Proposed Legislation Will Weaken Environmental Protections

Polen Run at Ryerson Station State Park

Polen Run at Ryerson Station State Park

The Pennsylvania Senate has been busy considering a series of bills that would reduce accountability and transparency regarding the impact of longwall mining operations in Pennsylvania, weaken water protections, and limit the ability for concerned individuals and organizations to challenge permits issued by the Pennsylvania Department of Environmental Protection (“DEP”).

Senate Bill 763

SB 763 introduced by Senator Bartolotta proposes amendments to the Bituminous Mine Subsidence and Land Conservation Act (“Act 54” or “Mine Subsidence Act”).  Currently, the Mine Subsidence Act requires DEP to compile, on an ongoing basis, information from mine permit applications, monitoring reports, and enforcement actions related to surface impacts of underground coal mining. It also requires DEP to report its findings regarding subsidence damage to homes and businesses, water supplies and streams at five-year intervals. A team from the University of Pittsburgh, which brings together expertise in mine engineering, hydrogeology, and ecology, is compiling the 5th five-year report. The 5th Act 54 report is scheduled to come out this year.

SB 763 would make compiling a report on subsidence damage to homes and other structures, water supplies and streams optional under the Mine Subsidence Act. The bill also eliminates the specific directive to the DEP to evaluate “the effects of deep mining on subsidence of surface structures and features and on water resources, including sources of public and private water supplies.” SB 763 replaces this specific directive with the generic phrase: “compliance with the requirements of this act.”

Assuming a report is compiled at all, SB 763 goes one step further and seeks to limit who would receive a copy of that report.  Under existing law, the five-year report compiled by DEP is submitted to the Governor, the General Assembly as a whole, and the DEP’s Citizens Advisory Council. Under SB 763, only the Governor and the Environmental Resources and Energy Committees in the Senate and House would receive a copy of the report.

The DEP’s Citizens Advisory Council (“CAC”) would no longer be entitled to receive a copy of the report. CAC held two public hearings on the report that was released in 2015, including one in Washington County. The Citizens Advisory Council used these public hearings to help it develop its comments and recommendations to improve Pennsylvania’s mining program. Those recommendations included a more qualitative review of water supplies, re-evaluating the 35-degree rebuttable presumption zone, and the general assembly make changes to ensure prompt replacement of water supplies.

SB 763 has been referred to the Environmental Resources and Energy  Committee.

Senate Bill 619

SB 619 introduced by Senator Yaw seeks to amend the Clean Streams Law to exclude from its definition of pollution any “accidental discharge, spill or release that does not cause a violation of any of the numeric water quality criteria under 25 Pa. Code Chapter 93 (relating to water quality standards).” SB 619 would also eliminate the need for reporting of accidental spills unless they meet this new limited definition of pollution.

Currently, the Clean Streams Law does not state that one can never place a pollutant into a stream. Instead, the Clean Streams Law and the NPDES permitting scheme allow for some amount of environmental impact because what is important is not that absolutely no environmental impact occurs, but that the impact does not impair the protected water uses listed in 25 Pa. Code §§ 93.3 and 93.4 (e.g. aquatic life, recreation, water supply).

SB 619 would add language narrowing the definition of pollution in the Clean Streams Law: “An accidental discharge, spill or release that does not cause a violation of any of the numeric water quality criteria under 25 Pa. Code Ch. 93 (relating to water quality standards) for the receiving water does not constitute pollution.” (emphasis added).

Chapter 93 protects water quality by protecting the designated water uses of streams and rivers such as for water supply, aquatic life, fishing, and recreation. The fundamental goal and purpose of the Clean Streams Law and the DEP’s water protection regulations is to protect and maintain uses. State water quality standards consist of three elements: designated uses that specify the intended uses or goal for each water body or segment of water in the state; criteria that are generally specific maximum numerical concentrations of pollutants in the water body that will not preclude attainment of the designated use; and an antidegradation policy that imposes limits on the issuance of permits that will impair designated and existing uses.

The problem with the revision proposed by SB 619 is that Chapter 93 contains few numeric water quality criteria. In fact, there are only 15 specifically named in Section 93.7 including alkalinity, ammonia nitrogen, bacteria, chloride, color, dissolved oxygen, fluoride, iron, manganese, nitrite plus nitrate, osmotic pressure, pH, Phenolics, sulfate and temperature. While the Chapter contains additional standards, they are not numeric because they are based on the designated use of the waterway. Section 93.7  acknowledges that the “list of specific  water quality criteria does not include all possible substances that could cause pollution.” It then adds the general requirement: “For substances not listed, the general criterion that these substances may not be inimical or injurious to the existing or designated water uses applies.” Further, Section 93.6 states: “Water may not contain substances attributable to point or nonpoint source discharges in concentration or amounts sufficient to be inimical or harmful to the water uses to be protected or to human, animal, plant or aquatic life…In addition to other substances listed within or addressed by this chapter, specific substances to be controlled include, but are not limited to, floating materials, oil, grease, scum and substances that produce color, tastes, odors, turbidity or settle to form deposits.” Again, these are not numeric water quality standards.

As written, if an accidental spill temporarily and irreparable harms aquatic life or temporarily or permanently prevented a stream or river from being used according to its designated use, without violating a numeric standard, DEP may not be able to take action to require cleanup and remediation because it would not be considered “pollution” under the Clean Streams Law. A company may not even be required to report the spill to DEP or downstream water users.

SB 619 was last referred to the appropriations committee.

Senate Bill 726

SB 726 introduced by Senator Bartolotta would create a new standard of review for appeals of DEP permitting actions before the Environmental Hearing Board (“EHB”). Currently, the EHB reviews actions of the DEP de novo, and is not limited to the record before the DEP at the time it took the appealed action. The EHB’s review extends to the issue of whether a continuation of the permitted activity is appropriate based upon up-to-date information and expert testimony presented to the EHB.

SB 726 seeks to limit parties appealing permit decisions to issues raised in and information contained in a record of decision of a permit prepared by DEP. Under this new standard of review, parties may be prohibited from calling experts or presenting information to rebut information in the record of decision if that information was not presented to DEP during the permit review process. This change would put additional burden on concerned residents and organizations to submit all possible grounds for appeal and all potentially relevant information during the public comment period. The public comment period is only 30 days long and applications are noticed for public comment before the DEP conducts its technical review. As a result, permit applications are often significantly revised after the public comment period has closed.

SB 726 has been sent to the Environmental Resources and Energy  Committee.

We are monitoring these bills and will share additional updates and send action alerts as needed.