On September 15, the Independent Regulatory Review Commission voted 4 to 1 to disapprove the final Environmental Quality Board regulation setting a water quality standard for manganese DEP said would protect public health and aquatic life.

Both the Senate and House Environmental Committees voted to recommend the IRRC disapprove the regulation. Read more here.   Witnesses at the meeting for the bituminous, anthracite, non-coal mining and other industries also recommended the disapproval.

DEP will now have to decide whether to withdraw the regulation entirely or make changes to satisfy the concerns raised by the Commission or to resubmit the same regulation and hope for a different result.

The IRRC’s major concerns expressed by IRRC Commissioners were--

-- DEP did not comply with the intent of Act 40 of 2017 to promulgate a final regulation moving the point of compliance from the point of discharge to the point of water withdrawal and use.  The regulation uses the point of discharge into a stream..

-- DEP did not adequately document the expected compliance costs to all industries and the regulation will have an adverse effect on the price of goods and services, in particular energy.

-- They were concerned the regulation would not apply to acid mine drainage treatment systems DEP is responsible for operating, but it does apply to active and mine drainage treatment private industry owns.

-- They agreed with industry representatives that technology may not be available to treat to the standard DEP has in the regulation.

DEP will not make a decision until the IRRC sends them a formal disapproval letter.

Background

DEP is addressing a standard for manganese because a 2017 change in state law (Act 40), added at the last minute as part of a budget-related bill without public review, directed the Environmental Quality Board to adopt a proposed manganese standard within 90 days that includes a 1 milligram/liter manganese standard established under 25 Pa Code Chapter 93.7 and changing the point of compliance from the point pollution enters a stream to the point where it is taken out by a water user (25 Pa Code Chapter 96.3).

The 1 milligram/liter 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 change was a favor to the coal industry and shifts the burden for treating manganese discharges from mine sites and other sources from those who pollute the water to those using the water, like public water suppliers.

The change in law swept away 28 years of environmental protection for Pennsylvania waterways impacted by the consequences of acid mine drainage, and imposed additional testing, monitoring and treatment at public water supply operations along these waterways.

Local government groups, drinking water suppliers and many other groups opposed the last minute amendment, which Republican legislators ignored. Read More here.

DEP said it complied with Act 40 of 2017 by including what the law required at the proposed rulemaking stage of this regulation.

Public Comments

DEP said it received 957 comments on the proposed regulation-- 924 supporting the protective 0.3my/L health standard and the existing point of compliance at the discharge point.

Three public water systems said changing the point of compliance to the point where the water is taken from a stream for use, from the existing point of compliance for the standard when water is discharged into a stream, would cost them an estimated $100 million.

Pennsylvania American Water said capital costs of moving the point of compliance to where water is taken from a stream would be $40-$60 million in capital costs, plus up to $1.4 million annually in operating costs.

Reading Area Authority estimated $2.1 million in capital costs, plus $15.8 million in 20 year operating costs.

The City of Lancaster said moving the point of compliance to where the water is taken out would result in tens of millions in capital costs and millions of dollars in lost water filtration plant efficiency.

Nine PA Sportsmen’s, watershed, environmental groups strongly supported the 0.3mg/L manganese Water Quality Criteria for Toxic Substances and not changing the existing point of compliance at the point of discharge, as well as the PA Rural Water Association, PA Municipal Authorities Association, Fish & Boat Commission, PA Environmental Council and the Chesapeake Bay Foundation.  Read more here.

DEP notes in its summary the Water Resources Advisory Committee and Public Water Systems Technical Assistance Center Board voted to support the final-form rulemaking and the Aggregate Advisory Board offered no comments.

The Mining and Reclamation Advisory Board passed a motion recommending the EQB not proceed with the final regulation.

On August 9, the Environmental Quality Board voted 16 to 3 to approve a final regulation, with representatives of both Sen. Gene Yaw (R-Lycoming) and Rep. Daryl Metcalfe (R-Butler) voting no.

[Posted: September 15, 2022]

9/19/2022