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.

Where does EPA’s 111(d) authority to regulate carbon emissions from existing power plants come from?

The news has been full of talk this week about the Environmental Protection Agency's (EPA) proposed public health standard to reduce carbon pollution from existing power plants by 30 percent from 2005 levels by 2030. We’ve blogged about it here and here and -- one more -- here. This is an encouraging development in the fight to limit damage from climate change, but where does EPA’s authority come from?

The short answer is that EPA’s authority comes from the Clean Air Act, which establishes a comprehensive federal regulatory regime for managing air pollution. The Clean Air Act was initially enacted in 1963 but has been amended several times since then. Among other things, the Act establishes a system for achieving national ambient air quality standards (NAAQS) for certain air pollutants, and addresses releases of substances designated hazardous air pollutants (HAPs). EPA credits the Clean Air Act with reducing emissions of NAAQS-related pollutants – particles, ground-level ozone, lead, carbon monoxide, nitrogen dioxide and sulfur dioxide – by an average of 72 percent since 1970 while the nation’s economy was more than doubling in size. In addition to domestic air pollution controls, the Clean Air Act has been used as a tool to address global problems, such as implementation of the Montreal Protocol, which has been successful at managing ozone-depleting substances to prevent further damage to the planet’s stratospheric ozone layer.  

To regulate carbon emissions from existing power plants, EPA is proposing to use its authority under Section 111(d) of the Clean Air Act, 42 U.S.C. § 7411(d). That section allows the agency to require each state to submit a plan for achieving performance standards for existing sources of air pollution – in this case, carbon dioxide from power plants. Under its proposed rule, EPA would require each state to submit a plan demonstrating that existing electric power plants would be able to meet a state-specific carbon reduction goal by 2030. If all states meet their goals by 2030, the country as a whole will reduce its carbon emissions by 30 percent from 2005 levels. EPA’s proposed rule allows states a considerable amount of flexibility in deciding how to achieve their targets. For example, states are allowed to achieve emission reductions in a number of ways – both by achieving efficiency within power plants themselves and by using “outside the fence line” techniques that will reduce demand for power from plants that burn fossil fuels. This flexibility will enable states to accomplish the goals EPA has set in a way that is good for both the environment and the economy.

Although EPA’s proposed rule already has generated controversy and, when finalized, may generate litigation, we hope and expect that by the year 2030, the significant reduction in carbon emissions required by yesterday’s proposed rulemaking will be added to the list of accomplishments enabled by the Clean Air Act.

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

U.S. Supreme Court to Review EPA Greenhouse Gas Permitting Requirements for Industrial Facilities

On Tuesday, the United States Supreme Court agreed to consider challenges to the Environmental Protection Agency's (EPA) application of Clean Air Act permitting requirements to greenhouse gas emissions from stationary sources.

The six petitions for certiorari invited the Court to take up a long list of issues, including the extent of EPA’s authority to regulate greenhouse gas emissions.
The Supreme Court, however, limited its review to a single question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.”

Although the Supreme Court’s decision to consider this issue could potentially be a setback for EPA’s ability to regulate greenhouse gas emissions from certain industrial facilities, the limited scope of the Court’s review means that much of the agency’s efforts to curb greenhouse gas emissions will remain unaffected. For example, the Supreme Court is NOT reviewing EPA’s determinations that:

• Greenhouse gases may be regulated as a pollutant under the Clean Air Act;

• Greenhouse gases are a threat to public health (Endangerment Finding); and

• Regulation of vehicle tailpipe pollution is appropriate under the Clean Air Act (Tailpipe Rule).

The sole issue before the Court will be whether EPA’s regulation of greenhouse gases from vehicles automatically triggers permitting requirements for stationary sources under other provisions of the Clean Air Act.

Under the Clean Air Act, any facility considered a “major emitting facility” that undergoes construction or modification must obtain a permit and install the “best available control technology” (BACT) for any pollutant subject to regulation under the Act. 42 U.S.C. § 7475(a). A “major emitting facility” is defined in the Act as a stationary source that may emit a threshold amount of “any air pollutant.” 42 U.S.C. § 7479(1).

EPA interprets “any air pollutant” to mean “any air pollutant regulated under the Clean Air Act.” Thus, under EPA’s reasoning, once EPA began regulating greenhouse gases as air pollutants for new motor vehicles, all stationary sources that had the potential to emit the threshold amount of greenhouse gases would be required to install BACT and apply for a permit.

The D.C. Circuit Court of Appeals considered this issue in its 2012 decision in Coalition for Responsible Regulation, Inc., et al., v. United States Environmental Protection Agency, 684 F.3d 182 (D.C. Cir. 2012), and upheld EPA’s interpretation of the Clean Air Act, holding that the text of the statute was unambiguous and "compelled" EPA’s interpretation. The Supreme Court will now review this aspect of the decision. Oral arguments are likely to be held in early 2014, and a decision is expected by June 2014.

Although the Court’s decision to review this single issue is concerning, it is important to recognize that, regardless of the outcome of the Supreme Court case, important programs for reducing greenhouse gas emissions will remain in place.