Borough of Bedford v. Com., Dep
| Citation | 972 A.2d 53 |
| Decision Date | 14 April 2009 |
| Docket Number | No. 160 M.D. 2008.,160 M.D. 2008. |
| Parties | BOROUGH OF BEDFORD, Municipal Authority of the Borough of Bedford, Brown Township Municipal Authority, Burnham Borough, Burnham Borough Authority, Borough of Chambersburg, Danville Borough, Derry Township (Dauphin County), Derry Township (York County), Dillsburg Borough, Dover Borough, Dover Township, East Pennsboro Township, East Pennsboro Township Sewer Authority, Elizabethtown Borough, Elizabethville Borough, Elizabethville Area Authority, Borough of Ephrata, Fairview Township, Fairview Township Authority, Franklin County General Authority, Gallitzin Borough Sewer and Disposal Authority, Hampden Township, Hampden Township Sewer Authority, Borough of Hanover, Hastings Area Sewer Authority, Highspire Borough, Borough of Hummelstown, Borough of Lewistown, City of Lock Haven, Londonderry Township, Lower Paxton Township, Lower Swatara Township, Lower Swatara Township Municipal Authority, Borough of Marysville, Middlesex Township Municipal Authority, Borough of Middletown, Middletown Borough Authority, Borough of New Cumberland, Newberry Township Municipal Authority, North Middleton Authority, North Middleton Township, Northeastern York County Authority, Northern Lebanon County Authority, Northwestern Lancaster County Authority, Paxtang Borough, Penn Township, Borough of Penbrook, Pine Creek Municipal Authority, Borough of Royalton, Shrewsbury Borough, Shrewsbury Borough Municipal Authority, Silver Spring Township, Silver Spring Township Authority, South Middleton Township, Springettsbury Township, Borough of Troy, Twin Boroughs Municipal Authority, Borough of Tyrone, Upper Allen Township, Wayne Township, West Hanover Township Water and Sewer Authority, West Manchester Township, York City Sewer Authority, Petitioners v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL PROTECTION; Kathleen McGinty, Secretary of Environmental Protection, Respondents. |
| Court | Commonwealth Court of Pennsylvania |
Douglas F. Brennan, Asst. Director and Dennis A. Whitaker, Asst. Chief Counsel, Harrisburg, for respondents.
Matthew B. Royer, Harrisburg, for intervenor, The Chesapeake Bay Foundation, Inc.
BEFORE: LEADBETTER, President Judge, and McGINLEY, Judge, and FRIEDMAN,1 Judge, and COHN JUBELIRER, Judge, and SIMPSON, Judge, and LEAVITT, Judge, and BUTLER, Judge.
OPINION BY Judge LEAVITT.
The Borough of Bedford, et al. (collectively, Bedford Group) seeks relief from an enforcement policy of the Pennsylvania Department of Environmental Protection (DEP) undertaken to improve the quality of water in the Chesapeake Bay. The Bedford Group asserts that DEP's policy is actually a regulation that is void and unenforceable because it was not promulgated in accordance with the statutory procedures that must be satisfied before an administrative agency's regulation can take effect. Concluding that there exist outstanding factual questions that must be resolved before this central legal question can be resolved, we deny DEP's request for summary relief.
Background
This lawsuit owes its origin to federal and state governmental efforts to improve the quality of water in the Chesapeake Bay. These efforts have been detailed in the Bedford Group's petition for review, which provides the source of this background.
The Federal Clean Water Act2 identifies the Chesapeake Bay as "impaired" by poor water quality, caused, in part, by excess nutrients in the Bay's tributary streams. More than half of Pennsylvania lies within the Chesapeake Bay watershed, and the Susquehanna River contributes approximately half of the fresh water that flows into the Bay. For many years, Pennsylvania has been involved in joint state and federal efforts to improve the ecology of the Bay. In 2000, Pennsylvania's Governor, along with the Governors of Maryland and Virginia, the Mayor of the District of Columbia, the United States Environmental Protection Agency (EPA) and the Chesapeake Bay Commission signed the Chesapeake 2000 Agreement. DEP Application for Summary Relief, Exhibit 4. (DEP Exhibit ____). The Agreement identified the steps that had to be undertaken by the signing parties in order to improve the Bay's ecosystem, including the reduction of sediment, nitrogen and phosphorus levels in waters entering the Bay. Pennsylvania agreed to reduce Total Nitrogen discharged into its waters by 37 million pounds per year and to reduce Total Phosphorus by 1.1 million pounds per year. Accordingly, in 2005, DEP issued its "Pennsylvania's Chesapeake Bay Tributary Strategy" (Strategy) outlining its plan for reducing the nutrient and sediment loads in all Pennsylvania waters that reach the Bay.
The Bedford Group consists of a group of municipalities and authorities that operate wastewater and sewage treatment plants, which are known as "point sources" of pollution; pollutants generated by agriculture and land development are known as "non-point sources." In order to operate their plants, each member of the Bedford Group must obtain a National Pollution Discharge Elimination System (NPDES) permit from DEP.3 These permits establish the amount of pollutants that each point source may discharge into Pennsylvania waters in the course of operating its plant.4 The Strategy announced that DEP will develop a NPDES permit that includes a new condition in the form of specific limits on the amount of nitrogen and phosphorus each permittee may discharge. The Strategy did not impose these limits on non-point sources because they are not required to obtain NPDES permits to operate.
In April 2007, DEP issued its "Chesapeake Bay Tributary Strategy Implementation Plan for NPDES Permitting" (Implementation Plan), announcing new guidelines for NPDES permits. The Implementation Plan stated that gradually, over a period of time, all existing NPDES permits would be revoked and reissued with a new permit condition: cap load limits for nitrogen and phosphorus. The Implementation Plan also explained the methodology by which new cap loads would be calculated. Members of the Bedford Group were notified of these changes by a letter from DEP and were instructed to prepare a plan and schedule for complying with the new cap loads.
In response to DEP's Implementation Plan, the Bedford Group filed a petition for review addressed to this Court's original jurisdiction. The Bedford Group alleges that the Strategy is an unlawful regulation that will cause its members to suffer substantial, direct and immediate harm, estimating that it will cost them one billion dollars or more to comply with the new nutrient cap loads. The Bedford Group argues that DEP's proposed cap loads are meaningless to the improvement of water quality in the Bay because point sources contribute only 11 percent of the nitrogen levels and 18 percent of the phosphorus levels found in Pennsylvania's waters. The major source of nutrients entering the Bay come from non-point sources, but the Strategy simply ignores this fact. An NPDES permit appeal by each member of the Bedford Group will result in protracted and piecemeal litigation before the Environmental Hearing Board that will yield potentially divergent results. The Bedford Group asserts that it has pled the elements necessary to pre-enforcement review of a regulation.5
The Bedford Group seeks to have the Strategy nullified under several legal theories set forth in eight separate counts. They are as follows:
Count 1: Violation of Administrative Code of 1929. Because only the Environmental Quality Board has the power to promulgate rules and regulations, DEP lacked authority to promulgate a regulation such as the Strategy.
Count 2: Violation of Commonwealth Documents Law. The Strategy is unlawful because it was not published in accordance with the public notice and comment procedures required in the Commonwealth Documents Law.
Count 3: Violation of Administrative Agency Law. To the extent the Strategy constitutes an adjudication of DEP, it is unlawful because there was no notice or an opportunity to be heard.
Count 4: Violation of Regulatory Review Act. The Strategy is unlawful because it was promulgated without review by the appropriate committees of the General Assembly's Senate and House of Representatives or review and approval by the Independent Regulatory Review Commission.
Count 5: Violation of Commonwealth Attorneys Act. The Strategy is unlawful because it was promulgated without review by either the Attorney General or General Counsel.
Count 6: Violation of the Pennsylvania Clean Streams Law. The Strategy is unlawful because it does not conform to the Clean Streams Law, the only Pennsylvania statute that would authorize the adoption of a regulation such as that set forth in the Strategy.
Count 7: Constitutional Violations. By promulgating the Strategy in an unlawful manner, DEP has taken the property of Petitioners in violation of the Pennsylvania and United States Constitutions; has denied Petitioners their property without due process of law; has made or enforced a law that abridges the privileges and immunities of Petitioners; has enacted laws impairing Petitioners' obligation of contracts; and has violated the principles of equal protection and due process.
Count 8: Violation of Other State and Federal Laws and Regulations. The cap load limits are not standards authorized by the Clean Water Act and 25 Pa.Code § 92.2c(b); the cap load limits are not best professional judgment-based limits authorized by the Clean Water Act; the cap load limits are not based on existing water quality standards set forth in duly-promulgated regulations; DEP has not made a finding that the cap load limits are necessary, which finding is required by 40 CFR § 122.44(d)(1); DEP did not prepare a wasteload allocation, as required by 25 Pa.Code § 92.59; and DEP did not prepare a fact sheet setting forth the legal and factual basis for the requirements of the...
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