Administrative Finality
The Board denied a motion in limine in Angela Cres Trust of June 25, 1998 v. DEP, EHB Docket No. 2006-086-R (Opinion issued October 11, 2007), and held that the appellant’s challenges to the extension of a water obstruction and encroachment permit were not barred by the doctrine of administrative finality. The Board concluded that the central issue was whether it was appropriate for the Department to have extended the permit based upon up-to-date information.
Attorney’s Fees
In
In an opinion following the remand from the Supreme Court, the Board held that a party who did not appeal from an order of the Board denying a petition for attorney’s fees was precluded from participating in the matter on remand in Solebury Township v. DEP, EHB Docket No. 2002-323-L (consolidated)(Opinion issued December 6, 2007). The Board further held that a municipal party could amend its fee petition to include Section 307 of the Clean Streams Law as a basis for recovery.
The Board denied the Department’s motion for a protective order for the discovery of raw gas sampling data. After reviewing the deposition testimony of the Department’s expert witness the Board concluded that the expert had relied on the data and therefore it was discoverable. It was not relevant that the data was in the form of “notations” and may not ultimately be admissible or useful. Snyder Brothers, Inc. v. DEP, EHB Docket No. 2006-002-L (Opinion issued January 30, 2007).
The Board assessed a civil penalty for $35,500 for 87 violations of the Clean Streams Law against the operator of a mobile home park in DEP v. Kennedy, EHB Docket No. 2005-299-CP-L (Adjudication issued January 22, 2007). The Board found that the operator’s behavior was at best reckless, and given the number of violations and his failure to respond to numerous warnings by the Department, that penalty (which was more than the $26,800 requested by the Department) was appropriate.
The Board also assessed a civil
penalty for violations of the Clean Streams Law against a developer for failing
to install appropriate BMPs, failing to acquire an appropriate NPDES permit and
failing to secure approval of erosion and sedimentation plans. The $21,000
penalty was based in large part on the developer’s repeated, careless failure
to install pollution controls and secure appropriate approvals and as a
deterrent factor. DEP v. Angino, EHB Docket No. 2003-004-CP-L (Adjudication
issued
The Board dismissed an appeal from a $9,000 civil penalty assessment issued to an owner of a mobile home park. In Gordon v. DEP, EHB Docket No. 2005-323-R (Adjudication issued April 26, 2007), the Board found that the Department had established that the appellant was improperly disposing of waste on the property and that the penalty was a reasonable fit given the circumstances of the violation.
The Board upheld the denial of an
application to renew a wastewater systems operator’s license because the
applicant had been convicted of three misdemeanors related to his operation of
a wastewater system. Swinehart v. DEP, EHB Docket No. 2006-056-L (Opinion
issued
The Board reduced a civil penalty
for fugitive dust and other violations in Eureka
Stone Quarry v. DEP, EHB Docket No. 2006-044-MG (Adjudication issued
The Board assessed a civil penalty of $18,500 for violations of the Cleans Streams Law and Dam Safety and Encroachments Act in DEP v. Pecora, EHB Docket No. 2006-114-CP-L (Adjudication issued October 4, 2007). The Board based the penalty largely upon the defendant’s unexcused delay in complying with an order of the Department resulting in sediment pollution to an adjacent exceptional value wild trout stream.
The Board granted a motion for
summary judgment in HJH, LLC v. DEP, EHB Docket No. 2006-152-MG (Opinion
issued
The Board found that a notice of
violation which requests the permittee to review its records to determine the
source of a material discharged from an outfall was not a final action. Rather,
the letter was written in the context of an ongoing study of a review of an
NPDES renewal, and therefore lacked the characteristics of a final action
affecting personal or property rights. Langeloth Metallurgical Co. v. DEP,
EHB Docket No. 2006-272-L (Opinion issued
Intervention
The Board denied a motion to intervene by an individual in a series of appeals involving actions by the Department relating to sewage facilities in Bucks County Water and Sewer Authority v. DEP, EHB Docket No. 2006-225-MG, 2007-058-MG, 2007-145-MG (Opinion issued August 8, 2007). The Board found that the interest of the petitioner was in the settlement discussions among some of the parties and not in the subject-matter of the appeals.
The
In Lower Milford Township v. DEP, EHB Docket No. 2006-109-L (Opinion issued June 26, 2007), the Board held that the Noncoal Surface Mining Act does not require a permit for exploration so long as no minerals are removed from the site. The rather limited activities associated with test borings clearly do not fall within the definition of operating a surface mine, and since there was no extraction of minerals, there were no activities “in connection with” surface mining. Therefore the permit requirements of the Act did not apply.
Similarly, in Keck v. DEP, EHB Docket No. 2005-280-L (consolidated)(Adjudication issued June 26, 2007), the Board held that exposing a seam of coal, but not removing any coal or otherwise excavating the coal, regardless of his future intent, is not “mining of coal’ under the Surface Mainlining Conservation and Reclamation Act. Therefore the Department erred in assessing a civil penalty against the appellant for coal mining without a permit.
The Board held that the
presumption of liability set forth in Section 1396.4b(f)(2) of the Surface Mine
Act applies to an operator who is alleged to have affected a domestic water
supply of landowners caused by the operator’s construction and operation of an
access road included in coal exploration activities. Cumberland Coal
Resource, LP v. DEP, EHB Docket No. 2006-234-R (Opinion issued
The Board, in Stout
v. DEP, EHB Docket No. 2007-052-R (Opinion issued
The Board held that the Department correctly approved a Determination of Applicability for the beneficial use of mixed residual waste for reclamation of an abandoned mine site, except for the groundwater monitoring plan in Citizen Advocates United to Safeguard the Environment, Inc. v. DEP, EHB Docket No. 2006-005-L (consolidated)(Adjudication issued November 2, 2007). Specifically the Board found that the monitoring plan failed to demonstrate that it was capable of detecting the off-site migration of contaminants, and remanded the plan to the Department for further analysis.
The Board found that a challenge to a surface mining permit is not moot even though all the coal had been removed from the site in Concerned Citizens of Ligonier v. DEP, EHB Docket No. 2005-314-L (Opinion issued February 13, 2007). Part of the appellant’s appeal was a challenge to the adequacy of the reclamation plan found in the permit. Therefore should the appellants prevail, it is conceivable that the Board could offer relief by ordering a modification of that portion of the permit.
The Board denied summary judgment in BP Products North American, Inc. v. DEP, EHB Docket No. 2005-032-L (Opinion issued January 11, 2007), and held that the Department is not required to use the effluent limits contained in a general permit when it issues an individual NPDES permit for a petroleum marketing terminal. The Board also noted that the question of whether the limits were reasonable was clearly a question of material fact which had to be resolved at hearing.
In Upper Gwynedd Township v. DEP, EHB Docket No. 2005-358-MG (Opinion issued January 30, 2007), the Board denied a motion for summary judgment finding that there were numerous issues of material fact in dispute concerning the propriety of imposing a year-round phosphorus effluent limit. Specifically, it was unclear that the Department had improperly applied Section 96.5(c), which requires a 2 mg/l phosphorus limit for waters impaired by nutrient pollution, by imposing the strict limit during both cold months and warm months.
Permits
The
Representation
The Board denied a motion to
disqualify the intervener’s counsel in Perrin
v. DEP, EHB Docket No. 2007-118-R (Opinion issued
The Board dismissed an appeal
challenging the Department’s granting of an exemption from an Act 537 Plan
revision to a residential developer. Walker v. DEP, EHB Docket No.
2005-274-K (consolidated)(Adjudication issued
The Board remanded a private
request to the Department, where the Board found that the Department did not
exercise independent judgment in evaluating whether or not the municipality’s
Act 537 Plan was not being implemented or was inadequate to meet the land
developers needs. Heritage Building Group Inc. v. DEP, EHB Docket No.
2006-072-MG (Adjudication issued
The Supreme Court reversed a
decision of the
In Seneca Landfill, Inc. v.
DEP, EHB Docket No. 2006-012-R
(Opinion issued July 5, 2007), the Board granted summary judgment to the
Department of Environmental Protection on the question of whether the
Department had issued to landfill appropriate refunds of disposal fees that had
been improperly collected under Act 90.
The refunds came about following the Commonwealth Court’s ruling in Joseph
J. Brunner, Inc. v. DEP, 869 A.2d 1172 (Pa. Cmwlth. 2005), appeal denied,
85 A.2d 44 (Pa. 2005), held that process residue and nonprocessible waste did
not need to be generated by a resource recovery facility in order to qualify
for the exemption pursuant to Section 6301(b)(1) of Act 90. In issuing the refunds, the Department
refunded fees paid by non-petitioning landfills back to the Brunner decision
and for petitioning landfill fees paid up to six months prior to the date of
their petition for a refund. In no case
except that of the Brunner landfill did the Department issue refunds back to
the inception of the fee. The Board
found that the Department had complied with the refund provisions of Section
702(e) of Act 101 in issuing the refunds and granted summary judgment in its
favor.
The Board held in another Act 90 refund case, Veolia ES Greentree Landfill, LLC v. DEP,
EHB Docket No. 2006-073-R (Opinion
issued July 5, 2007), a landfill’s appeal from a refund letter was neither untimely nor barred by
administrative finality. The Board
rejected the Department’s argument that an earlier letter containing a refund
check was its final action. The letter did not reference Veolia’s refund
petition and was not addressed to Veolia’s counsel who had filed the petition
and, further, where the testimony of Department officials was that Veolia’s
petition had no bearing on the amount of the refund or the contents of the letter,
the Board could not conclude as a matter of law that the letter was a final
decision on the refund petition.
The Board found that a landfill
operator produced sufficient evidence at a hearing to demonstrate that its
proposed expansion application demonstrated that there was minimal potential
for mine subsidence, settlement or groundwater contamination. Accordingly, the
Department improperly denied the expansion application. Specifically the Board
found that the Department failed to substantiate its position that the operator
had failed to provide sufficient information to address the Department’s
concerns with any evidence to rebut the claims made and supported by the
operator at the hearing. Therefore the Board remanded the application to the
Department for further consideration. Environmental
& Recycling Services, Inc. v. DEP, EHB Docket No. 2006-161-C
(Adjudication issued
The Board refused to grant a request for a stay filed by an appellant in an appeal from a Department determination under the Mine Subsidence and Land Conservation Act in Stout v. DEP, EHB Docket No. 2007-052-R (Opinion issued August 17, 2007), where the appellant had filed a writ in the court of common pleas relating to an alleged oral contract between the appellant and the Department concerning incidental costs in a claim for damages caused by mine subsidence. The Board held that it had exclusive jurisdiction to review Department determinations under the Mine Subsidence Act and could review the Department’s reliance on any oral contract that may or may not exist incidental to its authority to review Department actions.
The Board issued a series of decisions holding that summary judgment is only appropriate where there are very few material facts and the matter can be resolved as a question of law. Where the parties sought judgment on an issue that required expert testimony or involved a complex technical matter, the Board refused to render judgment, holding that a hearing on the merits was much more appropriate. Citizen Advocates United to Safeguard the Environment, EHB Docket No. 2006-005-L (Opinion issued February 6, 2007); Borough of Ambler v. DEP, EHB Docket No. 2005-336-MG (Opinion issued July 2, 2007); Parks v. DEP, EHB Docket No. 2006-199-L (Opinion issued July 16, 2007).