Air Quality

Defense Personnel Support Center (97-265-MG, May 19, 1998) The Board sustained the appeal of a federal agency from a regulatory decision of the Department which would have required it to help finance an odor abatement study with another responsible party because the evidence in the stipulated record was insufficient to demonstrate that this task is required by the remediation agreement to prevent an unacceptable health or environmental risk. The draft risk assessment, which was a part of the stipulated record, concluded that the petroleum odors in the area did not present either an acute or chronic health risk. The remediation agreement related to remediating a large pool of hydrocarbons in the ground water in an area of South Philadelphia caused by releases of petroleum from facilities there including oil refineries.

Clean Streams Law

Belitskus (96-196-MR, August 20, 1998) The Board held that the Department was not required to deny an application for an NPDES permit because of prior permit violations by the applicant even though the Department had abused its discretion in not considering all of the applicant's prior violations of permit at all sites in the state. The Board found from all the evidence that the prior violations in the state did not demonstrate that the applicant would not comply with the law where all prior violations were being corrected to the satisfaction of the Department and the history of violations did not amount to a "significant" history of noncompliance with prior permits issued by the Department. The Board also held that while the appellants had standing because storm water runoff from the applicant's chip plant might affect their enjoyment of an adjoining stream, the evidence at the hearing demonstrated that there would be no such impact.

Enforcement

Gemstar Corporation (97-010-MG, February 10, 1998) The Board approved the assessment of a civil penalty against a waste tire processing facility in the amount of $174,500 for violations of the Solid Waste Management Act, the Department's regulations thereunder and for violations of conditions on the facility's residual waste permit. This was a reduction of the $225,000 penalty assessed by the Department because the Department failed either to sustain its burden of proving some of the violations or failed to prove that penalties were a "reasonable fit" with the gravity of the offenses. An appeal is pending in the Commonwealth Court.

202 Island Carwash, L.P. (98-023-MG, December 18, 1998) A portion of the Department's compliance order under the Storage Tank Act was found to be invalid which purported to require, in advance of any violation of the order, the payment of an automatic penalty for each violation of the Department's order. The Board held that the Act required consideration of all relevant factors of the violation which the Board held could not be considered in advance of the violation. The Department had set the penalty at $1,500 per day for each violation which the Department viewed as a fair average penalty to be applied for each failure to meet the deadlines for remediation as well as for each failure to provide information to the Department.

Heidelberg Heights Sewerage Company (97-150-C, May 19, 1998) An appeal from a Department order directing the owner of a privately owned sewage system to take all steps necessary to operate the sewage treatment plant in accordance with its permits is dismissed. The Department need not consider the appellant's financial ability to comply with the order, because ability to comply is not relevant to an appeal limited to a determination of the validity and content of the order. The Department's decision to require the Township to acquire the facility as an alternate course is a matter of prosecutorial discretion not reviewable by the Board.

FR&S, Inc. (97-247-MG, September 3, 1998) The Board granted the Department's motion for summary judgment against the claim that the penalty assessed against a privately owned landfill was discriminatory because the Department had not imposed penalties on municipally owned landfills. The Board held that there was no evidence presented by the permittee indicating that the Department had intentionally discriminated against the permittee.

FR&S, Inc. (97-247-MG, April 17, 1998) Under some statutes the appellant has a right to contest both the fact of the violation and the amount of the penalty where the Department's initial compliance order does not contain a penalty assessment. In this case, however, the appellant had acknowledged the fact of the violation in a previous consent order and agreement so that the Board granted the Department's motion to limit issues to the amount of the penalty. Similarly, in White Glove, Inc. (97-172-MG, April 28, 1998) the Board held that the appellant's withdrawal of its appeal from the initial compliance order on the eve of the hearing on the merits barred the appellant from contesting the fact of the violation in the appeal from the penalty assessment. The Board held that the withdrawal of the first appeal was with prejudice under the Board's rules so that the fact of the violation had been established by the law of res judicata.

Goetz (97-226-C, September 10, 1998) The Board rejected the appellant's claim that he was financially unable to prepay or post a bond for payment of a penalty under the Noncoal Surface Mining Act, but granted the appellant 30 days in which to either prepay or post a bond for prepayment of the penalty. An appeal is pending in the Commonwealth Court.

Pilawa (96-108-MR, September 25, 1998) The Board approved civil penalties in the total amount of $7,600 for the appellants' violation of the Storage Tank Act by causing or assisting in the handling of tanks by three uncertified persons, by allowing a release of kerosene to the soil while removing an underground storage tank, and by causing or assisting in the improper storing of contaminated soil. The Board reduced the penalty assessed by the Department by $3,400 because of improper classification of the nature of the violation. An appeal is pending in the Commonwealth Court.

HSCA

Crown Recycling & Recovery, Inc. (92-429-CP-MG, November 4, 1998) In a second adjudication with respect to the liability of a generator of insulated copper wire, the Board held the generator liable under HSCA because it arranged for both the treatment and disposal of hazardous substances at an incineration facility. The Board held that this defendant failed to prove that the injury caused by the lead, copper and dioxin at the site resulting from the incineration of this defendant's wire was divisible from the harm caused by other defendants. However, the Board found that this defendant was not liable for response costs arising from the contamination of the ground water by other substances because this harm to the ground water is divisible from the harm caused to the soils. The precise amount of the Department's response costs are to be determined following a further hearing with respect to the amount of the Department's response costs which are attributable to the damage done to the ground water and the amount of prejudgment interest.

Mining

Chestnut Ridge Conservancy (96-022-R, March 26, 1998) The Board sustained an appeal from the issuance of a noncoal mining permit after a full hearing on the merits where the Department had not adequately addressed the permittee's right to use the proposed access road and the permittee failed to demonstrate at the hearing on the merits that it would have a legal means of accessing the permit site from a township road. A court of common pleas had also held that the permittee did not have legal right to construct the proposed access road. Because the applicant had proposed no other means of access after a significant period of time had elapsed after the hearing before the Board, the Board granted the motion to sustain the appeal.

By contrast, the Board affirmed the Department's grant of a noncoal mining permit where the Department had adequately addressed a dispute about the legality of the permittee's proposed access to the site in Coolspring Stone Supply, Inc. (96-171-R, March 25, 1998) An appeal from that order is pending in the Commonwealth Court.

Lucchino (95-185-R, May 15, 1998) The Board rejected an appeal from the Department's release of mining bonds posted by the permittee under SMCRA because the evidence demonstrated that the permittee had met the required standard for reclamation of the mined land for both Stage I and Stage II bond release. The Commonwealth Court affirmed the decision.

Thompson Brothers Coal Company, Inc. (96-028-R, September 15, 1998) The Board upheld the Department's denial of an application for bond release due to the existence of an acid mine discharge on the permit site. Although the discharge exists within a "barrier area" which could not be affected by the permittee without further approval by the Department, the Board held that it is contained within the permit area and therefore is an "on-permit" discharge. An appeal is pending in the Commonwealth Court.

Sonavec, Inc. (97-011-MR, April 3, 1998) The Board granted the motion for summary judgment of a surface mining operator in an appeal from an order requiring the operator to restore or replace a private water supply under SMCRA. The Board found that the Department erroneously assumed that the miner contaminated the water supply and that a previous landowner's acceptance of the present water supply with the miner was without legal significance.

Beltrami Brothers Real Estate 89-016-MR, September 11, 1998) The Department used material in the appellant's culm bank pile to remedy a highwall created by unregulated coal mining and related spoil banks. In this opinion the Board denied the Department's motion for summary judgment because there may have been an alternative remedy to abate the public nuisance which would have had a lesser effect on appellant's economic interest in the culm bank pile. A further hearing is to be held as to whether the Department's action was a regulatory taking of the culm bank pile.

Oil and Gas

Wasson (97-136-C, October 28, 1998) An appellant was properly required to plug wells and reclaim pits where he had discharged production fluids. The order and declaration of forfeiture of a bond was not an unconstitutional taking because the appellant had an independent duty to remediate, and the order did not affect the fair market value of the appellant's property interest or any reasonable investment backed expectations he may have had in it. Financial inability to comply is irrelevant in appeals of orders and declarations of bond forfeiture.

Sewage Facilities Act

Force & Yeager (96-054-MG, March 13, 1998) The Board rejected the appellants' claim that they were entitled to an order requiring the Department to grant their private request which would have required the Township to make public sewer lines available on the private street where their residences were located at the Township's expense to alleviate the problems created by the malfunctioning of their on-lot sewage systems. The Township provided sewer lines in adjacent streets, and was willing to connect appellants to those lines at the appellants' expense. The Commonwealth Court affirmed in an unreported opinion.

Gasbarro (97-031-C, November 20, 1998) The Board upheld the Department's denial

of a private request to revise the Township's official plan to permit the applicant to increase sewage flows to an on-lot sewage system for a proposed restaurant and inn because the evidence at the hearing showed that the increase in sewage flows would greatly exceed those permitted by the Department's regulations.

Township of Upper Saucon (98-082-MG, October 26, 1998) The Board held unappealable a letter from the Department to the Township Manager expressing the Department's interpretation of its regulations applying to the Township's sewer ban to an application for the conversion of a junior college to an assisted care facility because the Department ordered no action. The Sewage Facilities Act was amended several years ago to fully delegate the administration of the permit system to township authorities. The Department's letter expressed the view that the sewer ban was not effective and that the proposed facility could be exempted from the ban as "a facility of public need" under the Department's regulations. The Township was nevertheless free to decide whether or not to permit the converted facility to discharge to the Township's sewage system. An appeal is pending in the Commonwealth Court.

Sewage Treatment Reimbursement

University Area Joint Authority (96-109-MR, May 5, 1998) The Board held under Act 339, which provides for a subsidy from the Department to municipalities for certain costs relating to sewage treatment facilities, the Department must calculate the cost of interest during construction at the actual interest rate incurred rather than the 1.5% subsidy previously used by the Department.

Solid Waste

E-Z Ship Recycling, Inc. (97-142-R, June 5, 1998) The Board granted the Department's motion for summary judgment in an appeal from a revocation of a permit issued under the Solid Waste Management Act on evidence that the appellant was operating two waste tire facilities in Pennsylvania without permits without disclosing those operations in its application for the permit. An appeal is pending in the Commonwealth Court.

Wetlands

Eagle Environmental, L.P. (96-215-MG, September 3, 1998) The Department's suspension and revocation of a series of permits issued for the operation of a proposed landfill was upheld by the Board. Although the Board found that the Department erred in suspending or revoking the permits without exercising independent discretion over a determination by the Pennsylvania Fish and Boat Commission that streams in the area were wild trout streams, the Board found on the evidence presented at the hearing that the streams qualified as wild trout streams under the Department's regulations. As a result, the wetlands adjoining the wild trout streams qualify as exceptional value wetlands and cannot be filled as authorized by the Department's encroachment permit. The Board found that the Department's regulations creating this classification was not invalid, and that the encroachment permit was properly revoked as a result. The Board found that the suspension of the related air quality and NPDES permits was also proper because suspension of the encroachment permit would require the landfill to be redesigned. An appeal is pending in the Commonwealth Court.

Procedural Matters and Issues

Administrative Finality

Reading Anthracite Company (95-196-C, July 10, 1998) Summary judgment granted to the Department on the basis of administrative finality where the appellant, who was appealing from the renewal of a SMCRA permit, had failed to appeal from the Department's prior issuance of the permit on the ground that the appellant had not consented to the permittee's use of the property for surface mining or ash disposal. An appeal is pending in the Commonwealth Court.

Stoystown Borough Water Authority (97-174-R, July 13, 1998) An Appeal from a permit renewal not barred by failure to appeal original issuance as to adequacy of the permit to protect water supplies where on intervening the Act of the legislature changed the duties of permittees with respect to protection of water supplies. The doctrine of administrative finality does bar appeal, however, on a challenge to the adequacy of the bond since these provisions were not changed in the renewed permit. An appeal is pending in the Commonwealth Court.

Olympic Foundary, Inc. (98-085-MG, October 5, 1998) An appeal from the Department's second return of the appellant's notice of intent to remediate under Act 2 was held to be barred by the doctrine of administrative finality because the appellant filed no appeal from the Department's first refusal to accept the notice. There was no change in factual or legal circumstances in the interim and the second notice was the same as the first notice.

Smedley (97-253-C, November 20, 1998) An appellant's attack on an air permit based on a claim that fly ash resulting from burning of tires had to be treated as a hazardous waste is barred by reason of the appellant's failure to appeal the earlier waste permit which did not require treating this material as a hazardous waste.

Appeal Issues

Allegro Oil and Gas, Inc. (98-021-C, July 29, 1998) The Board resolved a number of conflicting decisions in the past and held that an appeal is not a pleading under the Board's rules of practice and procedure. The practical effect of this decision is to permit only a motion to dismiss, a motion to quash the appeal or a motion for summary judgment as the appropriate means of challenging the legal sufficiency of the grounds stated for the appeal.

Lee Oil Company (98-035-C, July 1, 1998) An appeal was dismissed as untimely when filed more than 30 days after actual notice of the Department's action and notice of the action was not required to be given in the Pennsylvania Bulletin. Under the Board's rules of procedure, if notice had been published in the Pennsylvania Bulletin, the appeal would be timely if filed within 30 days after such publication.

Guerrieri (98-146-R, October 27, 1998) The Board dismissed an amended appeal filed more than 20 days after initial filing, but granted the appellant's motion for leave to amend where the grounds for objection added in the amended appeal were discovered during the course of discovery proceedings.

Attorneys Fees

Lucchino (96-114-R, May 27, 1998) A permittee who has prevailed in an appeal brought by an individual third-party appellant must demonstrate that the appeal was brought in bad faith in order to recover costs and attorney's fees under SMCRA and the Clean Streams Law. After giving the permittee an opportunity to submit proof of bad faith, the Board found that this standard had been met and awarded counsel fees to the permittee. Opinion and Order issued October 16, 1998. An appeal of the award of counsel fees is pending in the Commonwealth Court.

Sonavec, Inc. 97-011-MR, August 18, 1998) A petition for attorneys fees was dismissed because it was filed more than 30 days after the Board's decision. Both the Board's Rules of Procedure and the Costs Act require that the application be filed within 30 days of the date of the final order of the Board. The petitioner had waited until after the time for appeal to the Commonwealth Court had passed.

Confidential Business Information

Horsehead Resource Development Company, Inc. (97-002 and 009-MG, October 16, 1998) The Board granted in part and denied in part a motion to seal portions of the hearing transcript and exhibits which revealed what appellant claimed was confidential business information concerning the components of its marketed material and its customers. The Board rejected the Department's contention that the Board could not protect that information by reason of the requirements of the Right-To-Know Act. An appeal is pending in the Commonwealth Court with respect to those matters which the Board found not to be confidential business information.

Jurisdiction

PP&L, Inc. (97-258-C, April 23, 1998) The Board held that it lacked jurisdiction over pre-enforcement appeals from EQB regulations relating to Nitrogen Oxide Allowance Requirements. See also, Duquesne Light Company, Inc. (97-259-C, April 28, 1998).

Horsehead Resource Development Company, Inc. (97-002 and 009-MG, October 16, 1998) The Board abstained from exercising its jurisdiction to resolve appeals from the Department's orders to two of the appellant's customers requiring them to treat as waste material marketed by appellant. The appellant claimed that this material was product and not waste under the Solid Waste Management Act and the Department's residual waste regulations. At the time the orders were issued, the appellant had submitted, and the Department was considering, a beneficial use application for the marketing of the material for the use made of the material by these two customers of the appellant. After the Board held a supersedeas hearing, but suggested that the parties might engage in further settlement discussions, the Department negotiated settlements with the appellant's customers and withdrew the compliance orders from which the appeals had been taken. The Department's motion to dismiss for absence of jurisdiction and because the issue was moot was denied by a majority of the Board's members. They held that the Board had jurisdiction over the appeal but declined to exercise its jurisdiction over the issues raised by the appeal until it had the benefit of the Department's review of the beneficial use application. One member would have dismissed the appeal on the ground that it was moot by reason of the withdrawal of the orders to the appellant's customers. An appeal is pending in the Commonwealth Court.

Privilege

Clever (98-086-MG, October 30, 1998) The appellant, an attorney-at-law who was the successful bidder at a tax sale on behalf of undisclosed clients for a contaminated property, cannot refuse to identify his clients in response to the Department's discovery requests in a HSCA action. Bidding on a property at a tax sale is not a legal service which gives rise to the privilege, and the identity of the clients is not protected by the privilege at least where the clients' interest in anonymity is outweighed by the Commonwealth's interest in cleanup. An appeal is pending in the Commonwealth Court from a related order in which the Board denied the appellant's petition for a supersedeas to block the Department's access to the property.

Sanctions

Tri-State Concerned Citizens (96-201-R, April 16, 1998) The Board declined to dismiss an appeal for a late filing of a prehearing memorandum. By contrast, in Yourshaw (97-039-MG, October 15, 1998) the Board dismissed an appeal for the appellants' failure to demonstrate at a prehearing conference or in a late-filed prehearing memorandum that there were disputed material facts for which a hearing was required.

Standing

Levdansky (97-058-R) A legislator has no standing to appeal the grant of a solid waste permit as a legislator, but does have standing to the extent he claims he will be personally affected as a nearby landowner by odor, noise, groundwater contamination and possible improper closure of the facility.

Blose (98-034-R, June 19, 1998) The Board denied the Department's motion for summary judgment based on standing to appeal the issuance of a coal surface mining permit where the third party appellant testified that he used the surface creek and its watershed for recreational purposes on a regular basis.

Raymond Proffitt Foundation (98-020-R, June 30, 1998) The Board denied a motion for summary judgment on the basis of standing of an organizational appellant to appeal from issuance of a mining permit where there was a dispute of material fact as to whether the members claimed to be affected by the issuance of the permit were members before the 30 day period for the filing of the appeal had expired.

Summary Judgment

Yourshaw (97-039-MG, August 18, 1998) Motion for summary judgment denied where the affidavits filed in support of the motion and in response to it were not based on

personal knowledge as required by Rule 1035.4 of the Pennsylvania Rules of Civil Procedure. The appeal was later dismissed by reason of the appellants' failure to file a timely prehearing memorandum or to demonstrate at a prehearing conference that there were disputed issues of material fact to be determined at a hearing on the merits. Order entered October 15, 1998.

Farmer (98-050 and 055-C, December 1, 1998) In granting the Department's motion for summary judgment, the Board refused to consider material submitted in an appellant's response to the motion which was not supported by proper affidavits.

Supersedeas

Numerous petitions for supersedeas were denied by Board during the year for failure to meet technical requirements or to prove facts indicating irreparable harm or a likelihood of success on the merits. However, petitions were granted in the cases set forth below.

202 Island Carwash, L.P. (98-023-MG, May 13, 1998) The Board granted a temporary and final supersedeas of a Department order requiring a gasoline service station to empty its tanks and cease operations where the evidence indicated that the tanks were tight, that there was no ongoing release, and that a procedural protocol had been agreed upon for future leak detection. The petition was denied with respect to the requirement that the owner/operator conduct a site characterization and remediation plan.

Wagner 98-184-MG, October 9, 1998) The Board superseded a provision of an order requiring the appellants to close the operation of appellants' gasoline dispensing facilities based on evidence and the Department's acknowledgment that there was no ongoing release from these facilities and that the appellants had met all of the requirements of the order relating to the reopening of the facilities. The Board rejected the Department's contention that the appellants should not be permitted to reopen the facilities until after they had demonstrated that they were financially responsible for the remediation of the release which gave rise to the order.

Mundis, Inc. (98-113-MG, July 16, 1998) A supersedeas was issued against the Department's informing third parties that the appellant, an environmental testing laboratory, no longer held a valid drinking water certification following a stock acquisition of the appellant by a new owner. The Department had ignored information indicating that its belief that the appellant was no longer operating as a laboratory was erroneous and the Department had not instituted proceedings to revoke the certification. The Board previously had denied a supersedeas from an affiliated laboratory for a supersedeas of the order revoking its certification as because the appeal had been filed more than 30 days after that laboratory's certification had been revoked by the Department. Johnson Laboratories (98-098-MG, July 1, 1998)

Ponderosa Fibers of Pennsylvania Partnership (98-178-C, September 16, 1998) The Board issued a temporary supersedeas of an order requiring appellant to remove all sludge, process water, and industrial wastewater from the plant within 10 days of ceasing operations on the ground that removal in such a short time period was impossible or would result in even greater pollution.