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