Friday, May 31, 2019

Senate Environmental Committee To Consider Bills June 4 To Pay Drilling Rights Owners, Change Definition Of Pollution

The Senate Environmental Resources and Energy Committee is scheduled to meet June 4 to consider a number of significant and controversial bills in opposition to the fracking moratorium in the Delaware Watershed, nutrient reduction procurement legislation and a bill that would loosen the requirements for reporting spills and redefine what constitutes pollution under the state Clean Streams Law.
The Committee will also consider the Senate version of legislation-- Senate Bill 108 (Yaw-R-Lycoming)-- to create a check off on vehicle and driver’s licenses for a Keystone Tree Fund to support the development of riparian buffers.
The House version-- House Bill 374 (Everett-R- Lycoming)-- has been stuck on the House Calendar since it was reported out of Committee on February 19.
The other bills include--
-- Compensate Gas Rights Holders In Delaware Watershed: Senate Bill 305 (Baker-R- Luzerne) would require the Delaware River Basin Commission to reimburse oil and gas rights holders for the value of their rights if DRBC adopts a moratorium on fracking in the watershed. Similar legislation was reported out of the Committee last session. It is not known whether there will be any amendments to the bill.
The House Environmental Resources and Energy Committee reported out its version of the bill-- House Bill 827 (Fritz-R- Wayne) on March 26 and it is now on the House Calendar for action.  Click Here for background on the issue.
-- Nutrient Procurement Program: Senate Bill 575 (Yaw-R-Lycoming) was just introduced May 31. It would establish a procurement program for nitrogen, phosphorus and sediment reductions needed to comply with the Chesapeake Bay Watershed pollution reduction goals and only applies to the Chesapeake Bay Watershed in Pennsylvania.  It would appropriate $20 million from the General Fund to buy reductions after a bidding process. It sets aside 20 percent of the reductions (not the funding) to benefit small farmers in most need of financial assistance. It is not known whether there will be any amendments to the bill.
Last September, Matt Johnston of the University of Maryland Chesapeake Bay Program and Dr. Emily Trentacoste of the U.S. Geological Survey presented the PA Chesapeake Bay Watershed Planning Steering Committee with the list of the top 11 most cost effective practices to reduce nitrogen going to the Chesapeake Bay based on all this experience and data in the Chesapeake Bay Program (page 73 of his presentation).
The practices include alternative crops on farmland at $1/pound of nitrogen reduced to exclusion fencing with grass buffers at $6/pound.
In between are-- less expensive to more-- were water quality conservation plans, grass buffers on row crops, barnyard runoff control, water control structures, wetland restoration, forest buffers on row crops ($2/pound), narrow buffers on row crops, narrow forest buffers on row crops and nutrient management on the land.
The small farmers and landowners that need the financial help to install these much cheaper practices per pound of pollutant removed are very, very unlikely to participate in the bidding process set up in this bill because they individually could not deliver the thousands of pounds of reductions envisioned through this process.
Only more expensive nitrogen removal technologies based on per pound of nitrogen removed could afford to bid in this process.  If the only people who can bid are the more expensive options, this process will guarantee it presents agencies with the choice of only picking expensive options.

And setting aside some of the more expensive reductions for small farmers does not make them any cheaper.
An existing, competitive Nutrient Credit Auction Program run by the PA Infrastructure Investment Authority resulted in nitrogen credit sales of $2.25 per pound last September.  The trouble is, the more expensive pollution reduction technology cannot compete in this program because their costs are too high.
-- Changing Spill Reporting Requirements: Senate Bill 619 (Yaw-R-Lycoming) makes fundamental changes to the definition of water pollution under the state Clean Streams Law by saying an accidental spill only constitutes pollution if it violates a numeric surface water quality standard in DEP’s Chapter 93 regulations.
It is not known whether there will be any amendments to the bill to address it's weaknesses.
Both DEP and the Fish and Boat Commission use the current definition of pollution to protect water quality in surface and groundwater as well as aquatic life in streams, especially when there is a spill.
The bill also makes changes to spill reporting requirements by saying a person or company who 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.
Changing Definition Of Pollution
The bill would add this language narrowing the definition of pollution in the Clean Streams Law: “An accidental discharge, spill or release that does not cause a violation of any of the numeric water quality criteria under 25 Pa. Code Ch. 93 (relating to water quality standards) for the receiving water does not constitute pollution.”
As written, the new definition would not consider a spill or discharge to groundwater as pollution, if it does not cause a violation of a numeric surface water standard in Chapter 93.
Chapter 93 protects water quality by protecting the designated water uses of streams and rivers such as for water supply, aquatic life, fishing and recreation.  This concept is fundamental to the regulation and reporting of pollution under state and federal law across multiple programs.
Every stream and river and larger stream segment in the Commonwealth is classified in one of 16 protected uses-- Aquatic Life (4), Water Supply (5), Recreation and Fish Consumption (4), Special Protection (2) or Navigation (1) (Section 93.3).
In addition, there are a series of 10 Statewide Water Uses protecting all surface waters (Section 93.4).
There are very few numeric water quality criteria in Chapter 93, in fact there are only 15 specifically named in Section 93.7 -- including alkalinity, ammonia nitrogen, bacteria, chloride, color, dissolved oxygen, fluoride, iron, manganese, nitrite plus nitrate, osmotic pressure, pH, Phenolics, sulfate and temperature.
Section 93.7 adds a general requirement that, “The list of specific water quality criteria does not include all possible substances that could cause pollution. For substances not listed, the general criterion that these substances may not be inimical or injurious to the existing or designated water uses applies.”
Section 93.6 also says “Water may not contain substances attributable to point or nonpoint source discharges in concentration or amounts sufficient to be inimical or harmful to the water uses to be protected or to human, animal, plant or aquatic life.
“In addition to other substances listed within or addressed by this chapter, specific substances to be controlled include, but are not limited to, floating materials, oil, grease, scum and substances that produce color, tastes, odors, turbidity or settle to form deposits.”
Again, not numeric water quality standards.
Chapter 93.4 also protects High Quality and Exceptional Value Waters by saying the stream’s existing water quality can not be degraded from the chemical and biological values established during a formal assessment of stream water quality.
Again, they are not necessarily all numeric water quality standards, especially for protecting aquatic life, and they are specific to a specific stream, river or specific stream segments.
Under the change in definition of pollution offered in this bill, neither DEP nor the Fish and Boat Commission could require the cleanup of a spill, require the company to fix the problem that caused a spill or take other enforcement actions like assessing penalties or natural resource damages against an individual or company unless a spill violated the “numeric water quality criteria under 25 Pa. Code Ch. 93.”
If a spill temporarily or irreparably harmed aquatic life, temporarily or permanently prevented a stream or river from being used according to its designated use, without violating a numeric standard, neither DEP nor the Fish and Boat Commission could take any action.
Importantly, the new language would also rule out taking any action against anyone causing a spill that affected groundwater and not surface water, if the spill did not violate a numeric water quality criteria in Chapter 93.
Spill Reporting
DEP’s regulations in 25 Pa Code Chapter 91.33 require any individual or company that spills a “toxic substance or another substance which would endanger downstream users of the waters of this Commonwealth, would otherwise result in pollution or create a danger of pollution of the waters, or would damage property, is discharged into these waters—including sewers, drains, ditches or other channels of conveyance into the waters—or is placed so that it might discharge, flow, be washed or fall into them” to notify DEP of the spill.
They must also notify known downstream users of the water, like a drinking water company, a farmer withdrawing water for irrigation or industrial user, of the spill so they can can appropriate steps to protect their systems.
The individual or company spilling the substance must also immediately take steps to prevent injury to property and downstream.
The bill says spills only need to be reported, NOT when they “create a danger of pollution of the waters, or would damage property,” but rather only when--
-- The individual or company first makes a determination the spill violates surface 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) and only after they take into account the steps they have taken to control or remediate the impact of the spill; and
-- Only after taking into account any control and remedial measures they have taken.
Ironically, the spill reporting requirements would require notification of spills affecting groundwater because it uses the term “waters of the Commonwealth,” but because of the proposed change in the definition of pollution, neither DEP nor the Fish and Boat Commission could take any action against the individual or company responsible for the spill if it did not violate numeric water quality criteria for surface waters.
Determining Violations Of Water Quality Standards
The practical realities of making a determination if numeric water quality standards were violated during a spill emergency under this bill would require a company or individual to--
-- Know the precise chemical composition of the material being spilled and the amount and if it isn’t known, to take, analyze and report those results [getting test results in an emergency timeframe would not be possible and even the amounts are frequently not know at the time of a spill, especially to groundwater];
-- Know the classification, designated use and any special numeric water quality standards in place at the precise point the spill would enter a surface water [possible, but unlikely, especially in circumstances where a spill happens from a tank truck, pipeline or similar sources]; 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 a numeric standard was violated at the exact time of the spill [not something that can be accomplished during an emergency caused by a spill].
Likewise, if DEP or the Fish and Boat Commission 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.
The sweeping changes made by Senate Bill 619 would fundamentally change the how Pennsylvania’s surface and groundwater is protected from pollution, significantly restrict the ability of DEP and the Fish and Boat Commission from taking action to require the cleanup and prevention of spills and to assess penalties and to the requirements for reporting spills.
Click Here for a sponsor summary of the bill.
The meeting will be held in Room 8E-B East Wing of the Capitol starting at 9:30.  Click Here to watch the meeting live online.
Sen. Gene Yaw (R-Lycoming) serves as Majority Chair of the Senate Environmental Committee and can be contacted by calling 717-787-3280 or sending email to:   Sen. John Yudichak (D-Luzerne) serves as Minority Chair and can be contacted by calling 717-787-7105 or sending email to:
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