Appeal from the Order of Commonwealth Court dated September 4, 1986 at No. 1860 C.D. 1985, which affirmed in part, reversed in part and remanded to the Environmental Hearing Board at No. 82-212-G which Order was dated June 10, 1985. , Pa. Commw. , 514 A.2d (1986).
Zelda Curtiss, Asst. Counsel, Barbara H. Brandon, Director, Western Region Office of Chief Counsel, Dept. of Environmental Resources, Pittsburgh, for appellant.
Chester R. Babst, III, Joseph M. Karas, Babst, Calland, Clements & Zomnir, P.C., Pittsburgh, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ.
The Commonwealth of Pennsylvania, Department of Environmental Resources (DER) appeals the decision of the Commonwealth Court which reversed in part and affirmed in part an Order of the Environmental Hearing Board (Board) dismissing the appellee, Mathies Coal Company's (Mathies) challenge of certain effluent limitations imposed by the DER in Mathies' National Pollutant Discharge Elimination System (NPDES) permit. In dismissing Mathies' challenge, the Board held that the DER was not required to consider the economic consequences upon Mathies or the aquatic impact of the mine discharge in setting the effluent limits*fn1 established in the permit. Upon review of the Board's adjudication, the Commonwealth Court reversed that portion of the Board's order. To the contrary, the Commonwealth Court held that the DER was indeed required to consider the economic impact on Mathies and the aquatic effects of its actions in setting the effluent limitations in Mathies' NPDES permit. We find that the Commonwealth Court erred in finding such a requirement and now reverse.
On August 4, 1982, responding to Mathies' request, DER issued Amendment No. 3 to Mathies' NPDES permit PA 0023337. The amendment authorized Mathies to increase its discharge into Peters Creek, Washington County, from the Thomas Portal of its coal mine, to 4,000 gallons per minute (gpm) from a previous maximum of 420 gpm. Additionally, the amendment imposed water quality based effluent limitations on various discharge parameters including, inter alia, the concentrations of iron, manganese and aluminum.
On September 9, 1982, Mathies appealed to the Board challenging, inter alia, the more restrictive effluent limitations
established by the DER for iron, manganese and aluminum. In its Adjudication and Order issued on June 10, 1985, the Board, inter alia, made the following Findings of Fact:
"10. DER computed the effluent limitations on iron, manganese and aluminum concentrations from a formula based on the amount of flow in the Thomas Portal discharge and the so-called Q(7-10) flow in Peters Creek; the formula seeks to ensure that the final effluent concentrations in Peters Creek, after dilution of the discharge in Peters Creek, do not exceed the effluent concentrations prescribed by 25 Pa.Code Chapter 93 . . . ."
"12. Mathies challenged neither the intent nor the substance of DER's formula . . . ."
The issue of the economic impact on Mathies in complying with the effluent limits was the primary thrust of Mathies' argument in the proceedings below. The Board, in considering Mathies' argument concluded:
"DER is required to apply the standards set forth in 25 Pa.Code § 93.7; therefore, it was not required to take into account the economic consequences upon [Mathies] of its action in setting the effluent limitations contained in the permit. The effluent limitations are calculated from a formula which takes into consideration the standards set forth in § 93.7 as well as the Q7-10 of the receiving stream. The Q7-10 is defined at 25 Pa.Code § 93.5(b) as the lowest-seven-consecutive-day average flow that occurs once in ten years. The monitoring point for determining compliance with the effluent limitations is the point of discharge to the receiving stream. Given this determination, the parties stipulated that there was no point in contesting the Q7-10 value at the point of discharge. The parties agreed that even if the Q7-10 were figured for a point downstream from the discharge, the calculation of the effluent limitations would not be significantly altered. Therefore, since the issue of the Q7-10 value to be used in calculating the effluent limitations has
been removed from contention, and since DER was required to apply the standards set forth in 25 Pa.Code 93.7 in calculating those limitations, it follows that the limitations must be upheld".*fn2
Secondarily, Mathies raised the acquatic impact issue, which the Board disposed of as follows:
"The possible effects, or lack of effects, of the discharge on plant and animal life in ...