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decided: August 1, 1983.


Appeal from the Order of the Environmental Hearing Board in the case of Maskenozha Rod and Gun Club, et al. v. Commonwealth of Pennsylvania, Department of Environmental Resources and Marcon, Inc. and Delaware Sewer Company, No. 79-155-S.


Charles B. Zwally, with him Daniel L. Sullivan, Shearer, Mette & Woodside, for petitioners.

Terry R. Bossert, with him Peter Shelley, McNees, Wallace & Nurick, for respondents.

Judges Blatt, MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 76 Pa. Commw. Page 57]

Marcon, Inc. and Delaware Sewer Co. (petitioners) appeal here an order of the Environmental Hearing Board (Board) which set aside certain permits granted them by the Department of Environmental Resources (DER).

[ 76 Pa. Commw. Page 58]

The petitioners are a real estate development corporation and its wholly owned subsidiary. In order to develop a tract of land in Pike County, Pennsylvania, for residential use, they sought a National Pollutant Discharge Elimination System (NPDES) permit from the DER which would authorize them to discharge treated sewer effluent from their treatment facility to a tributary of Little Bushkill Creek referred to in the record as Sand Spring Run. When the permit was granted, several nearby landowners, mainly hunting and fishing clubs (clubs), appealed the issuance to the Board, which then reversed the DER and set aside the permit as violative of Article I, Section 27 of the Pennsylvania Constitution,*fn1 Section 5(a)(2) of The Clean Stream Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.5(a)(2), and 25 Pa. Code §§ 95.1(b) and (c). The appeal to this Court followed.

Our scope of review of Board decisions is limited to a determination of whether or not constitutional rights were violated, an error law was committed or if any necessary finding of fact was not supported by substantial evidence. East Pennsboro Township Authority v. Department of Environmental Resources, 18 Pa. Commonwealth Ct. 58, 334 A.2d 798 (1975).

The petitioners argue here that the Board erred in placing the burden upon the DER (and therefore

[ 76 Pa. Commw. Page 59]

    upon the petitioners, who were the beneficiaries of the DER's actions) to prove that the environment would not be harmed by the issuance of the sewage permit. The petitioners cite to 25 Pa. Code § 21.101(c)(3) which provides that:

(c) A party appealing an action of the Department shall have the burden of proof and burden of proceeding in the following cases unless otherwise ordered by the Board:

(3) When a party who is not the applicant or holder of a license or permit from the Department protests its issuance or continuation.

It is clear that the regulation does place the initial burden upon the protesting clubs in this case. That burden, however, was to show, on the record produced before the Board, that the issuance of the permit was arbitrary or amounted to an abuse of discretion. The Board, of course, is clearly empowered to substitute its discretion for that of the DER. See Warren Sand & Gravel Co. v. Department of Environmental Resources, 20 Pa. Commonwealth Ct. 186, 341 A.2d 556 (1975). Here the clubs presented expert scientific evidence which tended to show that the permit would have a serious and deleterious effect upon both Sand Spring Run and neighboring Lake Maskenozha. The Board viewed this evidence as credible and so, in essence, shifted the burden of going forward with the evidence to the DER and the petitioners.

Support for the Board's action can be found in 25 Pa. Code § 95.1(b) which provides:

(b) Waters having a water use designated as "High Quality Waters" in §§ 93.6 and 93.9 (relating to general water quality criteria and

[ 76 Pa. Commw. Page 60]

    designated water uses and water quality criteria) shall be maintained and protected at their existing quality or enhanced, unless the following are affirmatively demonstrated by a proposed discharger of sewage, industrial wastes, or other pollutants:

(1) The proposed new, additional, or increased discharge or discharges of pollutants is justified as a result of necessary economic or social development which is of significant public value.

(2) Such proposed discharge or discharges, alone or in combination with any other anticipated discharges of pollutants to such waters, will not preclude any use presently possible in such waters and downstream from such waters, and will not result in a violation of any of the numerical water quality criteria specified in § 93.9 (relating to designated water uses and water quality criteria) which are applicable to the receiving waters. (Emphasis added.)

There is no dispute as to the quality of the waters involved here. The stream and the lake are both considered of "high quality". 25 Pa. Code § 93.9. And although a litigant is not normally required to prove a negative, we believe that the special concerns involved in this area of the law*fn2 together with 25 Pa. Code § 95.1(b) demand that the petitioners and the DER be the parties responsible for justifying the permit after the clubs have presented evidence showing the likelihood of environmental harm. Moreover,

[ 76 Pa. Commw. Page 61]

    the Board cited in its adjudication the case of Commonwealth v. Beitman, 67 Pa. D. & C.2d 499 (1974), wherein it had ruled that, inasmuch as Beitman had sufficiently alerted the Board to certain problems relating to the permit, "either [the permitee] or the department has the duty to come forth with clear and concise evidence as to whether this decision was prudent." Id. at 506. Beitman was cited with approval by this Court in Concerned Citizens for Orderly Progress v. Department of Environmental Resources, 36 Pa. Commonwealth Ct. 192, 387 A.2d 989 (1978) wherein we reiterated that it was the duty of the permittee and the DER to convince the Board of the prudence of the permit.

The petitioners also argue that certain findings of the Board are not supported by substantial evidence. We have carefully reviewed the very detailed findings of the Board and the voluminous record made in this case. And, although there are conflicts in the testimony, the duty to resolve these conflicts is for the Board, as the administrative fact-finder, not for this Court. Pawk v. Department of Environmental Resources, 39 Pa. Commonwealth Ct. 457, 395 A.2d 692 (1978). Substantial evidence*fn3 clearly exists in the record to support the decision made.

We must, therefore, affirm the order of the Board.*fn4

[ 76 Pa. Commw. Page 62]


And Now, this 1st day of August, 1983, the order of the Environmental Hearing Board in the above-captioned matter is hereby affirmed.



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