Pennsylvania Environmental Hearing Board Determines that TMDLs are Not Subject to State Appeal

TMDLs Established by EPA, Not DEP

On May 18, 2011, the Pennsylvania Environmental Hearing Board issued a decision in which it dismissed appeals from 4 parties who had attacked the EPA's June 30, 2008 establishment of three total maximum daily loads ("TMDLs") for the Indian, Goose, and Paxton Creek Watersheds.  The appellants also challenged underlying decisions that the Pennsylvania Department of Environmental Protection made as part of the TMDL process.

The EHB determined that it lacked jurisdiction to hear the merits of the appeals because the EPA, and not the Pennsylvania DEP, established the TMDLs.  The appellants contended that DEP should be considered the legal issuer of the TMDLs and that the EHB should therefore review the TMDL.  The EHB found, however, that EPA’s issuance of the TMDLs was a matter of fact, not law.

The Opinion also includes a fairly extensive review of EHB jurisprudence on the type of final DEP actions that are subject to appeal.  For a copy of the May 18, 2011 Opinion of the EHB, click here: http://ehb.courtapps.com/efile/documentViewer.php?documentID=9601.