions carefully or they are trying to shift the responsibility for controlling waste imports onto Congress. In that regard, the proposed Congressional legislation is pretty worthless," says Landes.
She explains that the proposed Congressional legislation only applies to municipal waste (a small fraction of all waste) and allows for community agreements with waste corporations which can supercede state actions to control waste imports. This would leave the environment unprotected and disadvantaged communities vulnerable to financial and legal persuasion from the waste industry.
Landes cites the following cases to substantiate her court findings: City of Philadelphia v. New Jersey, U.S. Supreme Court (1978), and National Solid Waste Association v. Meyer (representing Wisconsin), Federal Court of Appeal, 7th Circuit (1995).
In the New Jersey case, The Supreme Court suggested how New Jersey could protect its environment, "And it may be assumed as well that New Jersey may pursue those ends by slowing the flow of ALL WASTE into the State's remaining landfills, even though interstate commerce may incidentally be affected."
In the Wisconsin case, the Seventh Circuit stated: "Specifically, the Wisconsin statute makes clear that, if the waste is processed by a materials recovery facility that separates the eleven listed materials, the waste will conform to the environmental needs of Wisconsin. Accordingly, Wisconsin could realize its goals of conserving landfill space and protecting the environment by mandating that all waste entering the State first be treated at a materials recovery facility with the capacity to effect this separation."
To view cases visit http://www.ZeroWasteAmerica.org.
ACTION ALERT!
Regulatory Basics Initiative
Will Weaken Protection of Water Quality in PA
As part of a state-wide review of all regulations, the PA Department of Environmental Protection (DEP) is proposing changes to its regulatory chapters dealing with water quality standards and permitting. These changes will significantly weaken current protections to our waterways!
The 60-day public review and comment period ends October 28, 1998.
Three hearings will be held by the EQB for changes to Chap. 92, 93, 95, 96 and 97:
1) 10-15-98 at the DEP Pittsburgh regional office;
2) 10-20-98 at the DEP Harrisburg regional office;
3) 10-22-98 at the DEP Conshohocken regional office.
There will be a session at 3 p.m. and 7 p.m. Immediately following the EQB hearings DEP will hold a hearing on the Chapter 16 changes.
Proposed changes can be found in the PA Bulletin (August 29, '98), or by contacting Barb Kooser, CBF PA Office, 717-234-5550, bkooser@savethebay.cbf.org.
PROPOSED REGULATORY CHANGES WILL…
-- Allow increased discharges of toxic chemicals to waterways;
-- Eliminate regulation of 20 toxic chemicals;
-- Ignore the regulation of non-point source pollution in impaired waters;
-- Allow general permits to be issued for discharge of toxic chemicals;
-- Allow general discharge permits to be issued in high-quality watersheds.
These changes could negatively effect the health of your local waterways and Chesapeake Bay! Your comments to DEP are needed to stop this roll-back of water pollution regulations!
ACT NOW! Get the information, review it, and make comments. See attached for details, or contact, Barb Kooser, CBF PA Office, 717-234-5550, bkooser@savethebay.cbf.org.
Revisions toWater Quality Standards
MAJOR REGULATORY CHAPTERS, CHANGES, AND GENERAL CONCERNS
Chapter 92, NPDES Permitting, Monitoring, and Compliance
* 92.25(3): For total residual chlorine, the technology cap of 0.5mg/l is proposed to be retained. We support keeping the cap, since chlorine, although needed for disinfection purposes, can be extremely toxic to aquatic life if discharged in high concentrations.
* 92.51(6): This "narrative criterion" language which is in every discharge permit is good, but needs strengthened. DEP should add that compliance with all water quality standards is required.
* 92.61: Additional public comment should be solicited, in particular when an application is filed. It is important to know about specific public water quality concerns before all the calculations have been done and a draft permit published.
* 92.81: This section on general permits is greatly expanded and therefore weakens protection. Specific proposals include:
* for the first time allowing general permits to include limits for toxic chemicals. Since there is no easy way to track who uses these permits, DEP should not allow toxics in general permits.
* for the first time allowing general permits to be issued in high quality waters with no indication of how water quality will be maintained. Once again, due to the nature of general permits, the use of these permits needs to be followed closely, which is very difficult. DEP in general should not allow the use of general permits in high quality waters.
* deleting the requirement for documenting that the general permit will not violate water quality standards. Right now, there is a requirement that all permits must document that they will not cause a violation of water quality standards. Because this is a difficult task for a general permit, where the use of the permit is not tracked or followed, DEP proposes to delete it and reduce protection of PA waters. DEP needs to retain the documentation provision to ensure water quality standards will not be violated by the use of general permits.
* not including in the proposal a prohibition of the use of general permits in impaired waters. Because these waters have water quality problems, the use of general permits should not be allowed in impaired waters.
Chapter 93 Water Quality Standards
* 93.4: DEP currently protects all our waters as potential "potable water" sources, and is soliciting comments on whether to retain this protection. Because of the extra protection it gives our streams, this provision should be retained.
* 93.4: DEP proposes deleting warm water fishes as a statewide water use. DEP states that aquatic life will be protected for each stream listed in the stream list, but this leaves no basement protection for any stream that for one reason or another doesn't get on the list. It just makes sense that a basement level of protection should be afforded, and warm water fishes should be retained as a statewide water use.
* 93.5(e): The current wording of this section spells out that there will be no mixing zones - "Criteria necessary to protect other designated uses shall be met at the point of wastewater discharge." This section was moved to Chapter 96, but this mixing zone statement was deleted. DEP currently allows mixing zones for every discharge, but this policy has never come under public scrutiny. DEP should retain and implement this language, or if DEP wants to institute a mixing zone policy, then it should go out to public comment and be incorporated into policy.
* 93.6: One area not covered by Pennsylvania regulations is instream flow and habitat. Because PA has no comprehensive water resources management, the DEP should develop instream flow and habitat criteria and incorporate them into this chapter of regulation.
Chapter 96 Water Quality
Standards Implementation
* 96.4: This section on Total Maximum Daily Loads (TMDLs, which deals with how clean up will occur on waters determined to be impaired) completely ignores nonpoint source problems. The design conditions (for calculating discharge limits) are listed for low flow conditions, but are silent on how modeling will be done for rain-induced pollution. In addition, it is unclear whether the design flows apply only for impaired waters. DEP should include a separate section for modeling done on waters that are not impaired, should incorporate nonpoint sources into their modeling in particular for impaired waters, and should include how clean up activities dealing with nonpoint source pollution will be implemented.
* 96.4: This section also gives DEP authority to approve effluent trading, with only minimal requirements. Blanket authority is premature, and should not be given without the opportunity to comment on the procedure. In addition, due to the potential problems with trading, the procedure should be incorporated into these regulations.
PUBLIC COMMENTS:
Written comments should be sent to: Environmental Quality Board, P.O. Box 8477, Harrisburg, PA 17105-8477 (express mail to Rachel Carson State Office Building, 400 Market Street, Harrisburg, PA 17105-2301) before October 28, 1998. If a one page summary of the comments are submitted as well, the EQB members will receive it with the regulatory package for the meeting on the final form regulations.
Electronic comments may also be sent to:
RegComments@A1.dep.state.pa.us. The subject heading of the proposal and return name and address must be included in each transmission.
Revisions to Water Quality Standards
Chapter 16 Water Quality Toxics Management Strategy - Statement of Policy
This is separate from the rest of the proposed changes - since Chapter 16 is only a statement of policy, comments should be directed to DEP rather than the Environmental Quality Board. However, since this chapter contains all the chemical specific criteria, these changes are very important.
DEP is proposing a major roll back regarding criteria for toxics. The proposal includes deleting aquatic life criteria for about 70 chemicals, with the reasoning that they were originally developed using an old method and there aren't enough data available to use the newer method. DEP proposes to make these old values "guidance," with the discretion to require whole effluent toxicity testing(WETT).
There are several problems with this approach. First, DEP cannot include an enforceable effluent limit in a permit based on guidance values. Second, DEP has discretion to require the discharger to look at total toxicity, which means a discharger can discharge possibly toxic amounts of one of these chemicals into the stream with absolutely no way to regulate the amount.
Right now, discharge limits are calculated to protect aquatic life and human health, and the more stringent is used. With the proposed changes, there will be no way to regulate 20 of the chemicals since there are no corresponding human health criteria. For about another 20 substances the protection will be weakened since the human health numbers are greater, and in some cases much greater, than the aquatic life values DEP proposes to delete. DEP should keep the current aquatic life values as criteria until more data become available to use newer methods to update the criteria.
This proposal also deletes the requirement for DEP to develop criteria for chemicals proposed to be discharged if none currently exist. DEP should retain this requirement to develop criteria for discharges of chemicals if data show a chemical is toxic.
PUBLIC COMMENTS:
Hearings for Chapter 16 are separate, but immediately following the hearings for the other chapters. Comments on Chapter 16 have the same deadline, but should be addressed to Edward Brezina, DEP, P.O. Box 8555, Harrisburg, PA 17105-8555, or electronically at Brezina.Edward@A1.dep.state.pa.us. The subject heading of the proposal and return name and address must be included in each transmission.
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 nonprofit 501 (c) (3) corporation), P.O. Box 723 , Langhorne, PA 19047-0723.
Membership Application
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Ray Proffitt, Chairman..........................215-949-3936................... rproffitt@rayproffitt.org
Margaret Spanier, President.................610-847-8244................. mspanier@rayproffitt.org
Lynn Landes, Vice-President................215-493-1070.................... llandes@rayproffitt.org
Joe Turner, Sec/Tres............................215-945-1329......................jturner@rayproffitt.org
Rich Myers, Trustee.............................215-598-7791.................... rmyers@rayproffitt.org
Harlan Snyder, Trustee.........................610-987-6829................... hsnyder@rayproffitt.org
John Wilmer,Esq., LegalCounsel...........610-565-2736.................... jwilmer@rayproffitt.org
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