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MATHIES COAL COMPANY v. COMMONWEALTH PENNSYLVANIA (09/04/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 4, 1986.

MATHIES COAL COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT

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.

COUNSEL

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.

Author: Crumlish

[ 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 Streams Law.*fn4 This Court has so interpreted

[ 100 Pa. Commw. Page 315]

Section 5(a). See Department of Environmental Resources v. Borough of Carlisle, 16 Pa. Commonwealth Ct. 341, 330 A.2d 293 (1974).*fn5

DER contends that Mathies has waived its right to challenge the use of the mass balance equation to calculate the effluent limitations because it did not specifically do so below. However, by contesting DER's failure to consider the economic and aquatic effects of limiting the discharge, Mathies certainly contested DER's use of the formula to effect the limitations.

The weight to be given each factor considered when issuing a permit must be determined by DER based on the circumstances.*fn6 However, DER may not use the mass balance equation to avoid affording the required individualized consideration to permit applicants. Therefore, we affirm the EHB order in part,*fn7 but reverse the order insofar as it determines that DER was not required to consider evidence of economic and aquatic impacts when issuing the NPDES permit and remand this case for such consideration.

[ 100 Pa. Commw. Page 316]

Order

The Environmental Hearing Board order, No. 82-212-G dated June 10, 1985, is affirmed in part, reversed in part and this case is remanded for proceedings consistent with the foregoing opinion.

Jurisdiction relinquished.

Disposition

Affirmed in part and reversed in part. Case remanded.


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