EPA v. SCHWENKSVILLE BOROUGH WATER AND SEWER AUTHORITY (BAGHURST DRIVE SUPERFUND SITE)

Case summary

On December 6, 2023, Section Chief Melissa Linden (SEMD, Eastern Response Section) issued a modified order under Section 104(e)(5) of CERCLA to the Schwenksville Borough Water and Sewer Authority ( the SBA'), requiring the SBA to grant EPA access to an SBA facility to complete a removal action at the Baghurst Drive Superfund Site in Upper Salford, Montgomery County, Pennsylvania ( the Site ). The SBA facility is adjacent to the Site. The removal action includes the construction of a waterline extension and related facilities to connect 28 households with contaminated wells to the SBA's existing public water system. The SBA agreed to allow these connections to its system in an Intermunicipal Agreement with Upper Salford Township, the local municipality where the impacted wells are located. In reliance on the Intermunicipal Agreement and other assurances provided by the SBA, EPA has spent about $9.2 million in response costs to construct the waterline extension. The only response work remaining to be done generally includes testing by EPA to determine if the waterline and the lateral connections to the individual homes are operating and functioning as designed and to install a water meter at each home. In addition, EPA will abandon and disconnect the contaminated wells once the homes are connected to the SBA?s water system. Recently, the SBA has denied or conditioned EPA?s access to the SBA?s facility for completion of the removal action until EPA (or some undetermined third party) pays administrative tapping fees under a local SBA ordinance. Under Pennsylvania law, tapping fees are discretionary fees, which a municipal authority may require its customers to pay. We have informed the SBA that tapping fees are not allowable response costs under CERCLA because they are costs for the long-term delivery of drinking water, which, under the NCP, is the responsibility of the states or local governments. In addition, major parts of the tapping fees are for reimbursement to the SBA for its own fixed capital investment in the existing water system and for payment of the SBA?s own consultants? and attorneys? fees. Such expenditures would also not be response costs under CERCLA. ORC and SEMD have recommended that the SBA investigate other potential EPA resources for assistance with the SBA's costs related to tapping fees, including the state revolving fund under the Safe Drinking Water Act. EPA originally requested access on November 17, 2023, and, when that request was denied, issued an order to compel access on November 29, 2023. The order provided the SBA with the opportunity to request a conference with EPA. A conference between EPA and the SBA was held on December 4, 2023. As a result of the conference, EPA decided to modify the order to require access for the response work, except for the final connection of the lateral lines to the residences, to facilitate further discussion concerning the tapping fees and allow the SBA's Board time to consider the entire matter at a regularly scheduled public meeting to be held on December 13, 2023. Based on local knowledge, the On-Scene Coordinator and the Remedial Project Manager believe that the residents at the Site may not be able to afford the tapping fees. An EJScreen has been conducted for the Site, and the initial determination is that the Site may not be an EJ area of concern. The PA DEP has been informed about the issuance of the order and has been consulted throughout the construction of the waterline.

Defendants (1)

• SCHWENKSVILLE BOROUGH WATER AND SEWER AUTHORITYNamed in settlement

Facilities (2)

• BAGHURST DRIVE SUPERFUND SITE

  1926 HENDRICKS RD, HARLEYSVILLE, PA, 19438

  Registry ID: 110071654897

• BAGHURST DRIVE

  NORTHERN INTERSECTION OF HENDRICKS, HARLEYSVILLE, PA, 19438

  Registry ID: 110056112184

Statutes cited

• CERCLA 104E3 — Entry Access

Enforcement conclusions (1)

• SCHWENKSVILLE BOROUGH WATER AND SEWER AUTHORITY (BAGHURST DRIVE SUPERFUND SITE)entered 2023-12-06

  Primary law: CERCLA

Timeline (2 milestones)

• 2023-12-06Final Order Issued
• 2024-02-22Enforcement Action Data Entered