On September 29, the PA Environmental Council and the Environmental Defense Foundation wrote to members of the House Environmental Resources and Energy Committee urging them to oppose the “sweeping and unwarranted” changes made in the state’s Clean Streams Law by Senate Bill 619 (Yaw-R-Lycoming).

“These sweeping and unwarranted changes made by Senate Bill 619 would fundamentally change how Pennsylvania’s surface and groundwater is protected from pollution, significantly restrict the ability of DEP and PFBC from taking action to require the cleanup and prevention of spills and to assess penalties, and to the requirements for reporting spills.

“This legislation is a drastic curtailment of water protection standards which threatens water quality across the Commonwealth and risks loss of state primacy under the Federal Clean Water Act.”

The PA Council of Trout Unlimited and the national Trout Unlimited organizations both wrote to the Committee September 29 also opposing the legislation on behalf of their more than 15,000 members in Pennsylvania.  [Read more here.]

The Chesapeake Bay Foundation said after the bill passed the Senate in June-- “Senate Bill 619 will make it easier to pollute the Commonwealth’s rivers and streams and with fewer consequences. Water quality in Pennsylvania should not be regulated by just the limited list of numeric water quality criteria. Timely response and remediation are critical.

“A spill or discharge caused a fish kill in the Donegal Creek. The Mariner East II liquid natural gas pipeline has been plagued with spills. In 2017, 63,000 gallons of natural gas drilling waste spilled into the tributary of the Loyalsock Creek. If Senate Bill 619 passes, spills like these may go unchecked.

“We urge members of the House to consider the consequences Senate Bill 619 could have on aquatic life, recreation, and drinking water supplies.”

The bill would benefit the conventional oil and gas industry, but is being pushed by Merck Sharp & Dohme Corporation which was unhappy with an April 17, 2017 settlement with DEP over an appeal of a stormwater pollution prevention permit for its West Point, Montgomery County plant (Environmental Hearing Board Docket No. 2015-011-L).

The House Environmental Committee is scheduled to have an information session on Senate Bill 619 on September 30 at 10:00 a.m. [or after the Committee’s 9:00 a.m. meeting.  [Read more here.]

The text of the letter follows--

The Pennsylvania Environmental Council (PEC) and Environmental Defense Fund (EDF) urge you to oppose Senate Bill 619 (P.N. 857), which would significantly weaken Pennsylvania’s Clean Streams Law by restricting the definition of what constitutes “pollution” and by limiting requirements for reporting spills that could degrade water quality.

Changes to Definition of Water Pollution

Senate Bill 619 changes the definition of water pollution under the Clean Streams Law by stating that a spill only constitutes pollution if it violates a numeric surface water quality standard.

While the amended version of this legislation removed specific reference to Chapter 93 of Title 25 in the Pennsylvania Code, the effect of the legislation remains the same as that Chapter provides the applicable set of criteria at issue.

Senate Bill 619’s changes to long-standing standards are problematic because Chapter 93 contains few numeric water quality criteria; in fact, there are only 15 specifically named in the regulation itself.

1. While the Chapter sets forth additional protection standards, they are technically not numeric because they are based on designated uses or quality of the waterway.

2. Under the change proposed in this legislation, it is possible that neither the Department of Environmental Protection (DEP) nor the Fish and Boat Commission (PFBC) could require the cleanup of a spill, require a fix for the problem that caused a spill, or take other enforcement actions unless the spill violated the limited set of numeric water quality criteria in the regulation.

Changes to Spill Reporting Requirements

This legislation also makes changes to spill reporting requirements by stating that a person or entity that caused a spill must first make a determination if the spill violates water quality criteria under Chapter 93, or if it exceeds federal reporting requirements (1,000 gallons in any one incident or 42 gallons in each of 2 discharges), before reporting a spill – and then only after they take into account the steps they have taken to control or remediate the impact of the spill.

The practical realities of making a determination pursuant to these changes would require a company or entity to:

-- Know the amount and precise chemical composition of the material being spilled and, if it isn’t known, to take, analyze, and report those results;

-- Know the classification, designated use, and any special numeric water quality standards in place at the location the spill would enter a surface water; and

-- Taking, analyzing, and reporting the results of water samples upstream, at the point of the spill, and downstream of the spill to determine if the numeric standard was violated at the time of the spill.

Likewise, if DEP or PFBC wanted to take any compliance or enforcement action for a spill with the change in definition of pollution proposed in Senate Bill 619, they would have to prove a numeric water quality standard was violated at the exact time of the spill – which would not be possible after the fact.

These sweeping and unwarranted changes made by Senate Bill 619 would fundamentally change how Pennsylvania’s surface and groundwater is protected from pollution, significantly restrict the ability of DEP and PFBC from taking action to require the cleanup and prevention of spills and to assess penalties, and to the requirements for reporting spills.

This legislation is a drastic curtailment of water protection standards which threatens water quality across the Commonwealth and risks loss of state primacy under the Federal Clean Water Act.

For these reasons, we ask you to oppose Senate Bill 619. Thank you for your consideration.

Sincerely,

John Walliser                                                                       Adam Peltz

Senior Vice President, Legal & Government Affairs         Senior Attorney, Energy

Pennsylvania Environmental Council                                Environmental Defense Fund

Click Here for a copy of the letter.

Related Articles:

-- Trout Unlimited Opposes Senate Bill 619 To Redefine Water Pollution In PA Saying It Will Harm Aquatic Life, Human Health

-- Senate Republicans Pass Senate Bill 619 Fundamentally Changing Definition Of Water Pollution Effectively Making Spills And Discharges To Streams No Longer Pollution

-- Republicans On House Environmental Committee OK Bills To Exempt Water Supplies, Slow Down Solar Energy; And Disapprove Of Air Quality Fees, New Manganese Water Standard

-- 9 PA Sportsmen's, Watershed, Environmental, Mine Reclamation, Conservation Groups Strongly Support Protective Water Quality Standard For Manganese

[Posted: Sept. 30, 2020]

10/5/2020