Small Municipal Separate Storm Sewer System (“MS4”) Controls Get Tightened Up in new PAG-13 -- March, 2012

Small Municipal Separate Storm Sewer System (“MS4”) Controls Get Tightened Up in new PAG-13

John R. Embick, Esq. -- March, 2012

I’ve written several times earlier about the manner in which the U.S. Environmental Protection Agency (“USEPA”) and the Pennsylvania Department of Environmental Protection (“PaDEP”) have been moving to require additional controls on stormwater runoff discharges from municipal storm sewer systems (the appropriate term is “Municipal Separate Storm Sewer System”, or “MS4s”).  Many municipalities, if they are located in an urbanized area, are now required to obtain National Pollution Discharge Elimination System (“NPDES”) permits for the discharge of stormwater from municipal storm water collection systems.

These stormwater discharge controls originated with the amendments to the federal Clean Water Act in 1987, and were imposed in a series of phases, which included controls on MS4s.

In order to moderate the administrative burdens associated with developing and reviewing the many MS4 applications for NPDES stormwater permits, EPA allowed states to develop general permit applications for MS4 stormwater discharge permits.  Basically, if a municipality commits to follow the precise provisions and requirements contained in the general permit, then a stormwater discharge permit is issued without an individual review.

Municipalities that need MS4 NPDES permits are currently operating under a general permit (if that municipality is eligible for the general permit), known as PAG-13.  Existing PAG-13 was due to expire in 2010, but has been extended to 3/15/2013.  The extension of the existing PAG-13 was necessary while PaDEP and US EPA negotiated over the terms and conditions of a new PAG-13.

These talks concluded successfully, and on 9/17/2011 PaDEP issued the new PAG-13.  If a municipality thinks it is eligible for coverage under the new PAG-13, then the last date to file a “Notice of Intent” to claim coverage under the new PAG-13 is 9/14/2012.   Do not miss this deadline.

The new PAG-13 tightens MS4 storm water discharge controls in our opinion.  Please also remember that the obligation to develop and implement stormwater discharge controls is an unfunded mandate and it is up to the municipalities must find a way to fund and implement these controls.

What is new or improved in the new PAG-13?

-A written stormwater management plan is required (in the existing PAG-13 this was denominated a “stormwater management protocol”).  The SWM plan must adopt 6 Minimum Control Measures (“MCMs”) and must achieve reductions to the Maximum Extent Practicable (“MEP”) in various categories of discharge parameters.  The MCMs include the relatively new post construction storm water management (“PCSWM”) permit requirement for new development and redevelopment.  Municipalities still do not have to comply with “numerical” discharge standards, and the measures they must comply with are commonly  known as “narrative” measures. 

-If the MS4 discharges to impaired waters which are the subject of a “Total Maximum Daily Load” (TMDL”), permit, then the MS4 operator must develop and include a written MS4 TMDL Plan.   The TMDL Plan must be “designed to achieve pollutant reductions consistent with the conditions and assumptions of the WLA in the approved TMDL permit”.  A series of Best Management Practices (“BMPs”) (i.e, porous pavement, raingardens, etc.) must be used in order to demonstrate compliance. 

-If the MS4 seeks coverage under the new PAG-13, the municipality will need to adopt a revised municipal stormwater ordinance (the model ordinance is attached to the PAG-13).  This may involve amendment and modifications to existing ordinances.

Why is all of this necessary, since most rainfall is “pure?”

After stormwater (virtually any kind of precipitation) falls on the earth, a portion of  it generally flows directly into rivers, lakes and streams. On its journey, everything that stormwater touches or collects from the land surface, roadways, sidewalks, parking lots, construction sites, business parks, etc., is carried to gutters, stormdrains, canals, drainageways, and finally ends up in rivers and streams, without treatment.  Accordingly, a significant portion of contamination in waterways is the result of stormwater runoff.  This is also generally referred to as non-point source pollution (even though most MS4 discharges eventually come from a pipe).

The problem with non-point source pollution is that it is very expensive to collect, treat and discharge. Treatment facilities would have to be very large to treat peak storm flows and would sit unused much of the time.

Accordingly, an efficient and economical way to improve stormwater quality is to treat stormwater at the source and avoid contaminating the stormwater in the first place. Methods to do this have been developed and they are generally referred to as Stormwater Best Management Practices (“BMPs”).

Therefore, EPA and PaDEP contend that MS4 discharges are a part of the waterway contamination problem and need to be controlled. 

Many of the uncertainties regarding the new PAG-13 have been cleared up.  However, a big unknown relates to the next PAG-13 (which will be a requirement in five years or so).  USEPA was to issue a revised or new Stormwater Rule in late December, 2011 (the existing Storm Water Rule Phase II rule was issued on 12/8/1999).  The rule has not been issued as yet.  We expect that the new Stormwater Rule will spell out what additional controls USEPA thinks are necessary to further document and control reductions in MS4 discharges.  Municipal solicitors, please stay tuned.

Pennsylvania High Court Crushes Preemption Claims: Local Zoning Provisions Survive -- February, 2012

Pennsylvania High Court Crushes Preemption Claims: Local Zoning Provisions Survive

John R. Embick, Esq. – February, 2012

On November 23, 2011, the Pennsylvania Supreme  Court, issued a ruling which should help resolve continuing uncertainty about whether local zoning is preempted by the Pennsylvania Surface Mining Conservation and Reclamation Act (SMCRA)(which regulates surface coal mining), 52 P.S. §§ 1396.1, et seq.  The case is Hoffman Mining Company, Inc. v. Zoning Hearing Board of Adams Township, Cambria County and Township of Adams, 32 A.3d 587; 2011 Pa. LEXIS 2825 (November 23, 2011).  The decision was written by Justice McCaffery, and the holding includes two concurring opinions (one by Chief Justice Castille, and one by Justice Saylor).

The Hoffman Mining holding involved a challenge by a mining company to a 1,000 foot setback (from residences) provision contained in a municipal zoning ordinance. While the holding addressed a claim that SMCRA preempts local zoning, it likely applies with equal force to similar claims of preemption relating to the Pa Non-Coal Surface Mining Conservation and Reclamation Act (NCSMCRA), 52 P.S. §§ 3301, et seq. (which regulates mineral extraction from quarries, sand & gravel operations, etc.).

This is so because the provisions of the preemption clauses in both the SMCRA and the NCSMCRA are virtually identical, and the court's analysis in Hoffman Mining frequently compares various provisions of SMCRA and NCSMCRA.

SMCRA prescribes a 300 foot set back from "occupied dwellings", see, 52 P.S. §§ 1396.4b(c) and 1396.4e(h)(5).   NCSMCRA prescribes an identical 300 foot set back provision from occupied dwellings, see, 52 P.S. § 3311(c)(1).

The Pa Supreme Court held that the local zoning 1,000 foot setback provision was not preempted by the SMCRA, because it represented a traditional zoning prerogative:

Setback requirements are a well-established aspect of zoning ordinances. See, e.g., Miller & Son Paving, Inc. v. Wrightstown Township, 499 Pa. 80, 451 A.2d 1002, 1005-06 (Pa. 1982); Scholl v. Borough of Yeadon, 148 Pa. Super. 601, 26 A.2d 135, 136 (Pa. Super. 1942) ("Set-back ordinances generally have received judicial sanction as lawful exercise of the police power, where the restriction has a substantial bearing on the health, safety, morals or general welfare of the public.").

Hoffman Mining, 2011 Pa. LEXIS 2825 at p.10.

Local zoning setback requirements were long ago approved in a matter involving the NCSMCRA, in Warner Company v. Zoning Hearing Board of Tredyffrin Township, 612 A.2d 578, 580 (Pa. Commw. Ct 1992) (a local 300 foot set back from a stream was upheld over the 100 foot stream setback requirement specified in the NCSMCRA, although this sometimes has been considered dicta).

In Hoffman Mining, the Court noted:

"We have also observed that this Court has "traditionally given local zoning power great play [, and has] been reluctant to strike down a local ordinance in cases where a state statute does not directly and inherently conflict with the zoning power." Benham, 523 A.2d at 315."

Hoffman Mining,  2011 Pa. LEXIS 2825 at p. 16.

The Hoffman Mining court also used or referred to the following terms or phrases in its decision upholding the local zoning 1,000 foot set requirement to describe the nature of this form of zoning control: a “traditional zoning regulation”; or a “traditional land use regulation”; or a “traditional land use control”; and a “quintessential land use control logically connected to land use planning”.

In summary, the Hoffman Mining court found the following:

1.         The language of the preemption clause in SMCRA 52 P.S. § 1396.17a (virtually identical to that appearing in NCSMCRA, 52 P.S. § 3316) does not preempt municipal zoning control relating to mining under the MPC; and

2.         Setback requirements are within the bounds of traditional zoning regulation;

In deciding whether the Surface Mining Act preempted the local setback provision, the Court noted there are three types of preemption:  (1) express or explicit preemption, where the statute includes a preemption clause, the language of which specifically bars local authorities from acting on a particular subject matter; (2) conflict preemption, where the local enactment irreconcilably conflicts with or stands as an obstacle to the execution of the full purposes of the statute; and (3) field preemption, where analysis of the entire statute reveals the General Assembly’s implicit intent to occupy the field completely and to permit no local enactments.

The Court then went on to evaluate whether the setback provision (1) was preempted by the doctrine of conflict preemption, and (2) was preempted by the doctrine of field preemption.

The Court resoundingly answered no to both questions

Be aware, however, that both the House and Senate of the Pennsylvania legislature have passed legislation (which the Governor has indicated that he will sign) that will absolutely restrict a local municipality from enacting zoning ordinance provisions in that relate to the Pa Oil and Gas Act, thereby providing a complete preemption of the Act over local regulation.

The Supreme Court's decision in Hoffman Mining may have ramifications beyond the surface mining industry.  Limited preemption provisions exist in several environmental statutes.  As it stands, the Hoffman Mining holding may serve as legal authority to support a number of municipal land use regulations which address the “where” and “how big” issues involved with commercial and industrial operations that the PaDEP also regulates under limited preemption powers.

Environmental Immunity Case Decided by Pa Supreme Court: The Terms of the Agreement Rule -- April, 2011

Environmental Immunity Case Decided by Pa Supreme Court:  The Terms of the Agreement Rule

John R. Embick, Esq. – April, 2011

Several years ago, I wrote about an environmental immunity case that originated in Chester County.  In Pennsbury Village Associates, LLC v. Aaron McIntyre, et al., No. 1452 C.D. 2007 (Pa Cmwlth Ct, May 30, 2008) (“Pennsbury”), Commonwealth Court ruled on the extent of the statutory environmental immunity protections in Pennsylvania (“PELR”).

In Pennsbury, a developer sought approval to develop property in Pennsbury Township, Chester County, Pa.   The development was contested by the developer, the Township and several private citizens.  The Township granted conditional approval for the development, and appeals were filed by the developer and the private citizens.  A feature of the proposed development involved the use of county grant-funded and township-owned parkland for sewage disposal and an access road.  The county grant funding permanently limited the use of the parkland to open space by means of a restrictive covenant.

All of the parties to the conditional approval appeal then reached agreement on the nature and scope of the development, and a stipulation was signed by all the parties, in order to resolve the conditional approval appeals.

Despite having signed the stipulation, the private citizens then communicated with the county urging disapproval of the use of parkland for sewage disposal and access.  The county eventually disapproved of the use of parkland for sewage disposal and access. 

The developer then sued the private citizens claiming breach of contract, and tortious interference with contractual relationships based on the promises contained in the stipulation.

The private citizens filed a motion with the trial court for a determination of immunity under PELR.  The trial court denied the motion, holding that the communication was not a communication about the enforcement of an environmental law or regulation.

The case was eventually appealed, and in an opinion written by Judge Smith-Ribner, Commonwealth Court determined that the communication of defendants to the county was related to the open space provisions associated with the parkland, and that such communications therefore were about an environmental law or regulation.  As such, the communications were entitled to the immunity against suit afforded by PELR.  After citing  Article 1, Section 27 of the Pennsylvania Constitution (“the Environmental Amendment”), the Commonwealth Court wrote: “Thus open space benefits are environmental, and the deed restriction requirement is a regulation implementing a statutory program’. Slip op. at 10.

Commonwealth Court then analyzed the statutory exceptions to the immunity provisions of PELR.  27 Pa.C.S. 8302(b) contains the exceptions, as follows: the allegation in the communication must not be relevant or material to the enforcement or implementation of and environmental law or regulation, and (1) the allegation in the communication is knowingly false, misleading or made with malicious and reckless disregard for the truth or falsity; (2) the allegation in the communication is made for the sole purpose of interfering with existing or proposed business relationships; or (3) the communication is later determined to be a wrongful use of process or an abuse of process.

The developer argued, among other things, that the private citizens did not intend to procure favorable governmental action through the communications, and that the sole purpose of the communication was to interfere with the developer’s business relationships.

Commonwealth Court did not agree, finding that the central analytical question related not to whether the private citizen’s communication was in breach of his promises in the stipulation, but rather whether the communication related to an environmental law or regulation and sought favorable governmental action.  Since the communication related to an environmental regulation, and sought (and eventually won) favorable governmental action, the communication was entitled to immunity.

The case was then appealed to the Pa. Supreme Court.  In Pennsbury Village Associates, LLP v. Aaron McIntyre, et al., No. 4 MAP 2009  (January 19, 2011), Justice Eakin delivered an option for the Pa High Court, overturning the Commonwealth Court decision.

The trial court had ruled that McIntyre was not immune because he did not communicate about the “implementation or enforcement of environmental law and regulations” when he asked the County Commissioners to uphold the deed restrictions (allegedly contrary to at least the spirit of the settlement agreement between Pennsbury and McIntyre).

Commonwealth Court, in overturning the trial court decision, decided that the communication was indeed about the enforcement of environment law and regulations and that the communication was immune from prosecution.

In reversing the decision of Commonwealth Court, Justice Eakin noted that the law in Pennsylvania relating to the applicability of immunity is subject to a two part test: (1) do the conditions which make immunity applicable apply, and (2) is there a legal basis for not applying immunity?

Justice Eakin held that Commonwealth Court had failed to address the second prong of the analysis: “Specifically, the court failed to consider appellee’s ability to waive statutory or constitutional rights by means of the stipulated settlement, including any right to immunity under the Environmental Immunity Act.” Slip op. at 10.

For the purpose of rendering a decision, the Pa Supreme Court assumed that McIntyre had satisfied the first prong of the analysis (i.e., the establishment of a communication about the enforcement of an environmental law or regulation).

In short, the Pa High Court found that McIntyre did not enjoy immunity for attempting to defeat the stipulation’s terms, because the stipulation of settlement provided an overriding legal basis for defeating McIntyre’s immunity claim.

In conclusion, the trial court’s primary rationale (finding no communication about an environmental law or regulation) apparently was not supported.  In addition, Commonwealth Court’s decision (finding that the communication was indeed about an environmental law or regulation) was wrong.  However, the trial court’s order was reinstated (no immunity applied).

Accordingly, we don’t think that this decision will have an impact on environmental immunity jurisprudence in Pennsylvania, as the facts presented were somewhat unusual.  However, since an analysis of the terms of the settlement agreement was determinative, parties should take care to understand what a settlement requires of them.