Court: Republican Senators Lack Standing To Sue Environmental Quality Board Over Missed Deadline On Adopting Less Protective Manganese Standard
On November 12, Commonwealth Court ruled Senate President Pro Tempore Joe Scarnati (R-Jefferson) and Sen. Gene Yaw (R-Lycoming), Majority Chair of the Senate Environmental Resources and Energy Committee, lacked standing to file a petition for mandamus relief to compel DEP and the Environmental Quality Board to set a less protective water quality standard for manganese as required by an October 2017 rider to an Administrative Code budget bill.
The 2017 amendment was added to the bill at the last minute as a favor to the coal industry and shifts the burden for treating manganese discharges from abandoned mine sites and other sources from those who pollute the water to those using the water, like public water suppliers.
The Court concluded, "Senators do not identify any direct interest beyond that of the common citizen in compliance with Act 40. They do not allege that the EQB’s failure to promulgate proposed regulations within the timeframe impaired their authority to legislate or to vote on legislation. Act 40 does not involve internal affairs of the Senate or otherwise impact the exercise or effect of legislative power. As a result, Senators lack standing in their capacity as legislators.”
The 2017 change sweeps 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.
Current science shows manganese is harmful to human health as a possible nervous system toxin with implications to early childhood development at levels that are less than the threshold levels that impact aquatic life.
The amendment directed the Environmental Quality Board to adopt a proposed manganese standard within 90 days that includes the 1 milligram/liter manganese standard established under 25 Pa Code Chapter 93.7 and insure the standard is met at the point of intake for water suppliers (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. Click Here for more.
Local government groups, drinking water suppliers and many other groups opposed the amendment. Click Here for more.
In January of 2018, DEP published an advance notice of proposed rulemaking requesting information on changing the water quality standard.
DEP said it will use the information received to “evaluate the adequacy of the existing manganese water quality criterion when the point of compliance is moved to the location of an existing or planned surface potable water supply withdrawal.”
DEP consulted with the Small Water Systems Technical Assistance Center, the Agricultural Advisory Board and the Water Resources Advisory Committee.
On July 25, the Water Resources Advisory Committee overwhelmingly urged DEP to move forward with a proposal to set a new toxic substances health water discharge limit for manganese of 0.3 mg/L, rather than 1 mg/L, because existing literature shows the 1 mg/L standard is not protective of human health due to its neurotoxic impacts.
DEP would still propose moving the point of compliance of the 1 mg/L standard to the point of water intake as required by Act 40, although several members of the Committee were opposed to moving the compliance point from “polluters to the public.”
The new proposed 0.3 mg/L toxic health standard would apply to all discharges going into surface waters as the 1 mg/L had been before Act 40.
There will still be increased costs for the proposed new standard to water suppliers, but less than moving the compliance point for the 1 mg/L standard alone.
During the Water Resources Committee discussion, Jeff Hines, P.E., York Water Company, said the cost of meeting the original change required in Act 40 alone would impose an estimated upfront cost of $1 million per 1 million gallons per day of water treated, just to get to the .05 mg/L secondary contaminant level, plus $100,000 in annual operating costs.
Even at the .05 mg/L standard, Hines said customers could experience some taste, oder and laundry stain issues.
Hines said meeting the proposed 0.3 mg/L standard would still be significant, but not as high as if the Act 40 change was done alone.
DEP said of the 340 surface water treatment plants in the state, they received comments saying 280 of those plants would have to do an evaluation to determine what water treatment process changes would be needed to meet the Act 40 change.
DEP also said one major water supplier estimated a $40 to $60 million facility upgrade would be needed to meet the Act 40 change alone.
Hines voted against the Committee recommendation, only because it would still impose significant costs on water suppliers like Act 40. Click Here for more.
(Photo: Senators Scarnati, Yaw)
[Posted: November 12, 2019]
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