Update on Alpine Rose
April 2006

On March 28, Blue Mountain Preservation, the Department of Environmental Protection and Alpine Rose Resorts Inc. faced off in the Courtroom of the Environmental Hearing Board in Norristown, Pa., for the first of four days of testimony about storm water and waste water plans for Alpine's ill-conceived racetrack proposal.

At issue are two permits the DEP granted for the project. The first is an NPDES (National Pollutant Discharge Elimination System) Part II permit that would allow Alpine to divert storm water runoff into the Aquashicola Creek. The second permit would allow Alpine to construct a spray-irrigation system to treat sewage.

Blue Mountain believes these permits should not have been issued because both could lead to an environmental disaster.

Allowing Alpine's runoff to enter the Aquashicola opens the door for a host of problems, including the potential for washing oil, gas and antifreeze into this cold water, high-quality fishery. And the spray irrigation system is in an area above steep slopes that lead into wetlands and the Aquashicola. Blue Mountain believes the spray-irrigation system is inadequate, for a number of reasons, to treat the effluent created by the number of guests developer Richard Muller Jr. projects his racetrack would bring.

In an attempt to get the court to see errors BMPA believes were made when these permits were issued, BMPA was represented by Attorney Kenneth Kristal and students from the Widener Environmental and Natural Resources Law Clinic in Delaware.

BMPA's point was driven home through expert testimony by Ms. Angelika Forndran, Environmental Engineer for Cowan Associates, and Dr. Thomas LaDuke, Biologist and Herpetologist at East Stroudsburg University.

Ms. Forndran expressed concern about the size and capacity of the proposed waste water treatment facility. By her calculations, though the system may be adequate on some days, on others there is a substantial potential for failure if Alpine attracts large crowds. She also questioned the depth at which components of the system would adequately function, and said that it may often function near the threshold of its treatment capacity - meaning it wouldn't take much for it to fail.

Ms. Forndran pointed out the proposed spray irrigation system's location on a map and noted its proximity to wetlands and steep slopes. Among her fears are that untreated effluent could enter the creek via natural runoff from the proposed Alpine site. She also voiced concern about the potential for automobile-related substances such as oil or gas to enter the treatment system -- substances for which it is not designed.

On the second day of the trial, Dr. LaDuke was called to testify about bog turtles that live above and below the proposed Alpine Site. Unfortunately, some tricky legal maneuvering by the Alpine lawyer, Emil Kantra, blocked Dr. LaDuke from testifying regarding the negative impact the project could have on this endangered -- and protected -- species.

It's easy to see why a developer would want to block such testimony: On the state's Fish and Boat Commission Web site, an article explains that bog turtles are "a Pennsylvania endangered species" and also says they are listed as a "threatened" species under the federal Endangered Species Act.

The bog turtle article, which is not connected to this case, also says that "Consequently, some land developers are concerned that their proposed projects may be affected by its presence."

However, BMPA Attorney Kristal was able to show the site's Pollution Prevention and Control Plan is a generic one that Alpine contractor Brubaker Excavating uses for all of its projects, regardless of location. It will be up to the panel of judges who decide the trial to determine whether the generic plan is adequate for work on Alpine's proposed site.

Attorney Kristal was also able to show that, even though the Aquashicola watershed is considered a "Special Protection Water" by the state, the DEP did not apply a portion of the state code (Chapter 93) that deals with "Special Protection Waters" when it issued the permits.

The hearing closed March 31, and a decision could take up to six months or more. Attorneys for all parties had approximately 45 days to submit post-hearing briefs that site cases of law related to the appeal. The briefs also explain to the judge how each party in the appeal (BMPA, DEP and Alpine) feels about testimony and exhibits presented during the hearing.

Although BMPA hasn't won yet, members who attended the hearing got a glimmer of hope when Judge Michael Krancer issued a statement informing them that they presented a strong case. And in his address to the DEP, Judge Krancer said he believed this could result in an Environmental Quality Board investigation into department policies and procedures.

According to Judge Krancer, the best-case scenario for BMPA will be that the permits would be remanded. This means Alpine Rose would have to reapply for the NPDES Part II and Waste Water Treatment Permits subject to the requirements in ACT 93 of the PA Code.

This would be a very costly endeavor for Alpine, which may not be able to satisfy the standards set forth in Act 93. That could lead to the demise of the project.

So keep your fingers crossed for the best-case scenario, because the Blue Mountain and the Aquashicola Creek watershed are no place for the worst-case: Alpine Rose.

Up to top