More than 70 Pennsylvania local governments have united in a lawsuit seeking to block the state from enforcing nutrient limits placed in wastewater discharge permits as part of the state's effort to reduce pollution to the Chesapeake Bay.
The municipalities contend the Department of Environmental Protection lacked the legislative and regulatory authority to require the nitrogen and phosphorus reductions from wastewater treatment plants.
They also say the permit requirements are unfair because they would cost sewer rate payers more than $1 billion, but the state has not required farms-the largest source of nutrients-to make reductions that would achieve the state's 2010 Bay cleanup goal.
As a result, they say, the state's nutrient reduction plan is "doomed to failure and represents a disastrous burden to rate payers" served by wastewater treatment plants.
"Rate payers are generous, but they don't want to be chumps," said Scott Wyland, the attorney handling the suit. "They don't want to be asked to spend more than their equally responsible counterparts."
The department had until the end of March to respond to the suit, which was filed Feb. 29 in the Commonwealth Court of Pennsylvania.
Unless the court acts to block the state from enforcing new discharge limits, the suit says there will be piecemeal litigation as each permittee appeals its permit. Several municipalities have already begun the process of challenging their permits.
The DEP declined to comment on the suit.
The cost of upgrading 184 municipal sewage treatment plants in the state to meet Bay cleanup goals has become increasingly controversial as cost estimates-once pegged as low as $190 million by some officials-will be more than $1 billion according to plant operators. The DEP now puts the estimated cost at $620 million.
Municipalities have complained that unlike Virginia and Maryland, which created state-funded grant programs to help with upgrade costs, Pennsylvania communities have been left on their own to foot the cost, with some localities facing threefold increases in sewage bills.
(The Pennsylvania Environment Digest, a weekly newsletter, reported in March that state Budget Secretary Michael Masch told the House Appropriations Committee that Gov. Ed Rendell would announce additional steps to deal with Chesapeake Bay Tributary Strategy funding in the next several weeks, but declined to elaborate.)
The suit does not challenge the science behind the Bay cleanup, which says excess amounts of nitrogen and phosphorus are largely responsible for degrading Chesapeake water quality. But the suit contends that the tributary strategy the DEP wrote to guide nutrient reduction efforts was not an adequate legal basis for setting new nitrogen and phosphorus limits in discharge permits.
The local governments contend that because the tributary strategy served as the basis for nutrient reductions in permits, it was an "unlawful regulation" because it did not follow the regulatory process outlined in state law. "There is a huge difference between what happened, and what should have happened," Wyland said.
A normal regulation would have to be adopted by the state Environmental Quality Board, be reviewed by the attorney general and follow other procedures, including a more formal opportunity for the public to comment, the suit contends. "There was next to zero public participation by the point source world" in developing the 2005 tributary strategy, Wyland said.
Further, the suit contends that the strategy was flawed by requiring discharges to control nutrients to meet 2010 goals without equivalent regulations being sought for agriculture, which is the source of most of the nutrient pollution from the state, and is generally more cost-effective to control.
According to the tributary strategy, 11 percent of the nitrogen and 18 percent of the phosphorus from state originates from discharges. The rest comes from runoff, the largest portion of which originates from the 40,000 farms within the state's portion of the watershed.
Fewer than 5,000 of those are directly regulated by the department, the suit contends, and they are subject to far less oversight than treatment plants.
"A lawfully adopted policy would have sought to reduce the commonwealth's total nutrient load by requiring the most cost-efficient reductions first and would have included full public participation, legislative oversight, cost-benefit analyses and funding plans," the suit stated. "DEP's Strategy omitted these important components."
The legal challenge stemmed from the Capital Region Council of Governments, a municipal association in suburban Harrisburg, which has been collecting contributions from towns across the Chesapeake Bay watershed to help pay the legal costs of the suit.