Vesta Min. Co. v. Department of Environmental Resources

• Decision Date: 18 May 1994
• Citation: 164 Pa.Cmwlth. 144,642 A.2d 568
• Parties: VESTA MINING COMPANY, Petitioner, v. DEPARTMENT OF ENVIRONMENTAL RESOURCES, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 568

642 A.2d 568

164 Pa.Cmwlth. 144

VESTA MINING COMPANY, Petitioner, v. DEPARTMENT OF ENVIRONMENTAL RESOURCES, Respondent.

Commonwealth Court of Pennsylvania.

Argued March 1, 1994.

Decided May 18, 1994.

Stanley R. Geary, for appellant.

Theresa Grencik, Asst. Counsel, for respondent.

Before CRAIG, President Judge, and KELLEY, J., RODGERS, Senior Judge.

RODGERS, Senior Judge.

Vesta Mining Company (Vesta) appeals an Environmental Hearing Board (EHB) order which dismissed Vesta's appeal challenging the effluent limitations imposed by the Department of Environmental Resources (DER) in a revised permit for two gravity discharges of a Vesta coal mine.

In 1986, DER issued a Coal Mining Activity Permit (CMAP) to Vesta authorizing it to discharge mine drainage into a stream known as Fishpot Run in Washington County, Pennsylvania. The authorized discharges were identified in the CMAP as Outfalls 002 and 007. ¹

In 1987, the wastewater from Outfall 007 began to deteriorate in quality and it became necessary to treat the drainage in order to meet the effluent limitations of the 1986 CMAP. ² Vesta then submitted an application to DER for a revision of the 1986 CMAP to authorize and reflect the construction of a wastewater treatment facility. DER approved the revision on January 28, 1988, and this revised CMAP included identical effluent limitations to those contained in the 1986 CMAP. ³ Vesta appealed the 1988 revised permit to the EHB alleging that several errors committed by DER resulted in improper and overly stringent effluent limitations. ⁴ The EHB dismissed Vesta's appeal finding that Vesta had failed to meet its burden of proof in demonstrating that DER had erred in its effluent limitation calculations, and Vesta had not shown that it had submitted any new information which would have necessitated that DER recalculate the effluent limits for Outfall 007 when it approved the 1988 revised CMAP. Vesta now appeals to this Court. ⁵

Vesta contends that in dismissing its appeal, the EHB committed various errors of law and that the EHB's findings of fact, indicating that DER had not improperly calculated the Vesta effluent limitations at issue, were not supported by substantial evidence. Pursuant to 25 Pa.Code § 95.1(a), DER is required to impose the more stringent of technology based effluent limitations or water quality based effluent limitations. ⁶ Vesta argues that because DER mis-calculated the Q7-10 flow of Fishpot Run, ⁷ improper water quality based effluent limitations were utilized instead of the less stringent technology based limitations.

In regulations promulgated under the Clean Streams Law, ⁸ Fishpot Run has a specifically designated use as "Warm Water Fishes". 25 Pa.Code §§ 93.4, 93.9v. The point at which water quality is to be achieved to support this use is determined by 25 Pa.Code § 93.5. Much of this case revolves around conflicting interpretations of 25 Pa.Code § 93.5(b), which reads as follows:

(1) Except if otherwise specified in this chapter, the water quality criteria in this chapter shall be achieved at stream flows equal to or exceeding Q7-10. For streams where the Q7-10 flow is estimated to be zero, water quality criteria shall be achieved at the first downstream point where the stream is capable of supporting designated water uses, as defined in § 93.4 (relating to Statewide water uses).

Vesta argues that because DER improperly calculated the Q7-10 of Fishpot Run as .025 cubic feet per second, water quality was determined at the point where Vesta discharged wastewater into the stream causing water quality based effluent limitations to be controlling. If the actual Q7-10 flow of the stream was zero, as Vesta asserts, then the point of first designated use at which water quality criteria shall be achieved through application of 25 Pa.Code § 93.5(b) would be downstream at the confluence of Fishpot Run and the Monongahela River. ⁹ When the Monongahela River is used to establish water quality criteria, then the less stringent technology based effluent limitations would apply to Vesta's 002 and 007 Outfall discharges.

First, Vesta attacks the methodology employed by DER when calculating the Q7-10 flow of Fishpot Run. Vesta asserts that DER utilized the wrong comparison stream when calculating the Q7-10 flow of Fishpot Run. Vesta's consultant, Larry Simmons, compared data from the alternate stream actually used in Fishpot Run's Q7-10 calculations with information from a stream he stated should have been used to arrive at a more accurate estimate of Fishpot Run's Q7-10 stream flow. This evidence, Vesta argues, proves that substantial evidence does not support the EHB's finding of fact that DER did not err in its calculations of the Q7-10 flow of Fishpot Run. The only related EHB finding of fact concerning these calculations reads as follows:

32. Vesta did not submit any information to the Department which indicated an error in the Department's calculation of the Q7-10 flow or which provided a basis for reconsideration of the effluent levels of the 1986 permit.

Vesta also points to the "Discussion" section of the EHB adjudication where the EHB concluded that "the testimony of Vesta's witnesses does not indicate an error in the method of determining the Q7-10 of the stream but merely that there could have been a different way to arrive at the Q7-10 of Fishpot Run." (EHB adjudication at 12).

In addition, Vesta asserts that the EHB's own subsequent findings that Fishpot Run was dry on several occasions for substantial periods of time in 1991 and 1992, supports this contention of error on the part of DER. These EHB findings state that:

24. Fishpot Run has been dry on several occasions upstream of outfall 002. In 1992, it was dry for a period of four to five months.

25. In July, August and September of 1991, the sole component of flow in Fishpot Run was the discharge from outfalls 002 and 007, based upon monitoring of the stream above and below the two outfalls.

These claims of EHB error fail on several grounds. First, in concluding that Vesta's expert only succeeded in showing an alternate methodology by which to calculate the Q7-10 of Fishpot Run, the EHB was relying on the testimony of Raymond Lattner, DER's expert witness. Mr. Lattner testified in detail about the method by which DER has established and the method he had used when calculating the Q7-10 of Fishpot Run. (R.R. 203a-245a). It is not for this Court to invade into the credibility determinations of competing experts, the weight of whose testimony is properly left to the EHB to determine. T.R.A.S.H., Ltd. v. Department of Environmental Resources, 132 Pa.Commonwealth Ct. 652, 574 A.2d 721 (1990), petition for allowance of appeal denied, 527 Pa. 659, 593 A.2d 429 (1990).

Secondly, the fact that years after the Q7-10 flow of Fishpot Run was determined, a drought caused the stream to dry up, has little or no bearing on whether those initial calculations were flawed. Therefore, EHB findings of fact numbers 24 and 25 should not be taken as evidence of error on behalf of DER, especially considering that, as finding of fact number 32 states, DER was not informed of any flow changes when Vesta submitted its 1988 revision request.

In any event, the arguments presented by Vesta above are extraneous in light of the EHB's ultimate holding that regardless of the Q7-10 flow of Fishpot Run, water quality must be maintained at the point of discharge because the stream's designated use exists at the point of discharge and that that designated use must be protected. ¹⁰ It is this holding, the EHB's and DER's interpretation of 25 Pa.Code § 93.5(b)(1), which Vesta next argues is an error of law.

Vesta argues that DER was obligated under 25 Pa.Code § 93.5(b)(1) to perform a biological assessment of Fishpot Run before calculating its effluent discharge limits. This argument rest upon the assumption that the Q7-10 of Fishpot Run was zero at the time the initial effluent discharges were set. Even if life properly classified as a designated use of the stream under 25 Pa.Code §§ 93.4, and 93.9v was found at the point of discharge, Vesta argues that under Q7-10 zero conditions, DER must proceed downstream to the point where the stream is first capable, without the support of discharges, to support the designated protected use.

The EHB rejected this interpretation of 25 Pa.Code § 93.5(b)(1). DER had asserted that when a stream possesses a designated use under 25 Pa.Code § 93.9, and there is no data to suggest that the stream does not support that use, DER is under no obligation to conduct a biological study before establishing effluent limitations designed to meet water quality for the entire length of the stream. However, when there is some indication that the stream may not support its designated use, then a biological study is commenced to determine which sections of the stream are capable of supporting that use and demand further protection. ¹¹ Because DER's initial Q7-10 calculation yielded a Q7-10 flow greater than zero, it had no need to utilize the services of an aquatic biologist to determine the point of first designated use.

This analysis is interpreted by Vesta as creating an erroneous presumption that designated uses will exist throughout the entire length of the stream when the Q7-10 flow of that stream is zero. Our review of the EHB language reveals the contrary. The presumption of life existing throughout the stream such that water quality must be maintained exists only for Q7-10 flow rates greater than zero. Furthermore, this presumption only exists when the stream in question possesses a codified designated use. Nothing in the EHB determination indicates otherwise. When evidence was presented showing that subsequent to initial measurements, the Q7-10 flow of Fishpot Run in recent years increasingly approached zero, the EHB holding was premised on the actual findings of protected life at the point of Vesta's discharges....