THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE RESOLUTION

INTRODUCED BY PYLE, BENNINGHOFF, BURNS, CAUSER, CHRISTIANA, CLYMER, P. COSTA, DENLINGER, ELLIS, GABLER, GEIST, GEORGE, GIBBONS, GROVE, HALUSKA, HARHAI, HARRIS, HESS, M.K. KELLER, KORTZ, OBERLANDER, PICKETT, RAPP, ROAE, TALLMAN, VULAKOVICH, TOBASH AND STEVENSON, FEBRUARY 23, 2011

REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY, FEBRUARY 23, 2011  

A RESOLUTION

Urging the Environmental Protection Agency to stop its unlawful

application of the Guidance Memo relating to the Federal

Water Pollution Control Act, which is a substantive change to

the permitting procedure conferred on the states, and restore

the regulatory environment that existed prior to the release

of the Guidance Memo.

WHEREAS, Under section 402 of the Federal Water Pollution

Control Act (62 Stat. 1155, 33 U.S.C. § 1342), National

Pollutant Discharge Elimination System (NPDES) permits are

typically issued by states for discharge of nondredged and

nonfill material; and

WHEREAS, Once the Environmental Protection Agency (EPA)

approves a state permitting program, the state has exclusive

authority to issue NPDES permits; and

WHEREAS, Through a 1991 Memorandum of Agreement executed

between the Commonwealth of Pennsylvania and the EPA, the

Department of Environmental Protection (DEP) was identified as

the lead agency with exclusive authority for administering and

granting NPDES permits for mining-related activities in this

Commonwealth; and

WHEREAS, In September 2010, the EPA informed the DEP that it

was altering the Commonwealth's administration of its permitting

program and would conduct its own additional review of NPDES

permits; and

WHEREAS, This abrupt change in the Commonwealth's permitting

process was not the result of any accompanying Federal statutory

or regulatory changes; and

WHEREAS, As a result of this change, the DEP is required to

provide the EPA's Region 3 field office with all pending mining-

related NPDES permit applications, whose activity will either

discharge into the Monongahela River or into any designated

total maximum daily load impaired stream for its independent

review; and

WHEREAS, The EPA's Region 3 field office is not sufficiently

staffed to perform these types of reviews in a timely manner,

causing indefinite delays in the permitting process; and 

WHEREAS, The EPA's objections to the issuance of these permit

applications vary, but generally are based on what the Federal

agency perceives are inconsistencies between the applications

and an interim final Guidance Memo that the EPA released in

April 2010, designed to provide a framework for regional reviews

of surface mining projects in Appalachia based on conductivity

levels it associated with adverse impacts to streams; and

WHEREAS, Although the stated intent of the Guidance Memo is

to limit its applicability to surface mining projects only, a

number of the permits being delayed in this Commonwealth are for

activities other than this type of mining; and

WHEREAS, The Guidance Memo is based on flawed studies with

limited application and unconfirmed conclusions that cannot be

used to develop a predictive cause and effect relationship

between the EPA's established benchmark threshold for

conductivity levels and healthy streams in this Commonwealth;

and

WHEREAS, Despite the representation that the Guidance Memo is

an interim document, it nevertheless is applied by the EPA in a

binding manner in its current version, even though the EPA

continues to receive comments on it; and

WHEREAS, The EPA's application of the Guidance Memo

constitutes a substantive change in the basic application of the

permitting process; and

WHEREAS, By substituting the issuance of agency guidance for

formal rulemaking, the EPA circumvents the clear requirements of

the Administrative Procedure Act (60 Stat. 237, 5 U.S.C. § 551

et seq.) for public notice and comments; and

WHEREAS, This unnecessary extended review of NPDES permit

applications by the EPA has led to a significant backlog of

permits that could result in coal contracts being lost, mining

jobs being destroyed and this Commonwealth losing its major

source of affordable and reliable electric generation; therefore

be it

RESOLVED, That the House of Representatives of the

Commonwealth of Pennsylvania urge the Environmental Protection

Agency to stop its unlawful application of the Guidance Memo

relating to the Federal Water Pollution Control Act, which is a

substantive change to the permitting procedure conferred on the

states, and restore the regulatory environment that existed

prior to the release of the Guidance Memo; be it further

RESOLVED, That the Commonwealth of Pennsylvania reassert its

rightful role as the sole agency with permitting authority of

mining-related National Pollutant Discharge Elimination System

permits; and be it further

RESOLVED, That the Chief Clerk of the House of

Representatives transmit a copy of this resolution to the

Governor of Pennsylvania, the Environmental Protection Agency

Administrator and all members of the Pennsylvania Congressional

Delegation.