*1 Disрosal Authority, signals tions on visual order for Sewer and Hamp Township, den statutory Hampden Appellants require- Township to meet the Authority, Borough Sewer ment them to obtain the cloak of of Hano entitling ver, Hastings Authority, Area Sewer Without privilege emergency. in this such Highspire Borough, Borough of Hum privileges, speeding Officer violated melstown, Borough Lewistown, of provisions directional of Vehicle City Haven, Londonderry se, of Lock negligence per guilty Code and was of Township, Township, Lower Paxton in question. accident caused Township, Lower Swatara Lower court, therefore, trial did abuse its Township Municipal Swatara Author discretion in a new trial. granting ity, Borough Marysville, of Middlesex we order Consequently, affirm the Township Municipal Authority, Bor trial remand court and with instructions to ough Middletown, of Middletown Bor proceed new trial with a to determine con- ough Authority, Borough of New and, tributory appropriate, if negligence Cumberland, Newberry Township Mu damages. Authority, nicipal North Middleton Authority, North Township, Middleton ORDER County Authority, York Northeastern NOW, April, AND this 9th day of County Authority, Northern Lebanon order of affirm the Com- we Court County Northwestern Lancaster Au mon York County Pleas of in the above- thority, Paxtang Borough, Penn matter, captioned pro- to it to remand Penbrook, Township, Borough of Pine ceed trial with a new to determine contrib- Municipal Authority, Creek Borough utory negligence damages. Royalton, Shrewsbury Borough, Shrewsbury Borough Municipal relinquished. Jurisdiction Au
thority, Spring Township, Silver Silver Authority, Spring Township South Township, Springettsbury Middleton Troy, Township, Borough of Twin Authority, Boroughs Municipal Bor ough Tyrone, Upper Allen Town BEDFORD, Municipal BOROUGH OF ship, Wayne Township, West Hanover Authority Borough Bedford, Township Authority, Water and Sewer Township Municipal Brown Authori Township, West York Manchester ty, Borough, Burnham Bor Burnham City Authority, Sewer Petitioners Authority, ough Borough of Cham Borough, Derry bersburg, Danville County),
Township (Dauphin Derry Pennsylvania, COMMONWEALTH (York Township County), Dillsburg DEPARTMENT OF ENVIRONMEN Borough, Borough, Dover Dover PROTECTION; TAL Kathleen Township, East Pennsboro McGinty, Secretary Township, of Environmental Township East Sewer Au Protection, Respondents. Pennsboro thority, Borough, Elizabethtown Eliz Pennsylvania. Court Commonwealth Borough, abethville Elizabethville Argued Sept. 2008. Authority, Borough Ephrata, Area April Decided Township, Fairview Fairview Town Authority, County ship Franklin Gen Authority, Borough
eral Gallitzin *4 Hann, Lansdale, petition-
Steven A. for ers. Brennan, caused, F. Asst. Director and water
Douglas
quality,
part, by excess
Whitaker,
Counsel,
Bay’s
tributary
A.
Asst. Chief
nutrients in
Dennis
streams.
More than half of
Harrisburg,
respondents.
lies within
watershed,
the Chesapeake Bay
and the
in-
Royer, Harrisburg,
B.
Matthew
River
Susquehanna
approxi
contributes
tervenor,
Chesapeake Bay
Founda-
mately half of the fresh water that flows
tion, Inc.
For
Bay.
many years, Pennsylva
into the
nia has
involved in joint
been
state and
LEADBETTER,
BEFORE:
President
improve
ecology
federal efforts to
McGINLEY,
Judge,
and
Judge,
Bay.
Pennsylvania’s
Gover
FRIEDMAN,1
Judge, and COHN
nor, along
Maryland
with the
JUBELIRER,
Governors of
SIMPSON,
Judge, and
Virginia, Mayor
of the District of
LEAVITT,
Judge,
Judge,
Columbia,
United
BUTLER,
States Environmen
Judge.
(EPA)
tal
Agency
Protection
BY Judge
OPINION
LEAVITT.
Bay
Chesapeake
signed
Commission
*5
(collec- Chesapeake
Agreement.
Bedford,
Appli
et al.
Borough of
The
Relief,
Summary
cation for
from an
Exhibit
tively,
Group)
Bedford
seeks relief
(DEP
-).
Exhibit
Agreement
The
Pennsylvania
enforcement
steps
identified the
that had to be under
Environmental Protection
(DEP)
signing parties
taken
the-
in
order
improve
quality
undertaken to
improve
Bay’s ecosystem, including
in
Chesapeake Bay.
of water'
sediment, nitrogen
phos
reduction of
and
Group
Bedford
asserts that DEP’s
in
phorus levels
entering
Bay.
waters
actually
regulation
is
void
that
Pennsylvania agreed to reducе Total Ni
promul-
unenforceable because it was not
trogen discharged into
its waters
gated
statutory
in accordance with the
per year
million pounds
and to reduce
procedures that must be
before
satisfied
Phosphorus by
Total
1.1
pounds
million
agency’s
can
administrative
per year. Accordingly,
in
DEP is
Concluding
take effect.
exist
that
there
“Pennsylvania’s
sued its
outstanding
Chesapeake Bay
questions
factual
must be
that
Strategy”
Tributary
(Strategy) outlining
question
before this central legal
resolved
plan
reducing
its
for
the nutrient and sedi
resolved,
deny
request
can be
we
DEP’s
in all Pennsylvania
ment loads
that
summary
waters
for
relief.
Bay.
reach the
Background
Group
The Bedford
group
consists of a
This lawsuit owes
origin
its
to federal
municipalities
oper
authorities that
governmental
improve
and state
efforts to
sewage
ate
wastewater
treatment
of water in
quality
Chesapeake
plants,
are
“point
which
known as
sources”
Bay. These efforts have been
detailed
of pollution; pollutants
agri
generated, by
review,
petition
the Bedford Group’s
for
culture
land development
are known
provides
the source
back-
of this
as “non-point
oper
sources.” In order to
ground.
ate their
each
plants,
member of the Bed-
The Federal Clean Water Act2 identifies
ford
must obtain a
Group
National Pollu
Chesapeake Bay
“impaired” by poor
Discharge
,
tion
System
Elimination
§§
1. The decision in this case
before
was reached
2. 33 U.S.C.
1251-1387.
1, 2009,
January
Judge
when
Friedman as-
judge.
sumed the status of senior
plan
and schedule
prepare
per
instructed-
(NPDES)
DEP.3 These
from
permit
cap
with the new
loads.
complying
pollutants
amount
mits establish
discharge into
.source
point
each
Implementation
to DEP’s
response
In
oper
in the course
waters
petition
filed a
Plan,
Group
the Bedford
announced
Strategy
ating
plant.4
origi-
to this Court’s
for review addressed
permit
a NPDES
develop
alleg-
Group
DEP will
The Bedford
jurisdiction.
nal
regula-
in the form
an unlawful
Strategy
condition
a new
es that
that includes
cause its members
suffer
nitrogen
tion that will
on the amount
limits
specific
harm,
substantial, direct and immediate
may dis
permittee
each
phosphorus
cost them one billion
estimating that will
impose
did not
Strategy
charge. The
dollars,
with the new
comply
or more to
because
non-point sources
limits on
these
Group
The Bedford
nutriеnt
loads.
NPDES
required to obtain
they are not
cap loads are
proposed
that DEP’s
argues
operate.
permits to
of water
improvement
to the
meaningless
its “Chesa-
DEP issued
April
Bay
point sources
because
quality
Tributary Strategy Implemen-
Bay
peake
nitrogen
only
percent
contribute
(Im-
Permitting”
for NPDES
tation Plan
phosphorus
percent
levels and 18
Plan),
announcing
plementation
Pennsylvania’s
waters.
found
levels
The Im-
NPDES permits.
guidelines
entering
nutrients
major
source of
gradually,
stated
plementation
sources, but the
Bay
non-point
from
come
time,
oyer
existing
all
period
An
ignores this fact.
Strategy simply
*6
and reissued
would be revoked
by each member of
permit appeal
NPDES
cap load
condition:
permit
with a new
protracted
will
in
Group
result
the Bedford
The
nitrogen
phosphorus.
and
Envi-
litigation
limits for
before
piecemeal
and
.the
the
explained
Plan also
yield
Board that will
Implementation
Hearing
ronmental
cap
which new
loads
The
methodology by
divergent results.
Bed-
potentially
pled
it
Group
Members of
asserts
has
be calculated.
ford
would
re-
necessary
pre-enforcement
notified of these
elements
Group were
Bedford
regulation.5
a
were
view of
a letter from DEP and
changes by
("A
may
person
§
4.
25 Pa.Code
92.3
part
the Clean Water
See
permits are
of
3.NPDES
discharge
point
a
source into
pollutants from
by the United
may be administered
Act and
except
authorized under an
waters
Agency-orby
surface
Environmental Protection
States
permit.”).
NPDES
agency. McGrath Con
a state environmental
struction,
Township
Upper
Saucon
Inc.
Company v.
In Arsenal Coal
of
Valley
Supervisors and Locust
Gold
Board of
Resources,
505 Pa.
Environmental
Club, Inc.,
(Pa.
n.
A.2d
(1984),
Supreme
held
our
Court
A.2d 1333
Cmwlth.2008).
Pennsylvania, DEP admin
regulation
challenge
could be
program
permit
and has
the NPDES
isters
agency’s enforce-
brought in advance of the
Chap
regulations at 25 Pa.Code
promulgated
Supreme Court
ment
regu
NPDES
incorporating the federal
ter 92
explained that
regulation at 40 C.F.R.
The federal
lations.
regula-
challenged
122.4(d) (2008)
the effect of
provides
[w]here
that no NPDES
§
industry regulated
direct
upon the
imposition
tions
permit
"[w]hen
be issued
immediate,
presented
hardship
thus
and
compliance with
cannot ensure
of conditions
justiciability
to establish
quality requirements
suffices
applicable wаter
added).
challenge
advance of enforcement.
in
(emphasis
Penn
all
States."
affected
Court
They are as follows: Count 7: Constitutional By Violations. 1: Count Violation of Administrative promulgating the Strategy in an unlaw- only of 1929. Because Code the Envi- manner, ful DEP has taken the property Quality ronmental Board power has the Petitioners violation of the Pennsyl- to promulgate regulations, rules and vania Constitutions; and United States authority promulgate lacked has denied Petitioners their property Strategy. such as the law; without process due has made 2: Count Violation of Commonwealth enforced a law that abridges privi- Documents Law. The Strategy is un- leges Petitioners; аnd immunities of has lawful because it was not published in enacted laws impairing Petitioners’ obli- public accordance with the notice and gation contracts; and has violated the procedures required comment principles of equal protection due Commonwealth Documents Law. process. 3: Count Violation of Administrative 8: Count Violation of
Agency Law. To the Other State extent the Strate- DEP, Federal Laws gy adjudication Regulations. constitutes an cap load is unlawful because there limits are not was no notice standards author- opportunity to be heard. ized the Clean Water Act and 25 92.2c(b); Pa.Code the cap load limits Count 4: Violation of Regulatory Re- are not professional best judgment- view Act. Strategy is unlawful be- based limits promulgated cause it was authorized without review the Clean Act; Water appropriate committees of the load limits are not Assembly’s General based on existing Senate quality and House water stan- of Representatives or review dards ap- set forth in duly-promulgated reg- *7 proval by the Independent ulations; Regulatory DEP has not made a finding Review Commission. that the cap load necessary, limits arе which finding required Count 5: is by Violation of Commonwealth 40 CFR 122.44(d)(1); § Attorneys Act. The Strategy is unlaw- DEP did not prepare a ful allocation, because it was promulgated without wasteload required by as 25 by review either the Attorney 92.59; General Pa.Code and DEP pre- did not or General Counsel. pare a fact setting sheet forth legal the Count 6: Violation of and factual Pennsylvania requirements the basis for the of Clean Streams Law. the Strategy Strategy, including the calculations unlawful required because it does not by §§ conform to 40 CFR 124.8 and Law, the Clean Streams the only Penn- 124.56. regulation litigated, pre-enforce regulation was a ripe judicial was for review be- challenge regulation ment to a appropri appellants was pled cause the had that the ate. Id. at 477 A.2d at potentially 1339-1340. See could cause them “to suffer finan- costs, also Home Builders Association Chester and cial losses and substantial increased of
Delaware v. inability Counties Environ to per- obtain or to obtain of Protection, (Pa.Cmwlth. mental A.2d timely 828 446 mits in a manner” and other serious 2003). Builders, In Home this Court By analysis, conclud harm. Id. at n. 452 6. this pre-enforcement ed that the pre-enforcement challenge issue of whether Strategy to DEP’s improperly DEP's promulgated properly was an before this Court. sewage and treatment plants the Bedford wastewater foregoing, Based on permit program. to declare the NPDES requested this Court covered Group has Therefore, enjoin its Strategy null and void and to DEP Exhibits to decide 1-3. claim, or enforcement. implementation Group’s the Bedford Court documents, must consider all these known response to the Bedford In Plan,” “Compliance just and not as the one review, for DEP filed an Group’s petition DEP ar- component, Strategy.8 then affirmative and new matter with answer Plan gues Compliance constitutes Thereafter, an appli DEP filed defenses. regulation, not a policy, a statement summary with together for relief cation merely provides to DEP guidance which that there Asserting exhibits.6 supporting regulated staff and those Clean DEP re dispute, facts in are no material Act. As of policy, Water a statement plan impose that its quested judgment required Compliance Plan was not to be per- specific point nutrient limits on source with the promulgated accordance statu- policy, guide a statement of mitteеs is for tory procedures regula- established line, regulation with the force and not tions. law.7 and effect of a matter, Group’s argues an initial that its The crux the Bedford action
As plans controlling nu- Plan is an Compliance announcement for is that invalid Bay wa- pollution Chesapeake properly promul- trient was not Strategy. Group’s is not to the All of gated. tershed limited the Bedford addi- Rather, legal grounds objecting consist these announcements tional to the Strategy; Compliance premise the 2005 DEP’s December 2006 from the follow DEP’s Strategy; revisions to the Plan is April Implementation question Plan notice whether the application (3)reports signed expert pursuant 6.DEP filed its to Rule ... witness 1532(b) Therefore, Appel- “ruling Rules of Pa. R.C.P. 1035.1. No. Procedure, provides: late summary judgment, a motion for on a court only pleadings must consider not oth but (b) Summary any relief. after the At time record, documents er such exhibits.” filing petition appellate of a review in an State, County American Federation and Mu original jurisdiction matter the court Commonwealth, nicipal Employees 111 Pa. application judgment if the on enter (1987). Cmwlth. A.2d right applicant clear. thereto is 1532(b). applica- ruling R.A.P. Pa. on summary DEP also seeks relief on the basis relief, summary de- tion for this Court must *8 standing lack of of most members of whether, undisputed termine based on phasing Group. plan the Bedford is facts, right DEP has a clear to the relief nitrogen load phos- limits on requested. Atlantic-Pennsylvania, Bell Inc. v. Only phorus. Exhibit 1” 3. "Phase Commission, 589, (Pa. Turnpike A.2d 590 affected, permittees currently are Cmwlth.1997). only Group some Bedford are Phase record, purposes of the motion for permittees. Finally, DEP asserts that Secre- relief, summary is the as a record for same tary of Environmental Protection Kathleen summary judgment. purposes of a motion for McGinty properly party is not a action. Pennsylvania Meggett Correc- Secretary McGinty longer We note that is no tions, (Pa.Cmwlth. 892 A.2d n. 13 Secretary. Hanger Acting DEP’s is now John 2006). Rule 1035.1 of Rules Secretary. provides of Civil Procedure that the record in summary any judgment a motion for includes thus, and, (1) agree We all hereinafter refer- pleadings, Plan, (2) will be to depositions, interrogatories, ences not to answers to affidavits, Strategy. admissions regulation, immunities, Plan constitutes a as opposed privileges, duties, liabilities policy, to a statement of cannоt be decided or obligations of the public any part or exclusively on provided by the evidence thereof, includes, limiting without DEP because that evidence incomplete is the generality of the foregoing, any doc- on how Plan will function. interpreting ument or implementing Accordingly, deny we will request DEP’s any Assembly act of enforced or admin- summary for a judgment that the Compli- istered agency. such ance Plan is a policy. statement of doWe 1102(13) added). § 45 P.S. (emphasis legal not address the other theories ad- These definitions separate do little to vanced Group, Bedford or DEP’s re- statement of regulation.10 from a Likewise, sponses thereto. neither ad- we Case law has established that a dress nor decide the wisdom of DEP’s regulation has the force and effect of law. standards for NPDES or their City Pittsburgh, Department Person validity Act, under the Clean Water nel and Civil Service Commission v. any Clean Streams Law or applicable reg- Pennsylvania Human Relations Commis ulation. sion, Pa.Cmwlth. 630 A.2d Promulgation Regulation of a (1993). 921 n. 4 The same is not true of a statement policy,
We begin expresses, with a review of what an at most, an agency agency’s interpretation law, must do to promulgate regula- as law expressed tion. This an in a requires examination statute or a regulation. Accordingly, what regulation person constitutes a and how' it be charged with a differs from a violation of a statement of statute policy, under or regulation, applicable but not statutes as well with a as case law violation of a statement of precedent. policy. It is always agen cy’s burden to convince the tribunal that The act commonly referred to as the its interpretation of the statute or regula Commonwealth Documents Law9 address- tion it correct, seeks to enforce is whether agency es rule-making. A or not that interpretation has ever been 102(12) defined in Section as promulgated in a policy. statement of any regulation, rule or or order in the nature of a regulation, rule or promul- Although a regulation and state gated by an agency under statutory au- ment are each “promulgated” by thority in the any administration of stat- agency, an the method of promulgation ute administered relating to the differs. An agency’s promulgation of a agency, or prescribing practice regulation is subject to the procedural re procedure agency. before such quirements of the Commonwealth Docu 1102(12). 102(13) 45 P.S. Section de- Law, ments statutes, and other but there fines a policy” “statement of are requirements no such for a statement document,
any except adjudication policy. Eastwood Nursing and Reha *9 regulation, or a promulgated by an bilitation Department Center v. Public of agency which sets forth Welfare, 134, (Pa. substantive or 910 A.2d 141-142 procedural personal Cmwlth.2006). property or rights, The value of a statement 31, 1968, 769, amended, Nevertheless, July 9. Act of P.L. as 10. a policy statement of is a promulgation §§ 45 P.S. 1102-1602. interprets implements enactment, thereby an suggesting “reg- that a ulation” interpret. does more than 62 732-301(10). 732-204(b) communicates, Finally, §§ it in ad and
of is action, agency of how regulation undergo vance a discrete must agency’s also give a law and intends to agency interprets legislative scrutiny in accordance with the of can be it effect. A statement Regulatory Review Act.12 Code, Pennsylvania but published program regulations, For environmental contrast, required; by a publication step. DEP au- there is one more lacks in the published must be Penn regulation thority regulations to that re- promulgate Department Corrections sylvania Code. of programs late to the and administers Department and Public of Welfare Such are regulations promulgat- enforces. Pennsylvania State Corrections Officers by Quality ed Board Environmental (Pa. Association, 359, A.2d 365 n. 932 9 hearings. after comment and Sec- public Cmwlth.2007). tion 1920-A the Administrative Code agen which an procedures basic 1929, 177, 1929, 9, April Act of P.L. as regulation are set forth cy promulgates amended, 510-2013; § 71 P.S. Department in the Documents Law. Commonwealth Environmental Protection v. North essence, procedures require an these A.2d Company, American 791 Refractories agency give public to notice to the of its (Pa.Cmwlth.2002). 461, 462 rule-making opportunity and an proposed for the to comment.11 See East public agency’s The effect of an fail at 141 n. 13. Nursing, wood A.2d regulation ure promulgate to in accor However, only beginning. this these statutoiy require dance with various approval agency also obtain the must have regulation ments is to declared a Attorney General and General nullity. Automobile Service Councils proposed regulation’s Counsel of form Larson, et al. v. Pa. 204(b) 301(10) Pennsylvania, and legality. and Sections 47, 404, (1984). Act, Cmwlth. 474 A.2d It is Attorneys of the Act Commonwealth 1980, 15, 950,, P.L. 71 P.S. little that agencies October wonder take the state- states, fully, requirements agency part, 11. for an More 13. It relevant as follows: include, alia, regulation promulgating a inter (b) Quality The Environmental shall Board (1) providing public notice to the of its intent power and duties to have shall be promulgate, repeal an to amend or adminis formulate, adopt promulgate and rules such (2) regulation; accepting, reviewing trative regulations be and as determined considering regarding and written comments proper performance the board for the of the (3) proposed regulation; obtaining legal department ... work of the (4) approval regulation; proposed and (c) any to The board shall continue exercise depositing the text of with the formulate, power adopt promulgate to and Legislative publication Reference Bureau for regulations, rules and heretofore vested in Bulletin. Sections persons, 205 and 207 of the Doc departments, Commonwealth the several boards Law, 1201, 1202, 1205, §§ uments P.S. and commissions set forth in section and act, 1901(a) any of this such rules regulations promulgated prior the effec- amended, 25, 1982, 12. Act of June P.L. date of act shall be tive the rules §§ 71 P.S. 745.1-745.12. Section of the regulations of the of Environ- Regulatory agency requires Review Act they mental until such time as [Protection] proposed regulation the appro- submit its repealed are modified the Environ- priate committees Senate House Quality mental Board. Representatives; undergo public notice and a 510-20(b), (c). § 71 P.S. period; approval comment obtain Independent Regulatory Review Commission. 71 P.S. 745.5.
63 route, ment of which is free of policy the announces the agency course the an imposed agency’s promul- burdens upon adjudications. intends to follow in future However, gation a if regulation. of a The critical distinction between a sub- actually an policy unpub- statement of is stantive rule and a general statement of disguise, regulation lished in it will be policy is the practical different effect agency’s obey nullified due to the failure to that these types pronouncements two processes the to a applicable regulation. have in subsequent administrative pro- Thus, distinguish courts must between the ceedings .... A properly adopted sub- types two agency promulgations. stantive rule a establishes standard of conduct which has the law .... If an agency simply promul calls its force of gation general a A regulation, inquiry. policy, this ends the statement of on the hand, discerning More difficult whether other pro is a does not establish a ‘binding nouncement a norm’.... calling policy itself “statement of A statement an- is, truth, policy” regulation. in Depart nounces the agency’s tentative inten- tion,s ment Environmental Resources v. When agency future. applies Rushton Mining Company, policy particular 139 Pa. in situa- 648, tion, 1168, (1991). Cmwlth. 591 1171 it must be prepared support A.2d policy just if policy statement had Our Supreme Court has ex never been issued. plained regulation that a has the effect aof 349-350, at Id. 374 at A.2d 679 (quoting “binding policy norm” and a statement of Gas & Electric Co. v. Federal Power Pacific In Pennsylvania does not. Human Rela ommission, (1974)) C 506 F.2d tions Commission v. Norristown Area added).14 (emphasis Expanding on these District, School 473 Pa. A.2d 671 principles, this explained Court has that a (1977), Supreme explained: Court “[binding norm” means that the agency agency may An binding policy establish is bound the statement until through rulemaking procedures it, agenсy repeals if and the statement is rules, promulgates which it substantive binding on the it agency, is or through adjudications which consti- binding tute A precedents. general Home Builders Association Chester and statement is policy Department the outcome of Delaware Counties v. Envi rulemaking neither a nor adjudica- Protection, an ronmental 828 A.2d tion; (Pa.Cmwlth.2003) prece- is neither a rule nor a (quoting Rushton Min 1173). but merely ing dent announcement Company, an 591 A.2d at public policy which the agen- determination of whether a statement of cy hopes implement actually rule- unpromulgated regula future makings adjudications. A tion general question is a of law. Millcreek Manor release, statement of like a policy, press Welfare, Public 796 A.2d (Pa.Cmwlth.2002).15 1020, 1026 presages an n. upcoming rulemaking or Norristown, Supreme 14. binding Court held 15. In order to whether a ascertain created, that the Human Relations Com- reviewing norm been "the has tribu- desegregation plan general mission's was a provision’s plain nal must consider lan- statement of not a be- guage, the manner in which it has been im- cause tire Commission used the definition of plemented by agency and whether the "segregated plan school” found аs a agency’s section restricts the discretion.” Norristown, guideline. flexible 338, 473 Pa. at Manor, Millcreek at 796 A.2d A.2d at 673. *11 64 DEP Position “tracks a policy statement of
A plain its upon expand and does not statute Plan as Compliance DEP defends Envi Department meaning.” Groce v. of necessary Bay. particu- to More save the 567, Protection, 578 921 A.2d ronmental water Maryland meet its new larly, cannot (Pa.Cmwlth.2007). However, regulation a standards, ap- have been which quality track Common must also the statute. EPA, unless Penn- proved by the Federal Pennsylvania Manu v. Gilmour wealth improves quality of its waters sylvania of 143, 149, 822 Company, 573 Pa. facturing Maryland. to Ulti- flowing downstream (2003). 676, consist however, 679 A document A.2d is mately, DEP contends agency’s Act, on the as state of instructions based Water as well ing the Clean regulations, require statutory requirements, of and interpretation statutes to case-by-case point permittees a applied can be on source which discharge nitrogen phos- and basis, limit their policy. a statement of Central is Plan, Compliance according phorus. Dauphin School District DEP, stat- simply announces how these Education, 426, to A.2d Pa.Cmwlth. in the utory requirements will be enforced (1992).16 576, in Home As stated issuing permits.17 course of Chester, 828 A.2d Buildеrs Association of 451, that leaves the pronouncement at a cap out the nutrient points from its with to deviate agency discretion Strate- original set forth loads will be held be a statement terms implemented at the behest gy were never regulation. a policy, not industry sewage plant treatment those have been evolv-
and that loads sum, binding Plan, it ing ever since. The agency, on an a statement ex- flexibility. is a model of For argues, expresses A what not. statement of nu- offers a ample, in future agency hopes implement will allow trading program, trient which rulemakings or has no “adjudications,” but nu- permittees purchase point source Norristown, at effect. 473 Pa. per- immediate other trient reduction from “credits” contrast, 349, regu at By developed 374 A.2d af- flexibility mittees. This was input sewage “establishes of conduct lation a standard ter extensive from Further, plants. treatment which has the force of law.” Id. wastewater (1) Management strategies. Adminis- Dauphin amend- 16. At issue in Central was an 1949, trator, Act ment to the Public School Code of mem- in coordination with other amended, March as P.L. Coun- Chesapeake bers of the Executive 1-101-27-2702, required §§ P.S. cil, plans managеment shall ensure that adjust their reopen districts to school developed implementation is be- are Secretary year budgets. fiscal 1991-1992 signatories Chesapeake Bay gun by to the budget reopening Education issued instruc- Agreement to maintain-— achieve and challenged which the tions school district (A) goals Chesapeake the nutrient being This Court held that Bay Agreement quantity nitro- policy be- were instructions a statement entering gen phosphorus the Chesa- Secretary’s merely pro- cause instructions watershed; Bay peake and its Secretary guidance on inter- vided how the (B) quality requirements neces- the water requirements preted the School on Code’s sary living resources to restore budget reopening. Bay Chesapeake ecosystem. pro- Act 117 of Clean Water 17. Section 1267(g). part: 33 U.S.C. vides in relevant (g) Chesapeake Bay Program. *12 Finally, disclaims that it Id. we Compliance Plan itself observed that DEP re- promises that DEP tained the discretion not to regulation, apply poli-
is a and it issuing cy in will use discretion when NPDES an individual Id. case.
permits. DEP contends that Home Builders As- Compliance Plan to compels
DEP likens its its sociation Chester conclusion Management Comprehensive Stormwater that Compliance its Plan is a statement of by this in Policy that was reviewed Court Further, policy, not a it notes Chester, Home Builders Association any that Group member of Bedford case, DEP A.2d 446. In that issued a by that finds aggrieved itself load that, Policy inter Management Stormwater requirements in permit its NPDES has a alia, required of one to five acres owners remedy by way appeal of an to the Envi- permit NPDES of land to obtain an Hearing ronmental Board. certain construction activities that had Group’s The Bedford Position a required permit.
never before
The
challenged
Home Builders Association
The Bedford
contends
Group
that DEP
arguing that it
Policy,
Stormwater
was a
summary
is not entitled to
relief because
regulation,
policy,
not a statement of
that
whether or not the
Plan is a
it had not
was invalid because
been binding
question
norm is a factual
that is
with the
adopted
procedures
in accordance
dispute.
Group
Bedford
also ar
required
statute.
gues
that the
Plan did more
than simply pronounce DEP’s statement of
the Home
This Court dismissed
Builders
future intent
in the
press
manner
for review.
petition
Apply-
Association’s
release.
It
the Compliance
contends that
ing
Supreme
Norristown ana-
Court’s
Plan sets a
of conduct”
framework,
“standard
for nu
lytical
we concluded as follows:
trient cap loads that is fixed and binding.
Policy ... merely
Stormwater
de-
[T]he
Norristown,
18. The dissent summary existing would relief regulations. The Clean Water Act DEP, concluding nitrogen phos- that the does having not relieve the states to follow phorus permits standards for NPDES set procedural requirements whatever they may forth in the Plan track the Clean respect have established with to the initiation majority Water Act. The does not hold other- implementation of a new enforcement Rather, holds, simply, wise. it that it is too policy. In Nursing, Eastwood 910 A.2d early litigation to determine whether this Court held that where a so-called state- those standards constitute a poli- statement of norm, binding ment of functions as cy aor DEP adopted has exten- subject procedural was to the requirements regulations sive related to NPDES promulgation regula- established for the aof Act; authority under Water Clean one distinguish tion. The dissent does not or dis- Group’s of the Bedford claims is that the Nursing. cuss Eastwood Compliance Plan is inconsistent with those (cid:127) effect, partial action. seeks sum- Department personnel How have the relief. Rules implemented mary
interpreted Appellate Procedure authorize the Court Strategy? 1582(b). judgment.” to “enter R.A.P. (cid:127) Pa. can How much discretion why is no DEP cannot reason be There implementing when personnel exercise partial judgment.19 granted how discretion much Strategy actually exercised? being DEP asserts that this Court should dis- (cid:127) permittee to a that does happens What McGinty Secretary peti- because the miss comply requirements with allegations contains no tion review Strategy? Secretary relate acts omissions' of (cid:127) guidance, either written internal Further, What McGinty. Group Bedford seeks oral, to the given Department’s was DEP, against not its relief cabinet officer. implementation about
regional offices agree will Secretary dismiss We Strategy, issuing when NPDES McGinty action. from this *15 permits? Dismissal Non-Phase I Petitioners at 29-80. This additional evidence will Id. requests Plan DEP also that this Compliance of how the Court probative be the dismiss all members of Bedford actually Group functions. Petitioners,” i.e., I who are not “Phase that agree Group with the Bedford Wе yet persons who have not been issued re putative understanding statement how permits containing vised the new nutrient proba- in the field is more policy functions loads. Non- cap DEP contends that the self-serving to the than statements tive I Phase members of the Bedford Group agency that staff retains discre- effect lack standing because their are Accordingly, will it is tion and be flexible. yet not for The Bed- scheduled revision. Group’s appropriate Bedford Group ford counters all members of the be before questions above-listed answered because, Group Bedford have standing legal a final determination is made on the later, subject sooner all will be to the Compliance status of the Plan. Whether cap requirements. agree new load We Compliance DEP’s Plan ais Group. with Bedford This matter is looking at simply by cannot be determined properly equity before this Court in our component Accordingly, documents. challenge jurisdiction pre-enforcement as a summary this DEP’s motion for relief on to DEP’s Plan. See Arsenal central issue must be denied. v. Department Co. Environmental Coal Secretary McGinty Dismissal of Resources, 198, 209, 1338, 505 Pa. 477 A.2d pre-enforсement now to DEP’s request (allowing We turn review Secretary this “the McGinty challenged regula- be dismissed from where effect of judgment granted summary type by be 19. Partial can similar to the relief envisioned Rule of the Civil Proce- under 1035.2 Rules of Rules of Civil Procedure accompanies dure. official note which summary regarding judgment. ... Howev- provides "[p]artial summary this rule er, may requested such relief be before the character, interlocutory judgment, be pleadings right are closed where the liability, on more rendered one or issues of applicant is clear. 1035.2, damages." defense Pa. R.C.P. No. sum, Pa. R.A.P. Note. a motion for explained As Note. official note to Pa. summary partial appropriate relief is under relief Rule R.A.P. authorized 1532(b). R.A.P. Pa. 1532(b) is policy. is a industry regulated direct anee Plan statement We upon tions immediate”). such, As all members Secretary McGinty from the ac- dismiss Group properly party are of the Bedford deny challenge tion. DEP’s to the We action, they regardless to the whether of members in the Bedford standing Group with permit have been issued a presently I yet permits. covered the Phase new load limits. grant we Finally, Group’s the Bedford mo- petitioners. tion to new add Petition Review Motion to Amend Finally, Group’s we address Bedford ORDER petition motion for leave to amend its petitioners pursu review to add additional NOW, day April, AND this 14th ant to Pa. No. 1033.20 The Bedford R.C.P. for summary the motion relief filed add Group seeks to fourteen additional of Pennsylvania, Depart- Commonwealth municipal municipalities and authorities ment of Environmental Protection and motion, as petitioners. opposed McGinty, Secretary of Kathleen Environ- serting that many existing petition hereby mental Protection is GRANTED as allowing ers lack and that standing request Secretary dismiss McGin- at petitioners litigation to enter ty from the action. The remainder of the late date allow these new petitioners would summary motion for as to relief whether standing challenge.21 avoid DEP’s a statement decision to allow *16 petitioners to whether some amendment to dis is committed the sound standing lack is DENIED. The Motion Burger Borough cretion of the court. for to Leave Amend the Petition for Re- (Pa.Cmwlth. Ingram, 697 A.2d view Add to Additional Petitioners is here- 1997). liberally are to be “Amendments by GRANTED. permitted preju where except surprise or result, party dice to the other will or BY Judge DISSENTING OPINION against where the is positive amendment McGINLEY. rule of law.” Id. Because we have deter mined that all members of the Bedford I respectfully dissent. Group standing, only have not DEP is the summary The entitled to Petitioners, adding Phase I more petition judgment requests. relief it There is no point prejudice ers at this will not DEP. genuine dispute as to material Therefore, any fact. grant Group’s we Bedford supports The record the conclusion that petitioners. motion to add additional Compliance is a DEP’s statement Conclusion regulation. and not a reasons, permits by For the we NPDES issued the DEP deny above DEP’s to summary Compli- motion for relief that its meet regulatory Petitioners all and statu- provides part: along 20. Rule in relevant leave intervene with a to concise state- applicant ment the interest of party, A and the either filed consent the ad- court, party any grounds upon sought verse leave of at which intervention is action, change rule, time form of correct the under the correct which is Pa. R.A.P. party pleading. name of a or amend 1531(b). his 1531(b) filing While a under Rule Pa. R.C.P. No. 1033. appropriate, require would be we do not it because we would reach the same rеsult re- Group 21. DEP that the also asserts Bedford gardless application. of the form of the required application should be to file an for Bay adjudication or a There Chesapeake of the tory requirements part Depart- Water intent on the the federal Clean is no Program and subject give strategy in the ment to restrictions described Act.1 The load quali- weight are based on water document deference. NPDES Bay es- Chesapeake for the This document establishes the ty standards frame- Maryland work, Department State of will by the within which tablished EPA. Section approved by the Under exercise its administrative discretion Act, Pennsylva- Water of the federal Clean the future. The reserves quality required achieve the water nia is to deviate from this strat- the discretion to Maryland. standards established egy if warrant. circumstances conveyed regulated to the merely DEP has Pennsylvania’s Chesapeake Bay Tributary Plan, its Compliance via the community, Implementation Plan Strategy with approach complying recommended added). at Permitting (Emphasis these standards. Strategy it Tributary also makes outset, majori- agree At the I with the it clear that was not intended to be treated analysis first of the “bind- ty’s prong Tributary binding as a norm. The DEP’s plain ing language norm” test. The Strategy unequivocally it states it is Documents indicates that the nutrient and sedi- “plan” correct a binding norm. tributary problems ment watersheds out, points Compli- majority As the Chesapeake Bay and that of its one up ance Plan is made three documents: a “framework” to purposes provide (1) Chesapeake Bay Tribu- Pennsylvania’s develop program initiatives. Chesa- tary Implementation Plan for NPDES Bay Tributary Strategy at 1. peake (2) Plan); (Implementation Permitting Aso, Plan documents (Trib- Chesapeake Bay Tributary Strategy plans also make clear that (3) utary Allo- Strategy); Alternative *17 retain to considerable discretion Strategy. cation flexible permits develop and issue NPDES to meet plain language Tributary quality water standards. The indicates that it not a bind- Documents Strategy merely that it Plan stresses “es- states ing specifically norm. The framework, tablishes the within the De- that it to treat the as a state- plan intends partment will exercise its adminis- [DEP] ment of and to retain considerable policy trative in the future” and that discretion developing flexible discretion when and is- thе DEP “reserves the discretion to devi- suing to permits NPDES meet Chesa- strategy ate circumstances if from Bay’s quality water peake standards. Pennsylvania’s Chesapeake warrant.” Implementation expressly states: Bay Tributary Strategy at 1. (Emphasis strategy guidance outlined in this added). intended supplement-ex- document is to isting requirements. Nothing agency’s in this It is true an characteriza- dispositive. affect of its own is not strategy regulatory require- shall tion action at Mining, ments. The information herein is not 591 A.2d How- Rushton governs acronym §§ dis 1. "NPDES” is an National Pollu- U.S.C. For 1251 — Discharge system charge pollutants waters System, tant Elimination into of the United controls, may regulatory permit A pursuant of federal to States. NPDES be issued (also regulations pursuant 25 Water Pollution Act the DEP to at Federal Control Act), §§ 33 known the federal Clean Water Pa.Code 92.1-92.94. ever, policy when the at issue is read in its A “statement of policy,” is defined in entirety and in pertinent context with ex- Section 102 of the CDL as: isting regulations, laws and it is clear that document, any except an adjudication or that; just the DEP’s plan it is a regulation, promulgated by agency bring Pennsylvania in compliance with which sets proce- substantive or forth the minimum water quality standards personal dural or property rights, privi- on developed by based criteria the EPA immunities, duties, leges, liabilities or performed by Bay and research Pro- obligations of public any part gram. Those standards are product thereof, includes, limiting without process collaborative between the EPA generality of the foregoing, any doc- Bay and the States and represent a scien- ument interpreting implementing tific defining consensus quality any water act Assembly or admin- enforced necessary protect conditions istered Bay agency. such from the effects of nutrient sediment 1102(13) added). 45 P.S. (emphasis overloading. words, In other a statement of policy is “one that tracks a statute and does not
Unfortunately, neither
the Petitioners
expand upon
plain
meaning.” Such a
majority analyze
nor the
in con-
rule need not be
issued
accordance with
text of the federal Clean Water Act’s
the Commonwealth Documents Law.
Chesapeake Bay Program. To view the
Pennsylvania Human Relations Comm’n
policy in a
totally
vacuum
disregards the
Dist.,
Norristown
Area Sch.
473 Pa.
Clean Water Act’s requirement
that Penn-
(1977).
anot expand upon did not Act. The formula ap the “a recommended which described ment the of the Act. Since meaning with the compliance plain the achieving proach of ” and feder rule interpretive of state was an formula existing requirements Policy requirement the was no Specifically, the Act there Id. at 453. tracked al law. to approach regula- uniform as a “a or codified published recommended that it be the management” to the CDL. pursuant stormwater tion consistency in its “assure believed would at issue Similarly, Plan compli assure and programs stormwater plain mean- expand upon nоt here does re existing protection use ance with enlarge Act or its Water ing of Clean 934c(a).” Id. at 25 Pa.Code quired original purpose. the DEP methodology that identified a Reynolds Inc. v. De Similarly, in J.R. arrive at loads which to use to planned Industry, A.2d Labor partment of the feder- with and tracked was consistent (Pa.Cmwlth.1995), found this Court statutory requirements. regulatory and al Department applied that a formula Water 1267 of the federal Clean Section calculating fringe benefit of Labor Act, § 1267was enacted Con- 33 U.S.C. and, rule there interpretive was an credits the EPA to maintain required gress require fore, subject publication to Bay Bay Program.” The “Chesapeake ments of CDL. sig- developed to assist Program was There, adequately failed to Reynolds Bay. Agree- “Chesapeake natories of payments ac- fringe benefits segregate (Pennsylvania, Maryland, Virginia, ment” that workers had to the hours cording the District Virginia, Delaware and West projects. works To de- public on labored Columbia) implement develop to compli- Reynolds was termine whether carry to out the re- plans action specific the Penn- requirements ance with Bay Program. of the sponsibilities (Act), Wage Act2 Prevailing sylvania federal Wa- 117(g) Section Clean Industry, Labor and Pre- Act, § 1267(g)provides: ter 33 U.S.C. (Division) an Wage applied Division vailing Bay Program (g) Chesapeake Reynolds, 661 “averaging formula.” J.R. determined that A.2d at 496. Division (1) Management strategies $11,453. underpaid its workers Reynolds Administrator, coordination Reynolds appealed. Chesapeake with other members of determination, Prevailing Council, In its shall ensure Executive (Board) concluded Wage Appeals developed Board are management plans formula was averaging begun by signatories that the Division’s implementation is Act, opposed interpretation Chesapeake Bay Agreement reasoned rule. The Board add- legislative (emphasis achieve maintain — *19 ed). a mechanism that the formula was for improperly did not the law and applying (A) Chesapeake goals the the nutrient of meaning the Act. expand the of ni- Agreement quantity the Bay of entering the phosphorus and trogen that affirmed and concluded This Court (em- watershed; Chesapeake Bay and its a mech- averaging simply formula was the added). phasis the law to a contractor apply anism used to еd, 15, 1961, §§ 43 P.S. 165-1-165-17. August as amend- 2. Act P.L. of (B) gests, merely strategy nec- the quality requirements proposed the water in living resources the DEP essary existing statutory to restore to meet federal Bay ecosystem. Chesapeake regulatory requirements. and It is not a Plan The sets goals Chesapeake Bay One of the forth binding requirements no new loads, reduce the nutrient Program is to already place are not in to pursuant the total specifically nitrogen phos- total and mandates of the federal Water Clean Act. guid- EPA phorus. The issued technical Again, DEP’s establishing proposed manage- water criteria nutrient quality ance for Chesapeake protect plan, to the resources of the ment proposed includes a for- Bay. report, The EPA’s entitled “Techni- mula for calculating point individual source cal Document for the Identifica- Support loads, nitrogen phosphorus cap simply and Chesapeake Bay Designated uses tion 117(g) tracks Section the Clean federal Attainability” total loading and set forth Act, 1267(g), Water 33 U.S.C. entitled caps bay for the and further refined entire Bay “Chesapeake Program.” Section allocations gross to allocations of those 117(g) of the federal Clean Water Act re- tributary pollutants by- major basis and quires Pennsylvania to develop imple- Pennsylvania. jurisdiction, including In ment management plans to achieve and words, tributary’s on each other based nu- maintain nutrient goals the the Chesa- the input Bay, trient and the sediment peake Bay Agreement for quantity Chesapeake EPA the total Bay divided nitrogen phosphorus entering pollution to each proportionally load tribu- Chesapeake Bay. The tary jurisdiction. cap load alloca- sets forth DEP’s recommendations tions the EPA show where established achieving compliance strate- sediment will nutrient and loads most gies put practice intends into to en- effectively be reduced to achieve restora- sure that the effluent limits meet wa- goals. assigned Pennsylva- tion The EPA quality ter standards under established specific cap compliance nia loads to ensure Compli- Clean Water Act. Because the Maryland quality with water stan- obligations ance Plan no imposes “new” on attempt dards in the water restore already Petitioners did not exist un- Chesapeake quality Bay. Act, subject der the Clean Water it is DEP, the agency charge in of im- to the strictures the Commonwealth Act, turn, the Clean plementing Water Documents Law. portions determined which nutrient load delivered came from sources does point majority not consider cor- sources, nonpoint respectively, and from relation between the at issue and assigned cap load to each. The obligations the DEP’s under the Chesa- developed Tributary then Strate- peake Bay Agreement to reduce the gy cap category to meet the loads for each amount of sediment and nutrients ap- sources. These formulas were then Bay result, year As I permittee, on plied to each based believe decade-long this undermines over a flow, unique to determine its design EPA, process between the collaborative words, load. In other the nutrient-related signatories DEP and the five other the DEP restrictions in issued NPDES Chesapeake Bay Agreement and hin- based on these allocations. are ders, basis, the without DEP’s efforts to *20 Plan, carry responsibilities under including out DEP’s Strategy, sug- Chesapeake Bay Program. name Tributary as its na- technically complex light recip- and the Water Act ture of the Clean Bay, Chesapeake to restore plan
rocal favor the ex- should
I this Court believe re- DEP, agency the state
pertise of the Wa- the Clean
sponsible implementing for Chesapeake Bay Program.
ter Act and the Environmental v. Groce (Pa.Cmwlth.2007).
Protection, A.2d 567 reasons, grant I
For would these summary judgment, de- petition
DEP’s be a valid
clare the allow DEP to policy,
statement of Tribu- permits and
implement the NPDES Pennsylvania’s
tary Strategy to ensure pollution federal water
compliance with requirements.
control joins Judge LEADBETTER
President
in this dissent. HEALTH, OF
DEPARTMENT
Petitioner
DATA-QUEST, INC., Respondent. Pennsylvania.
Commonwealth Court
Argued Dec. 2008. April
Decided Leshko, Harrisburg,
Tanya peti- C. tioner.