Appeal from the Order of the Environmental Hearing Board in case of Mathies Coal Company v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 82-212-G.
Chester R. Babst, III, with him, Joseph M. Karas and Joseph R. Brendel, Thorp, Reed & Armstrong, for petitioner.
Zelda Curtiss, Assistant Counsel, for respondent.
President Judge Crumlish, Jr., Judge Barry, and Senior Judge Rogers, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 100 Pa. Commw. Page 312]
Mathies Coal Company appeals an Environmental Hearing Board (EHB) order upholding limitations by the Department of Environmental Resources (DER) on the amount of iron, manganese and aluminum in the discharge from Mathies' treatment plant. These limitations were imposed in an amended National Pollutant Discharge Elimination System (NPDES) permit which allowed an increased discharge from the plant. We affirm in part, reverse in part and remand.
Our scope of review of an EHB decision is limited to a determination of whether an error of law has been committed, constitutional rights have been violated or any findings of fact are unsupported by substantial evidence. Einsig v. Pennsylvania Mines Corp., 69 Pa. Commonwealth Ct. 351, 452 A.2d 558 (1982).
[ 100 Pa. Commw. Page 313]
Mathies contends that EHB incorrectly ruled that DER had no duty or discretion to consider evidence of economic or aquatic impacts when issuing the NPDES permit. We agree.
In support of its ruling, EHB stated that (1) DER was required to apply the specific water quality standards in 25 Pa. Code § 93.7, (2) DER calculated the effluent limitations from a formula (mass balance equation)*fn1 considering these standards as well as the actual or estimated lowest seven-consecutive-day average receiving stream flow occurring once in ten years (Q7-10)*fn2 and (3) the issue of the Q7-10 value was removed from contention by a stipulation of the parties.
[ 100 Pa. Commw. Page 314]
However, DER's regulations provide that the water quality standards for a receiving stream are only "one of the major factors" in developing discharge limits. 25 Pa. Code § 93.5(a).*fn3 Therefore, DER generally has discretion to consider other factors when enforcing these standards by limiting discharge from a particular source. See Lucas v. Department of Environmental Resources, 53 Pa. Commonwealth Ct. 598, 420 A.2d 1 (1980) (25 Pa. Code § 93.5(a) allows discharge limitations to be established on an individual case-by-case basis).
Moreover, because such discretion exists, DER must consider, where applicable, the economic and aquatic impacts of its actions pursuant to Section 5(a) of The Clean ...