IRRC Sends Order Laying Out Formal Reasons For Disapproving The Final EQB Manganese Reg; EQB/DEP Now Have 40 Days To Decide How To Proceed

On October 11, the Independent Regulatory Review Commission formally sent DEP its order laying out the reasons for its September 15 disapproval of the final Environmental Quality Board regulation setting a water quality standard for manganese DEP said would protect public health and aquatic life.

The EQB/DEP will now have 40 days-- until November 20-- to decide whether to resubmit the regulation to IRRC with or without changes, if they want to proceed with the rulemaking.

The EQB is scheduled to meet October 12 and DEP will no doubt give the Board an update on the status of this regulation.  Read more here.

Reasons For IRRC Disapproval

The reasons for the IRRC disapproval are no surprise--

-- 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.

-- IRRC agreed with the House Environmental Committee that including two alternatives and inconsistent points of compliance in the proposed rulemaking is a violation of the Regulatory Review Act.

-- DEP did not adequately document the expected compliance costs on the regulated community, the state, political subdivisions and the private sector, which was also a concern of the Senate Environmental Committee.

-- IRRC said it was not clear if it was technically feasible for some dischargers to meet the manganese standard in the final rulemaking and the financial impact of this possibility was not considered.

-- Compliance with the new standard, in particular the coal industry, could lead to higher costs of their product and increased costs for energy producers in the state and therefore this policy decision is of such substantial nature that it requires legislative review.

“If the EQB amends and resubmits the rulemaking by moving the point of compliance as contemplated by Act 40, the EQB must quantify the fiscal impact this will have on the regulated community. 

“First, this requires information on the savings that will be realized by dischargers of water. 

“Second. it must provide information on the costs that will be shifted to those that withdraw water under the existing standard of 1.0 mg/L. 

“Finally, information is required on the costs that will be shifted to those that withdraw water under the proposed standard of .3 mg!L. This information should be included with the report required to be filed with the resubmitted rulemaking.”

Click Here for a copy of the IRRC Order.

Visit the Environmental Quality Board webpage for a copy of the regulation--  See August meeting.

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.

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. 

Related Articles:

-- Chesapeake Bay Executive Council Elects EPA Administrator As Chair, Starts Discussion On Steps Needed For States To Get Closer To Meeting 2025 Pollution Reduction Milestones  [PaEN]

-- DEP Begins Accepting Applications For $103.4 Million In Abandoned Mine Reclamation Grants Starting Oct. 24  [PaEN]

-- Guest Essay: Before The Federal Clean Water Act, There Was The Rivers And Harbors Act Of 1899 To Help Clean-Up Pittsburgh’s 3 Rivers - By James M. Seif, Former EPA Region III Administrator, Secretary of DEP  [PaEN]

[Posted: October 11, 2022]  PA Environment Digest