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EPA: DEP Lacks Resources To Enforce Minimum Federal Safe Drinking Water Regs

The U.S. Environmental Protection Agency notified DEP’s Safe Drinking Water Program in December that its lack of resources to enforce minimum federal requirements could be grounds for taking primacy away from Pennsylvania.

This is not the first time EPA and other federal agencies have warned Pennsylvania that it is inadequately funding DEP to enforce minimum federal environmental protection and public health laws and not even the first time for this program.

EPA up front in its letter on the Safe Drinking Water Program said-- “EPA would like to remind PADEP that the minimum program requirements must be met in order for states to maintain primacy for the Safe Drinking Water Program” before getting into three big concerns about Pennsylvania’s program.

EPA’s review said Pennsylvania failed to conduct the minimum number of sanitary surveys of water systems-- once every 3 years for community water supplies and once every 5 years for non-community systems-- schools, camps, bulk water suppliers.

Because of the lack of staff, DEP completed only 1,847 sanitary surveys in FY 2015-16 compared to 3,177 in FY 2009-10.

EPA also pointed out, the lack of staff meant the number of unaddressed Safe Drinking Water Act violations doubled over the last 5 years from 4,298 to 7,922.

“This increased risk to public health is of concern to EPA,” the letter said.

A third major concern EPA outlined was “a large amount of pertinent information was missing from the files” involving DEP’s enforcement of Pennsylvania’s lead and copper rule, the regulation of lead in drinking water supplies.

While it has not yet finished its review of DEP’s enforcement of the lead and copper rule, EPA said its report “intends to highlight insufficient program personnel” in its findings.

EPA requested a written action plan from DEP on how it plans to address these issues in 60 days-- by the end of February.

A copy of EPA’s letter is available online.

If Pennsylvania loses primacy in enforcing federal Safe Drinking Water Act requirements, it loses $5.5 million in annual funding to support its regulatory program, $100 million on federal Drinking Water Revolving Fund monies to fund water system improvements through PennVEST and subjects state water systems to double permitting as EPA takes over that responsibility and DEP enforces the state Safe Drinking Water Act.

DEP has been discussing a proposed $7.5 million fee increase package to make up for state General Fund budget cuts with the agency’s Technical Assistance Center For Small Water Systems Board since November. The proposal would not only increase permit review fees, but also impose an annual permit administration fee for the first time.

Not The First Federal Warning

Over the last 3 years, EPA, the federal Office of Surface Mining Reclamation and Enforcement, among other federal agencies, have expressed significant concerns about the ongoing capacity of DEP to enforce minimum federal requirements of primacy for its safe drinking water, water quality, surface mining and water infrastructure funding programs.

In February of last year, the PA Environmental Council and Chesapeake Bay Foundation-PA wrote to members of the Senate Appropriations Committee to raise concerns about the risk of losing control of key environmental regulatory programs to the federal government and courts because of the cuts in funding and staff at the Department of Environmental Protection over the past decade.

Some examples include:

-- U.S. Environmental Protection Agency - 4 Water Programs

There are a number of programs where EPA review has found deficiencies in staffing and resources:

-- A 2012 Summary Field Report on the Department’s Stormwater Program, that contained several observations regarding lack of capacity including: insufficient Regional Office reviews of post construction stormwater management plans (Observation 5); overall ability to undertake compliance and enforcement activities (Observation 10); lack of Central Office oversight (Observations 14 and 23); and insufficient staffing to implement the Municipal Separate Storm Sewer System (MS4) Total Maximum Daily Load (TMDL) and Chesapeake Bay Pollution Reduction Plans.

-- A May 2015 letter, noting that EPA may need to condition or redirect federal funding for Chesapeake Bay pollution reduction efforts. This funding was indeed withheld, though it was recently released upon announcement of the Department’s Reboot Plan for the Chesapeake Bay . However, ongoing funding will be contingent on demonstration of sufficient funding and outcomes for that effort.

-- A June 2015 EPA Program Evaluation Report on the Drinking Water State Revolving Fund Program, which is administered by both the Department and the Pennsylvania Infrastructure Investment Authority. Specific action items from the Report included Department evaluation of staff resources to address failures in inspections and the finalization of projects.

-- A June 2015 EPA Program Evaluation Report on the Clean Water State Revolving Fund Program, noting similar staffing review needs as with the Drinking Water State Revolving Fund Program.

-- U.S. Environmental Protection Agency - Air

In a November 2015 EPA Technical System Audit on air quality monitoring (attached with this correspondence), EPA determined that the Department’s Air Quality Monitoring Division is “severely understaffed,” constituting a Major Finding which equates to “nonconformance of high importance which is unacceptable and must be remedied.”

Report discussion notes that the Department lacks adequate resources both in personnel and funding, and that EPA auditors found “significant concerns with [the Department’s] field staff shortage.”

The corrective recommendation offered in the report is that vacant positions “need to be filled in order to continue operating (the) air monitoring program pursuant to 40 CFR 58 Appendix A.”

-- Office of Surface Mining and Reclamation Enforcement

Since 2011, the Department has been required to submit a series of Action Plans for regulatory compliance to OSMRE. In the 2016 Oversight Performance Agreement and Action Plan signed by both the Department and OSMRE, there are two specific areas of particular note with respect to budget issues:

-- Due to staffing reductions, the Department has not been able to meet required inspection compliance rates. In 2012, the compliance rate was 71 percent on active mine permits; 38 percent on inactive mine permits; and 20 percent on bond forfeited permits.

-- OSMRE has also taken issue with adequacy of bonding for mining permits, citing the inability of the Department to conduct full volume bonding with proper site analysis due to staffing shortfalls. This matter is doubly important because any bonding shortfalls could (and likely will) ultimately become a liability for the Commonwealth.

In correspondence between OSMRE and the Department (attached to this correspondence), OSMRE states: “failure [to comply with the Oversight Performance Agreement and Action Plan] will jeopardize Pennsylvania’s primacy under the Federal Surface Mining Control and Reclamation Act … for regulating coal surface mining operations.”

Gov. Wolf presents his FY 2017-18 budget proposal to a joint session of the General Assembly on February 7.

NewsClips:

PA Lacks Resources To Enforce Safe Water Standards EPA Says

EPA: DEP Doesn’t Have Resources To Properly Oversee Drinking Water Systems

AP: Feds Warn Pennsylvania Over Safe Drinking Water Violations

EPA Slams State Drinking Water Program

Wolf Looking Into Safe Drinking Water Program Warning Issue

McKelvey: How Worried Should You Be About Your Drinking Water, Given DEP’s Lack Of Resources

Editorial: Pruitt’s Tepid Commitment To Clean Up The Chesapeake Bay

Report: Act 13 Drilling Fee Revenue Will Hit Record Low This Year

Trump Transition Leader’s Goal Is ⅔ Cut In EPA Employees

AP: Merging 4 Agencies Seen As Way To Cut Red Tape, Not Programs