COMMONWEALTH OF PENNSYLVANIA
ENVIRONMENTAL HEARING BOARD
2nd Floor, Rachel Carson State Office Building
400 Market Street, Post Office Box 8457
Harrisburg, Pennsylvania 17105-8457

VALLEY CREEK COALITION, c/o John Wilmer, Esq., 21 Paxon Hollow Road, Media, PA 19063; (610) 565-2736,

Appellants.

v.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Appellee,

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:DOCKET NO.

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Valley Creek Coalition, c/o John Wilmer, Esq., 21 Paxon Hollow Road, Media, PA 19063, (610) 565-2736.

(1) Appeal of NPDES Permit No. PAS10-G376, issued to The Vanguard Group, P.O. Box 260-0, Mail Stop A12, Valley Forge, Chester County, PA 19482.

(2) Permit issued by James Newbold, P.E., Regional Manager, Water Management, Department of Environmental Protection, Lee Park, Suite 6010, 555 North Lane, Conshohocken, PA 19428.

(3) Site located in Tredyffrin Township, Chester County, PA.

(4) Notice of issuance of permit published in Pa. Bulletin on February 26, 2000.

The Appellant group is the Valley Creek Coalition (VCC), c/o John Wilmer Esq., 21 Paxon Hollow Road, Media, PA 19063, and appellant group is composed of the below listed parties.

Green Valleys Association of Southeastern Pennsylvania is a nonprofit corporation dedicated to environmental education and watershed protection, and has an address of John Hoekstra, Executive Director, Green Valleys Association, Box 113, Birchrunville, PA 19421.

Open Land Conservancy of Chester County, is a nonprofit corporation dedicated to preserving open space and protecting environmentally sensitive areas in Chester County, and has an address of Mark Wilson, President, Open Land Conservancy, P.O. Box 1031, Paoli, PA 19301.

Pennsylvania Environmental Defense Foundation is a nonprofit corporation dedicated to protecting the environment of Pennsylvania, and has an address of Charles Marshall, 32 Wistar Road, Paoli, PA 19301.

Raymond Proffitt Foundation is a nonprofit corporation dedicated to environmental protection including protection of the streams of Pennsylvania, and has an address of Joseph Turner, Raymond Proffitt Foundation, P.O. Box 723, Langhorne, PA 19047-723.

Schuylkill River Keeper, a field office of the Delaware River Keeper Network (Delaware River Keeper Network is an American Littoral Society Affiliate) is a nonprofit organization dedicated to protecting the Schuylkill River Watershed and has an address of Chari Towne, Schuylkill River Keeper, P.O. Box 459, St. Peters, PA 19470.

Valley Forge Chapter of Trout Unlimited is a nonprofit, unincorporated association dedicated to the conservation and protection of the trout fisheries of the area surrounding Valley Forge/Chester County, Pennsylvania and has an address of Karl Heine, President, Valley Forge Chapter of Trout Unlimited, 152 Weedon Court, West Chester, PA 19380.

West Chester Fish, Game, & Wildlife Association is a nonprofit corporation dedicated to promoting conservation and field and stream sports in the West Chester area, and has an address of M. John Johnson, President, West Chester Fish, Game, & Wildlife Association, 1085 Harmony Hill Road, Downingtown, PA 19335.

VCC and its members are harmed by the discharges allowed pursuant to the appealed permit, in that the discharges will harm Little Valley Creek and Valley Creek which are used by VCC and its members, and therefore their uses will be diminished.

Appellee is the Department of Environmental Protection (DEP).

Permittee is theVanguard Group Corporate Headquarters (Vanguard).

The Valley Creek Watershed was designated as Exceptional Value by the EQB on August 17, 1993.

The Pennsylvania Fish Commission rates Valley Creek as a "Class A" wild trout stream, and it has three times the wild brown trout population required by that classification.

Valley Creek is a limestone stream, flowing through national and township parks, nature preserves and dedicated open space; and it is less than 15 miles from the city limits of Philadelphia and is frequently used by fisherman and the public.

The Valley Creek Watershed is unique because it has substantial public access, together with the high wild brown trout population and its nearness to Philadelphia.

Local municipalities have spent millions of dollars to remove small, malfunctioning sewer discharges to Valley Creek, and replace them with a regional sewer system; all of which has markedly improved the water quality of the stream over the years.

All the streams in the Valley Creek Watershed are Exceptional Value streams and must be treated differently from other streams because of their special protection category and their excellent water quality.

Vanguard will be adding approximately 16 acres of impervious surface to its property located in Tredyffrin Township, including several buildings, roads and parking lots.

Stormwater runoff will be directed into two lined sedimentation systems composed of, inter alia, sedimentation basins.

The lined sedimentation systems will prevent storm water from entering the groundwater system and recharging the Valley Creek Watershed.

The storm water will enter the sedimentation basins, and then discharge to Little Valley Creek which flows into Valley Creek.

Little Valley Creek and Valley Creek are part of the same EV watershed.

Discharges from the sedimentation basins are part of the NPDES permit and will adversely affect the Valley Creek watershed.

Little Valley Creek and Valley Creek will be harmed by a loss of groundwater recharge to the base flow.

Little Valley Creek and Valley Creek will be harmed by an increased volume of stormwater runoff.

Little Valley Creek and Valley Creek will be harmed by an increased amount of pollutants, including oils and greases.

Vanguard has failed to use an infiltration system which would eliminate the need for lined trenches and sedimentation basins, and eliminate the need for discharges of sedimentation, oils and grease and other pollutants to the Valley Creek watershed.

A properly designed and located infiltration system would not cause subsidence problems.

DEP and Vanguard failed to consider or implement mitigation measures, such as off-site infiltration or retrofitting existing stormwater systems for infiltration.

The NPDES permit is deficient in that it does not describe the activity with sufficient detail to enable appellant or the public to understand what is being permitted and where it is being permitted.

The NPDES permit only says that it is allowing for discharges of storm water from construction activities into Little Valley Creek.

Discharges will continue on a permanent basis.

DEP has not considered the effects of permanent discharges on the Valley Creek Watershed.

The public file on the NPDES permit is deficient in that it fails to show how it will provide protection to the Exceptional Value streams.

The NPDES permit fails to identify the number or location of the outfalls.

DEP has not determined the parameters of concern that might adversely affect these Exceptional Value streams, such as sediment, oil and grease, or other pollutants.

The NPDES permit fails to set any effluent limitations on the discharges.

DEP has not examined and set technology based effluent limitations.

DEP has not examined and set in-stream criteria based effluent limitations.

DEP has not chosen the more stringent of technology or in-stream criteria based effluent limitations.

DEP has not required monitoring for any discharges in order to learn whether the Exceptional Value streams are being protected.

DEP has not considered the cumulative impact of these discharges in relation to all other discharges into these Exceptional Value streams.

DEP has not considered the effect of erosion in the Exceptional Value streams from the increased velocity of water from these discharges.

DEP has not considered the cumulative impact of these discharges in relation to all other discharges which cause erosion.

DEP has not considered the loss of recharge water to the groundwater that supplies water to these Exceptional Value streams.

DEP has not considered the cumulative impact from all discharges on the loss of recharge water to the groundwater that supplies water to these Exceptional Value streams.

DEP failed to choose the most appropriate and most protective BMP (Best Management Practice) for these Exceptional Value streams: namely an infiltration method.

DEP violated its Special Protection Policy which recommends infiltration for storm water discharges to Exceptional Value streams.

Special Condition Number 2 of the permit is deficient in that it requires the operator to evaluate infiltration after the permit is issued, when such evaluation should have been done before and as part of a decision on permit issuance.

DEP and federal regulations require that discharges into Exceptional Value streams maintain and protect water quality. 25 Pa. Code 95.1 (c); 25 Pa Code 93.4a (d) (effective March 17, 2000); 40 CFR 131.32 (3) Pennsylvania.

Discharges pursuant to the NPDES permit will not maintain and protect water quality in the Exceptional Value streams.

DEP Special Protection Policy requires that discharges to Exceptional Value streams cause no adverse measurable change in water quality.

Discharges pursuant to the NPDES permit will cause an adverse measurable change in the Exceptional Value streams.

Lowering water quality in the Exceptional Value streams will adversely affect the naturally reproducing brown trout population in those streams.

Lowering water quality in the Exceptional Value streams will be detrimental to the years of work and large sums of money spent by appellants to improve the water quality criteria of the Valley Creek Watershed for its members and the public.

The NPDES permit is only for storm water from construction activities, yet it will be used to control storm water from the area after construction is completed.

The NPDES permit is deficient because it is not designed for nor does it regulate discharges after construction is completed.

Any discharges from the permit after construction is completed, therefore, would be illegal.

DEP has approved the practice of discharges from sedimentation basins without permits, after construction is complete; and has approved this practice for sedimentation basins discharging into the Valley Creek Watershed.

The Chester County Conservation District did all of the review on the NPDES Permit.

DEP did not make an independent determination whether the NPDES permit would maintain and protect the water quality of the Exceptional Value streams, but instead relied upon the analysis of the Chester County Conservation District.

On December 9, 1996, the Environmental Protection Agency (EPA) promulgated an antidegradation law for Pennsylvania that took effect on January 8, 1997. 61 FR 64816, December 9, 1996.

The regulation reads, in relevant part: "[E]xisting in-stream uses and the level of water quality necessary to protect the existing uses shall be maintained and protected." 40 CFR §131.32 (1). Pennsylvania.

On March 17, 2000, EPA approved Pennsylvania’s proposed antidegradation regulations, with the exception of the state definition of Exceptional Value Waters.

Pennsylvania’s approved language includes a statement identical to the one found at paragraph 62, above. See, 25 Pa. Code 93.4a (b).

The existing uses of Little Valley and Valley Creek are Exceptional Value.

Loss of base flow will adversely affect the existing uses of the Exceptional Value streams.

Increased volume of stormwater will adversely affect the existing uses of the Exceptional Value streams.

Discharges of sediment, oil and grease, and other pollutants will adversely affect the existing uses of the Exceptional Value streams.

Discharges of sediment, oils and grease, and other pollutants into Exceptional Value streams constitutes pollution and violates the Clean Streams Law, 35 P.S. §691.401.

Discharges of sediment, oils and grease, and other pollutants into Exceptional Value streams violates Pennsylvania regulations that prohibit the addition of substances attributable to point or non point sources that harm the water. 25 Pa. Code §93.6.

Discharges of sediment, oils and grease, and other pollutants into Exceptional Value streams violates Pennsylvania regulations that require DEP to maintain and protect these streams at a minimum at their existing quality. 25 Pa. Code §95.1

Discharges of sediment, oils and grease, and other pollutants into Exceptional Value streams violates Pennsylvania’s Special Protection Policy that requires no adverse measurable change in the existing water quality in these streams. Special Protection Policy, p. A-5-28.

DEP issuance of the NPDES permit does not meet the requirements of the Pennsylvania Constitution, Article I, §27 and the three prong test set forth in Payne v. Kassab, 11 Pa. Cmwlth. 14, 312 A.2d 86 (1973); aff’d, 468 Pa. 226, 361 A.2d 263 (1976).

DEP did not review this permit pursuant to the three prong test set forth in Payne v. Kassab, supra.

Pursuant to the first prong of Payne v. Kassab, there was not compliance with all applicable statutes and regulations.

In addition to violation of the above listed statutes and regulations, DEP has failed to comply with the requirements and the spirit of the Storm Water Management Act, 32 P.S. §680.1, et seq., in that DEP has not required Chester County to adopt a storm water management plan for the Valley Creek Watershed. Such a plan would require the county and municipalities to consider the cumulative effects of water loss and erosion of streams in the watershed from various activities in different parts of the county that transcend township lines.

Pursuant to the second prong of Payne v. Kassab, there was no effort to reduce environmental incursion to a minimum because DEP did not review this permit for effects on the surrounding environment.

Pursuant to the third prong of Payne v. Kassab, the harm to the environment far outweighs the benefit to the public.

There is one related appeal pending before the Board. VCC v. DEP and PennDOT, EHB Docket No. 98-228-MG, contains similar factual and legal issues as the instant appeal.

Appellant reserves the right to amend this Notice of Appeal.

F. Verification:

The information submitted in this Notice of Appeal is true and correct to the best of my knowledge, information and belief.

Respectfully submitted,

JOHN WILMER

Attorney for Valley Creek Coalition, (610) 565-2736,

I.D. #33119

Date: March 21, 2000