Opinion
No. 1783 C.D. 2011
04-25-2012
Blue Mountain Preservation Association, Inc., Petitioner v. Department of Environmental Protection, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Blue Mountain Preservation Association, Inc. (BMPA) appeals from the Environmental Hearing Board's (Board's) August 25, 2011 adjudication and order dismissing BMPA's appeal. BMPA presents one issue for this Court's review: whether the Board erred in determining that the issuance of a Permit for Stormwater Discharges During Construction to Alpine Rose Resorts, Inc. (Alpine) complied with the Department of Environmental Protection's (DEP's) Antidegradation Regulations, 25 Pa. Code §§ 93.4a-d. We affirm.
Alpine owns a 350-acre tract of land on the north slope of Blue Mountain, on Upper Smith Gap Road in Eldred Township, Monroe County (Property). The Aquashicola Creek flows through the northeast corner of the Property. The Aquashicola Creek is designated as a High Quality, Cold Water Fishery, Migratory Fishery waterway pursuant to Section 93.9d of the DEP's Water Quality Regulations, 25 Pa. Code § 93.9d. The Property is located within the drainage area of the Aquashicola Creek. Alpine is proposing to construct a road course for sports cars and high performance vehicles, as well as support facilities (collectively, Alpine Motorsports Club) on the Property. The Property will be serviced by an on-site sewage system and treatment facility.
On September 17, 2002, Alpine submitted a National Pollutant Discharge Elimination System (NPDES) Permit Application to the DEP, for stormwater discharges to the Aquashicola Creek associated with construction activities at the Property (stormwater discharges). A public hearing was held and, on August 5, 2003, Alpine submitted a second NPDES Permit Application to the DEP for stormwater discharges. During the review process, Alpine was required to submit additional information to justify issuance of an NPDES Permit for the stormwater discharges. On August 27, 2004, Alpine submitted a revised Erosion and Sedimentation Control Plan (E&S Plan) to the Monroe County Conservation District (MCCD). On August 31, 2004, the MCCD determined that the revised E&S Plan adequately met the requirements of the DEP's Erosion and Sediment Regulations, 25 Pa. Code §§ 102.1-8, 11, 14, 22, 31-2, 41-3. The DEP subsequently granted Alpine an NPDES Permit for stormwater discharges (2005 Permit).
BMPA appealed from the DEP's granting of the 2005 Permit to the Board. On September 7, 2006, the Board sustained BMPA's appeal, vacated the DEP's issuance of the NPDES permit to Alpine, and remanded the matter to the DEP for further proceedings. The Board held that the permit was issued without compliance with the DEP's Antidegradation Regulations with respect to High Quality Waters. Following the remand, Alpine prepared and revised an antidegradation analysis. On May 6, 2009, DEP issued a new NPDES Permit for the stormwater discharges (2009 Permit). BMPA appealed from the DEP's issuance of the 2009 Permit to the Board. On August 25, 2011, after a four-day hearing, the Board dismissed BMPA's appeal. BMPA appealed to this Court.
"This court's standard of review of a decision by [the Board] is limited to determining whether EHB committed an error of law, violated constitutional rights, or whether substantial evidence supports its findings of fact." Dep't of Envtl. Prot. v. Cumberland Coal Res., LP, 29 A.3d 414, 421 n.17 (Pa. Cmwlth. 2011).
The BMPA argues that the Board erred in determining that the 2009 Permit complied with the DEP's Antidegradation Regulations. Specifically, the BMPA contends the Board's finding that there would be no change to surface and subsurface discharges into the Aquashicola Creek post-construction is not supported by substantial evidence, and thus, the Board's conclusion of compliance with the DEP's Antidegradation Regulations was an error of law. We disagree.
Courts have defined substantial evidence as 'relevant evidence upon which a reasonable mind could base a conclusion.' In evaluating the record to determine whether there is substantial evidence to support the adjudicatory findings, this Court examines the testimony in the light most favorable to the prevailing party, giving that party the benefit of any inferences that can logically and reasonably be drawn from the evidence. Courts engage in a substantial evidence analysis through examination of the record as a whole, and may conclude that factual findings are binding in reviewing an appeal only when the record taken as a whole contains substantial evidence to support them . . . .MKP Enters., Inc. v. Underground Storage Tank Indemnification Bd., ___ A.3d ___, (Pa. Cmwlth. No. 2380 C.D. 2010, filed February 9, 2012) (citations omitted).
The relevant portions of the DEP's Antidegradation Regulations are as follows:
(a) Existing use protection.
(1) Procedures.
(i) Existing use protection shall be provided when the [DEP's] evaluation of information (including data gathered
at the [DEP's] own initiative, data contained in a petition to change a designated use submitted to the EQB under § 93.4d(a) (relating to processing of petitions, evaluations and assessments to change a designated use), or data considered in the context of a [DEP] permit or approval action) indicates that a surface water attains or has attained an existing use.
(ii) The [DEP] will inform persons who apply for a [DEP] permit or approval which could impact a surface water, during the permit or approval application or review process, of the results of the evaluation of information undertaken under subparagraph (i).
(iii) Interested persons may provide the [DEP] with additional information during the permit or approval application or review process regarding existing use protection for the surface water.
(iv) The [DEP] will make a final determination of existing use protection for the surface water as part of the final permit or approval action.
. . .
(b) Protection of High Quality and Exceptional Value Waters.
(1) Point source discharges. The following applies to point source discharges to High Quality or Exceptional Value Waters.
(i) Nondischarge alternatives/use of best technologies.
(A) A person proposing a new, additional or increased discharge to High Quality or Exceptional Value Waters shall evaluate nondischarge alternatives to the proposed discharge and use an alternative that is environmentally sound and cost-effective when compared with the cost of the proposed discharge. If a nondischarge alternative is not environmentally sound and cost-effective, a new, additional or increased discharge shall use the best available combination of cost-effective treatment, land disposal, pollution prevention and wastewater reuse technologies.
(B) A person proposing a new, additional or increased discharge to High Quality or Exceptional Value Waters, who has demonstrated that no environmentally sound and cost-effective nondischarge alternative exists under clause (A), shall demonstrate that the discharge will maintain and protect the existing quality of receiving surface waters, except as provided in subparagraph (iii).
. . .
(c) Special provisions for sewage facilities in High Quality or Exceptional Value Waters.
(1) [Social or economic justification] (SEJ) approval in sewage facilities planning and approval in High Quality Waters. A proponent of a new, additional, or increased sewage discharge in High Quality Waters shall include an SEJ impact analysis as part of the proposed revision or update to the official municipal sewage facilities plan under Chapter 71 (relating to administration of sewage facilities planning program). The Department will make a determination regarding the consistency of the SEJ impact analysis with subsection (b)(1)(iii). The determination will constitute the subsection (b)(1)(iii) analysis at the National Pollutant Discharge Elimination System (NPDES) permit review stage under Chapter 92 (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance), unless there is a material change in the project or law between sewage facilities planning and NPDES permitting, in which case the proponent shall recommence sewage facilities planning and perform a new social or economic justification impact analysis.
(2) SEJ for sewage facilities in High Quality Waters correcting existing public health or pollution hazards. A sewage facility, for which no environmentally sound and cost-effective nondischarge alternative is available under subsection (b)(1)(i)(A), proposed to discharge into High Quality Waters, which is designed for the purpose of correcting existing public health or pollution hazards documented by the Department, and approved as part of an official plan or official plan revision under § 71.32 (relating to Department responsibility to review and act upon official
plans), satisfies the SEJ requirements in subsection (b)(1)(iii).25 Pa. Code § 93.4c.
In the instant matter, the 2005 Permit was vacated because Alpine failed to comply with the DEP's Antidegradation Regulations. After remand, Alpine submitted a 64-page Stormwater Antidegradation Alternatives Best Management Practices (BMPs) Analyses Report (Antidegradation Report), wherein it concluded:
Including all references and attachments, the Antidegradation Report contains a total of 259 pages, 29 of which are designated as Antidegradation Analysis. See Reproduced Record at A-0034-A0259.
Based on the analyses presented herein . . .Reproduced Record (R.R.) at A-0111 (emphasis added).
• the Chapter 93 antidegradation requirements have been addressed;
• there will be no degradation to water resources as a result of the Alpine Motorsports Club;
• this Report provides adequate and appropriate responses to the concerns raised by [DEP] in its February 5, and June 25, 2008 comment letters, as well as all issues discussed at a meeting on July 18, 2008 between [DEP] and Alpine.
Alpine maintains that the extensive stormwater management system, consisting of [DEP] BMPs, will result in a complete replication of existing hydrologic conditions and the water quality and quantity of all HQ [(High Quality)] and EV [(Exceptional Value)] water resources on and in the area adjacent to the property will be preserved.
The comment letters were in fact deficiency notices, wherein, the DEP raised specific issues concerning an antidegradation report and post-construction stormwater management plan submitted with Alpine's permit application.
In addition, Alpine's hydrogeology and engineering geology expert, Thomas D. Gillespie, P.G. (Gillespie), testified at the hearing that:
Gillespie co-authored the Antidegradation Report. --------
[T]he goal of the anti-degradation analysis that was done was to not just replicate existing hydrologic conditions across the property but to sustain the exact water balance of each of these water resource features which have exceptional value protection as a result of the conditions which I went through before.R.R. at A-0356 (emphasis added). More specifically, Gillespie testified:
[T]he first goal, of course, of all antidegradation begins with the construction phase. So all the construction phase BMPs were going to remain in place, particularly the . . . erosion and sediment control BMPs -- would remain in place as well as runoff water control and everything. But then, in terms of postconstruction storm water management . . . the principal goal is to . . . replicate existing hydrologic conditions by managing or infiltrating a volume of water using nondischarge alternative BMPs which is equal to the net difference in runoff from preconstruction to postconstruction phases, along those lines. The other objective of it was to make sure that we maintained a hydrologic balance to each water resource feature and then working with Mr. Blechschmidt [a civil engineer] to make sure that the conditions created by the addition of the nondischarge BMPs would not result in any types of excess flows in terms of rate which would cause erosive conditions on the property below, in other words, down the slope from the BMPs which we were putting into place. [S]o, in other words, they wouldn't create a condition below themselves which would then result in an impact to the Aquashicola Creek drainage area.R.R. at A-0389 (emphasis added). Gillespie explained in 173 pages of testimony how exactly he accomplished those goals with the use of infiltration beds and other BMPs. See R.R. at A-0347-361, A-0389-418. Clearly, Gillespie's testimony and the Antidegradation Report are relevant evidence upon which a reasonable mind could conclude that no change to surface and subsurface discharges will occur with the implementation of Alpine's integrated stormwater management system as described in both Gillespie's testimony and the Antidegradation Report. Thus, there was substantial evidence to support the Board's finding that there would be no change to surface and subsurface discharges into the Aquashicola Creek post-construction.
For all of the above reasons, the Board's adjudication and order are affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 25th day of April, 2012, the Environmental Hearing Board's August 25, 2011 adjudication and order is affirmed.
/s/_________
ANNE E. COVEY, Judge