On September 9, the Senate Environmental Resources and Energy Committee held a hearing on proposed Environmental Quality Board regulation adopting a manganese water quality toxic substances standard that is protective of public health (July 25 PA Bulletin).

The EQB proposed a new numeric human health criterion for manganese of 0.3 mg/L in Chapter 93.8 - Water Quality Criteria For Toxic Substances, and would delete the existing 1 mg/L standard because it is not protective of human health.

The regulation, however, is proposing alternative language for public comment which would make the point of compliance at the discharge point or the point at which water is taken from a stream consistent with an amendment to a budget Fiscal Code bill (Act 40 of 2017).

“In reviewing the effects of manganese on human health, DEP determined that the current standard was not acceptable, and we consulted the latest research data to determine a new standard,” said DEP Secretary Patrick McDonnell. “We believe this standard will protect human health from the neurotoxicological effects of manganese, as well as ensure adequate protection of all water uses.”

Senate hearing witnesses included the mining industry and several consultants working for the mining industry who supported moving the point of compliance from where mining operations discharge wastewater into a stream [as it has been since the 1960s] to the point where water companies and other users withdraw the water.

The change would also shift the burden for treating manganese discharges from mine sites and other sources who pollute the water to those using the water, like public water suppliers.

The mining industry supported the change in the point of compliance, which was included, at their request, in a 2017 Fiscal Code Bill and a provision adding a 1 mg/L manganese standard.

The manganese amendment was one of a dozen other budget-related provisions in the  Fiscal Code bill.

The 1 mg/L standard is 20 times the level of manganese that water suppliers are allowed to have in their water supplies, according to EPA’s secondary maximum contaminant level. Read More Here.

The last minute amendment swept away nearly 30 years of environmental protection for Pennsylvania waterways impacted by the consequences of acid mine drainage, and imposes additional testing, monitoring and treatment at public water supply operations along these waterways.

At the time the mining industry amendment was being considered in the Fiscal Code bill local government groups, drinking water suppliers and many other groups opposed the amendment. Read More Here.

Testimony

Aneca Atkinson, DEP Deputy Secretary, Water Programs, provided the Committee with an overview of how the proposed regulation and standard was developed.

She said the 2017 change in law related to manganese triggered DEP’s review of the manganese standards generally in the agency’s regulations.

In response to questions, Atkinson also pointed out during the short time the 2017 amendment was being considered, members of the General Assembly were made aware of federal Clean Water Act public participation and other requirements DEP is obligated to follow to change its standards.  [DEP’s comments were ignored by members at the time.]

Atkinson said DEP reviewed over 60 peer-reviewed human health studies specific to the neurotoxicological effects of manganese, with the majority of these studies having been published within the last 15 years.

“While manganese is an essential dietary component, there can be significant variation in exposure levels and pathways and other factors which may result in the body absorbing and retaining more manganese than is necessary to maintain adequate health.

“When this occurs, manganese may build up in the body to toxic levels that result in adverse health effects.

“Many of the recent studies indicate that, during the fetal and childhood life stages, when manganese levels in the body are above those levels necessary to maintain adequate health, manganese has the potential to significantly and irreversibly affect a child’s developing brain.

“It is important to note that infants represent a sensitive subpopulation due to the unique characteristics of this life stage.”

On the alternatives presented for the point of compliance, Atkinson told the Committee--

“The first alternative, consistent with Act 40 [of 2017], is to move the point of compliance from the point of discharge – which means the criterion must be met in all surface waters – to the point of any existing or planned surface potable water supply withdrawals – which means the criterion would only need to be met at the locations of those drinking water supply intakes.

“If the point of compliance were moved to the point of any potable water supply withdrawal, the criterion would not apply and may not protect other water uses between a discharge location and a downstream drinking water intake.

“The second alternative is to maintain the existing point of compliance in all surface waters (that is, at the point of discharge).

“This point of compliance will protect all water uses, including municipal, industrial, and agricultural water supplies, and recreational and aquatic life uses, between the point of discharge and the point of a downstream drinking water intake.

“This point of compliance is consistent with the previously mentioned statutory obligations of the Department and the Board under Pennsylvania’s Clean Streams Law, Safe Drinking Water Act, and the Federal Clean Water Act.

“In particular, this point of compliance is mindful of the responsibilities of drinking water suppliers to meet the manganese SMCL under Pennsylvania’s Safe Drinking Water Act.”

Serena DiMago, with Spotts, Stevens & McCory represented the Water Works Operators’ Association of PA, said the Association supports DEP’s proposed change in regulation because “DEP has concluded that the proposed 0.3 mg/l toxic health standard will protect human health from the neurotoxicological effects of manganese, as well as ensure adequate protection of all water uses.”

She also pointed out both the Small Water Systems Technical Assistance Center Advisory Board and the Water Resources Advisory Committee voted to support the 0.3 mg/l standard proposed by DEP.

DiMago explained, “The U.S. Environmental Protection Agency (EPA) requires states to address levels of manganese above 0.3 mg/l, due to the EPA Health Advisory which includes a 10-day limit of 0.3 mg/l for infants. EPA also requires states to implement corrective actions, including Public Notification (PN).”

The Association also supported continuing the current point of compliance at the discharge point, not where water users take water in for use.

“There has been significant concern in the potable water industry with the legislative provision contained in the Administrative Code (Act 40 of 2017) to require EQB to set a water quality standard for manganese and shift the burden for treating manganese from the dischargers like the coal industry and other industry dischargers (DEP has determined that there are over 900 National Pollutant Discharge Elimination System (NPDES) permit holders with manganese discharge limits that do not include coal industry dischargers) to water users, such as public water suppliers.

“This shift in the point of compliance from the generators of the manganese to the public water suppliers will place the entire burden of meeting manganese compliance on the public water suppliers and come at a substantial cost to public water supply customers.

“Increasing the level of manganese at public water supply intakes by moving the point of compliance will require public water suppliers to install specific manganese removal technologies at substantial increases in capital, operating and monitoring costs.

“DEP determined that 280 of the 340 surface water treatment plants in Pennsylvania would need to evaluate treatment changes if the manganese compliance point were moved, without the addition of a stricter standard upstream.

“Finally, the precedent established by Act 40 [of 2017] in the shift of discharge compliance is egregious, overturning 30 years of environmental stewardship.

“Dischargers must be responsible for eliminating or mitigating the pollutants in their discharges, regardless of the contaminant or pollutant constituent. Public water suppliers rely on source water protection to provide safe and adequate drinking water to their consumers.”

Lisa A. Bailey, Ph.D., Principal Scientist, Gradient, made technical arguments about why they disagreed with the science EPA used to adopt its 0.3 mg/L standard which DEP is using as one basis for its proposed standards.  [presentation slides]

Jon Dietz, Ph.D., Sr. Environmental Engineer, Tetra Tech, made the point that often mining discharges are diluted in the streams carrying their discharges and by the time it reaches a point where water users take it out it is likely to be in low concentrations.

In response to questions, Dietz said achieving a 0.3 mg/L standard would double the cost of neutralization chemicals and other costs to mine owners and cause other treatment complications.

He estimated the additional treatment costs would be $200 million in capital costs and $44 to $88 million annually in operating costs, although he gave no basis for that estimate.

John St. Clair, Manager of Permitting, Rosebud Mining Company, pointed out manganese is an essential nutrient for humans and that a container of pineapple juice has a manganese concentration of 11.8 mg/L-- 39 times more than DEP’s proposed 0.3 mg/L standard.

“Not only is DEP wrong on the toxicity of manganese, but they are ignoring Act 40 [of 2017], which directed that the manganese standard only be applied at the potable water supply withdrawal.

“Instead, the DEP is proposing the new 0.3 mg/l standard be applied to all reaches of the stream to protect human health, especially for children and infants under the very unlikely scenario that children and infants drink directly from a stream.

“Placing the point of compliance at the PWS withdrawal is not a novel concept. Every other coal mining state applies the Federal Coal Mine Standard of 2 mg/l at the discharge, and utilizes the PWS withdrawal as the point of compliance for manganese.”

“With respect to the costs of regulatory change, there have been numbers thrown around that water suppliers would have to spend $60 to $80 million in treatment upgrades if the point of compliance would be moved.

“I question how these numbers were derived since no upgrades would be needed at all, since there will be no change in protection.

“PWS operators currently have a 1.0 mg/L of manganese protection standard since DEP has placed the point of compliance within the stream. If the point of compliance was moved to the PWS withdrawal, the same 1.0 mg/l standard would apply.

“Water entering the withdrawal point currently has to be 1.0 mg/L or lower and would stay 1.0 mg/L or lower even if the point of compliance were to be moved. Nothing will change for water suppliers.”

“Unlike the water suppliers, the proposed rulemaking, as written, will impose significant compliance costs not only on the coal mining industry, but potentially on numerous other industries that may not currently be treating for manganese.”

“The labeling of manganese as a toxin may have unintended consequences. The increase in costs would likely push already financially strapped mining companies into bankruptcy; thus causing the forfeiture of long term trust fund sites.

“Operators of post-mining treatment sites that are currently spending private money to treat discharges would likely start to forfeit their treatment trust since it will become too expensive to treat to such low levels of manganese. The sites would then revert to DEP to carry out treatment.”

“A perfect example of this issue would be the St. Michael Treatment Plant. In 2012, Rosebud Mining Company (Rosebud) constructed a $20 million dollar AMD (acid mine drainage) plant to treat a 4,000 gallon per minute (gpm) discharge from the abandoned Maryland No. 1 Mine.

“If Rosebud had to achieve the 0.3 mg/l manganese level, instead of the current 1.0 mg/l effluent standard, that project would have never occurred.”

Mike Clark, New Enterprise Stone & Lime Co., Inc., said the proposed 0.3 mg/L standard would increase their capital costs of $320,000 and annual operating costs by $450,000 for eight locations where it is treating discharges.

Darrel Lewis, State Industries, Inc., said reducing the standard would be costly for their limestone mining operations and could potentially make some sources of high quality limestone unavailable.

Terry Schmidt, P.E., Vice President of Engineering, EarthRes Group, Inc., told the Committee DEP’s Regulatory Analysis Form did not adequately explain how the benefits of the regulation would outweigh the costs.

He said many existing mine discharge treatment systems are not capable of treating manganese to the new 0.3 mg/L standard.

Click Here for copies of the written testimony and a video of the hearing.

Sen. Gene Yaw (R-Lycoming) serves as Majority Chair of the Senate Environmental Committee and can be contacted by calling 717-787-3280 or sending email to: gyaw@pasen.gov.   Sen. Steve Santarsiero (D-Bucks) serves as Minority Chair and can be contacted by calling 717-787-7305 or sending email to: senatorsantarsiero@pasenate.com.

Additional Background

In January of 2018, DEP published an advance notice of proposed rulemaking requesting information on changing the water quality standard to gather more information on manganese impacts and setting a 1 mg/L standard as part of the regulation development process.  Click Here for more.

Both the Water Resources Advisory and Small Water Systems Technical Assistance Center Board voted to support the 0.3 mg/L standard proposed by DEP, while acknowledging the 2017 law moving the point of compliance.

The Agricultural Advisory Board provided DEP with background on manganese related to the proposal.

Concerned about the delay in proposing a 1 mg/L manganese within 90 days of the adoption of the 2017 law, Senate President Pro Tempore Joe Scarnati (R-Jefferson) and Sen. Gene Yaw (R-Lycoming), Majority Chair of the Senate Environmental Resources and Energy Committee, filed a lawsuit in Commonwealth Court asking that the EQB be directed to take action.

On November 12 of last year, Commonwealth Court ruled the Senators lacked standing to file a petition for mandamus relief to compel DEP and the Environmental Quality Board to propose a change in the manganese standard as required by the 2017 law.  Click Here for more.

Public Comment

The deadline for public comments on the proposed manganese standard is September 25.

Persons wishing to present testimony at a hearing must contact Jennifer Swan for the Department and the Board, 717-783-8727 or RA-EPEQB@pa.gov at least 24 hours in advance of the hearing to reserve a time to present testimony.

The public has the opportunity to submit comments on this proposed regulation in multiple ways, including DEP’s eComment webpage.

Read the entire PA Bulletin notice for more information.

Copies of the regulatory package are available-- Executive Summary; Regulatory Analysis Form; and Human Health Rationale.

[Posted: Sept. 9, 2020]

9/14/2020