PennFuture legal appeal leads to improvements in Pennsylvania stormwater program

               PennFuture has scored an important win that will help to improve water quality in Pennsylvania. On November 19, PennFuture and the Pennsylvania Department of Environmental Protection (“PADEP”) entered into a Stipulation of Settlement (“Settlement”) that will improve Pennsylvania’s program for preventing stormwater runoff from polluting our streams and rivers. 

Background

               Before we get to the details of the legal case and its settlement, let’s start with a little bit of background. Although it’s easy to overlook, stormwater from rain and snow events is actually a significant cause of water pollution in our streams and rivers. As the precipitation runs down rooftops and over dirty streets and sidewalks, it collects pollutants like oil, fertilizers, litter, and pet waste. In areas that drain to the municipal separate storm sewer systems (“MS4s”) found in many Pennsylvania municipalities, that polluted runoff usually is carried directly into our streams and rivers without being treated.

                Addressing polluted runoff has become a focus of federal and state environmental officials recently. In 2003, the Environmental Protection Agency's (EPA) “Phase II” stormwater program extended stormwater permitting requirements to “Small MS4s,” thereby significantly increasing the number of municipalities required to obtain National Pollutant Discharge Elimination System (“NPDES”) permits for their MS4 systems. EPA has also limited the amount of pollution that certain Small MS4s can discharge into waters that have been classified as impaired. These limits are called wasteload allocations (“WLAs”) and are contained in Total Maximum Daily Load (“TMDL”) reports issued or approved by EPA.

Under Pennsylvania’s MS4 permitting process, municipalities may either apply for an individual MS4 permit or (if they qualify) for coverage under the general permit called PAG-13. Any municipality subject to a WLA is required to submit to PADEP as part of its permit application a “TMDL Plan” to explain how the municipality will comply with the pollutant limits. Under the current system, municipalities are permitted to submit their TMDL Plans in two parts: TMDL Strategies and TMDL Design Details. TMDL Strategies must be submitted with the application or notice of intent (“NOI”) seeking coverage under the permit; TMDL Design Details do not need to be submitted until one year after permit coverage is granted. Under the existing system, the requirement to submit a TMDL Plan does not affect a municipality’s eligibility for coverage under PAG-13.

PennFuture’s Appeal

                In July 2013, PennFuture filed an appeal of PADEP’s approval of coverage under the general permit PAG-13 for Upper Gwynedd Township’s Small MS4. (PA Environmental Hearing Board Docket No. 2013-105-L.) Upper Gwynedd Township had submitted to PADEP its TMDL Strategy and a request for permit coverage under PAG-13. As allowed by PADEP’s permitting procedures, Upper Gwynedd did not have to submit its TMDL Design Details until one year after the Department granted permit coverage, but PADEP’s procedures did not provide a mechanism for the public to provide input on the Design Details submission.

In its appeal, PennFuture objected to both the specifics of the township’s TMDL Strategy as well as deficiencies in PADEP’s MS4 permitting program.  PennFuture’s objections included the following:

• PADEP should not allow the use of a general permit in cases where EPA has determined in a TMDL report that the Small MS4 seeking permit coverage (such as Upper Gwynedd Township), has caused or contributed to listed impairments of surface waters.
• PADEP’s permitting process did not provide an adequate opportunity for public participation because, among other things, it did not allow for the public review and comment on the TMDL Design Details portion of the Township’s TMDL Plan.
• The Township’s method (implicitly approved by PADEP) for amending the allocation of allowable pollutant loads in EPA’s TMDLs (known as “parsing”), did not provide sufficient opportunity for public input or EPA review and approval. 
• Upper Gwynedd’s TMDL Strategy contained significant errors and omissions, and failed to prove that the township would satisfy its TMDL WLA obligations.   
  

The Agreement

                After over a year of negotiations, PennFuture and the Department agreed upon the Settlement, which addresses PennFuture’s most important objections. The terms of the settlement document cover seventeen pages and are available here, but the highlights are outlined below. Many of the tentative changes below will be officially proposed by PADEP in 2015 and will, themselves, be subject to a public notice and comment period (and possible revision) before being implemented. As a result of the settlement:

• PADEP will propose a revised version of PAG-13 that will exclude from coverage any Small MS4 subject to a nutrient or sediment WLA.  Assuming that the draft PAG-13 is adopted in its proposed form, all of these Small MS4s would be required to obtain individual permits and submit TMDL Plans in the next permit cycle beginning in 2018. 
  • For TMDL Plans (or components thereof – Strategies or Design Details) currently pending, PADEP will require all Small MS4s to: (1) notify the public when such TMDL Plan documents are ready for submission to PADEP; and (2) respond to public comments about the TMDL Plan documents before submitting those documents to PADEP.  These requirements will continue during the next permit cycle.
  • Beginning in the next permit cycle, TMDL Plans must be submitted in a single step, as part of the permit application. Municipalities will no longer be allowed to wait until a year after permit issuance to submit the Design Details.
• PADEP will develop checklists and guidelines for its review of TMDL Plans to ensure the quality of the TMDL Plans and consistency of review.
• PADEP will hold workshops beginning in 2015 to explain the improved MS4 permitting process and to provide guidance for municipalities required to prepare TMDL Plans. PADEP will also provide guidance to municipalities for WLA parsing methods approved by EPA. The public will be able to review each municipality’s WLA parsing calculations as part of the public review of the TMDL Plan.
• For Small MS4s subject to pollutant reduction requirements for pollutants other than nutrients or sediment – mine drainage metals, bacteria/pathogens, and priority organic pollutants – PADEP’s draft revision to PAG-13 will include standardized pollutant reduction requirements geared to each category. This change, which would be implemented during the next permit cycle, would replace the current requirement for each municipality to develop its own reduction plan.
  

The process improvements that result from this case will lead to better municipal plans for stormwater management – and ultimately cleaner waters – for all Pennsylvania citizens.

Mike Helbing is staff attorney for PennFuture and is based in Philadelphia.

Passionate supporters come out in the name of stronger oil and gas regulations

It was encouraging to see so many people come out to participate in the Department of Environmental Protection’s (DEP) public hearing about its proposed Chapter 78 regulations regarding oil and gas wells this past Thursday at West Chester University.

Public participation in government decisions is one of the purest and most important features of democracy, and environmental advocates made it clear that they understand the importance of fulfilling their role as educated and informed citizens.

The public hearing at West Chester University was well attended, and the vast majority of speakers spoke in favor of stronger environmental protection. In addition to members of the public and environmental advocacy groups such as PennFuture, Delaware Riverkeeper Network, and the Clean Air Council, a number of elected officials took the microphone to support stronger regulations. Among them was West Chester’s mayor, Carolyn Comitta, who testified that it was important for all citizens, even those who do not live in towns where oil and gas drilling is likely to take place, to concern themselves with drilling regulations because, “we all live downstream.”

During my opportunity to speak on behalf of PennFuture, I spoke about the importance of considering the long-term impacts that drilling would have on Pennsylvania’s environment, and thanked DEP and the members of the Environmental Quality Board who were present for the portions of their proposal that adequately protect the Commonwealth‘s long-term interests. I went on to ask DEP to consider making changes to other proposed regulations that aren’t strong enough to get the job done.

A copy of the testimony I gave is available on PennFuture’s website. Other hearings are scheduled between now and January 27, and information about those hearings is available on DEP’s website.

I encourage everyone to attend one or more of these hearings and make their voices heard. Suggested talking points are available on PennFuture’s website.

Mike Helbing is a staff attorney for PennFuture, based in Philadelphia.

Corbett administration asks Pennsylvania Supreme Court to reconsider Act 13 decision

On January 2, attorneys representing the Department of Environmental Protection (DEP) and the Public Utility Commission (PUC) asked the Pennsylvania Supreme Court to revisit its December 19, 2013 decision that declared portions of Act 13 unconstitutional. A plurality of three justices based their decision on the "Environmental Rights Amendment" to the Pennsylvania Constitution, finding that several provisions of Pennsylvania’s natural gas drilling law known as Act 13 violated both the environmental rights of citizens and the Commonwealth's obligations as a trustee of public natural resources under the Amendment. A fourth justice voted to invalidate the same provisions of Act 13 as a violation of the constitutional right to due process.

DEP and the PUC claim that the Court made two fundamental errors. First, they argue that the plurality opinion improperly made factual determinations on appeal that are essential to the Court's ruling. Asserting that such factual determinations properly may be made only after the presentation of evidence at trial, they ask the Supreme Court to remand those portions of the case to allow the Commonwealth Court to receive evidence, make factual determinations, and apply the legal principles articulated in the Supreme Court’s decision.

DEP and the PUC also argue that the Supreme Court erred when it ruled that certain provisions of Act 13 concerning protection of public resources, while not invalid in themselves, cannot be applied by DEP because they are inextricable from one of the provisions found unconstitutional, which establishes setbacks from streams and wetlands, and the (unconstitutional) process for obtaining waivers of the setback requirements. The agencies claim that the Court should allow implementation of the public resource provisions to go forward because they are separable from the invalidated setback/waiver provisions.

Under the Rules of Appellate Procedure, answers to the application for reconsideration must be filed within 14 days. Although there is no requirement to file an answer, the municipalities, environmental group, and individuals who brought the case are likely to do so.

Mike Helbing is a staff attorney for PennFuture and is based in Philadelphia.

Act 13 Watch: PUC and DEP File Petition To Get New Justice Involved

As has been reported, the Pennsylvania Public Utility Commission (PUC) and Department of Environmental Protection (DEP) filed a joint petition last week requesting that the Robinson Township case, which challenges the constitutionality of Act 13, be resubmitted to the full Court so that new Justice Correale Stevens may participate in the  decision. 

When oral argument was heard on October 17, 2012, there were only six justices on the bench as former Justice Joan Orie Melvin was suspended while being prosecuted for public corruption charges. She was eventually convicted.

Governor Corbett appointed Correale Stevens to replace Melvin. He was sworn in last Tuesday, and though the Supreme Court has yet to decide the Robinson Township case, it said that Stevens would not participate in the decision unless he heard oral argument. According to StateImpact, a spokeswoman for the Court indicated that it has rarely ordered re-argument, but that another avenue for Stevens to participate might be for the parties to resubmit briefs. Considering that the Supreme Court said that oral argument was an "integral" part of their decision-making process, it is difficult to understand how resubmitting briefs in an already well-briefed case would, by itself, make a difference in whether Justice Stevens should participate in the decision.

To review, the Commonwealth Court in Robinson Township decided that a provision of Act 13, which mandated municipalities to allow industrial activities in areas not zoned for those activities, unconstitutionally harmed those that depended on that zoning to purchase property in the district, in violation of their substantive due process rights under Art. 1, Sec. 1 of the Pa. Constitution. The Commonwealth Court also declared unconstitutional a separate provision granting DEP the right to waive gas well set-back requirements because the legislature provided no guidance for the executive branch agency to exercise that discretion, in violation of Art 1, Sec. 2 of the Pa. Constitution. In effect, the Court said that the legislature did not properly delegate its authority to the DEP.

While on the Superior Court, Justice Stevens issued no opinions on the constitutional provisions relied on by the majority in Robinson Township to strike down portions of Act 13. He did participate in a handful of decisions that raised substantive due process claims, but those cases were criminal cases that shed little light on his views. For example, Commonwealth v. Gaines involved a claim that substantive due process entitled an individual to have his arrest record expunged, and Commonwealth v. Teeter involved an individual's right to be free from vague and discriminatory sentencing statutes. Both principles are well established, but the claims of the individual defendants were rejected in those cases without much analysis.

During his tenure, Justice Stevens has not issued or joined an opinion that reveals his view of how the courts should use substantive due process to protect an individual's right to life, liberty and, in particular, the right to acquire, own and protect property as guaranteed by Art 1, Sec. 1 of the Pa. Constitution.