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SANITARY WATER BOARD COMMONWEALTH PENNSYLVANIA v. WILKES-BARRE (11/15/62)

November 15, 1962

SANITARY WATER BOARD OF COMMONWEALTH OF PENNSYLVANIA
v.
WILKES-BARRE, APPELLANT.



Appeal, No. 11, March T., 1963, from order of Court of Common Pleas of Dauphin County, No. 193 Commonwealth Docket 1961, in case of Sanitary Water Board of Commonwealth of Pennsylvania v. City of Wilkes-Barre. Order affirmed.

COUNSEL

Peter Paul Olszewski, Special Counsel, with him Raymond F. Lowery, City Solicitor, for City of Wilkes-Barre, appellant.

William M. Gross, Assistant Attorney General, with him Joseph L. Cohen, Assistant Attorney General, and David Stahl, Attorney General, for Sanitary Water Board, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Woodside

[ 199 Pa. Super. Page 494]

OPINION BY WOODSIDE, J.

The basic question here is whether the City of Wilkes-Barre may continue to discharge its untreated sewage into the Susquehanna River or whether it must construct a sewage treatment works.

The case comes before us on appeal from an order of the Court of Common Pleas of Dauphin County dismissing an appeal from the adjudication of the Sanitary Water Board ordering the City of Wilkes-Barre to discontinue its discharge of untreated sewage into the river and to take immediate steps for the construction of sewage treatment works.

There was a time when the streams of this Commonwealth flowed clear, sparkling and pure. As the forests gave way to the plowed fields, rains eroded mud into the streams, and as the population grew and the wastes of mining and industry multiplied, and character of the streams changed. No effort was made to keep their waters pure. The streams were a convenient and cheap means for disposing all manner of waste, some dangerous, some harmless and some which neutralized others. At the turn of the century, nearly all the Commonwealth's streams and all its great rivers were contaminated by industrial, mining and human waste. Pollution was rampant.

In 1905 the legislature took a first, but small, step to limit the discharge of "obnoxious sewage" into the waters of this Commonwealth by passing an act "To perserve the purity of the waters of the State, for the protecting of the public health". Act of April 22, 1905, P.L. 260. Two years later, in a case challenging the constitutionality of the above act, this Court and the Supreme Court recognized that the discharge of obnoxious sewage into the waters of the state was a matter of public concern and within the police powers of the Commonwealth to regulate. Commonwealth v. Emmers, 33 Pa. Superior Ct. 151 (1907), 221 Pa. 298, 70 A. 762 (1908).

[ 199 Pa. Super. Page 495]

The Pure Streams Act of June 22, 1937, P.L. 1987, put the Commonwealth firmly on the path of reducing the pollution of its waters. This act was bitterly fought at the time of its enactment, and since, as an extravagant change of accepted practices of long standing. Yet, everyone knows that ultimately the state will prevent all harmful pollution of its waters. Section 201 of this act, 35 P.S. § 691.201 provides, inter alia, that "No ... municipality shall ... continue to discharge ... into any of the waters of the Commonwealth any sewage, except as hereinafter provided in this act."

Section 202 of the Pure Streams Act, 35 P.S. § 691.202 provides, inter alia, as follows: "Any municipality discharging sewage from any sewer system owned and maintained by the municipality, ... shall discontinue the discharge of sewage into or in such manner as to cause pollution of the waters of this Commonwealth upon the order of the [Sanitary Water] board, issued pursuant to the provisions of this act, at such time as the board shall be of the opinion that such discharge of sewage is or may become inimical or injurious to the public health, animal or aquatic life, or to the use of the water for domestic or industrial consumption or recreation, and on such notice, any permit heretofore granted to such municipality or person for the discharge of sewage into the waters of the Commonwealth shall be deemed to be revoked and ...


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