OO on Remand

COMMONWEALTH OF PENNSYLVANIA
ENVIRONMENTAL HEARING BOARD
Rachel Carson State Office Building – 2nd Floor| 400 Market Street, P.O. Box 8457 | Harrisburg, PA 17105-8457 | T: 717.787.3483 | F: 717.783.4738
www.ehb.pa.gov
SALVATORE PILEGGI :
:
v. : EHB Docket No. 2022-068-BP
:
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF ENVIRONMENTAL : Issued: March 18, 2026
PROTECTION :
OPINION AND ORDER ON REMAND
By Paul J. Bruder, Jr., Judge
Synopsis
The Environmental Hearing Board (“Board”) finds that the Department’s August 11, 2022
Administrative Order’s remedies are appropriate and reasonable based on the evidence and
testimony presented at the February 21, 2024 and February 22, 2024 hearing.
O P I N I O N
Background
The limited matter before us is whether the remedies specified in the Department’s August
11, 2022 Administrative Order are appropriate and reasonable based on the evidence, testimony,
and legal arguments present in the Board’s record.
By way of background, on September 15, 2022, Appellant Salvatore Pileggi (“Mr.
Pileggi”) appealed a Department August 11, 2022 Administrative Order (“Order”) to the Board.
The subject Order was issued following several Lackawanna County Conservation District (the
“Conservation District” or “District”) inspections at Mr. Pileggi’s property (“Site”). The Order
alleges that Mr. Pileggi conducted earth disturbance activities in excess of one acre, and pursuant
to a common plan of development or sale, at the Site. The administrative remedies outlined in the
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Order mandated that Mr. Pileggi do the following: (1) within seven (7) calendar days, implement
Best Management Practices (“BMPs”) in accordance with the Department’s regulations and the
Erosion and Sediment Pollution (“E&S”) Control Manual; (2) within thirty (30) days, submit an
adequate E&S control plan that complies with 25 Pa. Code § 102.4(b)(5)(i)-(xv); (3) within one
hundred twenty (120) days, submit an adequate NPDES Permit application as per 25 Pa. Code §
102.5; and (4) cease earth disturbance activities until the required permits and plans are approved.
(August 11, 2022 Administrative Order). On appeal, Mr. Pileggi claimed he was simply
performing road maintenance and flood repair work at the Site; thus, there was no need for him to
submit an NPDES permit application or E&S plan.
The Board held a two-day hearing on February 21, 2024 and February 22, 2024. Following
the hearing, on October 2, 2024, the Board issued an Adjudication Opinion and Order finding that
Mr. Pileggi conducted greater than one acre of earth disturbance activity, as part of a common plan
of development and sale, requiring that he first obtain an NPDES permit and develop and
implement an E&S plan, including BMPs. In our Opinion, the Board questioned the rationale for
the Department’s decision to require Mr. Pileggi to apply for an after-the-fact permit instead of
imposing a civil penalty or other sanction1 but ultimately upheld the Administrative Order’s
remedies. Pileggi v. DEP, 2024 EHB 634, 657. Mr. Pileggi appealed the decision to the
Commonwealth Court.
On appeal, the Commonwealth Court affirmed the Board’s conclusion that Mr. Pileggi
conducted greater than one acre of earth disturbance activity as a larger common plan of
development or sale; thus, necessitating an NPDES permit and the submission of an E&S plan
1 The Department has authority under the Clean Streams Law to assess civil penalties and fines for noncompliance.
35 P.S. §§ 691.602, 691.605(a). The Department’s regulations also provide methods of enforcing NPDES permit
requirements such as issuing “orders to remediate or restore.” 25 Pa. Code § 102.32(a)(3).
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before beginning earth disturbance activities. Pileggi, v. DEP, ___ A.3d ___, 2026 Pa. Commw.
LEXIS 2, *17. However, the Commonwealth Court vacated the Board’s adoption of the remedies
in the Administrative Order; specifically, as to the Board’s reasoning for imposing an obligation
on Mr. Pileggi to obtain an after-the-fact permit. Id. at *15 (“We conclude the Board erred by
accepting the remedies in the Administrative Order when the Board appeared to acknowledge it
did not understand DEP’s reasons for imposing an after-the-fact permit requirement and relied on
speculation that DEP may have some policy reason for its actions.”). The matter was remanded
to the Board to determine whether an after-the-fact permit is appropriate, whether to add alternative
remedies, or whether to impose different remedies altogether. Id. at *17. The Commonwealth
Court further clarified the Board should only consider the evidence and legal argument presented
to the Board by the Department and not consider any reasoning that came to light after the Board’s
decision. Id. After a thorough review of the record, we conclude that the Department’s
administrative remedies are appropriate and reasonable.
Discussion
The Department bears the burden of proof to show by a preponderance of the evidence that
its administrative remedies are lawful, reasonable, and supported by the facts. Robinson Coal Co.
v. DEP, 2015 EHB 130, 153; Wean v. DEP, 2014 EHB 219, 251; Dirian v. DEP, 2013 EHB 224,
231; Perano v. DEP, 2011 EHB 623, 633; GSP Management Co. v. DEP, 2010 EHB 456, 474-75;
see also 25 Pa. Code §§ 1021.117(b), 1021.122(a)&(b)(4). The Board defines “preponderance of
the evidence” to mean that “the evidence in favor of the proposition must be greater than that
opposed to it.” Clancy v. DEP, 2013 EHB 554, 572.
During the February 2024 hearing, the Department offered testimony by Brian Mackowski,
Chief of Compliance for the Waterways and Wetlands Program, and Jerry Stiles, District Manager
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of the Lackawanna County Conservation District, that Mr. Pileggi would need to apply for an
NPDES permit and submit an E&S plan, with BMPs, for the earth disturbance activities already
performed at the Site and any future activity proposed. Mr. Pileggi’s attorney, Mr. Romine,
extensively questioned Mr. Mackowski about the need for an NPDES Permit for work already
performed. Specifically, Mr. Mackowski was asked what information Mr. Pileggi would need to
put on an NPDES Permit Application if he has no plans to build a subdivision or do any more earth
disturbance activity. (T. 318-328). The central theme of Mr. Romine’s questioning focused on
how someone could prepare an NPDES permit application without having any plans to carry out
future work that would require such a permit. (T. 319; 322-323). These questions highlighted
ambiguity in the Administrative Order’s remedies regarding whether the requirements to apply for
an NPDES permit and submit an E&S plan applied to past, future, or both types of earth
disturbance activity. (T. 325).
While the Department’s testimony and evidence did not definitively specify whether the
Administrative Order required Mr. Pileggi to obtain a retroactive or prospective NPDES permit,
or delineate the parameters of such permit, the testimony of Mr. Mackowski and Mr. Stiles
supports the requirement of an after-the-fact permit and E&S plan for completed work, as well as
a permit and E&S plan should Mr. Pileggi pursue future subdivision activity. Excerpts of the
relevant testimony are as follows:
Cross-examination of Mr. Mackowski:
Q: Is, in paragraph 3, within 120 days Mr. Pileggi is to submit an adequate NPDES
Permit Application, is that for work that’s already been done or for work that is
going to be done or both?
A: It could be both.
Q: I am not asking could it be. I’m asking is it.
A: You’re not asking could it be both. It could be both.
Q: It could be both.
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A: On how Mr. Pileggi wants to proceed. If he wants to go with the site restoration,
an NPDES Permit would be required for site restoration. In order to restore it back
to where it previously was, there is an acre, over an acre of earth disturbance on the
property. If there is going to be further development, he’s going to need an NPDES
Permit for what was done plus for future development. If he wants to keep the site
exactly how it is, he needs an NPDES Permit for that too. Because there is a change
in cover type, so you need, along with the Erosion and Sedimentation Control for
what erosion may be occurring out there, for Post Construction Storm Water
Management, for the added gravel impervious areas, the affected area. So in one of
three ways, an NPDES Permit would be required for the site, and it’s up to Mr.
Pileggi. He can fill out the application by himself, if he’s qualified. He’s welcome
to do so. If he needs to hire a consultant to fill it out, then that’s what he needs to
do.
Q: Just for clarification. If Mr. Pileggi is not planning anything –
A: Uh-huh.
Q: Again, I’ll say it again. No sewage, no Building Permits, no construction, no
contractor, no developer.
A: Uh-huh.
Q: If that’s the case –
A: Uh-huh.
Q: -- then you’re saying that Mr. Pileggi still needs to comply with paragraph 3.
A: Correct.
Q: But hold on. By filling out an NPDES Application for work that was done two
and three years ago.
A: Correct.
Mr. Romine: Thank you, your Honor.
Re-direct Examination of Mr. Mackowski:
Q: Okay. Picking up on where we just left off, Mr. Mackowski, assuming Mr.
Pileggi only has lot 5 for sale –
A: Uh-huh.
Q: -- does he need an NPDES Permit right now?
A: Yes.
Q: Okay. And let’s assume he goes home and he takes lot 5 off the market and he
doesn’t want to sell lot 5, does he still need an NPDES Permit?
A: Yes.
Q: Why?
A: Because of the work that was already done, which is more than an acre of earth
disturbance and change of cover type. So, therefore, there will be an increase in
rate, volume, and water quality from the site based on what was done, therefore, he
has to mitigate that. He needs to have best management practices in place for that,
for those aspects.
(T. 325-328)
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Direct Examination of Mr. Mackowski:
Q: Okay. Okay. Are you familiar with the Administrative Order that the
Department issued?
A: Yes, I’m familiar with it. I have read it once.
Q: Okay. Can I turn your attention to Department Exhibit 1, please?
A: Sure. Okay.
Q: Is that the Administrative Order that the Department issued in this matter?
A: Yes, it is.
Q: Okay. Dated August 11, 2022?
A: Yes.
Q: Okay. And if you turn to page 13 of that exhibit –
A: Okay.
Q: -- it says, it is hereby – at the top of the page, third line, it says in party it is
hereby ordered and then there are four numbered paragraphs, correct?
A: Yes.
Q: Okay. And are you in agreement with the requirements in those paragraphs?
A: Yes. I am in agreement with these four items.
[objection and testimony creating foundation of witness to testify on Order omitted]
Q: Okay. So turning back to page 13 –
A: Uh-huh
Q: -- and those four requirements.
A: Uh-huh.
Q: Were you in agreement with those?
A: Based on my experience, absolutely. Number 1, again, there was earth
disturbance that had taken place. And, you know, those areas should be stabilized
as per the E&S Manual. You know, a plan should be submitted that complies, you
know, with the Department regulations. And then beyond that, because of the
amount of earth disturbance activity that had occurred plus with all the other
findings that I found, then, absolutely there should be an NPDES Permit for this
site for what was done plus for what will happen in the future, because all
indications point that there is going to be a subdivision in the future.
(T. 252-53; 255-56)
Cross-examination of Mr. Stiles:
Q: Okay. So if the disturbance for the homes, driveways, utilities, garages, and on-
lot sewage facilities never happened, then there would be no common plan of
development that would require an NPDES Permit, correct?
A: Yes and no. Can I explain?
Q: Please.
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A: So an NPDES Permit is required anytime you disturb an acre or more during
what’s called the life of the project. So in this case, if an acre or more had been
disturbed already, a permit would be needed.
Q: So a permit, you’re telling me a permit would be needed for work that had
already been done.
A: Yes.
Q: But that wouldn’t be required for if there was – the work was road maintenance
activities, correct?
A: If it was road maintenance, yes.2
(T. 157).
Mr. Stiles also testified on direct examination that he agreed with the four remedies
outlined in the Department’s August 11, 2022 Order based on his observations at the site. (T. 123-
25). In further support of the need for an after-the-fact E&S plan, both Mr. Stiles and Mr.
Mackowski testified that Mr. Pileggi conducted more than 5,000 square feet of earth disturbance
activity and that un-stabilized areas remained at the Site after issuance of the Administrative Order,
necessitating remediation through an after-the-fact E&S plan with BMPs. (T. 28-30; 32-33; 55-
57; 66-69; 79; 91; 106-109; 121-122; 125-26; 226-227; 229-232; 245).3
In addition to the testimony presented at the hearing, we find that the Pennsylvania Code
supports the requirement for an NPDES permit for earth disturbance activity already performed at
the Site, despite Mr. Pileggi’s assertion that “25 Pa. Code § 102.5(a) applies to proposed future
work, not completed work.” (Pileggi Post-Trial Brief at pg. 45). 25 Pa. Code § 102.5(a), which
governs Pennsylvania’s stormwater and earth disturbance regulations, states:
2 The Board found, and the Commonwealth Court agreed, that the work performed at the Site did not
constitute “road maintenance;” thus, Mr. Pileggi is not exempt from seeking an NPDES Permit based on
that claim. Pileggi v. DEP, 2024 EHB 634, 650; Pileggi, v. DEP, ___ A.3d ___, 2026 Pa. Commw. LEXIS
2, *9.
3 Mr. Stiles testified that on a sunny day in July, the majority of areas previously disturbed were stable. (T.
106-108; 136). However, five months later, site conditions had changed. On a rainy day in December,
areas of instability were evident. (T. 120-122).
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Other than agricultural plowing or tilling activities, animal heavy use areas, timber
harvesting activities or road maintenance activities, a person proposing an earth
disturbance activity that involves equal to or greater than 1 acre (0.4 hectare) of
earth disturbance, or an earth disturbance on any portion, part, or during any
stage of, a larger common plan of development or sale that involves equal to
or greater than 1 acre (0.4 hectare) of earth disturbance, shall obtain an
individual NPDES Permit or coverage under a general NPDES permit for
Stormwater Discharges Associated With Construction Activities prior to
commencing the earth disturbance activity. . . .
25 Pa. Code § 102.5(a) (emphasis added).
In our October 2, 2024 Adjudication Opinion, the Board stated that one way to determine
if Mr. Pileggi is “proposing” earth disturbance activity is by asking if he undertook any work
pursuant to a common plan of development, and therefore, that work performed indicated his
proposal. Pileggi v. DEP, 2024 EHB 634, 651. We stand by this statement and reassert it today.
Likewise, we also find the explicit language of 25 Pa. Code § 102.5(a) supports the acquisition of
an after-the-fact NPDES permit. Although a clear reading of the regulation states that a person
must obtain a NPDES permit before starting any earth-disturbance activity, the regulation also
states an NPDES permit shall be obtained “during any stage of, a larger common plan of
development or sale that involves equal to or greater than 1 acre (0.4 hectare) of earth disturbance.
. . .” 25 Pa. Code § 102.5(a)(emphasis added). We find that this phrasing of “during any stage of”
indicates that an NPDES permit is still necessary and appropriate after the work has been started
and even if the work is not finished or abandoned.
In addition to the regulatory language, as a matter of public policy, allowing Mr. Pileggi to
knowingly4 violate Pennsylvania regulatory law, without any consequence, would undermine the
4 Mr. Pileggi was aware of the Conservation District’s and Department’s belief that he would need to obtain
an NPDES Permit and submit an E&S plan. The Department provided the Board with extensive testimony
from Mr. Stiles regarding his multiple site inspections – five total – at Mr. Pileggi’s property. Mr. Stiles
testified that he advised Mr. Pileggi he would likely need to obtain an NPDES permit. (T. 32-33; 37; 49-
50). Indeed, Mr. Pileggi was aware in February 2022 that he would definitively need an NPDES Permit and
E&S Plan for his earth disturbance activities. (T. 91).
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purpose and effectiveness of the Clean Streams Law. Permitting requirements are not mere
formalities. They are essential mechanisms designed to protect the Commonwealth’s waterways
and environment. Allowing individuals to bypass these requirements without consequence would
incentivize noncompliance and weaken uniform enforcement. Requiring a retroactive permit not
only deters willful violations but also ensures that the work performed is subject to appropriate
stabilization, sediment and erosion controls, and compliance with applicable best management
practices.
Although there is no way to say with exact certainty all the work Mr. Pileggi performed at
the Site - being that he never applied for any permits prior to conducting any earth disturbance
activities - we find that remediating or restoring the property to its previous condition would be
impossible based on the work performed. (T. 37-38; 41-45; 69). There was extensive testimony
offered by the Department about the earth disturbances observed at the Site from as early as 2019.
Prior to 2019, Wooden Lane used to consist of an unimproved farm lane road, consisting of two
dirt tracks on either side of a grassy strip, just wide enough for one vehicle. However, in 2019 this
road was expanded by Mr. Pileggi. (T. 60; 150; 212). Also, Bonnie Circle had been created on the
ground, as evidenced by the road being mowed into the shape of a cul-de-sac. (T. 179-181).
Additional testimony indicated that in 2021 and 2022 the condition of the Site continued
to change, involving increased earth disturbance activity. (T. 28-30; 47; 150). Specifically, as of
April 19, 2021, Bonnie Circle had been graded and improved with stone aggregate, approximately
600 linear feet of Wooded Lane had been graded and covered with a stone aggregate, there was a
cut bank and drainage swale along Wooded Lane that had not been stabilized, and approximately
250 feet of roadway (which had previously been a grass field) had been mowed and rough graded
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into bare earth, which was also not stabilized. (T. 28-30; 66; 72-73). 5 As of September 2021, Mr.
Stiles testified that the bank and swale along Wooden Lane were still not stabilized. (T. 66-68).
Mr. Stiles stated that as of 2021, the total amount of graded roadway on the Property exceeded
5,000 square feet and did not show evidence of an E&S plan and BMPs required for that amount
of roadway. (T. 30; 55-57). Additionally, on December 6, 2022, four months after the issuance of
the subject Administrative Order, Mr. Stiles observed that the area of the swale and embankment
along Wooden Lane had continued to not be stabilized and several rills/gullies leading to the
drainage channel developed. (T. 120-22). The Department admitted photographs and reports into
evidence to support the oral testimony on this matter.
The Department also put forth testimony from Mr. Mackowski on what the Department is
looking for when evaluating a site such as Mr. Pileggi’s. Mr. Mackowski stated that the
Department considers: (1) where excavated earth will be placed to ensure it will not pollute the
waters of the Commonwealth; (2) whether the project will change the site’s cover type, such as
converting a meadow or forested area into an impervious or gravel surface, and how such changes
will affect runoff rates, runoff volume, and water quality; (3) whether potential pollutants,
including nitrates and phosphates, under post-construction stormwater management requirements
are present; and (4) how pre-development conditions compare with post-development conditions.
Ultimately, the developer must demonstrate that the project will protect the waters of the
Commonwealth. (T. 267–269)
We found Mr. Mackowski and Mrs. Stiles’ testimony, along with the supporting
evidentiary documents, credible and confirm these activities must be accounted for in the NPDES
5 Mr. Pileggi confirmed this observation by testifying that the modified and gravel was hauled to the site
by the truckload and spread by Mr. Pileggi himself. (T. 419-420).
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Permit application. Thus, we conclude that the testimony and evidence support that Mr. Pileggi
conducted over one acre of earth disturbance activity, which primarily involved work on Wooded
Lane and Bonnie Circle and adjacent support areas, and these earth disturbances must be included
in the NPDES Permit application and E&S plan with BMPs. (T. 56-57; 227; 229; 265- 266).
Conclusion
It is undisputed that 25 Pa. Code § 102.5(a) requires a person to obtain an NPDES permit
prior to commencing earth disturbance activities exceeding one acre. It is also undisputed that the
Department met its burden of proof that Mr. Pileggi conducted over one acre of earth disturbance
activity, as part of a common plan of development and sale, without first obtaining an NPDES
permit, and without a written E&S plan that implemented BMP. Pileggi v. DEP, 2024 EHB 634,
656-57 aff’d Pileggi, v. DEP, ___ A.3d ___, 2026 Pa. Commw. LEXIS 2. Accordingly, where
earth disturbance activities have begun without the required permit coverage, we conclude that the
Department may require submission of an after-the-fact NPDES permit application to address the
previously unauthorized discharge. Such a requirement is a suitable remedy, as it will ensure the
work performed has the necessary regulatory oversight and complies with the Clean Streams Law.
Although we initially questioned the Department’s rationale for requiring Mr. Pileggi to
apply for a permit rather than imposing a civil penalty, we conclude that the testimony presented
at the hearing sufficiently establishes that an NPDES permit and E&S Plan are the appropriate
remedies to: (1) ensure that the earth disturbance activities already performed comply with
applicable law; (2) remediate any work that is unstable or inconsistent with BMPs; and (3) address
any future work Mr. Pileggi may undertake.
Thus, Mr. Pileggi will need to apply for an NPDES Permit and submit an E&S Plan with
BMPs for the work already performed at the Site. If Mr. Pileggi has any plans to continue his
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subdivision or conduct more than one acre of earth disturbance activity, he will need to include
that information in the NPDES Permit application and E&S plan. It also goes without saying that
Mr. Pileggi will need to cease any future work in conjunction with the common plan of
development until the appropriate administrative remedies are adhered to.
Accordingly, we issue the following order.
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COMMONWEALTH OF PENNSYLVANIA
ENVIRONMENTAL HEARING BOARD
13
SALVATORE PILEGGI :
:
v. : EHB Docket No. 2022-068-BP
:
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF ENVIRONMENTAL :
PROTECTION :
O R D E R
AND NOW, this 18th day of March, 2026, we affirm the Department’s August 11, 2022
Administrative Order’s Remedies.
ENVIRONMENTAL HEARING BOARD
s/ Steven Beckman
STEVEN BECKMAN
Chief Judge and Chairperson
s/ Bernard A. Labuskes, Jr.
BERNARD A. LABUSKES, JR.
Judge
s/ Sarah L. Clark
SARAH L. CLARK
Judge
s/ MaryAnne Wesdock
MARYANNE WESDOCK
Judge
s/ Paul J. Bruder, Jr.
PAUL J. BRUDER, JR
Judge
DATED: March 18, 2026
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c: DEP, General Law Division:
Attention: Maria Tolentino
(via electronic mail)
For the Commonwealth of PA, DEP:
Sean L. Robbins, Esquire
(via electronic filing system)
For Appellants:
David Romine, Esquire
(via electronic filing system)
03/18/2026