Senate Environmental Committee Reports Out Bills Making Fundamental Changes To The Definition Of Water Pollution, Setting Up Costly Chesapeake Bay Cleanup Program

On June 4, the Senate Environmental Resources and Energy Committee approved and reported out bills allowing a company who causes pollution or a spill to surface or groundwater to determine if it is pollution and whether it should be reported to DEP and a nutrient reduction procurement bill that guarantees taxpayers will pay the highest price per pound for pollution reductions to meet Chesapeake Bay cleanup obligations.

A bill to compensate drilling rights owners if a fracking moratorium is adopted in the Delaware Watershed was also reported out.

All three bills were moved primarily with Republican votes with Democrats generally opposed.

In a bipartisan vote, the Committee reported out 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.  Click Here for the vote in Committee. (when posted)

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 bills include--

-- Changing Spill Reporting Requirements/Redefining Pollution: Senate Bill 619 (Yaw-R- Lycoming) makes fundamental changes to the definition of water pollution under the state Clean Streams Law to require an individual or company who causes pollution to surface or groundwater to determine if it should be reported to DEP and whether it is pollution in the first place.

The law now says, “contamination of any waters of the Commonwealth such as will create or is likely to create a nuisance or to render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic, municipal, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life.”

And it is DEP that determines whether a discharge constitutes pollution.  The bill shifts the responsibility to make the determination if a spill or discharge causes pollution to the person causing the spill.

The bill also says spills and contamination to groundwater don’t even need to be reported to DEP, NOT when they “create a danger of pollution of the waters, or would damage property,” as in the current regulations, but rather only when--

-- The individual or company first makes a determination the spill violates a specific, numeric surface water quality criteria under DEP’s regulations; 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.

There are very few numeric water quality standards in DEP’s regulations because judgments are made based on whether pollution harms people, aquatic life or the environment.

Under the change in definition of pollution 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 DEP’s regulations.

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.

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.
The bill was amended with a minor change. Click Here for more.   Click Here for the vote in Committee. (when posted)

Opposition
The PA Environmental Council opposed Senate Bill 619 saying, “These sweeping changes made by Senate Bill 619 would fundamentally change 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.”
PennFuture also sent a letter to Committee members saying, “We urge you to strongly oppose this dangerous bill that would allow for our waters we use for drinking and recreation to be polluted without the knowledge of the Department of Environmental Protection and the Pennsylvania Fish and Boat Commission, which use the current definition of pollution to address water quality in the Commonwealth. This bill would fundamentally change water protection in Pennsylvania.”

-- Nutrient Procurement Program: Senate Bill 575 (Yaw-R-Lycoming) would establish a taxpayer funded procurement program for nitrogen, phosphorus and sediment reductions needed to comply with the Chesapeake Bay Watershed pollution reduction goals in all or part of 43 counties in the state.

As written, it would guarantee only large companies with access to lots of resources could take part in the complicated bidding process established in the bill.  These companies typically promote higher cost bricks and mortar treatment solutions to deliver thousands of pounds of pollution reduction.

No small farmer, who could install much cheaper Best Management Practices in terms of cost per pound of pollution reduced through the installation of proven green infrastructure, would bother to participate in bidding with all that upfront expense and paperwork.

If the only people who can bid in these complicated process are companies with the more expensive options, this process will guarantee it presents agencies with the choice of only picking more expensive options.

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.

None of the top 11 most cost effective practices included bricks and mortar treatment solutions.

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. 
The bill was amended to make it a Title 27 bill. Click Here for the vote in Committee. (when posted)

-- 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.  Click Here for the vote in Committee. (when posted)

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.

The bills now go to the full Senate for action.

Click Here to watch a video of the meeting.

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: gyaw@pasen.gov.   Sen. John Yudichak (D-Luzerne) serves as Minority Chair and can be contacted by calling 717-787-7105 or sending email to: yudichak@pasenate.com.

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Sen. Yaw Receives Public Official Of The Year Award From PA Water Environment Association