Final Response to Comments

Response to Comments

4/23/10

Comments received December 5, 2008 from Peter Talbot/Delaware County Safe Drinking Water Coalition, Inc. (the “Coalition,” Middletown To wnship Land Conservancy, Inc. (M.T.L.C.), and Upper Providence for Open Space (U.P.O.S.)).

Comment 1. The Coalition, M.T.L.C. and U.P.O.S. oppose the repeal of the following grounds: (i) The current PA Department of Enviro nmental Protection (PA DEP) antidegradation regulation (25 PA CODE 93.4) is not the same, in terms, as your

40 C.F.R. 131.32. It weakens the clearly stated federal rule by excessive and confusing language, and it lacks th e absolute prohibition against the degradation of the very high quality (“Exceptional Value”) waters.

EPA Response: Pennsylvania submitted an antidegradati on policy and implementation methods (25 PA Code 93.4) for EPA CWA review and approval. EPA’s CWA approval of Pennsylvania’s antidegradation policy and im plementation was reviewed against 40 C.F.R. 131.12, rather than 40 C.F.R. 131.32. While the Pennsylvania submission is not 40 C.F.R. 131.12 verbatim, the content of Pennsylvania’s antidegradation policy and implementation methods are what EPA expects in a state submission that fully comp lies with, i.e., is consistent with, 40 C.F.R. 131.12. The full EPA approval documen ts are attached in Attachments 1 and 2. The Pennsylvania antidegradation policy does not lack such prohi bition against degradation of the very high quality (“Exceptional Va lue”) waters, see 25 PA Code 93.4a(d).

(ii) The said PA DEP anti-degradation reg ulations fail to specially designate waters of a state and national park as required by 40 C.F.R. 131.32, and as a result, there is no special prohibitions applicable to either the Valley Forge National Park or the great Ridley C reek State Park, the state regulatory regime being unacceptably disrespe ctful in this regard.

EPA Response: EPA’s CWA approval of Pennsylvani a’s antidegradation policy and implementation was reviewed against 40 C.F.R. 131.12, rather than 40 C.F.R. 131.32. 40 C.F.R. 131.12(a)(3) does not require a State to designate or classify any specific waters for Outstanding National Resource protection simply because the wa ter is a water of a State or National Park. However, Pennsylvania’s antidegradation policy stat es that any water (regardless of whether or

not it is a State or National Pa rk water) that meets the requir ements of 25 PA Code 93.4b(b) qualifies as an Exceptional Value Water. As stat ed above, EPA has concluded that this provision

is consistent with the federal antid egradation regulation at 40 C.F.R. 131.12.

(iii) In practice, the state regulatory regime is so rarely and weakly enforced as to have permitted a 20 year process of degradation of the community water supplies of Delaware County, Pennsylvani a, so severe that 24 Miles of the Crum Creek estuary are listed as “i mpaired,” the community’s SpringtonFinal Response to Comments

Reservoir is listed as suffering “trophic status impairment,” the fish in the Reservoir are tumorous, and former prime fishing and recreational areas on the reservoir have been closed, thus categorically violating 33 U.S.C. 1313(c)(2)(A). See CRC, Natural lands Trust Watershed Conservation Plan,

2005.

EPA Response: The issue described above is related to implementation of Pennsylvania’s antidegradation policy and implementation procedures . It is not within the scope of EPA’s CWA review of Pennsylvania’s submission of an an tidegradation policy and implementation methods. The scope of EPA’s CWA review is limited to whether or not Pennsylvania’s submission substantially complies with, i.e., is consistent with, 40 C.F.R. 131.12. EPA’s approval documents for Pennsylvania’s antidegradation policy and implementation methods can be found

in Attachments 1 and 2.

(iv) Current continuing non-enforcement of the anti-degradation rules forced residents of the Ridley Creek Valley (neighboring the Crum) to form the undersigned Coalition to stop a PA DEP permitting that threatens an identical level of harm to the Ridley Creek water supply system as have previously happened in the valley of the Crum. In the face of overwhelming independent expert testimony by 4 pr ofessionals and two professors that degradation would occur from the subj ect proposals, permits were granted above the designated “High Quality” Ridl ey Creek, at the point of its water in-take collecting pond, and withou t requiring “economic and social justification,” provided for in PA DEP’s own rules. Failing every attempt to stop the permitting, the Coalition was forced to take legal action under the citizen suit provisions of the CWA, a nd the case is now pending under U.S. Eastern District docket No. 07-1782, a nd U.S. 3’d Circuit Ct. of Appeals Docket No. 07-4757. The case specifica lly alleges violation of the federal rule

40 C.F.R. 131.32 AND the order of the Court in the Raymond Proffitt case, in that U.S. EPA has not enforced the federal law, as required in that order.

EPA Response: The issue described above is relate d to implementation of Pennsylvania’s antidegradation policy and implementation procedures . It is not within the scope of EPA’s CWA review of Pennsylvania’s submission of an an tidegradation policy and implementation methods. The scope of EPA’s CWA review is limited to whether or not Pennsylvania’s submission substantially complies with, i.e., is consistent with, 40 C.F.R. 131.12. EPA’s approval documents for Pennsylvania’s antidegradation policy and implementation methods can be found

in Attachments 1 and 2.

The commenter mentions litigation brought against the Pennsylvania Department of Environmental Protection and EPA, but does not explain how this li tigation supports the assertion that withdrawal is inappropriate. The li tigation was resolved in the EPA's favor, and it

is not clear to EPA that the outcome lends any support to the commenter's opposition to the Agency's decision today.Final Response to Comments

(v) The proposed repeal of 40 C.F.R. 131.32, at this time, and while this case is pending, has the appearance of being lit igation-related, disingenuous, and for the purpose of suggesting that a determination has been made of compliance with PA DEP, when in fa ct they have not complied. There is no evidence presented by U.S. EPA that the matter of Pennsylvania’s level of compliance has been in any way investigated or de termined. Therefore, the decision to repeal must be deemed arbitrary, ba seless and motivated by other than regulatory reasons.

EPA Response: The issue described above is relate d to implementation of Pennsylvania’s antidegradation policy and implementation procedures . It is not within the scope of EPA’s CWA review of Pennsylvania’s submission of an an tidegradation policy and implementation methods. The scope of EPA’s CWA review is limited to whether or not Pennsylvania’s submission substantially complies with, i.e., is consistent with, 40 C.F.R. 131.12. EPA’s approval documents for Pennsylvania’s antidegradation policy and implementation methods can be found

in Attachments 1 and 2.

(vi) The proposed repeal of 40 C.F.R. 131.32, at this time, in the waning weeks of the current Administrator’s tenure, is an action directly contrary to the expressed will of the people of the Unit ed States, who just voted for a change of policy toward a greater, not a lesser level of environmental protection, this having been one of the primary electoral issues. To this extent, the proposed

rule is anti-democratic in the extreme.

EPA Response: The issue outlined above is not releva nt or within the scope of EPA’s CWA review of Pennsylvania’s submission of an an tidegradation policy and implementation methods. The scope of EPA’s CWA review is limited to whether or not Pennsylvania’s antidegradation policy complies with, i.e., is consistent wit h, 40 C.F.R. 131.12. EPA’s approval documents for Pennsylvania’s antidegradation policy and impl ementation methods can be found in Attachments

1 and 2.