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TREVORTON ANTHRACITE COMPANY v. COMMONWEALTH PENNSYLVANIA (04/18/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 18, 1979.

TREVORTON ANTHRACITE COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT

Appeal from the Order of the Environmental Hearing Board in case of Commonwealth of Pennsylvania, Department of Environmental Resources v. Trevorton Anthracite Company, Docket No. 76-116-CP-W.

COUNSEL

Sanford S. Marateck, with him Frank J. Konopka, and Lark, Makowski, Marateck & Konopka, for appellant.

John P. Krill, Jr., Assistant Attorney General, for appellee.

Judges Rogers, Blatt and DiSalle, sitting as a panel of three. Opinion by Judge DiSalle.

Author: Disalle

[ 42 Pa. Commw. Page 85]

Trevorton Anthracite Company (Trevorton) has appealed an order of the Environmental Hearing Board (Board) which assessed civil penalties on Trevorton for three violations of The Clean Streams Law (Law), Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.1 et seq.

Trevorton owns and operates an anthracite coal washery. On November 27, 1963, the Department of Health issued an industrial waste permit to Trevorton for the construction and operation of waste treatment facilities. The purpose of these facilities was

[ 42 Pa. Commw. Page 86]

    to collect water used in the washery in a sump and then pump it into a large settling basin or slush pond so that suspended solids could settle out of the water prior to its discharge into a stream.*fn1

To effectuate this purpose, Trevorton constructed a large settling lagoon or silt dam approximately eight acres in size. Three overflow weir boxes*fn2 were constructed in the berm of the settling lagoon to permit the gradual decanting of treated water into the stream. These boxes were expressly designed to minimize the discharge of suspended solids.*fn3

In the course of continuous usage, two of the three overflow weir boxes became blocked. To overcome this blockage, Trevorton, in June of 1974, installed a four inch overflow pipe near the location of one of the boxes. Trevorton admits that from the date of installation until December 10, 1975, the pipe was opened a maximum of seven times. On February 25, 1975, and again on December 9, 1975, a representative of the Department of Environmental Resources (Department) observed the overflow pipe in use. Thereafter, the Department filed a complaint against Trevorton seeking assessment of civil penalties for various violations of the Law. The Board found that Trevorton violated Sections 307 and 308 of the Law,

[ 42 Pa. Commw. Page 8735]

P.S. §§ 691.307 and 691.308,*fn4 and imposed penalties totaling $5,700.00 therefor.*fn5

Trevorton raises two questions for consideration on appeal: (1) whether the Board was correct in assessing a penalty for the February 25th violation; and (2) whether the civil penalties imposed were excessive considering the nature and extent of the violations

[ 42 Pa. Commw. Page 88]

    charged. With regard to the first issue, Trevorton's sole argument is that the finding of a violation for the February 25th discharge is precluded in the absence of laboratory tests establishing that the quality of the water upstream of Trevorton's plant exceeded the quality of the water discharged from the settling lagoon. With regard to the second issue, Trevorton first contends that the substitution of an overflow pipe for the blocked weir box was not a "substantial" deviation from its permit and was not a violation thereof. Trevorton also contends that the Board abused its discretion in imposing large civil penalties since the violations involved in the instant case were isolated in nature and involved mere technical oversight, and since the source of the violations has since been removed. The sole authority cited to support this argument is Department of Environmental Resources v. Mill Service, Inc., 21 Pa. Commonwealth Ct. 642, 347 A.2d 503 (1975) (hereinafter cited as Mill Service).

Turning to Trevorton's argument that the February 25th violation cannot stand in the absence of an actual finding as to the quality of the water discharged, it is clear that such a determination is unnecessary to establish a violation of Section 307. The

[ 42 Pa. Commw. Page 89]

February 25th violation was predicated on a finding that the discharge was unauthorized by permit. Evidence in the record indicates that Trevorton acquired no new permit authorizing discharge through an overflow pipe and that such a means of discharge obviously conflicted with Trevorton's existing waste treatment permit. Once the water discharged from Trevorton's plant was determined to be industrial waste,*fn6 a violation of Section 307 could be found irrespective of the actual quality of that water.

Trevorton argues that the overflow pipe performed essentially the same function as the overflow weir boxes. It is undisputed that the whole purpose of the overflow weir boxes was to minimize the discharge of suspended solids into the neighboring stream, see supra note 3, and that they did, in fact, achieve this purpose in a satisfactory fashion. The Board, in comparing the respective functions of the overflow weir box and the overflow pipe, made the following finding of fact:

18. Trevorton's siphon pipe was not an 'overflow device' or 'weir' within the meaning of Trevorton's permit, because it required priming, sucked in water under pressure, had its intake point at least a foot below the surface of the water in the basin, and did not provide any 'length of weir' to insure a low approach velocity of the water. Because the intake point of

[ 42 Pa. Commw. Page 90]

    the siphon pipe was located at least one foot below the surface of the water, the pipe would tend to entrain and discharge suspended solids that were in the process of settling down past the pipe.

Looking to the record, we are well satisfied that substantial evidence supports this finding. Hence, we believe that the Board was justified in determining that the overflow pipe differed sufficiently from the overflow weir box in nature and function as to warrant a conclusion that the construction of the pipe was unauthorized by permit and thereby violative of Section 308 of the Law.

Trevorton's final argument, raised with reference to the imposition of civil penalties is, of course, that the Board abused its discretion by assessing penalties far in excess of those warranted by the circumstances. The sole authority cited in support of this argument is the Mill Service decision, which, it contends, is so factually similar to the instant case as to mandate imposition, at most, of essentially de minimis civil penalties.

In Mill Service, this Court found that the Board abused its discretion by revoking a waste disposal permit on the basis of a single violation of the Law, a violation which also involved the discharge of industrial waste through a pipe. We reasoned that revocation of the permit was an excessive penalty since the violation was isolated in nature, the condition giving rise to the violation was expeditiously corrected, the Board's adjudication only supported a mere suspicion that the violation was wilful, and since the Board actually admitted in its decision that a civil or criminal penalty would have been a far more appropriate sanction than revocation.

Having carefully considered Trevorton's argument and the record in this case, we believe that Trevorton's

[ 42 Pa. Commw. Page 91]

    reliance on Mill Service is wholly misplaced. The case is distinguishable from the instant action not only because Mill Service was not a civil penalty case (rather it involved review of the more serious penalty of permit revocation), but also because the Board here was unanimous in its judgment that some degree of civil penalty was warranted. More importantly, the record reveals, and Trevorton admits, that the overflow pipe, the construction of which gave rise to the most substantial penalty, existed for 1 1/2 years, during which time it was opened a maximum of seven times to permit the discharge of water from the settling lagoons. Further, on at least two such occasions, a representative of the Department actually observed the pipe in use. On the first such occasion, the Department representative testified that he informed Trevorton that the use of the overflow pipe in the fashion observed was violative of the Law and that any reoccurrence would warrant legal action.*fn7 We do not believe, therefore, that the Mill Service decision is in any way determinative of the present case.

While we may have been inclined to reach a different result with respect to the amount of civil penalties imposed, we are not at liberty to substitute our judgment for the Board's. United States Steel Corp. v. Department of Environmental Resources, 7 Pa. Commonwealth Ct. 429, 300 A.2d 508 (1973). Rather, our role is limited to a determination of whether the penalties were fashioned to reasonably "fit" the violations.

[ 42 Pa. Commw. Page 92]

Trevorton has made no argument, beyond the reference to Mill Service, that even suggests that the penalties imposed were unreasonable. The Board, in its adjudication, spelled out the basis for each of the penalties imposed. Indeed, with regard to the most severe penalty, the Board went to considerable length to indicate its reasoning, citing the wilfullness of the violation as well as the deterrent value a substantial penalty -- but one well within the statutory limit -- would have on Trevorton and others similarly situated. In the absence of any specific reason why these factors were inappropriate or improperly considered, we cannot say that the Board abused its discretion. We will affirm the Board's adjudication.

Order

And Now, this 18th day of April, 1979, the order of the Environmental Hearing Board dated January 24, 1978, assessing civil penalties on Trevorton Anthracite Company, is hereby affirmed.

Disposition

Affirmed.


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