Before
THE TOBYHANNA TOWNSHIP BOARD OF SUPERVISORS
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In Re: Special Meeting
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Tobyhanna Township Government Center Building
State Avenue
Pocono Pines, Pennsylvania 18350
Monday, May 21, 2007, beginning at 9 a.m.
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PRESENT: JOHN E. KERRICK, Chairperson
HEIDI A. PICKARD, Vice-Chairperson
HUGH LAMBERTON, Board Member
ANNE SINCAVAGE, Board Member
ZACHARY J. COHEN, ESQUIRE, Solicitor
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Panko Reporting
537 Sarah Street, 2nd Floor
Stroudsburg, Pennsylvania 18360
(570) 421-3620
2
1 MR. KERRICK: Call the meeting
2 to order, the special meeting, excuse me.
3 Ken, do you want to start?
4 MR. MALKEMES: Yes, I guess I
5 probably should.
6 We've reviewed a number of
7 different documents over the last week and a half
8 or so and have essentially resolved all the issues,
9 other than execution issues where the developer has
10 to sign some portions of the document, the board
11 has to execute some portions of the document.
12 To go down my last comment
13 letter, the only non-execution items on there that
14 can't be handled administratively, No. 5, where I
15 indicate that new figure 31 must be inserted into
16 Volume 2 of the module package. That does not
17 really have to go in there. The comment and the
18 response to the comment dealt with soil types and
19 typographical error on the drawing. It's not
20 sustentative to the sewage planning. So I don't
21 have a problem if that doesn't physically get
22 inserted into the package. The developer has sent
23 a copy of the corrected drawing to us, so when the
24 time comes for them to come back before the
25 planning commission, we'll have that in our files.
3
1 So the only real issue that
2 remains to be resolved, other than executing and
3 correcting these various clerical issues with the
4 documents, is the sewage management program. There
5 will be a certain amount of administrative tasks to
6 be performed should the board act on the document.
7 The document that's before the board is Volume 1A,
8 which was received on Friday. It's dated the
9 17th -- well, yes, 17th of May. Volume 2, which
10 was received back in March. That's dated the 15th
11 of March. And then there is a set of drawings
12 numbered PP5000 to PP5008, which I have a copy of,
13 but for some reason the township doesn't appear to
14 have a copy. I have not seen a record that they
15 were submitted, but I have reviewed the ones that I
16 have, and the developer has agreed to provide
17 whatever additional copies of those we need, to
18 fill out our sets for transmission to DEP. So
19 there is basically three documents, drawings,
20 Volume 1A and Volume 2 that need to go to DEP,
21 after the township and the developer execute them.
22 That brings us to the sewage
23 management program. We've agreed with the
24 developer to allow them to basically insert that
25 program, whatever its final form may be, into
4
1 Volume 1A. And that agreement that is currently
2 being discussed between the two parties' counsel is
3 the sewage management program that needs to be
4 agreed upon and inserted as well and transmitted to
5 DEP.
6 So that's basically the status
7 at this time. The sewage management program is the
8 last non-administrative issue that needs to be
9 resolved.
10 MR. ANDREW BENNETT: Shall I
11 start?
12 MR. MALKEMES: I guess on that
13 matter, I understand there has been some
14 communications between Manny and your counsel on
15 Friday, with some comments and revisions and I
16 don't know that we've gotten a response to those
17 yet from the developer.
18 MR. JAMES CAHILL: Well, I don't
19 know if anything happened on Friday. Marc Wolfe
20 left his office on Thursday to attend his
21 daughter's graduation. So I'm not aware of
22 anything that happened on Friday.
23 MR. COHEN: I have spoken with
24 Emmanuel Kapelsohn, the primary solicitor, and as
25 of this morning he has not heard from Mr. Wolfe
5
1 regarding any comments.
2 MR. JAMES CAHILL: Okay. The
3 document came in at 5:04 on Thursday, essentially
4 when Marc was leaving for his daughter's
5 graduation, so -- I did talk to Marc about 10
6 o'clock on Thursday night. He had had a chance to
7 look at it and I had looked at it and we have
8 problems with the way that it's prepared. The way
9 it is prepared we are not in a position to sign it,
10 so.
11 MR. COHEN: Do you have any
12 offer as to what the developer is willing to sign?
13 MR. JAMES CAHILL: Well, I'm not
14 aware and Pennoni is not aware of any place that a
15 document exists like this in the State of
16 Pennsylvania where you're requiring a developer to
17 post bonds in perpetuity, forever, into the future.
18 So I think that's a problem that we have with it.
19 Initially, the way that it was
20 drafted and prepared, we were only talking about
21 the sewage treatment plant, and, you know, I made a
22 business decision at the time that, you know -- a
23 four million dollar sewage treatment plant, two
24 million dollar bond and then 10 percent in
25 perpetuity, we might be able to live with that.
6
1 But the way this came back where the entire system
2 is bonded, you could be looking at 40 million
3 dollars.
4 MR. ANDREW BENNETT: It could be
5 a 20 million dollar bond.
6 MR. JAMES CAHILL: Twenty
7 million dollar bond and then 10 percent in
8 perpetuity. I think -- I mean, this document, as
9 it came back to us, calls for not only the sewage
10 treatment plant being bonded, but the holding
11 lagoons, the spray irrigation system, the line to
12 Camelback, the snow making equipment. Now, I have
13 a question whether that includes the snow making
14 equipment at Camelback that isn't even ours.
15 That's something we can't agree to. Pennoni, I
16 don't know how many planning modules you've done in
17 the state, but --
18 MR. ANDREW BENNETT: We have a
19 group of 15 people down in Philadelphia and that's
20 all they do is treatment plants, pumping stations
21 and planning modules. I inquired of a number of
22 them, once I read this document, to see if they had
23 ever seen a document like this, you know, in their
24 history. I also talked to Brian Swanson who is in
25 our Scranton office, who is a municipal authority
7
1 engineer for a couple of authorities up in the
2 Scranton area, and I talked to Jerry Loftus, who is
3 with me today, who's a recent hire of our company,
4 who is actually a licensed operator in the state
5 and has operated a number of facilities, including
6 one in this township, and none of us have seen a
7 maintenance agreement such as this. I mean, for
8 one, I guess I have some philosophical problems in
9 that we are already under the jurisdiction of DEP
10 and EPA, the DEP through EPA on the NPDES program.
11 And a number of things that are in the document I
12 think are redundant in terms of what we are
13 required to do for those agencies and what is
14 documented as a public record for the agencies.
15 There is a jurisdictional
16 problem I think you have in that you're asking for
17 the bonding and the potential operation and
18 maintenance of the facility that is not within your
19 boundaries. I'm not sure how -- and I'm not an
20 attorney, I have never seen that done before. I'm
21 not sure how that's legally even allowed.
22 The majority of the system is in
23 a different township which has not asked us to do
24 anything from a bonding standpoint. When you look
25 at the nine things you can do for a municipal
8
1 wastewater treatment plant and nine is a
2 combination of 1 through 8, one of them is to be a
3 private entity. Certainly, that's a very common
4 place scenario in this region and certainly a
5 common place scenario within this township. So to
6 ask for them not only to bond a facility which is
7 different than the way you operate with your other
8 treatment plants in this municipality, but to bond
9 it in a municipality that is not even under your
10 jurisdiction, I'm not sure how that even is
11 acceptable.
12 And when you talk about the
13 inspections, when we get down into further details,
14 some of the things like the inspections, if your
15 inspections are by non-qualified people, you know,
16 wastewater treatment plants aren't always the
17 safest place, and it gets down to -- I guess what
18 I'm leading to is the portions of the document that
19 talk about indemnification. If you wanted all this
20 bonding and you want all the inspections,
21 certainly, in my opinion, I would not suggest to my
22 client that this township indemnify in the
23 operation or the maintenance of that facility, or
24 the life or the safety of their employees, the
25 township employees that go in through inspection,
9
1 if you want all these safeguards in place
2 monetarily.
3 I have never seen a document
4 like this. No one within our company -- we are an
5 800 man firm. We deal with 12 offices in
6 Pennsylvania. We do a lot of work. We've never
7 seen a program like this. I'm not sure if it's
8 even legal at all, in all honesty.
9 MR. JAMES CAHILL: I can
10 understand, you know, that your professionals would
11 like to keep the developer's feet to the fire, so
12 to speak, but I'd like to point out what just
13 happened to Great Wolf Lodge right here in Monroe
14 County, where they had problems with their plant,
15 that was well documented in the newspaper. They
16 just had a negotiated settlement fine with the DEP
17 of $960,000. So the DEP is really the watchdog on
18 this. And if that's a negotiated agreed fine, I'd
19 hate to see what their initial offer is. So, you
20 know, the DEP takes this very seriously. We take
21 it very seriously and, you know, I don't know what
22 else to say. This document, as it's prepared, we
23 are not in a position to sign it.
24 MR. COHEN: Do you view the
25 maintenance agreement as severable from the module
10
1 such that we could proceed with the modules today,
2 but leave the maintenance agreement open or on the
3 table for now?
4 MR. JAMES CAHILL: We do.
5 Especially since this is an agreement to operate,
6 which, you know, in a perfect world isn't going to
7 happen until three years from now. The planning
8 document will take six months with the DEP. Then
9 we need to design the plan, get Phase 2 --
10 MR. ANDREW BENNETT: Part 2.
11 MR. JAMES CAHILL: Part 2
12 approved and then built.
13 MR. ANDREW BENNETT: We still
14 have to come back with land development plans, with
15 final land development plans. It's not like we are
16 done and we'll never be before the township again.
17 MR. COHEN: I think given the
18 distance between the developer's perspective and
19 the township's perspective regarding this
20 agreement, that it may be best to table that for
21 today, but to revisit it, especially because
22 Mr. Wolfe I heard you say is on vacation right now,
23 his input is going to be essential. Mr. Kapelsohn
24 will be essential. He's halfway across the country
25 at the moment. I think that's the direction I feel
11
1 most comfortable taking.
2 MR. MALKEMES: Well, that will
3 have to be discussed in the sewage planning module
4 then, because the sewage management program has to
5 be identified, even if it's just to say we are
6 still talking about Items 1 through 9 on this.
7 MR. ANDREW BENNETT: It is
8 identified as set No. 2, private entities operating
9 with a licensed operator in the state.
10 MR. MALKEMES: But option 5 is
11 establishment of a properly chartered association
12 trust, rather than private entity, to assure long
13 term administration of an OM program. When you
14 read the DEP regulations on that, it's not just
15 saying that Pocono Manor will run it. There is
16 other provisions that have to be in the articles of
17 incorporation or they have to be a PUC regulated
18 entity. That's how we interpret that. So it's not
19 just --
20 MR. JAMES CAHILL: Ken, we have
21 a plant that's been there for 104 years and has
22 operated long before the DEP came into existence.
23 Our man onsite that operates that plant has been
24 with us 60 years.
25 MR. MALKEMES: I don't dispute
12
1 any of that. Our responsibility is to protect the
2 future of the township and the future operation.
3 MR. ANDREW BENNETT: There is no
4 difference in having us being a private entity as
5 Great Wolf or any other entity that has it's own
6 treatment plant.
7 MR. MALKEMES: Well, I think the
8 difference in this particular case is that we don't
9 have a land development plan that is, at least
10 actively, it may legally still be in existence, but
11 we don't have an active land development. This is
12 directly associated with it because we are not at
13 all sure that this will be a casino project at the
14 end of the day or that it might be something
15 completely different in nature with the flows that
16 are approved under this planning module. Our
17 concern is that if Pocono Manor decides that it
18 made more sense to sell single family homes up
19 there and use these plan flows to serve those
20 single family homes, that the township is protected
21 and that their sewage is going to be adequately
22 managed and treated, again, in perpetuity. So
23 that's where it's a little different than Great
24 Wolf Lodge where you have a clearly associated land
25 development project that's entirely privately owned
13
1 and can be no other thing. Of course, if they
2 don't operate it according to the rules, then it
3 affects them directly as opposed to third parties.
4 MR. JAMES CAHILL: Let me say
5 that we serve single family homes now. The flows
6 that go to that existing plant are not only from
7 the manor, they are from privately held homes that
8 exist in Pocono Manor, number one. Number two, our
9 long range plans, you know, once the property is
10 developed and everything, would probably be to
11 either convey it to an association down the road or
12 to United Water resources or Pennsylvania American
13 Water, one of those companies that does this. Now
14 if you're asking me if 30 years from now whether
15 I'll be in the sewer business in Tobyhanna
16 Township, I don't think I will be.
17 MR. MALKEMES: And I don't think
18 that -- it's not necessarily the case that we can't
19 agree to defer this. I think we just need to make
20 sure that's in the module so DEP knows that's where
21 we are. We are going to continue to pick one of
22 these 8 or 9 items and maybe we need to get some
23 guidance from them as well as to what they should
24 expect us to see. I'm not, you know, against doing
25 something along those lines, I just think we need
14
1 to document that so that we all understand how
2 we've left this and DEP also understands, you know,
3 where we've left it, as far as it's not resolved.
4 I don't think the private legal entity end is
5 really enough protection for the township.
6 MR. ANDREW BENNETT: The
7 majority of the facilities --
8 MR. MALKEMES: That's not
9 disparaging you, Jim. I understand and I believe
10 that you're going to do the right thing, but,
11 again, at the end of the day, if -- you know, in
12 the township's interest, we have to ensure and
13 protect. That's what we are struggling with here.
14 MR. LOFTUS: Ken, how many of
15 these agreements do you currently have in place in
16 the township.
17 MR. MALKEMES: I'm not sure in
18 the township. From my own personal experience, I
19 have not seen any either, so I cannot disagree.
20 MR. LOFTUS: What makes this
21 project different that you feel this project needs
22 this kind of agreement versus all the other
23 facilities that operate within the township,
24 especially since this project doesn't even
25 discharge its wastewater -- primarily it doesn't
15
1 discharge its waste water in the township. The
2 facility itself is located in another facility.
3 The irrigation project will be.
4 MR. MALKEMES: Nearly all the
5 wastewater is discharged back into Tobyhanna
6 Township through spray irrigation. So really it
7 is.
8 MR. ANDREW BENNETT: That's not
9 true. We are talking about spray irrigation on the
10 east golf course, talking about spray irrigation on
11 the west golf course --
12 MR. MALKEMES: Certainly a
13 substantial portion comes back.
14 MR. JAMES CAHILL: Stream
15 discharge.
16 MR. ANDREW BENNETT: We have a
17 number of options. Snow making certainly isn't
18 going to occur majority in this township. Snow
19 making can occur on th east golf course, the west
20 golf course and other places we intend to discharge
21 it. If we have to spray on the southern side, the
22 majority of that is in Pocono Township. There is
23 portions in Mount Pocono Borough that we'll be
24 discharging land-based applications on. So, again,
25 the discharge from the casino site may be coming
16
1 out of Tobyhanna Township, but I still think the
2 majority of the treatment or majority of the
3 land-based application will be occurring in other
4 municipalities.
5 I understand your concern, but I
6 don't see how it's applicable in this case. It is
7 a private entity. It's allowed in a private
8 entity. It's one of the options. If the DEP
9 chooses to have -- to say we need to do something
10 additional, then let them say we need to do
11 something additional. But at this point, the area
12 where the treatment plant is located, the majority
13 of the discharge is located, that township has not
14 asked for this.
15 MR. MALKEMES: Well, I won't
16 disagree that the treatment plant is in Pocono, but
17 I think a large percentage of the discharge is
18 coming back into Tobyhanna Township and I don't
19 want to get hung up on, you know, whether it's 20
20 or 30 or 50 percent. Certainly, a fair percentage
21 of it is coming back to Tobyhanna. But we
22 interpret the responsibility for the sewage, you
23 know, disposal, as being dictated by where the
24 flows originate. So our concern with Tobyhanna is
25 that certainly a large percentage, if not maybe 90
17
1 percent of the flow for this module is coming from
2 Tobyhanna Township. Obviously there is some
3 existing Pocono Manor that's served by it, but the
4 large flow, large amount of flows in this sewage
5 planning module are being generated in Tobyhanna
6 Township. And they are the ones that DEP is going
7 to come back to and expect to have them treated.
8 Now, if they are being treated in Pocono Township
9 or disposed of in Pocono Township or Camelback,
10 wherever, that's all fine, as long as everything is
11 working. And that's the nexus of this discussion,
12 how do we guarantee that you, as a private entity,
13 is maintaining that plant in a manner that
14 adequately treats the sewage that's being
15 originated in Tobyhanna. So that's where our
16 position is, that we want to ensure that Tobyhanna
17 is protected, that you will do what you say you're
18 going to do, whether that is a properly chartered
19 legal entity, an escrow -- we laid those options
20 out on the table for Toby, and with the advice of
21 their solicitor they have narrowed in on the escrow
22 agreement as being their preferred option. And
23 that's where we are today. They don't feel just a
24 private entity is enough protection for them.
25 MR. LOFTUS: But you haven't
18
1 implemented that kind of requirement on anyone else
2 in the township.
3 MR. ANDREW BENNETT: In this
4 case, I don't think I have ever seen where, granted
5 you will have some land-based application on the
6 west golf course and you're going to have some
7 land-based applications on selected landscaped
8 areas, but other than that, everything else is
9 being treated and discharged in another
10 municipality. I have never seen an area where
11 basically sewage is conveyed to another
12 municipality and the municipality from where the
13 sewage is conveyed tried to take over jurisdiction
14 and bonding and maintenance of a facility that's
15 primarily operated in an adjoining municipality
16 that doesn't have that requirement. We are under
17 the jurisdiction of the EPA. We are under the
18 jurisdiction of the DEP. They certainly do enough
19 inspections. Those inspections and reports are
20 public. Data is available to anybody.
21 MR. LOFTUS: And, actually, more
22 stringent now than DEP or EPA are the Delaware
23 River Basin Commission. There are non-degradation
24 requirements. We are in the beginning phases of
25 that.
19
1 MR. MALKEMES: There may be a
2 legal issue, Andy, as to whether or not the
3 township can do that in another municipality or
4 not. I can't really speak to that. But I would
5 agree with you 100 percent if this flow is being
6 discharged to a municipal facility in Pocono
7 Township. But in this case, it's not. It's still
8 a private facility, whether it's located in Pocono
9 or Tobyhanna or Camelback. These are all private
10 facilities that are being relied upon to treat the
11 flows from Tobyhanna. And therein lies the
12 concern. Obviously, if there is a legal reason
13 that Tobyhanna cannot look at it in that way, we,
14 of course, can't do that. But I can't speak to
15 that.
16 MR. JAMES CAHILL: Well, the
17 idea was to table it until Marc and Manny can work
18 all those out. It's just a matter of how we check
19 the box, what we put in the document. That's where
20 we seem to be.
21 MR. MALKEMES: If we can't agree
22 today, I don't know that there is really anything
23 wrong with somehow, you know, summarizing the
24 status of this thing and indicating to DEP where we
25 are and what we are discussing and leaving it as a
20
1 player named later. And DEP will certainly tell
2 you whether or not they will approve it as is and
3 will allow it to be handled later, or we can
4 presumably append it. Maybe you have some opinion
5 on that, Andy, whether or not, if we resolve this
6 say next month, we can append the resolution to
7 that with what's already been submitted to them. I
8 don't know if that makes a difference or not. It
9 depends on how quickly they move it through their
10 agency.
11 MR. ANDREW BENNETT: Well, it's
12 certainly not going to get done in a month. It's
13 the DEP for God's sake.
14 MR. MALKEMES: They won't be
15 done with it, but I don't know if appending it
16 would slow it down or if it would be better to run
17 its course.
18 MR. ANDREW BENNETT: I'd rather
19 let it run its course. I think we are completely
20 legal within our right. I think we are within the
21 rights of the maintenance program within DEP to
22 allow it to run its course.
23 MR. LOFTUS: My opinion is, it's
24 probably not an issue with respect to DEP since
25 they don't require it.
21
1 MR. MALKEMES: Well, I don't
2 know what they are going to require. It would
3 remain to be seen. But, I mean, we took this right
4 out of the code. It clearly indicates that you
5 need to have a sewage management program that
6 consists of one of these 9 things and that I think
7 needs to be in there, in whatever document we --
8 MR. ANDREW BENNETT: We have it
9 in there. Section 7.
10 MR. MALKEMES: The township is
11 saying that's not going to be acceptable to them
12 the way it's currently written. It is the
13 township's responsibility to determine what that
14 management program should look like.
15 MR. KERRICK: Can I ask a
16 question? Is it the township's -- are you telling
17 me then it's the township's responsibility if the
18 plant is malfunctioning or they disappear or
19 whatever, or -- Great Wolf, use that as an example.
20 DEP doesn't have an interest other than they'll
21 fine you and tell you to get it into compliance.
22 If Great Wolf is gone, we'll use them as the
23 example, who pays the tariff? The township, Pocono
24 Township or in this case us, Tobyhanna Township?
25 MR. MALKEMES: In Great Wolf's
22
1 situation, if they are of gone, there is no sewage
2 flows.
3 MR. KERRICK: Good point.
4 MR. MALKEMES: So there is
5 little with Pocono to deal with at that time.
6 MR. KERRICK: But if they
7 wouldn't have corrected their measures, who steps
8 in? DEP will tell you it has to be done, but
9 obviously they won't fund it. Will it come back to
10 the township?
11 MR. MALKEMES: I think, again,
12 in the case of Great Wolf, they would shut it down.
13 Even if Great Wolf was still there and trying to
14 operate it, I think DEP would shut it down.
15 MR. KERRICK: There is or is not
16 exposure to the township at that point?
17 MR. MALKEMES: I think there
18 would be little at Great Wolf's case. The issue is
19 what does this project ultimately look like?
20 Again, this isn't tied to a land development plan.
21 If we had a land development plan on the table that
22 said Pocono Manor was going to build a hotel, they
23 were going to own it, operate it and, you know, all
24 that stuff, no subdivision involved, no third
25 party --
23
1 MR. ANDREW BENNETT: But we do
2 have a land development plan on the table. This
3 thing is tied to a land development plan. I
4 understand, we talk about the casino -- we took out
5 the phase 3 with the houses in it for just this
6 purpose. So it is tied to a land development plan.
7 I don't understand how you say it's not tied to a
8 land development plan.
9 MR. MALKEMES: I'm not 100
10 percent sure what the legal status of the plan
11 approval is.
12 MR. JAMES CAHILL: The appeal is
13 pending and the township approval is valid as long
14 as the appeal is pending.
15 MR. KERRICK: Yes.
16 MR. ANDREW BENNETT: So we took
17 out the residences or potential for residences. I
18 mean, that's what we talked about, was the zoning
19 in phase 3, what number of houses or what we would
20 do from a zoning standpoint. We took out the
21 residences. We really only talked about the
22 casino. We have a land development plan that has
23 conditional approval through this township. How is
24 it not tied to a land development plan? And it's
25 tied to really a commercial operation that's
24
1 completely analogous in a sense to Great Wolf. So
2 I don't see why this is not one in the same.
3 MR. MALKEMES: I guess what -- I
4 was under the impression that it may not be a
5 casino at the end of the day, and these flows would
6 then apply to whatever the, you know, whatever the
7 program might be up there in the future?
8 MR. JAMES CAHILL: Well,
9 whatever that would entail, we would have to come
10 back here and seek municipal approvals.
11 MR. ANDREW BENNETT: Right.
12 MR. JAMES CAHILL: Just like
13 anybody else.
14 MR. MALKEMES: I don't know at
15 that ponit in time whether you could reopen this
16 sewage management program issue, you know, if it
17 was already approved with a different arrangement
18 in place. Again, that would be a legal question
19 I'm not sure I could answer.
20 MR. ANDREW BENNETT: There are
21 always conditions in any land development plan. At
22 the point, you know, if things do change, at the
23 point we come back before this township with a
24 variation of land development plan, I'm sure we'll
25 be subject to conditions as seen deemed by this
25
1 municipality. We'll negotiate at that time. But
2 the plan before you today is tied to a
3 conditionally approved plan that was before you in
4 December and that's the plan that's moving forward
5 to the DEP.
6 MR. KERRICK: I just want to
7 stick my two cents in there.
8 So what you're saying is, if you
9 change that concept, whatever happens, you're going
10 to come back with another land development plan?
11 MR. ANDREW BENNETT: Right.
12 MR. KERRICK: This would change.
13 So we are not locked into anything.
14 MS. PICKARD: It doesn't say
15 that here.
16 MR. KERRICK: This they are
17 talking about carving out anyway.
18 MS. PICKARD: But the plan
19 doesn't say that it would be conditioned only upon
20 that and that it would have to be reopened. If
21 they did a commercial project with, you know, a
22 mall in there, would that have to be reopened if
23 it's the same place?
24 MR. KERRICK: You said that it
25 wouldn't change. I'm confused.
26
1 MR. JAMES CAHILL: If let's say
2 a commercial project that ultimately goes in, it's
3 going to have one owner also, you know, and Pocono
4 Manor would probably still own the golf villa,
5 probably the golf course would get bigger; the
6 casino area would get smaller, and, I mean, still
7 have one entity.
8 MS. SINCAVAGE: It says Sewage
9 Facility Planning Module for Pocono Manor Resort
10 Casino. What if it turns into sewage facility
11 planning module for Pocono Manor Acres? Wouldn't
12 that totally change -- wouldn't you have to start
13 over again?
14 MR. ANDREW BENNETT: We'd have
15 to make a major modification to the planning
16 module.
17 MS. SINCAVAGE: This would
18 totally change. It would have to change.
19 MR. ANDREW BENNETT: It would
20 have to change. I wouldn't say totally, but
21 obviously we'd try to use as much as we can, but
22 we'd be back before the municipality again.
23 MR. MALKEMES: I think the
24 township still has some responsibility, even though
25 it's currently contemplated that it would be a
27
1 wholly owned, one owner operation. Although, I
2 think it would be similar to Great Wolf, I think
3 DEP would obviously come to Pocono Manor first and
4 say you have a problem with your treatment
5 facility, you have a problem with your disposal,
6 whatever the case may be. And, ultimately, I
7 presume they could shut you down if you weren't in
8 compliance. But the township would, you know,
9 still -- it would be best if they had some level of
10 protection. You know, if Pocono Manor sells the
11 property down the road to a third party, we don't
12 know who they may be. You don't know who you're
13 going to be dealing with say 15 years from now. It
14 may not be Jim Cahill, it may be some other
15 individual or other company. So this type of a
16 thing is meant to provide that long term protection
17 to the township that, you know, it doesn't come
18 back to rest on your shoulders.
19 If a developer is up there and
20 comes in and wants to subdivide off the timeshares
21 and you don't catch it, you know, he does so and
22 transfers those to third parties and nobody
23 realizes it, 15 years from now, and the sewage
24 plant fails, you know, you'll be held responsible
25 because now you have third parties using the sewage
28
1 facilities.
2 MR. ANDREW BENNETT: Pocono
3 Township will be held responsible if the treatment
4 plant fails. That's where it's located.
5 MR. MALKEMES: That's not how I
6 interpret it.
7 MR. LOFTUS: The exposure to the
8 township here is no different than the exposure in
9 any other privately operated development, privately
10 operated waste water plant in the township today.
11 If the entity goes away, the township would be
12 required to take over the operations of those
13 facilities.
14 MR. MALKEMES: I agree with that
15 statement. I agree with that. He's right, John.
16 You know, if a private entity here fails to operate
17 their sewage treatment plant, you will have to step
18 in and operate it. Our concern is this is not
19 your, you know, relatively compact treatment plant.
20 There is some settlement and some chemical
21 treatment and some chlorination that happens in an
22 area the size of this room or less. It's a huge
23 facility that's very complicated and, you know, has
24 a lot of components, spray irrigation, off-site
25 disposal, a lot of components that are really
29
1 cutting edge, I guess, non-standard. It could be a
2 significant financial issue if this had to be, you
3 know, the township had to step in and do something.
4 But, Jerry, is correct, I mean, the problem is the
5 same here as it is on any other privately owned and
6 operated treatment facility or any other
7 residential development that's in the township
8 today.
9 MR. LOFTUS: I would suggest
10 that if the township wants to manage a treatment
11 plant, to protect themselves from that potential
12 exposure, you may want to develop a permitting and
13 inspection plan similar to NPDES permit, so that
14 you apply these regulations and rules and
15 compliance activities uniformly and equitably to
16 all the discharges.
17 Understand, that regulation also
18 has a whole series of responsibilities and
19 liability as well. People sue DEP all the time.
20 MR. JAMES CAHILL: So which box
21 are we checking on the form?
22 MR. MALKEMES: The box is
23 already checked. It's a question of what gets
24 attached to the Volume 1A. I mean, I don't know,
25 John, you know, we are all kind of trying to
30
1 presuppose what DEP is going to do to this when
2 they get it, but, I mean, if the board is in
3 agreement that they are not interested in owning
4 the facility or somehow establishing a sewage
5 agency of some sort to oversee its operation, I
6 mean, you could, in the paragraph or whatever we
7 are going to attach to Volume 1A, say that the
8 township and the developer are currently in the
9 process of collecting 1 or all of the items 1, 2,
10 3, 4 and 5 from the PA Code and leave it at that.
11 I mean, that legally you've got to tell them I'm
12 right, but that would leave the issue open here
13 between the township and the developer to resolve
14 at some future date, if they agree with that.
15 MR. KERRICK: I don't personally
16 want to start another inspection process. That's
17 only me. I can't speak for the rest of the
18 supervisors. That's just another layer of
19 government I don't want Tobyhanna Township to get
20 involved in.
21 MR. MALKEMES: I don't think
22 you're required in that agreement to inspect.
23 MR. JAMES CAHILL: You have the
24 right but not the option.
25 MR. MALKEMES: They probably
31
1 would most likely not do anything unless there was
2 a problem identified. If DEP sent you a letter and
3 said there was an issue, then you could use
4 Tobyhanna Township to go down and physically
5 inspect the plant and see for yourself what the
6 issues were. But you're not obligated to do that.
7 MR. KERRICK: Would DEP give us
8 some direction as far as this agreement when they
9 got as far as their review process?
10 MR. MALKEMES: If you identify
11 that you were in the process of negotiating some
12 combination of items 1 through 5, they may comment
13 on it and say -- they may tell you what they want
14 to see. They may say we want you to certainly have
15 numbers 2 and 3 for instance. That would give you
16 some minimum of what they are going to require for
17 them to approve the planning module. You then
18 would still have to make a judgement as to whether
19 you wanted to have something more than that through
20 the township's interest.
21 MR. KERRICK: Today we are at an
22 impasse and I'd like to get it -- this is my
23 feeling. I'd like to get it to DEP to get their
24 comments, but I don't know legally if we can.
25 These talks back and forth kind of confused me more
32
1 than I was when I walked into the room.
2 MR. MALKEMES: We do have, as
3 the developer indicated, there will have to be a
4 land development plan approval of some sort here or
5 picking up the old plan and getting it through the
6 system. So, I mean, they are not going to just go
7 off and develop. There is still a process to be
8 worked through in Tobyhanna. So, I mean, that
9 could be conditioned or indicated that that would
10 be resolved during the land development process,
11 and leave it open. I mean, you'll have a way to
12 put it back on the table, I think, prior to any
13 kind of approval. Because, if I remember
14 correctly, the conditional approval had umpteen
15 things on the list. I'm sure sewage planning was
16 one of them. So a good attorney I'm sure could
17 wrap it back into the land development approval and
18 say it's an unresolved condition of the land
19 development plan. So it won't go away. They
20 really can't do anything with this sewage planning
21 approval other than cross it off their list of
22 things to do. They'll have to design the plant.
23 They have to permit the plant. There is a whole
24 process that has to still be gone through prior to
25 being able to construct anything. We just want to
33
1 be sure that whatever we do is done in a clear
2 enough way that it's documented, so it can't be
3 misinterpreted six months or a year from now or
4 whenever the project moves forward.
5 MR. JAMES CAHILL: Can we just
6 say that the township and the developer are
7 discussing options? What did you say?
8 MR. MALKEMES: Do 1 through 5
9 and submit it to DEP that way. I mean, what do you
10 think, Jerry?
11 MR. COHEN: Does the developer
12 have any concern about submitting the module to DEP
13 with this issue unresolved?
14 MR. JAMES CAHILL: You know, in
15 a perfect world, I'd like it to be resolved, but it
16 doesn't look like we are going to do it today.
17 MR. COHEN: Without Mr. Wolfe
18 present, do you have any authority to enter into a
19 binding agreement for the developer?
20 MR. JAMES CAHILL: No. I would
21 want Mr. Wolfe here, unless we just leave it open
22 that we are still discussing Items 1 through 5.
23 MR. MALKEMES: I mean, I guess I
24 don't have a problem saying that, if that's in fact
25 the case. I just don't know what DEP will say when
34
1 they read that.
2 MR. JAMES CAHILL: Unless it
3 gets there, we are never going to find out. We
4 started this process last summer and here we are.
5 MS. PICKARD: I just had a
6 question. I thought you were saying No. 7. You're
7 saying 1 through 5?
8 MR. MALKEMES: The options, just
9 to paraphrase them quickly, No. 1 is this whole
10 escrow thing that we are discussing. No. 2 is the
11 maintenance agreement between the property owner
12 and the individual to operate the system, which
13 they currently have in place and is also required
14 by the draft agreement. Three is a maintenance
15 agreement between the property owner and the
16 municipality, which again is the agreement. So 1,
17 2 and 3 are really covered in this draft document.
18 Four is a municipal ordinance which requires this
19 of anyone who might be operating a system in the
20 township.
21 Manny and I have talked about
22 that a little bit. I don't know if he's discussed
23 it with you folks at all, but at the present time
24 that's not really on the table. And it's really
25 nothing that would affect these folks other than if
35
1 that was the township's pleasure, that should be
2 indicated in the planning module. But it wouldn't
3 fail if it wasn't in there, if the 1, 2 and 3 were
4 identified in the planning module.
5 And 5 is establishment of a
6 properly chartered association, trust or other
7 private legal entity to ensure the long term
8 administration of the system.
9 Mr. Bennett's position is that
10 simply naming Pocono Manor as the private legal
11 entity is sufficient. I don't really agree with
12 that. There is some language and I don't have it
13 with me today, in the DEP regs, that talks about
14 what these chartered associations need to look like
15 legally. It's really more of a legal issue than an
16 engineering issue anyway, but we could leave that
17 open. I mean, that may be an option that maybe
18 works at the end of the day. There is nothing
19 wrong with it. It's just another option.
20 Six, 7 and 8 all involve
21 municipal ownership of some sort or through an
22 agency or authority, which 6, 7, 8 we sort of ruled
23 out right from the beginning. And 9 is a
24 combination of the above. So if you were to
25 identify that 1 through 5 are components of the
36
1 program that aren't resolved and are still being
2 considered and negotiated with the developer, send
3 it to DEP and it may come back and say, before we
4 review it, pick one. If they do, then we'll have
5 to get it resolved. But if they review it and
6 approve it, then it's through DEP and they are
7 okay. So those are your choices. As long as you
8 legally document that that is an unresolved issue,
9 I think between you and the township, you know,
10 you'd still be protected. Of course, you've got to
11 comment on the legal aspect of whether or not that
12 would be the case.
13 MR. COHEN: My concern would be
14 that if the township is able to put the brakes on
15 it, if DEP gives that the thumbs up.
16 MR. MALKEMES: If we were to put
17 that type of language in the module and DEP
18 approved it, it would be approved obviously with an
19 unresolved --
20 MR. ANDREW BENNETT: They
21 wouldn't approve it.
22 MR. MALKEMES: You don't think
23 they would approve it --
24 MR. ANDREW BENNETT: Not unless
25 it was resolved.
37
1 MR. MALKEMES: So we would have
2 to continue to resolve it and get it to them in
3 some type of appendix.
4 MR. ANDREW BENNETT: They will
5 not approve anything that's unresolved. You have
6 to have your options defined.
7 MS. PICKARD: Can it be
8 submitted and we amend it, like we said earlier, a
9 month down the road?
10 MR. MALKEMES: I think you can.
11 Whether or not you want to do that is another
12 question.
13 MR. JAMES CAHILL: I just need
14 to start their clock.
15 MR. ANDREW BENNETT: We got to
16 get the 120 days going.
17 MR. MALKEMES: Right now, if you
18 submit it, your expectation is you will get a
19 comment?
20 MR. ANDREW BENNETT: Yes.
21 Comment is okay. I just need to get it started.
22 MR. MALKEMES: And if we resolve
23 it in a timely enough manner we can append it
24 perhaps before the comment gets issued.
25 MR. JAMES CAHILL: Correct.
38
1 MR. ANDREW BENNETT: And if the
2 comment gets issued and resolved afterwards, it
3 will be resolved after the comment is issued. It
4 doesn't mean they stop moving because we have one
5 issue.
6 MR. MALKEMES: Right. So there
7 is some benefit. It is a big document. There is a
8 benefit to the developer to get it to DEP to start
9 the technical part of the review. We need to be
10 sure that we've covered our ground legally well
11 enough that we could rescind the approval,
12 actually, if it didn't get resolved.
13 MR. COHEN: So where is the
14 sentence we say that in?
15 MR. MALKEMES: That's your job.
16 MR. KERRICK: Somebody has to
17 craft a motion.
18 MR. MALKEMES: I guess from an
19 administrative point of view, Andy, instead of
20 appending the agreement and all the things that we
21 thought we would append in the back of 1A, we now
22 need to append a 1 page paragraph that indicates
23 what we decide to do today.
24 MS. PICKARD: I think we could
25 have resolved this if Manny and Marc were here
39
1 within a matter of a couple days, I'm thinking.
2 No?
3 MR. COHEN: Yes, I agree with
4 that.
5 MR. JAMES CAHILL: With all due
6 respect, this was sent to Manny five and half weeks
7 ago. We got the comments back at 5:04 p.m. on the
8 day he knew that Marc Wolfe had to attend his
9 daughter's graduation. So I'm not sure it could be
10 worked out in a couple days.
11 MR. KERRICK: I'd like to see it
12 move on if we can come up with a motion and craft
13 it that we protect the township. I think it's been
14 here long enough. It's time it moves on, is my
15 opinion.
16 MR. MALKEMES: And Andy's
17 indicated that we would append a one-page summary
18 of the status of this sewage management program to
19 the document, so the status would clearly be
20 indicated in there that it was unresolved and that
21 the township and developer would continue to
22 resolve it and agree to one of these 5 options or
23 some combination of --
24 MS. PICKARD: Should we craft
25 that first? Take a few minutes?
40
1 MS. SINCAVAGE: When you have
2 submitted other applications for planning module
3 and this sewage management program came up, it just
4 kind of -- there has never been one issued, another
5 one there in place?
6 MR. ANDREW BENNETT: I'm
7 confused by your question.
8 MS. SINCAVAGE: If you submit
9 this and one of the criteria is supposed to be this
10 program. Am I wrong?
11 MR. JAMES CAHILL: Correct.
12 MS. SINCAVAGE: So where is
13 another program, from another sewage planning
14 module that has been approved.
15 MR. JAMES CAHILL: Well, the DEP
16 gives you those 9 options. We've picked one of
17 them. You don't like the one that we picked,
18 unless -- Ken keeps harping on that we need
19 financial guarantees in case something else. There
20 in lies the impasse. I think the question is -- I
21 mean, the answer is, you don't want to own it. We
22 are going to own it, and the question is these
23 guarantees or the bonding or whatever. That's it
24 in a nutshell.
25 MR. MALKEMES: To satisfy DEP's
41
1 regulations, okay, if you wanted to, you could
2 simply accept a maintenance agreement between the
3 developer and his system operator provided the
4 system operator was a licensed operator under the
5 DEP regulations. I think, if you chose to make it
6 so, that agreement would satisfy the requirements
7 for DEP. Now, whether DEP could make you do more
8 than that, I kind of doubt it, but it comes down to
9 how much protection do you want. Are you willing
10 to say, okay, the developer is a stand-up guy.
11 This operator, I know him and he's required to
12 operate it by DEP regulations and that's good
13 enough for me, and you would meet the regulations,
14 in my opinion. It really comes down to how much
15 protection do you, as a township want, you know for
16 each particular project. There is really nothing
17 wrong legally. And from DEP's perspective, you're
18 just saying show me a copy of your agreement and
19 that's our management program.
20 MR. JAMES CAHILL: That's a
21 system we have now.
22 MR. MALKEMES: Right.
23 MR. JAMES CAHILL: We own the
24 plant and Pocono Environmental, Jeremy Young is our
25 operator.
42
1 MR. MALKEMES: That's kind of
2 the opposite end of the spectrum. You can say,
3 okay, our management program is. The developer has
4 a licensed operator. He has an agreement. Here's
5 a copy of it.
6 MR. ANDREW BENNETT: Right.
7 MR. COHEN: It sounds like to
8 move forward, basically the motion should be that
9 the township conditionally approves the module
10 subject to mutual agreement between the township
11 and the developer of the sewage system operations
12 and management agreement under the DEP sewage
13 management regulations. And that way the module
14 can be submitted for DEP comment. There is still
15 the open issue as to the township approving the
16 submission subject to its agreement with the
17 developer on the management agreement of the sewage
18 facility.
19 MR. JAMES CAHILL: That would
20 move it along.
21 MR. COHEN: Anyone speak up if
22 you want me to clarify; if you think something
23 different needs to be --
24 MR. ANDREW BENNETT: Say it
25 again.
43
1 MR. COHEN: That the township
2 would conditionally approve the module subject to
3 the agreement between the township and developer of
4 the sewage system operations and management
5 agreement and that we would use the DEP's
6 regulations, specifically Section 7172, as set
7 forth in the module, as a framework to decide upon
8 the proper maintenance agreement.
9 MR. ANDREW BENNETT: Sure.
10 MS. SINCAVAGE: So moved.
11 MS. PICKARD: Second.
12 MR. KERRICK: Motion and second
13 on the floor. Any discussion from the board?
14 Questions or comments from the
15 public?
16 Call the vote. Anne?
17 MS. SINCAVAGE: Vote in favor.
18 MR. KERRICK: Heidi?
19 MS. PICKARD: Vote in favor.
20 MR. KERRICK: I vote in favor.
21 MR. JAMES CAHILL: Thank you
22 guys.
23 MR. MALKEMES: Then we just need
24 to craft that one page attachment, I guess, Andy,
25 that we can --
44
1 MR. ANDREW BENNETT: I thought
2 that's what we were attaching?
3 MR. MALKEMES: We can attach
4 that motion, I guess typed.
5 MR. ANDREW BENNETT: Attach the
6 motion.
7 MR. COHEN: Anne, did I hear
8 correctly that you did not vote in favor?
9 MS. SINCAVAGE: I voted in
10 favor.
11 MR. KERRICK: She voted in
12 favor. It was 3-0.
13 MR. COHEN: Okay.
14 MR. MALKEMES: So, procedurally,
15 we'll need to execute a Volume 1A. We will need to
16 attach a copy of the motion to Volume 1A and
17 forward Volume 2, and the developer owes us a set
18 of drawings.
19 MR. ANDREW BENNETT: How many?
20 MR. MALKEMES: I think we are at
21 six, weren't we?
22 MR. ANDREW BENNETT: You have
23 one. We'll supply another six.
24 MR. MALKEMES: Three to send and
25 three to keep.
45
1 MR. JAMES CAHILL: Where is the
2 stuff I have to sign today?
3 MR. ANDREW BENNETT: They are in
4 Volume 1. We have stickers to fix that blacked-out
5 area. We'll do that. He can sign. We'll leave
6 them with you. You can sign. Do you need us to
7 attach that page in there? We have the machine to
8 pull it apart, is what I'm saying.
9 MR. MALKEMES: Where do we want
10 to stick this?
11 MR. ANDREW BENNETT: Maybe right
12 after this letter, put it right after that letter.
13 Attach it there so that if you guys, I don't know
14 that you have one of these machines --
15 MR. KERRICK: We do. Don't know
16 how to use it, if you're asking me to do it.
17 MR. ANDREW BENNETT: So if you
18 do, especially if we do it in the front, it will be
19 easier to pull apart. Okay. So we'll attach the
20 stickers, Jim will sign his documents and you will
21 type up the thing.
22 MR. MALKEMES: You will get a
23 copy of your motion and insert that after the
24 letter. I can go over this with -- I guess Maureen
25 would be the one. This has to come from the
46
1 township to DEP. So Maureen would be the one that
2 would be putting this package together.
3 MR. ANDREW BENNETT: Okay.
4 MS. PICKARD: Marc and Manny
5 will move forward on a resolution?
6 MR. JAMES CAHILL: Yes. I would
7 think so.
8 MS. SINCAVAGE: I think you
9 better have an answer if it comes back to you.
10 MR. ANDREW BENNETT: Agreed.
11 MR. MALKEMES: I think you'd
12 want -- if we resolve it, I think you'd want to
13 send it to him before you comment.
14 MR. JAMES CAHILL: Correct. The
15 quicker the better.
16 MR. COHEN: My understanding is
17 that a resolution needs to be passed. Would the
18 resolution be to approve the plan for a new land
19 development as presented here, subject to the
20 motion just passed by the township? Does that
21 sound accurate?
22 MR. MALKEMES: Right. I think
23 we've conditionally approved the module with the
24 page to be inserted, with the prior motion of
25 approval. Now, to be able to forward it to DEP,
47
1 they require an adoption of a resolution for plan
2 revision for new land development, and I don't
3 know, John, what your practice is, whether you
4 typically read these resolutions or not, word for
5 word, but this resolution would adopt the plan as
6 amended based on the prior motion. This resolution
7 would adopt a plan as previously amended by the
8 prior motion for submission to the PA DEP.
9 MR. KERRICK: We don't normally
10 read the resolution. I can give you a resolution
11 number, which would be 2007-013.
12 MS. SINCAVAGE: I make a motion
13 we approve Resolution 2007-013.
14 MS. PICKARD: I'll second the
15 motion.
16 MR. KERRICK: Motion and second.
17 Any questions? Call the vote. Anne.
18 MS. SINCAVAGE: In favor.
19 MR. KERRICK: Heidi.
20 MS. PICKARD: Vote in favor.
21 MR. KERRICK: I'll vote in
22 favor. Motion carried.
23 We are adjourned.
24 (Meeting adjourned at 10:18
25 a.m.)
48
1 ---
2
3
4
5
6
7 I hereby certify that the
8 proceedings and evidence are contained fully and
9 accurately in the notes taken by me at the hearing
10 in the above matter; and that the foregoing is a
11 true and correct transcript of the same.
12
13
14
15 JOSEPHINE HOLLMAN, C.R.
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