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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