W.K. Baker v. DEP
W.K. Baker v. DEP - 633 C.D. 2016
| Pa. Commw. Ct. | Mar 2, 2017Background
- Amerikohl Mining conducted surface coal mining on Baker’s property and posted a $141,520 reclamation bond; it applied for Stage 1 bond release (60%) after completing backfill/regrading.
- Baker (petitioner) alleged site was not returned to approximate original contour (AOC) and that waste (including spilled/buried waste oil and maintenance debris) remained on site.
- DEP inspected, photographed the site, required removal of a temporary collection ditch later filled, sampled soil near the staging area, and approved the Stage 1 release; samples showed petroleum constituents below Act 2 residential remediation standards.
- Baker retained a surveyor (Rosner) who measured a slope up to ~23 degrees and with AGI performed test pits uncovering filters, oily rags, and a plastic lid; AGI’s PID reading had one location at 8.5 ppm. DEP sampling found petroleum compounds but below Act 2 health-based standards.
- The Environmental Hearing Board (EHB) placed the burden on Baker to prove DEP abused its discretion, credited Earth Tech/DEP surveying and photographs over Baker’s expert, deemed the solid waste de minimis and oil contamination not significant/widespread, and affirmed DEP’s Stage 1 release.
- Commonwealth Court affirmed the EHB: burden placement and evidentiary conclusions upheld; Baker’s ERA (Environmental Rights Amendment) claim was waived for failure to raise it before the EHB.
Issues
| Issue | Baker's Argument | DEP/Amerikohl's Argument | Held |
|---|---|---|---|
| Burden of proof on bond-release challenge | EHB improperly required Baker to prove absence of other waste and should have shifted burden to Amerikohl (who knows disposal locations) | EHB rules place initial burden on challenger; burden of production may shift but ultimate burden stays with challenger | Affirmed EHB; Baker bears burden to show DEP abused discretion; burden-shifting rules properly applied |
| Clean Streams Law (35 P.S. § 691.315(b)) — requirement to remove all temporary materials/debris before bond release | Presence of buried oil and debris means Section 315(b) violated; any discovered waste requires DEP/Amerikohl to prove no other waste exists | DEP sampled most likely staging area; results below Act 2 health standards; debris was limited and removed | EHB/ Ct. held petitioner failed to show contamination above Act 2 levels or likely elsewhere; Stage 1 release not precluded by the limited findings |
| Environmental Rights Amendment (Pa. Const. art. I, § 27) | DEP’s approval violates ERA; Payne test satisfied due to statutory/regulatory noncompliance and inadequate remediation | DEP: issue not preserved before EHB; constitutional ERA claim not raised at agency level | Court declined to reach ERA merits — claim waived for failure to raise before EHB |
| Approximate Original Contour (AOC) requirement under SMCRA/regs | Rosner’s surveys showed slopes steeper than pre-mining; DEP/inspector ‘eyeballing’ insufficient; EHB should have found AOC not met | Earth Tech survey using PASDA/GPS methodology and DEP photographs show site blends with surrounding topography | Court affirmed EHB’s credibility determination and that substantial evidence supports finding that site was returned to AOC |
Key Cases Cited
- Pennsylvania Trout v. Dep’t of Envtl. Prot., 863 A.2d 93 (Pa. Cmwlth. 2004) (discusses burden-shifting in agency appeals challenging DEP action)
- Pa. Game Comm’n v. Dep’t of Envtl. Prot., 509 A.2d 877 (Pa. Cmwlth. 1986) (agency appeal burden principles)
- Payne v. Kassab, 312 A.2d 86 (Pa. Cmwlth. 1973) (three-part test for Environmental Rights Amendment claims)
- Birdsboro & Birdsboro Mun. Auth. v. Dep’t of Envtl. Prot., 795 A.2d 444 (Pa. Cmwlth. 2002) (deference to agency factfinding and credibility determinations)
- Lehman v. Pa. State Police, 839 A.2d 265 (Pa. 2003) (waiver rules for constitutional claims; facial challenges exception)