Lansdale Appeals DEP Petition of $227,538 in Attorney Fees for Neshaminy Creek TMDL Litigation

Lansdale Borough—along with Hatfield Township Municipal Authority, Horsham Water and Sewer Authority, Bucks County Water and Sewer Authority, Warrington Township Water and Sewer Authority, Warwick Township Water and Sewer Authority, and Chalfont-New Britain Joint Sewage Authority—had petitioned for attorney fee reimbursements from a Pennsylvania Department of Environmental Protection litigation related to incorrect assessments for Total Maximum Daily Load assessments for the Neshaminy Creek Watershed in 2003.
In December 2010, an Environmental Hearing Board approved the reimbursement of attorney fees for the appellants, awarding $227,538 for Lansdale Borough, per rules in the Clean Streams Law, according to the Dec. 12, 2013 opinion and order of the Environmental Hearing Board.
The DEP has since petitioned all reimbursements of attorney fees.
Thus, this month, Lansdale Borough Council authorized Steven Miano, of the law firm Hangley, Aronchick, Segal, Pudin & Schiller, to cross appeal the DEP petition.
Solicitor Mark Hosterman could not comment on the appeal, as it is a matter of pending litigation.
"In a nutshell, Lansdale given an award by the EHB. The DEP appealed that award and now we're filing a cross appeal," Hosterman said. "The litigation is ongoing."
According to the opinion and order of Hatfield Township Municipal Authority, et al. v. Commonwealth of Pennsylvania, Department of Environmental Protection, Lansdale Borough and the above municipal authorities own and operate publicly-owned sewage treatment facilities in the Neshaminy Creek watershed.
In 1996, the Neshaminy Creek and its tributaries were listed by Pennsylvania as "impaired waters" due to unwanted nutrients in the system.
Thus, the Environmental Protection Agency required that Total Maximum Daily Load assessments be established for said impaired waters by 2007, per the order.
A TMDL for the Neshaminy Creek watershed was submitted for review by the Pennsylvania DEP to the EPA. The EPA approved the TMDL, but the above consortium of municipal water authorities appealed the assessment.
The consortium believed the assessment was not scientifically sound, and that permit limits should remain the same. Any changes to permit limits, according to the order, would require expensive changes to sewage treatment facilities.
In April 2004, the DEP met with the group, except Chalfont-New Britain, to discuss settlement, according to the hearing board order.
"DEP offered to stipulate that, if the non-Chalfont appellants agreed to dismissal of their appeals, DEP would agree not to object to their raising similar issues in any later appeal of the TMDL," per the court order.
The group argued that, if they withdrew their appeals, then the Environmental Hearing Board would lack jurisdiction in future appeals.
The DEP met with everyone but Chalfont-New Britain in June 2004, where the DEP revealed an error in the calibration of the phosphorous loss rate in the TMDL, per the order.
Settlement was discussed again, but the DEP would not withdraw the flawed TMDL or postpone issuance of permits of the flawed TMDL, according to the order. The Environmental Hearing Board allowed the litigation to remain, pending revision of the TMDL. By December 2004, the DEP began drafting the revised TMDL.
In February 2005, the DEP proposed a settlement, which did not include withdrawal of the erroneous TMDL, according to the order. The group that include Lansdale and others was concerned that there would be administrative finality if they withdrew their appeals.
According to the court order:

"In June 2006, DEP filed a status report with the EHB stating that a draft TMDL was circulating internally. The EHB vacated the stay, and the parties held settlement discussions, but, in August 2006, the EHB reinstated the stay pending completion of the TMDL revision process. On August 26, 2006, DEP released a draft TMDL for public comment.

The draft TMDL was based on the methodology used to formulate the TMDL for the adjacent Skippack Creek watershed, which TMDL the EPA had nearly completed. The Skippack TMDL used a different methodology and different endpoint determination from the Neshaminy TMDL and from the work-in-progress revision to the Neshaminy TMDL. Thus, DEP did not ultimately adopt any of the proposed revisions discussed with the appellants because DEP wanted the Neshaminy TMDL to be consistent with the Skippack TMDL.

DEP learned from comments by some of the appellants that the “Dodds equation,” which was used by the EPA in establishing the Skippack TMDL, had been revised due to an error. The error meant that the endpoint in the Skippack TMDL was incorrect. Thus, the EPA decided that the best course of action was to withdraw the nutrient portion of the Skippack TMDL.

Because the Neshaminy TMDL was based on the same equations as the Skippack TMDL, DEP abandoned its efforts to revise the Neshaminy TMDL. On August 18, 2007, DEP published notice of the proposed withdrawal of the nutrient portion of the Neshaminy TMDL."