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The Pines At West Penn, LLC v. Pennsylvania Department of Environmental Protection

March 18, 2011

THE PINES AT WEST PENN, LLC, PETITIONER
v.
PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT



The opinion of the court was delivered by: Patricia A. McCULLOUGH, Judge

ORDER

AND NOW, this 6th day of June, 2011, IT IS HEREBY ORDERED that the above-captioned opinion filed March 18, 2011 shall be designated OPINION rather than MEMORANDUM OPINION and it shall be reported.

PATRICIA A. McCULLOUGH, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Pines at West Penn, LLC, : Petitioner : v. : Pennsylvania Department of : Environmental Protection, : Respondent :

No. 1109 C.D. 2010

: Submitted: October 29, 2010

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION

BY JUDGE McCULLOUGH

The Pines at West Penn, LLC (Petitioner) petitions for review of the May 14, 2010, order of the Environmental Hearing Board (Board), upholding a civil penalty in the amount of $11,589.00 imposed by the Department of Environmental Protection (DEP) for repeated violations of the effluent limitations of Petitioner's National Pollutant Discharge Elimination System (NPDES) permit.*fn1

Petitioner operates a mobile home park in New Ringgold, Pennsylvania, consisting of approximately 200 homes and an on-site sewage treatment plant.

(Findings of Fact Nos. 2-4.) Petitioner received a NPDES permit from DEP in July 2005 permitting the discharge of treated sewage from the sewage treatment plant into an unnamed tributary to Lizard Creek. (Findings of Fact Nos. 5-6.) This permit required Petitioner to submit a monthly discharge monitoring report (DMR) and set forth certain effluent limitations with respect to the discharge of suspended solids, nitrogen, fecal coliforms, and ammonia. (Findings of Fact Nos. 5-16.) Petitioner submitted monthly DMRs throughout 2005 and 2006 that revealed numerous discharges in excess of these limitations. Id.

As a result, on February 8, 2006, DEP issued a notice of violation to Petitioner. (Finding of Fact No. 21.) On April 4, 2006, DEP and representatives of Petitioner participated in an enforcement conference to discuss the effluent violations and the standard operating procedures at the sewage treatment plant; DEP advised Petitioner that the violations resulted from the fact that a certified operator was not visiting the plant frequently enough. (Findings of Fact Nos. 22-23.) On October 27, 2006, DEP issued a second notice of violation to Petitioner. (Finding of Fact No. 25.) On January 29, 2008, DEP forwarded a proposed consent assessment of civil penalty in the amount of $6,000.00 to Petitioner, but Petitioner rejected the same. (R.R. at 146a, 171a.) Ultimately, by notice of final assessment dated August 1, 2008, DEP imposed a civil penalty against Petitioner in the amount of $11,689.00. (Finding of Fact No. 26.)

The Board issued these relevant findings:

37. [DEP] calculated the following penalties for the monthly-average violations:

Month/Parameter Permit Limit DMR Reported Penalty $

5/05 / TSS

5/05 / NO2 NO3 6/05 / CBOD5

7/05 / NO2 NO3 9/05 / NO2 NO3 10/05 ...


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