Two senior Republican senators want an appellate court to force the state Department of Environmental Protection to issue new clean water standards for a byproduct of coal mining.
Senate President Pro Tempore Joe Scarnati, R-Jefferson, and Senate Environmental Resources & Energy Committee Chairman Gene Yaw, R-Lycoming, filed the suit in late March in Commonwealth Court.
At heart is how manganese, a naturally occurring metal found in rocks and soil, is treated and measured in Pennsylvania’s waterways.
Right now, the state Department of Environmental Protection regulates how much manganese can be in water when it’s discharged into Pennsylvania streams and other waterways. A measurement at or below the maximum allowable level — 1 part per million — “must be achieved in all surface waters at least 99 percent of the time,” according to the current rule.
In 2017, the General Assembly directed a DEP board to change the regulation so the standard only has to be met at the point where drinking water is extracted.
The rule change would result in millions of dollars in savings for the coal industry, as the Pittsburgh Post-Gazette reported last year — and it would shift the cost to public water suppliers.
Drew Crompton, a top aide to Scarnati, said the legal action is as much about principle as the rule itself.
“I’m not quite sure why there’s been an inability to do this to date,” Crompton said.
Crompton said the acceptable level of manganese in drinking water would not change under the new regulation.
Steve Hvozdovich, Pennsylvania campaigns director for Clean Water Action, described the shift as a “measuring loophole” that would “allow significant manganese discharges to continue in a large number of streams in the state.”
The U.S. Environmental Protection Agency rates manganese in water as a secondary concern. While manganese can make water taste metallic or become cloudy or dark, drinking it isn’t considered a health concern.
However, a 2010 study found that “children exposed to high concentrations of manganese in drinking water performed worse on tests of intellectual functioning than children with lower exposures.” Scientists have said more research is necessary to determine what a safe level is.
As for animals, Hvozdovich said that manganese can be toxic to aquatic life like trout and can accumulate in fish.
By placing the onus of compliance on downstream water users, the regulation could also mean increased expenses for state water utilities.
The DEP has taken some steps to meet the rule change. In January 2018, the agency asked for scientific input and last fall presented the findings to a state water quality committee, according to former DEP secretary David Hess’s environmental digest.
An agency spokeswoman declined to comment on ongoing litigation.
Correction: This story was updated to reflect the correct DEP committee that received advisement.