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BELIN v. DEPARTMENT ENVIRONMENTAL RESOURCES (06/07/72)

decided: June 7, 1972.

BELIN, ET AL.
v.
DEPARTMENT OF ENVIRONMENTAL RESOURCES



Appeal from the Order of the Department of Environmental Resources in case of In the Matter of: Sandvik Steel, Inc., South Abington Township, Lackawanna County. Appeal of Northeastern National Bank of Pennsylvania, Trustee, Dorothy Lathrop Platt, George G. Brooks, Jr., Joseph Welsh, C. Welles Belin, Kenneth A. Rhodes, Chester I. Reynolds, Walter A. Redel, Ronald Schack, Wave-Oak Realty Company and Third National Bank and Trust Company, Executor, Docket No. 71-075.

COUNSEL

Robert P. Browning, with him Carl Carey, and Oliver, Price and Rhodes, for appellants.

Stanley R. Wolfe, with him K. W. James Rochow, Assistant Attorney General, for appellee.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Kramer.

Author: Kramer

[ 5 Pa. Commw. Page 678]

The appeal presently before this Court arises from an Adjudication and Order issued by the then Acting Secretary of the Department of Environmental Resources (Department), dated October 27, 1971. The Adjudication and Order dismissed the appeal and objections

[ 5 Pa. Commw. Page 679]

    filed by protestants to the June 11, 1971, issuance by the Department of a Water Quality Management Permit*fn1 to Sandvik Steel, Inc. (Sandvik), located in South Abington Township, Lackawanna County. The permit application as filed by Sandvik for its industrial waste treatment facility was in reality a request for permission to discharge cooling and rinse waters resulting from its manufacturing process into a swamp that forms the headwaters of Ackerly Creek.

Sandvik is engaged in the business of finishing stainless steel tubing for the chemical and nuclear industries. Stainless steel tubing arrives at the plant in an extruded state and is thereafter subjected to a finishing process. The finishing process at the Sandvik Plant entails the bathing of extruded tubing in acid to remove an oxide scale, formed during manufacture, followed by successive rinses in a neutralizing solution, cold water (twice) and hot water. At this point the tubing can be packaged for sale and distribution, or it can be further processed if additional reduction of tube size is desired.

The record indicates that three basic types of effluents are involved in the maintenance and operation of Sandvik. (1) Natural rinse and plant cooling waters, (2) sludges and (3) industrial wastes. Plans call for the disposal of type (3) from holding tanks or sanitary sewer discharge, but not into Ackerly Creek. Type (2) is to be concentrated in special holding tanks and later to be hauled away to an approved sanitary landfill. Type (1) is to be pumped to a high point on the Sandvik property, and from there it will flow by gravity to a discharge point on a hill adjacent to the swamp that forms the headwaters of Ackerly Creek.

[ 5 Pa. Commw. Page 680]

The protestants own properties located along the course of Ackerly Creek, i.e., from the swamp at the headwaters of Ackerly Creek extending to Glenburn Pond, that body of water into which Ackerly Creek flows. The protestants were permitted to intervene and participate in a hearing held on July 22, 1971, after the permit had been issued. They had requested the right to participate in a pre-issuance hearing, however, this request was not granted inasmuch as no such hearing was held.*fn2 It is the position of the protestants that the Department is without the power to authorize and permit the discharge of type (1) effluents into the headwaters of Ackerly Creek. They point out that the Sandvik Plant and Ackerly Creek are situate within two different watersheds, and the discharge of type (1) effluents into Ackerly Creek can be achieved only as a result of a mechanical pumping process. Protestants assert that such a "foreign" discharge is a violation of their riparian rights, is unlawful, and therefore the Department is without power to issue the permit. We note here that Sandvik purchases all of its water at a meter head of a water public utility. The utility's source of water is not disclosed in the record.

The Department is the repository of very broad powers conferred by the Legislature. The Act of December 3, 1970, P.L. 834, Act No. 275, 71 P.S. 510-1, et seq., creating the Department of ...


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