COMMONWEALTH OF PENNSYLVANIA Before The
ENVIRONMENTAL HEARING BOARD
CITIZENS FOR PENNSYLVANIA'S FUTURE: (PENNFUTURE)
V. : EHB Docket No. 2013-105-L
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION and UPPER GWYNEDD TOWNSHIP, Permittee
STIPULATION OF SETTLEMENT
This Stipulation for Settlement ("Settlement") is made between Citizens for
Pennsylvania's Future ("PennFuture") and the Commonwealth of Pennsylvania, Department of
Environmental Protection ("Department")(collectively, the "Parties").
WHEREAS, PennFuture filed an appeal on July 17, 2013 and an amended appeal on
August 8, 2013, with the Environmental Hearing Board ("Board" or "EHB") challenging the
Department's June 6, 2013, issuance of coverage to Upper Gwynedd Township ("Township")
under National Pollutant Discharge Elimination System ("NPDES") General Permit PAG-13 for
Discharges of Stormwater from Small Municipal Separate Storm Sewer Systems ("MS4"), No.
PAG130031.
WHEREAS, the Parties have participated in settlement negotiations in order to avoid
unnecessary proceedings before the Board, and have obtained stays of the litigation to allow
them to do so.
WHEREAS, during the litigation, the Department has provided the Township with tools
and expertise to support the Township's refinement of certain submissions concerning its Small
MS4.
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WHEREAS, without any admission by the Department as to liability or any details of
PermFuture's objections, the Parties have engaged in settlement negotiations that have included
discussion of programmatic issues included in PeimFuture's appeal.
WHEREAS, the Parties have reached agreement about certain changes in the
Department's implementation of its Small MS4 permitting program, and other changes to that
program to be proposed by the Department for public review and comment.
WHEREAS, the Parties agree that is it desirable to settle these matters under the terms
and conditions set forth below.
NOW, THEREFORE, after full and complete negotiation of all matters set forth in the
above-captioned appeal filed by PennFuture, the Parties, by and through their undersigned
counsel, intending to be legally bound, hereby agree upon the following:
I. GENERAL TERMS
1. This Settlement applies to, is binding upon, and inures to the benefit of the
Parties, their successors, assigns, and designees.
II. DEFINITIONS
2. For the purposes of this Settlement, the following definitions apply:
A. Appendix (Appendices) - A specified set of Best Management Practices
(BMPs) to be attached to the renewed PAG-l3 or renewed MS4 Individual Permits for
the Next Permit Cycle, that must be implemented by a Small MS4 discharging to waters
impaired by certain categories of pollutants, including mine drainage metals,
bacteria/pathogens, and/or priority organic pollutants, as applicable, in order to reduce
the pollutant(s) of concern in its permitted stormwater discharge to the impaired
water(s).
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B. Application - An application submitted to the Department for the
issuance or renewal of an individual NPDES Permit for Stormwater Discharges from a
Small MS4.
C. Next Permit Cycle
(i) For general NPDES permit PAG- 13, the term of the first
reissuance or renewal of PAG- 13 occurring after the date this Settlement is filed.
(ii) For each individual NIPDES permit for stormwater discharges from
a Small MS4, the term of the next renewal or initial issuance of the permit that is
based on the submission of a complete Application after the date of this
Settlement.
D. Notice of Intent or NO! - A notice of intent for coverage under PAG- 13
submitted to the Department.
E. Nutrient or Sediment TMIDL Design Details - The nutrient or sediment
portion(s) of any TMDL Design Details submitted to the Department by the permittee of
a Small MS4 Subject to a Nutrient or Sediment WLA.
F. Nutrient or Sediment TMDL Strategy - The nutrient or sediment
portion(s) of any TMDL Strategy submitted to the Department by the permittee of a
Small MS4 Subject to a Nutrient or Sediment WLA.
G. PAG-13 - Pennsylvania general NPDES permit for stormwater discharges
from Small MS4s.
H. Parsing - An optional process for determining the portion of a wasteload
allocation ("WLA") and associated pollutant load reduction for which an MS4 is
responsible, taking into consideration the size and/or characteristics of the area draining
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into the MS4 and the boundary of the relevant urbanized area as defined by the U.S.
Bureau of the Census.
I. Parsing Procedures - The Department documents titled "PADEP
Procedures for MS4 Permits - Parsing" and "Detailed Parsing Methods and Examples."
J. Pending Application or NOl - Any Application or NOT pending before
the Department on the date this Settlement is filed.
K. Pending Nutrient or Sediment TMDL Strategy - The nutrient or
sediment portion(s) of any TMDL Strategy included in any Pending Application or NOl
for a Small MS4 Subject to a Nutrient or Sediment WLA.
L. Pollutant Reduction Plan or PRP - A written plan developed by the
permittee of a Small MS4 that discharges to a water impaired by nutrients and/or
sediment where there is no specific TMDL WLA for the applicable pollutant(s) of
concern, describing the actions the permittee will take to reduce and/or address the
specified impairment.
M. Small MS4 - "Small municipal separate storm sewer system," as defined
in 40 C.F.R. § 122.26(b)(16).
N. Small MS4 Subject to a Nutrient or Sediment WLA - A Small MS4
that:
(i) has received a WLA(s) for nitrogen, phosphorus, or sediment
assigned specifically to the Small MS4 in a total maximum daily load ("TMDL")
report approved by the U.S. Environmental Protection Agency ("EPA"); or
(ii) is specifically identified in a categorical or bulk WLA(s) for
nitrogen, phosphorus, or sediment applicable to a watershed, sub-watershed, or
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stream segment in an EPA-approved TMDL report other than the Chesapeake
Bay TMDL.
0. TMDL Plan - A written plan submitted as part of an Application or NOl
that describes how the Small MS4 is going to achieve pollutant load reductions consistent
with an applicable WLA(s) in an EPA-approved TMDL report. The TMDL Strategy and
TMDL Design Details are two components of the TMDL Plan.
P. WLA - A wasteload allocation in an EPA-approved TMDL report.
III. TERMS OF THE AGREEMENT
3. PAG-13 Renewal.
A. By March 1, 2015, the Department will make available to the public:
(1) a draft renewal of PAG-l3, the provisions of which will propose
that the renewed PAG- 13:
(1) becomes effective on March 16, 2018;
(2) excludes from its coverage any Small MS4 Subject to a
Nutrient or Sediment WLA, as defmed in Paragraph 2.N, above;
(3) requires permittees to implement pollutant reduction
activities set forth in an Appendix, or Appendices, as applicable;
(4) requires permittees to develop, submit, and implement a
Pollutant Reduction Plan(s)("PRP"), as applicable, in accordance with the
table described in Paragraph 3.A(iv), immediately below.
(ii) drafts of Appendices for certain categories of pollutants, including
mine drainage metals, bacteria/pathogens, and priority organic pollutants;
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(iii) a draft provision requiring that PRPs be developed, submitted, and
implemented by Small MS4s discharging to waters impaired by nutrients or
sediment where there is no specific TMDL WLA for the applicable pollutant(s) of
concern;
(iv) a draft table tentatively identifying, for each permittee of a Small
MS4 in the Commonwealth of Pennsylvania:
(1) whether the permittee is required to obtain an individual
NPDES permit for the Next Permit Cycle, or alternatively, is eligible to
obtain coverage under PAG-13 for the Next Permit Cycle; and
(2) whether the permittee must submit a TMDL Plan(s) with its
Application or NOT for the Next Permit Cycle, and if so, further
identifying the relevant TMDL(s) and the pollutant(s) to be addressed by
the TMDL Plan(s);
(3) which, if any, of the Appendices described in Paragraph
3 .A(ii), above, will be included in the permittee '5 individual permit or
approval of coverage under PAG- 13 for the Next Permit Cycle;
(4) which, if any, of the PRP(s) described in Paragraph
3.A(iii), above, the permittee must submit with its Application or NOT for
the Next Permit Cycle, and if PR-P(s) are required, further identifying, for
each PRP, any relevant TMDL, and the pollutant(s) to be addressed by the
PRP(s).
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B. By June 1, 2015, pursuant to 25 Pa. Code § 92a.54, the Department will
publish in the Pennsylvania Bulletin a public notice proposing for public review and comment,
and explaining how the public may obtain copies of and comment on:
(1) a draft renewal of PAG-1 3 that is consistent with Paragraph 3 .A(i),
above;
(ii) drafts of the Appendices described in Paragraph 3.A(ii), above;
(iii) a draft of the PRP provision described in Paragraph 3.A(iii), above;
(iv) a draft of the table described in Paragraph 3.A(iv), above; and
(v) a draft of proposed revisions to the Department's model "MS4
Stormwater Management Ordinances."
4. Local public participation process for TMIDL-related submissions.
A. For the purposes of this Paragraph, the term "submission" shall include
both an original submission of a document or set of documents to the Department, and any
resubmission or subsequent submission of the document or set of documents to the Department,
with or without modification from any earlier submission.
B. The local participation process set forth in Paragraph 4.C, immediately
below, will apply to the following submissions addressed in this Settlement:
(i) TMDL Plans submitted during the Next Permit Cycle (Paragraphs
3.A(iv)(2) and 5.B);
(ii) MS4-specific PR-Ps (Paragraph 3.A(iv)(4));
(iii) Resubmitted Nutrient or Sediment TMDL Strategies (Paragraphs
6.B and 8.B); and
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(iv) Resubmitted Nutrient or Sediment TMDL Design Details H
(Paragraphs 7.B, 7.E, and 8.B).
C. For each submission listed in Paragraph 4B, immediately above, the
Department will require the permittee making the submission to do the following:
(1) At least forty-five days prior to the deadline for making the
submission to the Department (or, if that deadline has expired, there are fewer
than forty-five days remaining before it, or there is no applicable deadline, then as
soon as practicable):
(1) Make a complete copy of the submission available for
public review; and
(2) Publish in a newspaper of general circulation in the
geographical area of the Small MS4 a public notice containing the
following information:
(A) A statement briefly identifying the submission and
indicating that it is available for public review;
(B) Information about how the public may review and
comment on the submission; and
(C) A deadline, no sooner than thirty days from the date
of publication of the public notice, for submitting comments to the
permittee.
(ii) Accept written comments on the submission from any interested
member of the public for a minimum of thirty days from the date of publication of
the public notice described in Paragraph 4.C(i)(2), immediately above;
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(iii) Accept comments on the submission from any interested member
of the public at a public meeting, which may include a regularly-scheduled
meeting of the governing body of the municipality or municipal authority that is
the permittee. The requirements of this sub-paragraph (iii) may also be satisfied
at a public hearing;
(iv) Consider and make a record of the consideration of each timely
comment received from the public during the public comment period concerning
the submission, identifying any changes to the submission made in response to the
comment; and
(v) Include with the final version of the submission filed with the
Department a copy of all written comments received from the public and a copy
of the permittee' s record of consideration of all timely comments concerning the
submission that are received during the public comment period.
5. Small MS4s Subject to a Nutrient or Sediment WLA. No later than June 15,
2017, pursuant to 25 Pa. Code § 92a.54(f), the Department will notify each permittee of a Small
MS4 Subject to a Nutrient or Sediment WLA that currently is permitted under PAG-13 that an
individual permit is required, and that the permittee must submit an Application within 90 days
after receiving the notice. The Department will require the following with respect to these
Applications:
A. The Application must include a complete, written TMDL Plan that
demonstrates that the Small MS4 will achieve pollutant load reductions consistent with the
applicable WLA(s) for nitrogen, phosphorus, or sediment. Additionally, the TMDL Plan must
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provide the design, location, and implementation (including timing) details for the BMPs to be
implemented during the permit cycle covered by the Application.
B. Before initially submitting the Application and TMDL Plan, the permittee
must solicit public comment on the TMDL Plan by completing the local public participation
process set forth in Paragraph 4.C, above.
C. For each Application, in addition to the information required by 25 Pa.
Code § 92a.82, the public notice of the receipt of the Application published in the Pennsylvania
Bulletin will indicate that the Application includes a TMDL Plan.
6. Processing of Pending Nutrient or Sediment TMDL Strategies.
A. By December 1, 2014, the Department will seek input from PeimFuture
and other appropriate stakeholders, and develop, considering input provided, guidelines and a
checklist(s) for the review of the Pending Nutrient or Sediment TMDL Strategies.
B. By March 1, 2015, the Department will complete its review of all Pending
Nutrient or Sediment TMDL Strategies, and will send a review letter to each relevant permittee.
Each review letter will:
(i) specifically identify any deficiency(ies) in the Pending Nutrient or
Sediment TMDL Strategy that must be addressed;
(ii) direct the permittee to:
(1) address all identified deficiencies (if any);
(2) after making the proposed changes, if any, to the Pending
Nutrient or Sediment TMDL Strategy, complete the local public
participation process set forth in Paragraph 4.C, above; and
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(3) resubmit the Nutrient or Sediment TMDL Strategy (as
farther revised, if applicable) to the Department by a date certain on or
before December 31, 2015. However, if the original Nutrient or Sediment
TMDL Strategy is unchanged, the resubmission may be limited to
documentation demonstrating that permittee completed the local public
participation process set forth in Paragraph 4.0 above.
C. By March 1, 2015, the Department will make its Parsing Procedures
Document available to the public.
D. After reviewing a resubmitted Nutrient or Sediment TMDL Strategy, the
Department may notify the permittee that it may incorporate the resubmitted Nutrient or
Sediment TMDL Strategy into the TMDL Plan to be included in the permittee's Application for
the Next Permit Cycle (see Paragraph 5, above), and that any final action or final determination
on the resubmitted Nutrient or Sediment TMDL Strategy will be deferred until the Department
takes a final action on the permittee's Application for the Next Permit Cycle.
7. Review of Nutrient or Sediment TMDL Design Details Submitted by Small
MS4 Permittees before the Next Permit Cycle.
A. By December 1, 2014, the Department will seek input from PennFuture
and other appropriate stakeholders, and develop, considering the input, guidelines and a
checklist(s) for the review of Nutrient or Sediment TMDL Design Details.
B. By June 1, 2015, the Department will complete its review of all Nutrient
or Sediment TMDL Design Details received by the Department as of December 1, 2014, and will
send a review letter to each relevant permittee. Each review letter will:
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(i) specifically identify any deficiency(ies) in the Nutrient or
Sediment TMDL Design Details that must be addressed;
(ii) direct the permittee to:
(1) address all identified deficiencies (if any);
(2) complete, after making any proposed changes to the
Nutrient or Sediment TMDL Design Details, the local public participation
process set forth in Paragraph 4.C, above; and
(3) resubmit the Nutrient or Sediment TMDL Design Details
(as further revised, if applicable) to the Department by a date certain on or
before March 31, 2016. However, if the original Nutrient or Sediment
TMDL Design Details is unchanged, the resubmission may be limited to
documentation demonstrating that permittee properly completed the local
public participation process set forth in Paragraph 4.C, above.
C. For each Nutrient or Sediment TMDL Design Details received by the
Department after December 1, 2014 but before the Next Permit Cycle, the Department will
complete its review and send a review letter to the permittee within one hundred twenty (120)
days of the date of receipt, and the deadline for resubmission of the Nutrient or Sediment TMDL
Design Details specified in the Department's review letter (see Paragraph 7.B(ii)(3), immediately
above) will be no later than ten (10) months following the date of the Department's review letter.
D. After reviewing a resubmitted Nutrient or Sediment TMDL Design
Details, the Department may notify the permittee that it may incorporate the resubmitted Nutrient
or Sediment TMDL Design Details into the TMDL Plan to be included in the permittee's
Application for the Next Permit Cycle (see Paragraph 5, above), and that any final action or final
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determination on the resubmitted Nutrient or Sediment TMDL Design Details will be deferred
until the Department takes a final action on the permittee's Application for the Next Permit
Cycle.
E. The Department may not approve any resubmitted Nutrient or Sediment
TMDL Design Details unless the permittee has completed the local public participation process
set forth in Paragraph 4.C, above.
F. If the Department approves any resubmitted Nutrient or Sediment TMDL
Design Details, it will publish public notice of its approval in the Pennsylvania Bulletin.
Upper Gwynedd Township's TMDL Strategy and TMDL Design Details.
A. The Department will apply the Parsing Guidance Documents and the
guidelines and checklists described in Paragraphs 6.A and 7.A, above, to the review of any
TMDL Strategy or TMDL Design Details submitted or resubmitted to the Department by the
Township after June 6, 2013.
B. The Department may not approve any TMDL Strategy or TMDL Design
Details submitted or resubmitted by the Township after June 6, 2013 until the Township has
completed the local public participation process set forth in Paragraph 4.C, above, with respect to
those submissions, but the Department may allow the Township, at the Township's discretion, to
complete a single local public participation process covering both submissions.
C. At the time the Township makes any TMDL Strategy or TMDL Design
Details submission to the Department, the Department will mail or electronically transmit a copy
of the submission to PennFuture through its counsel listed immediately below:
Michael D. Helbing, Esq. Citizens for Pennsylvania's Future 1500 Walnut Street, Suite 502
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Philadelphia, PA 19102-3503 helbing(pennfuture.org
D. For any TMDL Strategy or TMDL Design Details submitted or
resubmitted by the Township after June 6, 2013, the Department will:
(i) provide written notice to PerinFuture contemporaneously with the
written notice provided to the Township of any approval by the Department; and
(ii) publish in the Pennsylvania Bulletin public notice of any approval
by the Department.
9. Department Workshops. The Department will conduct a series of workshops
for municipal officials, stormwater professionals, environmental organizations, and other
interested parties that will address, at a minimum, the aspects of the stormwater discharge
permitting program discussed in this Settlement and the Department's expectations for
Applications, NOIs, and TMDL Plans and their components. At least one workshop (or set of
workshops held in several regional locations) will be designed at least in part to explain the
process for, and provide guidance concerning, the modification and resubmission of Nutrient or
Sediment TMDL Strategies (see Paragraph 6, above), and will be held during the first or second
quarters of 2015. At least one other workshop (or set of workshops held in several regional
locations) designed at least in part to provide guidance concerning the preparation of TMDL
Plans for submission during the Next Permit Cycle will be scheduled in accordance with the
purpose of informing the preparation of TMDL Plans.
10. Fees and Costs.
A. Settlement. After negotiation, in the interest of avoiding litigation, and
without any admission by the Department as to liability or any details of PennFuture 'S claim, the
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Department has agreed to make, and PennFuture has agreed to accept, a payment of thirty-five
thousand dollars ($ 35,000.00) in full settlement of any claim by PennFuture against the
Department for attorneys fees, expert fees, expenses, and litigation and other costs in this appeal
through and including the date this Settlement is filed.
B. Payment. Within ten (10) days of the filing of this Settlement Agreement,
the Department will commence the process to disburse the $ 35,000.00 settlement payment to
PennFuture. Payment may be made by check made payable to "Citizens for Pennsylvania's
Future;" or, by prior arrangement, through electronic funds transfer. The Department shall make
best efforts, in good faith, to ensure that the transfer is completed no later than sixty (60) days
after the date this Settlement is filed.
C. Parties Otherwise to Bear Their Own Fees and Costs. With the sole
exception of the settlement and payment described in subparagraphs A and B of this paragraph,
the Parties agree to bear their own attorneys fees, expert fees, expenses, and litigation and other
costs in this appeal.
11. Entire Agreement. No changes, additions, modifications, or amendments to this
agreement shall be effective unless they are set forth in writing and signed by both parties.
12. Admissibility of Settlement. Through the completion of the Next Permit Cycle,
the Department will not object to the admissibility of this Stipulation of Settlement in an EHB
challenge by PennFuture to any Department final action in which PermFuture alleges that the
Department failed to comply with Paragraph(s) 4.C, 5, 7.E, 8.A, 8.B, 8.C, or 8.D of this
Stipulation of Settlement. The Department reserves its right to challenge any assertion that it has
failed to comply with the applicable term(s) of this Stipulation of Settlement. This paragraph
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shall have no effect on the admissibility of this Stipulation of Settlement before any tribunal
other than the EHB.
13. Termination of Appeal. This Settlement is intended to terminate the above-
captioned appeal filed by PennFuture. The Parties agree jointly to move the EHB to dismiss
PeimFuture's appeal with prejudice with one exception, namely that the termination of the appeal
is without prejudice as to any right PennFuture may have to challenge any Department approval
of any TMDL Strategy or TMDL Design Details submitted or resubmitted by the Township after
June 6, 2013 (including any parsing of a WLA(s)) for failure to follow the relevant procedures
set forth in this Settlement, that is part of a final action taken by the Department, or on the
grounds that the TMDL Strategy or TMDL Design Details is substantively deficient, when part
of a final action taken by the Department.
14. Termination of Appeal Has No Effect on Other Department Actions or
Review Thereof. The dismissal of the above-captioned appeal shall not act as a bar to any
compliance action, permitting action, approval or disapproval of any plan or submission, or any
other final action taken by the Department. In the event of such a future action by the
Department, all claims and defenses arising from that action shall be available to the Parties.
15. Execution. This Settlement may be signed in counterparts, each of which shall
be deemed to be an original and all of which together shall constitute one and the same
instrument. Facsimile or electronic scanned (pdf) signatures shall be valid and effective.
16. Force Majeure. In the event that a Party is prevented from complying in a timely
manner with anytime limit imposed in this Settlement solely because of a strike, fire, flood, act
of God, or other circumstance beyond its control and which it, by the exercise of all reasonable
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diligence, is unable to prevent, then the Party, as applicable, may request an extension of time
from the other Party.
IN WITNESS WHEREOF, the Parties hereto have caused this Settlement to be executed
by their duly authorized representatives. The undersigned representatives of the Parties certify
under penalty of law, as provided by 18 Pa. C.S. § 4904, that they are authorized to execute this
Settlement on behalf of the Parties, and that the Parties hereby knowingly waive their right to
appeal this Settlement and to challenge its content or validity, which rights may be available
under Section 4 of the Environmental Hearing Board Act, Act of July 13, 1988, P.L. 530,35 P.S.
§ 7514; the Administrative Agency Law, 2 Pa. C.S. § 103(a) and Chapters 5A and 7A; or any
other provisions of law. Signatures for attorneys for the Parties certify only that the Settlement
has been signed after consulting with counsel.
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FOR CITIZENS FOR PENNSYLVANIA'S FUTURE:
Cynthia Adams Dunn (DATE) President and Chief Executive Officer
A9 /1 Michael D. Helbing, Esq (DATE) Staff Attorney
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FOR THE DEPARTMENT OF ENVIRONMENTAL PROTECTION:
Lee A. McDonnell, P.E. (DATE) Director Bureau of Point and Nonpoint Source Management
-(ki ki It i / -mg Mdgaret IS. M&1y, Esq. (DAE) Assistant Director Bureau of Regulatory Counsel
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