RMMLF Mineral Law Newsletter
(By Joseph K. Reinhart, Sean M. McGovern, Hannah L. Baldwin)
EQB Approves Changes to Water Quality Criterion Limit
At its December 17, 2019 board meeting, the Pennsylvania Department of Environmental Protection’s (PADEP) Environmental Quality Board (EQB), a 20-member independent board that reviews and adopts all PADEP regulations before publication for public comment, approved PADEP’s proposed rulemaking to set a new ambient water quality criterion limit for manganese. See Proposed Rulemaking Preamble, PADEP, “Water Quality Standard for Manganese and Implementation” (Dec. 17, 2019); see also Vol. XXXVI, No. 3 (2019) of this Newsletter.
The amendments to water quality standards and standards implementation for manganese were developed pursuant to an October 30, 2017, amendment to section 1920-A of the Administrative Code of 1929, 71 Pa. Stat. § 510-20, known as Act 40 of 2017, directing the EQB to promulgate a manganese water quality criterion within 90 days. See Water Quality Standard for Manganese, 48 Pa. Bull. 605 (Jan. 27, 2018) (advance notice of proposed rulemaking). The Pennsylvania General Assembly passed the Administrative Code change as part of a budget package, with the requirement related to manganese regulation added as an amendment in the Senate.
The amendments approved by the EQB in December 2019 propose to delete manganese from Table 3 at 25 Pa. Code § 93.7 (relating to specific water quality criteria) and add manganese to Table 5 at 25 Pa. Code § 93.8c (relating to human health and aquatic life criteria for toxic substances), changing the numeric water quality criterion standard for manganese from 1 mg/L to 0.3 mg/L. Additionally, the amendments propose two alternatives for a point of compliance with the manganese water quality standard:(1) the point of all existing or planned surface potable water supply withdrawals; or (2) maintenance of the existing point of compliance of all surface waters (i.e., near the point of discharge). If adopted, coal mines, power plants, and other manganese dischargers will face increased treatment costs, regardless of which point of compliance option is implemented. PADEP recommended a 45-day public comment period, including one public hearing to be held in the Harrisburg area.
The proposed rule will be published for public comment in a forthcoming issue of the Pennsylvania Bulletin. It will take at least a year for the package to progress through the Regulatory Review Act review process, which will involve review by the public, the House and Senate Environmental Resources and Energy Committees, and the Independent Regulatory Review Commission.
Update on Mandamus Action to Compel Promulgation of Manganese Standards
On November 12, 2019, the Commonwealth Court of Pennsylvania dismissed the March 29, 2019, mandamus action filed by Senate President Pro Tempore Joe Scarnati (R-Jefferson) and Senator Gene Yaw (R-Lycoming), Majority Chair of the Senate Environmental and Natural Resources Committee, to compel PADEP and the EQB to set a water quality standard for manganese as required by Act 40 of 2017. See Scarnati v. PADEP, 220 A.3d 723 (Pa. Commw. Ct. 2019); see also Vol. XXXVI, No. 2 (2019) of this Newsletter.
The court found the petitioners failed to show how the regulator’s failure to propose new standards for manganese within 90 days of the legislature’s passage of Act 40 of 2017 affected the senators’ ability to introduce or vote on legislation, which is the criterion the court uses to determine if a lawmaker has legislative standing.
Senators Scarnati and Yaw filed a notice of appeal of the commonwealth court’s decision to the Pennsylvania Supreme Court on December 11, 2019. See Scarnati v. PADEP, No. 94 MAP 2019 (Pa. filed Dec. 11, 2019). Initial briefs are due to the court in early March.
PADEP ANNOUNCES RELEASE OF ACT 54 REPORT, ASSESSING MINING IMPACTS
On December 20, 2019, the Pennsylvania Department of Environmental Protection (PADEP) announced the release of the fifth report in a series that details the effects of underground mining on structures and water resources. See PADEP, “The Effects of Subsidence Resulting from Underground Bituminous Coal Mining in Pennsylvania, 2013-2018” (Dec. 20, 2019); see also Vol. XXXII, No. 1 (2015) of this Newsletter (coverage of 2008–2013 report). This report, known as the Act 54 Report, was prepared by researchers at the University of Pittsburgh in accordance with the 1994 amendments (Act 54) to the Bituminous Mine Subsidence and Land Conservation Act of 1966. Act 54 requires PADEP to compile data and report findings on the effects of underground mining on land, structures, and water resources to the Governor, the Pennsylvania General Assembly, and PADEP’s Citizens Advisory Council every five years. 52 Pa. Stat. § 1406.18a. The report covers 49 active underground bituminous coal mines underlying 28,854 acres of Pennsylvania. Out of the total mining acreage, 62% is classified as longwall, 29% as room-and-pillar, and 9% as pillar recovery mining.
The 995-page report covers effects related to structures, water supply, land damages, hydrologic balance, groundwater, streams, and wetlands in detail. Notable findings include a reduction in water supply impacts for which the mining company was liable—192 incidents, down from 371 in the last report (covering 2008–2013). The average length of time to resolve operator-liable water supply issues dropped from 415 days to 305.
The report’s primary recommendation focuses on PADEP’s current data tool, the Bituminous Underground Mining Information System (BUMIS), which PADEP has used to track impacts of mining operations on surface structures and water supplies since Act 54 was passed in 1994. Due to the age of the system, BUMIS does not easily integrate with modern tools, which, according to the report, strains the already limited resources of PADEP. The report suggests that modern data tools, including data standardization, written protocols, standard electronic data forms and electronic submission, and especially rapid error and standards checking following data submission, can improve PADEP’s efforts to track mining impacts and provide increased protection to the commonwealth and its citizens.
PADEP TO PRESENT DRAFT CARBON TRADING REGULATIONS FOLLOWING RGGI MODEL
As reported in Vol. XXXVI, No. 4 (2019) of this Newsletter, in October 2019 Governor Tom Wolf issued Executive Order No. 2019-07 instructing the Pennsylvania Department of Environmental Protection (PADEP) to develop and present to its Environmental Quality Board (EQB) a proposed rule to limit carbon dioxide (CO2) emissions from fossil fuel-fired electric power generators consistent with the Regional Greenhouse Gas Initiative (RGGI) Model Rule. See Exec. Order No. 2019-07, “Commonwealth Leadership in Addressing Climate Change Through Electric Sector Emissions Reductions,” 49 Pa. Bull. 6376 (Oct. 26, 2019).
PADEP has now taken the first step toward following the Governor’s directive. On January 30, 2020, PADEP announced that it will present the concepts of the proposed rule at the meeting of the agency’s Air Quality Technical Advisory Committee (AQTAC) on February 13, 2020. See Press Release, PADEP, “DEP to Unveil Draft Regulations to Cap CO2 Emissions Using RGGI Model” (Jan. 30, 2020).
The draft proposed rule would also allow PADEP to determine whether to participate in the CO2 allowance auctions with other RGGI member states, or to conduct a separate Pennsylvania-run auction. See Draft Proposed 25 Pa. Code § 145.401. PADEP will determine to participate in the multi-state auction if one is available that can provide benefits to Pennsylvania that meet or exceed those conferred through the Pennsylvania-run auction and that would be consistent with the auction process outlined in sections 145.401–.414 of the draft proposed rule, which are provisions relating to the conduct of auctions that PADEP added to the RGGI Model Rule. Id.
Following the presentation of the draft proposed rule at the February 13 AQTAC meeting, PADEP indicated that its next steps in the development of the rule are: (1) continued engagement with the general assembly, stakeholders, and Pennsylvania residents and businesses; and (2) completion of power sector modeling and identification of allowance caps. While the current draft of the proposed rule is already available, PADEP has indicated that it will present the concepts of the rule at the February 13 meeting, and will present the proposed rule itself at the AQTAC’s next quarterly meeting in April 2020.
According to PADEP’s anticipated timeline, the proposed rule will then be presented to the EQB on July 21, 2020, and open for public comment in fall 2020. PADEP then anticipates presenting the final rule to the agency’s advisory committees in spring 2021 and to the EQB in summer 2021, with an anticipated effective date in fall 2021. The February 13 AQTAC meeting is open to the public, and meeting minutes will be posted on the AQTAC’s website following the meeting.
On a parallel track, in November 2019 Republican lawmakers introduced companion bills, Senate Bill 950 and House Bill 2025, in response to Governor Wolf’s executive order. The bills would prohibit PADEP from joining RGGI, establishing a CO2 cap-and-trade program, or taking other action designed to limit, control, or abate CO2 emissions without submitting the proposal through the general assembly and going through a detailed review process set forth in the bills. The bills are currently with their respective Environmental Resources and Energy Committees.
We will continue to closely monitor what is likely to be a robust and contentious rulemaking and legislative process over the coming months and provide updates accordingly.
IRRC APPROVES TRIENNIAL WATER QUALITY STANDARDS
On January 31, 2020, the Independent Regulatory Review Commission (IRRC) issued an order approving the Environmental Quality Board’s (EQB) final proposed rule updating Pennsylvania’s water quality criteria (WQC) and designated water uses under 25 Pa. Code ch. 93. The IRRC’s approval order, the final draft of the updated regulations, and other related rulemaking documents are available on IRRC’s website at http://www.irrc.state.pa.us/regulations/RegSrchRslts.cfm?ID=3193. The Pennsylvania Department of Environmental Protection (PADEP) is required to review and modify, as appropriate, the WQC at least every three years under section 303(c) of the Clean Water Act, 33 U.S.C. § 1313(c). PADEP uses the WQC to set designated uses of waters of the commonwealth, which is done by setting instream narrative and numerical criteria PADEP determines are necessary to protect those uses. These instream criteria are implemented through pollution control measures on individual sources that discharge to those waters, such as treatment requirements and effluent limitations in individual National Pollutant Discharge Elimination System permits, including those issued in connection with mining activities.
The revised WQC make several changes to 25 Pa. Code § 93.7 tbl.3 (specific water quality criteria) and 25 Pa. Code § 93.8c tbl.5 (human health and aquatic life criteria for toxic substances). First, PADEP updated the aquatic life WQC for ammonia and bacteria contained in Table 3. Second, PADEP updated the human health WQC for several toxic substances in Table 5 to adopt the U.S. Environmental Protection Agency’s 2015 updated recommended WQC. Specifically, the updated Table 5 creates more stringent criteria for 55 specific toxic substances. The updated Table 5 also sets less stringent criteria for 18 specific toxic substances than the previous criteria. Finally, the updated Table 5 adds nine additional toxic substances to the table.
Designated water uses and drainage lists are set forth in 25 Pa. Code § 93.9. PADEP revised the drainage lists for several waters of the commonwealth. However, according to PADEP, these changes were administrative and do not make substantive changes to the actual designated uses of these waters. Finally, PADEP revised 25 Pa. Code § 93.8d(c) to clarify that the Biotic Ligand Model now must be used, rather than may be used, for the development of new or updated site-specific criteria for copper in freshwater systems.
Copyright © 2020, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
