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Chalfont-New Britain Joint Sewage Authority v. Department of Environmental Protection

June 15, 2011

CHALFONT-NEW BRITAIN JOINT SEWAGE AUTHORITY, PETITIONER
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT
BOROUGH OF LANSDALE, PETITIONER
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT
HATFIELD TOWNSHIP MUNICIPAL AUTHORITY, HORSHAM WATER AND SEWER AUTHORITY, BUCKS COUNTY WATER AND SEWER AUTHORITY, WARRINGTON TOWNSHIP WATER AND SEWER DEPARTMENT, AND WARWICK TOWNSHIP WATER AND SEWER AUTHORITY, PETITIONERS
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT



The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

Argued: May 10, 2011

BEFORE: HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

Chalfont-New Britain Joint Sewage Authority, Borough of Lansdale, Hatfield Township Municipal Authority, Horsham Water and Sewer Authority, Bucks County Water and Sewer Authority, Warrington Township Water and Sewer Department, and Warwick Township Water and Sewer Authority (collectively, Petitioners) petition for review of the August 25, 2010, order of the Environmental Hearing Board (EHB), which denied Petitioners' request for costs and attorney's fees under section 307(b) of the Clean Streams Law (Law).*fn1

We reverse.

Petitioners own and operate publicly owned sewage treatment works in the Neshaminy Creek watershed. In 1996, the Commonwealth listed Neshaminy Creek and its tributaries as impaired waters, identifying nutrients as the cause of the impairment. Pursuant to a federal consent decree, the Environmental Protection Agency (EPA) was required to ensure that Total Maximum Daily Load Assessments (TMDLs) be established for impaired waters by 2007.*fn2 (Findings of Fact, Nos. 67- 71.)

In December 2003, the Department of Environmental Protection (DEP) submitted for review and approval to the EPA a TMDL for the Neshaminy Creek Watershed. The EPA approved the TMDL, but Petitioners challenged the TMDL by filing appeals with the EHB.*fn3 (Findings of Fact, Nos. 1-4, 10-11, 14.) In their appeals, Petitioners express the concern that the TMDL should be scientifically sound and that permit limits should not be revised in short order because making changes to publicly owned sewage treatment works can be expensive. (Findings of Fact, Nos. 75-76.)

On April 14, 2004, DEP met with all Petitioners, except Chalfont*fn4 (the non-Chalfont Petitioners), pursuant to an EHB order to discuss settlement. DEP offered to stipulate that, if the non-Chalfont Petitioners agreed to dismissal of their appeals, DEP would agree not to object to their raising similar issues in any later appeal of the TMDL or in an appeal of a permit containing the TMDL. The non- Chalfont Petitioners raised concerns that, if they withdrew their appeals or agreed to their dismissal, the EHB may lack jurisdiction in a later appeal, and/or the doctrine of administrative finality would restrict their ability to raise the same issues. (Findings of Fact, Nos. 8, 59-60.)

On June 8, 2004, DEP met again with the non-Chalfont Petitioners. DEP stated at the meeting that, in the course of responding to discovery requests, DEP had discovered a modeling error involving the "k-rate," which is a variable and calibration parameter in the model that measures the phosphorus loss rate.*fn5 DEP further stated that it intended to revise the TMDL to correct the error and that the process would take approximately six months. The parties again discussed settlement, but DEP would not agree to withdraw the flawed TMDL or postpone issuance of permits based on the flawed TMDL. As a result, the EHB stayed litigation pending revision of the TMDL and ordered the parties to continue to make reasonable efforts to resolve disputed issues during the stay. (Findings of Fact, Nos. 15-19, 61.)

DEP held additional meetings with the non-Chalfont Petitioners. In September 2004, DEP informed Chalfont about the revision efforts. Then, from October to December 2004, DEP exchanged information and comments with the Petitioners. On December 15, 2004, DEP informed the EHB that DEP was in a position to begin drafting the revised TMDL. (Findings of Fact, Nos. 20-31.)

In February 2005, DEP provided the non-Chalfont Petitioners with a proposed settlement document. During an April status conference with the EHB, the non-Chalfont Petitioners raised as a concern that, under DEP's proposal, DEP would not withdraw the admittedly erroneous TMDL. DEP believed that it could not withdraw the TMDL without the approval of the EPA.*fn6 The non-Chalfont Petitioners also were concerned about administrative finality should they withdraw their appeals and argued that the EHB should dismiss the litigation without prejudice. The EHB entered an order continuing the stay of proceedings. (Findings of Fact, Nos. 32-34, 80(g).)

In December 2005, DEP submitted a status report to the EHB, stating that it had not done a revised TMDL because data analysis of three rounds of sampling from the Neshaminy watershed taken during the summer of 2005 was not complete. In January 2006, DEP provided Petitioners with the Hunter Carrick Report containing the data analysis and advised that new model runs for the revised TMDL were in the process of being completed.*fn7 (Findings of Fact, Nos. 35-39.)

In June 2006, DEP filed a status report with the EHB stating that a draft TMDL was circulating internally. The EHB vacated the stay, and the parties held settlement discussions, but, in August 2006, the EHB reinstated the stay pending completion of the TMDL revision process. On August 26, 2006, DEP released a draft TMDL for public comment. (Findings of Fact, Nos. 41-46.)

The draft TMDL was based on the methodology used to formulate the TMDL for the adjacent Skippack Creek watershed, which TMDL the EPA had nearly completed. The Skippack TMDL used a different methodology and different endpoint determination from the Neshaminy TMDL and from the work-in-progress revision to the Neshaminy TMDL. Thus, DEP did not ultimately adopt any of the proposed revisions discussed with Petitioners because DEP wanted ...


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