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

Nine sportsmen's, watershed, environmental, mine reclamation and conservation groups submitted comments supporting the proposed Environmental Quality Board regulation setting a more protective water quality standard for manganese and not changing the point of compliance for discharges into rivers and streams.

The groups include-- Pennsylvania Fly Fishing Association, Mountain Laurel Chapter of Trout Unlimited, Eastern Pennsylvania Coalition for Abandoned Mine Reclamation, Stonycreek-Conemaugh Improvement Project, Mountain Watershed Association, Pennsylvania Environmental Defense Foundation, PennFuture, Center for Coalfield Justice and the Pennsylvania Chapter of the Sierra Club.

"The Concerned Groups support changing the manganese criterion from 1.0 mg/l to 0.3 mg/l to fully protect the public health of Pennsylvania’s citizens and the fish and other aquatic life in the Commonwealth waters. We strongly oppose alternative language which would change the point of compliance from the point of discharge to the point at which water is taken from a stream.”

[Note: A 2017 change in state law, added at the last minute as part of a budget-related bill, 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. Click Here for more.

[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 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.]

[Local government groups, drinking water suppliers and many other groups opposed the last minute amendment, which Republican legislators ignored. Click Here for more.]

The comments from the groups said, “First and foremost, the directive in Act 40 of 2017 to adopt a regulation moving the point of compliance from the point of discharge to the point at which water is taken from a stream violates the requirement in Article III, Section 3 of the Pennsylvania Constitution that bills contain no more than one subject which shall be clearly expressed in the title.

“The single subject requirement is violated where the legislation at issue does not possess a single unifying subject to which all the provisions of the act are relevant. Pennsylvanians Against Gambling Expansion Fund, Inc. v. Com., 877 A.2d 383, 400-403 (Pa. 2005).

“The clear expression of title requirement is violated where the title of the act fails to put a reasonable person on notice as to the act’s contents. Id.

“The Concerned Groups submit that Act 40 fails the constitutional requirement in both respects. Act 40 also was enacted contrary to Article III, Section 1 of the Constitution which prohibits altering or amending a bill, on its passage through either House, to change its original purpose.

“Moreover, Act 40 also violates Article III, Section 32 of our Constitution which prohibits the passage of any special law that inter alia regulates mining, i.e., Act 40 is an unconstitutional special law.

“Even absent the constitutional infirmities of Act 40, the act directs the Board to promulgate a regulation that violates the fundamental precept of Pennsylvania law: the prevention, reduction and treatment if necessary, of pollution entering these waters is the responsibility of the polluter not the public or other downstream users.”

On the standard itself, the groups said, “The science is clear that the old standard is not protective of human health and a new standard is necessary.”

“This change is fully supported and based upon sound science to protect the public health of the Commonwealth’s citizens. This change also would apply at the discharge point which would protect other sensitive uses, such as fish and aquatic life and recreation.”

“... (T)he science supports the fact that there will be impacts to fish, aquatic life, and recreational uses if manganese is allowed to be unregulated in waters between the point of discharge and PWS intake.

“Should the Board change the point of compliance, DEP staff should conduct a comprehensive risk assessment (similar to the public health risk assessment that was done to change the protection criterion [PA DEP 2019] based upon the most current literature available on the toxicity of manganese to fish and aquatic life and the nuisance impacts of manganese precipitates to recreational activities downstream of these unregulated discharges.

“This is extremely important since this regulatory change would place thousands of miles of headwater streams and the aquatic life they support at risk.

“There is not only a legal obligation required by The Clean Streams Law and the federal Clean Water Act but also a constitutional duty for the trustee of the Commonwealth’s natural resources under Article I, Section 27 of our Constitution to protect them for current and future generations.”

“The fundamental non-constitutional legal flaw in moving the point of compliance from discharge to intake is that it would permit the unregulated discharge of manganese, a pollutant, into the waters of the Commonwealth until it reaches a public water supply intake.

“As a matter of law and sound public policy, the prevention, reduction, and treatment if necessary, of pollution entering these waters is the responsibility of the polluter not the public or other downstream users. See, e.g., Commonwealth v. Barnes & Tucker Co. 371 A.2d 461 (Pa. 1977).

“The transfer of the point of compliance acts as a sub rosa transfer of the cost and responsibility of treating mine drainage from the polluters to the public. Put another way, Act 40 directs this Board to enact a regulation which creates a public subsidy of the mining industry’s treatment costs, in addition to the issues regarding aquatic and public health impacts.

“Moreover, from a policy standpoint, moving the point of compliance to public water supply intakes threatens the waters of the Commonwealth and the fish and other aquatic life therein.”

“The Concerned Groups wholeheartedly support the change from 1.0 mg/l to 0.3 mg/l. The Board should reject any change in the point of compliance as it is based on bad science, is deleterious to the health of the Commonwealth’s citizens and aquatic life, places the financial burden on water suppliers and citizens rather than the polluters, and stems from a constitutionally infirm statute.

“Maintaining the discharge point as the point of compliance protects all water uses between the point of discharge and the point of a downstream drinking water intake. The Clean Streams Law, the Safe Drinking Water Act, the federal Clean Water Act and Article I, Section 27 require nothing less.”

Click Here for a copy of the comments and detailed reference footnotes.

950 comments have been submitted for the record. Among those submitting comments supporting the more protective manganese standard and against changing the point of compliance from where pollutants are discharged to the point of intake are--

-- PA Rural Water Association

-- PA Municipal Authorities Association

-- PA American Water

-- PA Chapter National Association Of Water Companies

-- Reading Area Water Authority

-- The York Water Company

-- Water Works Operators’ Association Of PA

-- Fish & Boat Commission

-- PA Environmental Council

-- Chesapeake Bay Foundation

Click Here to see other comments submitted on the proposal. 950 comments have been submitted for the record. The comment period closed September 25.

Click Here for a copy of the proposal and other background documents.