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BOROUGH OF BEDFORD v. COM., DEP

No. 160 M.D. 2008.

972 A.2d 53 (2009)

BOROUGH OF BEDFORD, Municipal Authority of the Borough of Bedford, Brown Township Municipal Authority, Burnham Borough, Burnham Borough Authority, Borough of Chambersburg, Danville Borough, Derry Township (Dauphin County), Derry Township (York County), Dillsburg Borough, Dover Borough, Dover Township, East Pennsboro Township, East Pennsboro Township Sewer Authority, Elizabethtown Borough, Elizabethville Borough, Elizabethville Area Authority, Borough of Ephrata, Fairview Township, Fairview Township Authority, Franklin County General Authority, Gallitzin Borough Sewer and Disposal Authority, Hampden Township, Hampden Township Sewer Authority, Borough of Hanover, Hastings Area Sewer Authority, Highspire Borough, Borough of Hummelstown, Borough of Lewistown, City of Lock Haven, Londonderry Township, Lower Paxton Township, Lower Swatara Township, Lower Swatara Township Municipal Authority, Borough of Marysville, Middlesex Township Municipal Authority, Borough of Middletown, Middletown Borough Authority, Borough of New Cumberland, Newberry Township Municipal Authority, North Middleton Authority, North Middleton Township, Northeastern York County Authority, Northern Lebanon County Authority, Northwestern Lancaster County Authority, Paxtang Borough, Penn Township, Borough of Penbrook, Pine Creek Municipal Authority, Borough of Royalton, Shrewsbury Borough, Shrewsbury Borough Municipal Authority, Silver Spring Township, Silver Spring Township Authority, South Middleton Township, Springettsbury Township, Borough of Troy, Twin Boroughs Municipal Authority, Borough of Tyrone, Upper Allen Township, Wayne Township, West Hanover Township Water and Sewer Authority, West Manchester Township, York City Sewer Authority, Petitioners v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL PROTECTION; Kathleen McGinty, Secretary of Environmental Protection, Respondents.

Commonwealth Court of Pennsylvania.

Decided April 14, 2009.

Attorney(s) appearing for the Case

Steven A. Hann, Lansdale, for petitioners.

Douglas F. Brennan, Asst. Director and Dennis A. Whitaker, Asst. Chief Counsel, Harrisburg, for respondents.

Matthew B. Royer, Harrisburg, for intervenor, The Chesapeake Bay Foundation, Inc.

BEFORE: LEADBETTER, President Judge, and McGINLEY, Judge, and FRIEDMAN, Judge, and COHN JUBELIRER, Judge, and SIMPSON, Judge, and LEAVITT, Judge, and BUTLER, Judge.

OPINION BY Judge LEAVITT.

The Borough of Bedford, et al. (collectively, Bedford Group) seeks relief from an enforcement policy of the Pennsylvania Department of Environmental Protection (DEP) undertaken to improve the quality of water in the Chesapeake Bay. The Bedford Group asserts that DEP's policy is actually a regulation that is void and unenforceable because it was not promulgated in accordance with the statutory procedures that must be satisfied before...

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