Septic Saga, Part 2: Pennsylvania enacts Act 41, prompting threat of lawsuit

In a previous blog post, we discussed a policy that the Pennsylvania Department of Environmental Protection (PADEP) had proposed to guide its review of sewage facilities planning modules proposing the use of individual and community onlot sewage systems in High Quality (HQ) and Exceptional Value (EV) watersheds.  PADEP had proposed the policy in response to a 2011 Pennsylvania Environmental Hearing Board (EHB) adjudication.  In Pine Creek Valley Watershed Ass’n, Inc. v. DEP, et al., EHB Docket No. 2009-168-L, the EHB rescinded PADEP’s approval of a planning module for a subdivision to be served by onlot sewage systems in an EV watershed.  The EHB held that PADEP had failed to demonstrate that the water quality of a nearby EV stream would be “maintained and protected” as required by Pennsylvania’s antidegradation regulations.  In a nutshell, the EHB rejected PADEP’s conclusion that an onsite EV wetland would denitrify effluent plumes so effectively that nitrate concentrations as high as 20 mg/l would be less than 0.84 mg/l (the water quality of the EV stream required to be “maintained and protected”) when they merged into the EV stream.

In our previous post, we noted that Representative David Maloney (R-Berks) had introduced a bill (HB 1212) that would have essentially superseded the proposed policy by amending the Pennsylvania Clean Streams Law to provide that PADEP may not impose antidegradation requirements for onlot sewage systems in conjunction with their planning and permitting.  Shortly after publishing our previous post, Representative Maloney introduced another bill, HB 1325, that pursued a different strategy to reach the same outcome.  The General Assembly passed HB 1325 last summer, and the Governor signed the bill into law as Act 41 on July 2, 2013.

Instead of amending the Clean Streams Law, Act 41 amends the Pennsylvania Sewage Facilities Act (more commonly known as Act 537).  Under Act 41, for planning and permitting purposes, “the use of [individual on-lot sewage systems and community on-lot sewage systems] when designed and approved in accordance with the requirements of [Act 537 and the regulations promulgated thereunder] satisfies the antidegradation requirements of [the Clean Streams Law and the regulations promulgated thereunder].”  In other words, proposed onlot sewage systems that satisfy Act 537 requirements are deemed automatically to satisfy Pennsylvania’s antidegradation regulations.

The Clean Water Act (CWA) requires states administering the federal NPDES program to establish water quality standards consisting of, among other things, a statewide antidegradation policy and implementation methods consistent with certain minimum requirements.  See 33 U.S.C. § 1313; 40 C.F.R. §§ 131.6, 131.12.  One such requirement is that for certain waters (Tier 3 waters, which in Pennsylvania are known as EV waters), “water quality shall be maintained and protected.”  Id. at § 131.12(a)(3).  Another such requirement is that for certain other waters (Tier 2 waters, which in Pennsylvania are known as HQ waters), the state “shall assure that there shall be achieved . . . all cost-effective and reasonable best management practices for nonpoint source control.”  Id. at § 131.12(a)(2).

Pennsylvania administers the federal NPDES program and has adopted a statewide antidegradation policy and implementation methods, which are set forth in its antidegradation regulations, see 25 Pa. Code §§ 93.4a – 93.4d.  Pennsylvania’s antidegradation regulations provide that “[t]he water quality of Exceptional Value Waters shall be maintained and protected,” see id. at § 93.4a(d), and that “[t]he Department will assure that cost-effective and reasonable best management practices for nonpoint source control are achieved,” see id. at § 93.4c(b)(2).  In approving Pennsylvania’s antidegradation policy and implementation methods, the U.S. Environmental Protection Agency (EPA) Administrator has in effect determined that these provisions are consistent with the minimum federal requirements set forth in 40 C.F.R. § 131.12.

Our previous post raised the question of whether HB 1212, by not imposing antidegradation requirements for onlot sewage systems in conjunction with their planning and permitting, would contravene CWA requirements.  A trio of environmental organizations apparently has threatened to present a similar question to a federal court in connection with Act 41.  According to a joint press release issued by the organizations, on August 22, 2013, the Pine Creek Valley Watershed Association (the organization that filed the appeal that resulted in the EHB adjudication that led to PADEP’s proposed policy that in turn led to Act 41), the Raymond Proffitt Foundation (an organization that filed a federal lawsuit in the 1990s that forced Pennsylvania’s antidegradation policy and implementation methods to conform to the minimum federal requirements), and the Delaware Riverkeeper Network issued a 60-day notice letter to EPA threatening to sue the federal agency.  The press release stated that Act 41 “brings the state into conflict with the federal Clean Water Act, and as a result, EPA is compelled to take action to strike the law.”

CWA Section 505(a)(2) authorizes citizens to commence a civil action against the EPA Administrator when it is alleged that she failed to perform any nondiscretionary duty under the Act.  Although the press release issued by the organizations does not provide a link to the notice letter, it seems likely that the letter alleges that Act 41 constitutes a revised water quality standard that the Administrator failed to review under CWA Section 303(c).  Courts have held that CWA Section 303(c) imposes a nondiscretionary duty on the Administrator to review any new or revised state water quality standards.  Whether or not Pennsylvania even submitted Act 41 as a revised standard pursuant to CWA Section 303(c)(2)(A), which requires states to submit any revised or new standard to the Administrator, may be of no consequence.  See Miccosukee Tribe of Indians v. EPA, 105 F.3d 599, 602 (11th Cir. 1997) (“Even if a state fails to submit new or revised standards, a change in state water quality standards could invoke the mandatory duty imposed on the Administrator to review new or revised standards”).

If the organizations make good on their threat to file a lawsuit, a key issue in the litigation will be whether Act 41 in fact revises or adopts a new water quality standard.  The organizations might argue that Act 41 altered Pennsylvania’s antidegradation policy and/or implementation methods, contrasting the requirements imposed in the Pine Creek Valley Watershed Ass’n adjudication (PADEP must demonstrate that the onlot sewer system will maintain and protect the water quality of the EV receiving stream) with the requirements now imposed by Act 41 (PADEP must demonstrate that the onlot sewer system is designed and approved in accordance with the requirements of Act 537 and its implementing regulations).  In response, EPA (and Pennsylvania, assuming it intervenes) might argue that Act 41 merely codifies Pennsylvania’s longstanding policy of assuring, consistent with 25 Pa. Code § 93.4c(b)(2), that “all cost-effective and reasonable best management practices for nonpoint source control” are achieved for onlot sewage systems through Act 537 and its implementing regulations.  Time may tell who has the better of these arguments.