PDG Land Development, Inc. v. Department of Environmental Protection, 2009 Pa. Envirn. LEXIS 21 (Pa.Envtl.Hr’g.Bd. May 21, 2009)
Facts: PDG Land Development, Inc. (“PDGâ€) is the owner of a substantial, undeveloped tract of land known as Hays Woods. PDG wished to develop the large tract of land into an urban mix-use site. As a step toward achieving this development, PDG sought a surface mining permit four and one half years ago. But the DEP denied that permit, finding that it would destroy 1.5 miles or more of perennial and intermittent streams. PDG would have dumped dirt and overburden into nearby streams to provide for a more level area on the site. The level area would assist PDG in developing the site. PDG appealed the DEP’s decision to deny their mining permit before the Pennsylvania Environmental Hearing Board.
Issue: Was the denial of the mining permit proper?
Held: Yes.
Analysis: The EHB upheld the DEP’s decision to deny PDG a surface mining permit. It agreed with the DEP’s argument that the proposed mining activities would violate the stream buffer zone rule. This rule generally forbids surface mining activity from being conducted within 100 feet of a stream. Here, the proposed activities would fill thousands of feet of such streams and would be carried out within 100 feet of streams. Absent a variance, no developer may violate this rule. To receive a variance, the developer must show beyond a reasonable doubt that no harm will come to the streams at issue. Here, burying and destroying the streams doubtless means that PDG cannot prove that no harm will come to them. They may not receive a variance as such, for their proposed mining activities violate the basic thrust of the stream buffer zone rule.
Facts: PDG Land Development, Inc. (“PDGâ€) is the owner of a substantial, undeveloped tract of land known as Hays Woods. PDG wished to develop the large tract of land into an urban mix-use site. As a step toward achieving this development, PDG sought a surface mining permit four and one half years ago. But the DEP denied that permit, finding that it would destroy 1.5 miles or more of perennial and intermittent streams. PDG would have dumped dirt and overburden into nearby streams to provide for a more level area on the site. The level area would assist PDG in developing the site. PDG appealed the DEP’s decision to deny their mining permit before the Pennsylvania Environmental Hearing Board.
Issue: Was the denial of the mining permit proper?
Held: Yes.
Analysis: The EHB upheld the DEP’s decision to deny PDG a surface mining permit. It agreed with the DEP’s argument that the proposed mining activities would violate the stream buffer zone rule. This rule generally forbids surface mining activity from being conducted within 100 feet of a stream. Here, the proposed activities would fill thousands of feet of such streams and would be carried out within 100 feet of streams. Absent a variance, no developer may violate this rule. To receive a variance, the developer must show beyond a reasonable doubt that no harm will come to the streams at issue. Here, burying and destroying the streams doubtless means that PDG cannot prove that no harm will come to them. They may not receive a variance as such, for their proposed mining activities violate the basic thrust of the stream buffer zone rule.