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COMMONWEALTH PENNSYLVANIA v. DERRY TOWNSHIP (11/21/73)

decided: November 21, 1973.

COMMONWEALTH OF PENNSYLVANIA, PETITIONER,
v.
DERRY TOWNSHIP, WESTMORELAND COUNTY; LATROBE BOROUGH, WESTMORELAND COUNTY; LATROBE MUNICIPAL AUTHORITY, WESTMORELAND COUNTY; UNITY TOWNSHIP, WESTMORELAND COUNTY; AND YOUNGSTOWN BOROUGH, WESTMORELAND COUNTY, RESPONDENTS



Original jurisdiction in case of Commonwealth of Pennsylvania v. Derry Township, Westmoreland County; Latrobe Borough, Westmoreland County; Latrobe Municipal Authority, Westmoreland County; Unity Township, Westmoreland County; and Youngstown Borough, Westmoreland County.

COUNSEL

Robert J. Shostak, Special Assistant Attorney General, for petitioner.

Charles H. Loughran, with him Loughran & Loughran, for respondents.

Before President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt.

Author: Kramer

[ 10 Pa. Commw. Page 622]

OPINION BY JUDGE KRAMER

This matter comes within the original jurisdiction of this Court. The action was commenced on January 10, 1972 by the filing of a petition to adjudge respondents in contempt by the Commonwealth of Pennsylvania against the respondents as indicated in the caption of this case. The proceedings have been protracted and complex and involve the attempt by the Department of Environmental Resources (DER) of the Commonwealth to carry out the legislative policies declared in The Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.1 et seq. (hereinafter referred to as Clean Streams Law) to abate a public nuisance created by the lack of adequate sewage treatment facilities which is causing pollution in the watershed of the Loyalhanna Creek located in or about the four municipalities named in the petition. A preliminary Order was issued by the hearing Judge of this Court on July 31, 1972, in which Derry Township (Derry) was found to be in contempt in accordance with The Clean Streams Law (35 P.S. § 691.210), and in which Derry was ordered to enter into immediate diligent negotiations with the Latrobe Municipal Authority (Latrobe Authority) until August 10, 1972, after which failing to reach an agreement with Latrobe Authority, negotiations were further ordered before a Master appointed by this Court. In paragraph No. 7 of said Order, it was set forth that: "7. If no agreement is reached and executed within the said seven additional days, the Master will immediately file a report containing his recommendations with the Court by August 21,

[ 10 Pa. Commw. Page 6231972]

(copies to be sent to the parties), after which this Court will issue an order ordering the parties to execute an agreement deemed by the Court to be reasonable and in compliance with the order of the Department of Environmental Resources (dated September 10, 1971) and The Clean Streams Law, supra, subject thereafter to sanctions."

Filed simultaneously with this adjudication is an Opinion and Order pertaining to exceptions which were filed by Derry to the Order of this Court dated July 31, 1972, in which we dismissed Derry's exceptions and making said Order of this Court final.*fn* The matter is now ripe for a final adjudication.

FINDINGS OF FACT

1. Derry Township (Derry) and Unity Township (Unity) are second class townships. Youngstown Borough (Youngstown) and Latrobe Borough (Latrobe) are boroughs. The Latrobe Municipal Authority (Latrobe Authority) is a municipal authority organized under the Municipal Authorities Act of 1945, Act of May 2, 1945, P.L. 382, as amended, 53 P.S. § 301 et seq. (Where applicable, the term "municipalities" shall include all four municipalities, unless otherwise designated by name.)

2. Parts of all of the municipalities are in the watershed of the Loyalhanna Creek.

3. The Latrobe Authority is authorized to have five Board members by its articles of incorporation. At the time of hearing, Latrobe Authority had four members. It is divided into two divisions, namely, a sewer division and a water division.

4. On July 1, 1963, the Latrobe Authority issued sewer bonds in the amount of one million eight hundred

[ 10 Pa. Commw. Page 624]

    thousand dollars to finance the construction of a primary sewage treatment plant located in the northwest corner of Latrobe. Also constructed was an interceptive sewer running parallel with the Loyalhanna Creek from the southwest corner of Latrobe along the creek to the treatment plant. Since 1964, the two divisions of Latrobe Authority have served 6,000 water customers and 3,500 sewer customers. Approximately 2,500 of the water customers are residents of the surrounding municipalities.

5. Since 1963, the two divisions of Latrobe Authority have shared the cost of jointly-used employes and facilities, which include a $400,000 office building. The cost of jointly-used assets is $88,000 per year. The sewer division is charged by the water division for $33,000 of that cost. Over the years, Latrobe Authority has constructed interceptive sewer facilities to take sewage of other municipalities.

6. Latrobe Authority's plant was constructed for primary sewage treatment, which required a minimum of 35 percent treatment of the sewage.

7. Since 1963, Latrobe Authority has extended its sewage system into a new high school situated in Unity in 1966, and in 1969, into Derry, to serve several industries and a country club. On May 14, 1969, Latrobe Authority entered into a service agreement with Derry for sewage service from the "Loyalhanna Industrial Park." This service agreement does not provide for any representation by Derry on the Board of Latrobe Authority, nor does it provide for any expansion of sewage service in Derry Township without the consent of Latrobe Authority.

8. On May 27, 1970, DER issued an order to Latrobe Authority to expand its present plan to provide secondary treatment, rather than primary treatment of its sewage. Latrobe Authority did not comply with said

[ 10 Pa. Commw. Page 625]

    order, but rather urged DER to compel surrounding municipalities along the subject watershed to construct collector sewage systems compatible with Latrobe Authority's plans for expansion.

9. In September 1971, DER issued orders to Derry, Unity and Youngstown (a) to construct and operate sewage systems and treatment facilities to properly provide for the prevention of pollution and public health nuisances within their respective municipal boundaries in said watershed within two years of the date of the order, (b) to submit plans within 90 days indicating the areas to be served and the treatment facilities required, (c) to submit a schedule of steps to be taken for implementation to be filed within 120 days of the order, and finally, (d) to negotiate and enter into agreements with any municipality authority or agency necessary to comply with the order, specifically mentioning Latrobe Authority.

10. No appeal was ever taken by Derry, Unity or Youngstown from DER's orders of September 1971.

119 Derry, Unity and Youngstown were specifically notified of their right to file an appeal from the orders of September 1971.

12. There were many meetings and conferences held between the various parties involved in an effort to resolve the many problems surrounding the sewage pollution in the watershed of Loyalhanna Creek.

13. The existing sewage facility of Latrobe Authority cost approximately three million dollars, of which $1,800,000 was locally financed by 40-year sewer revenue bonds at a rate of approximately 3.5 percent interest. The present balance of indebtedness is $1,605,000. Since 1963 the Latrobe Authority has paid $754,575 for debt-service costs for the 1963 construction, and will have paid $1,015,275 for debt service payments by July 1, 1975, when it is estimated that a regional plant could be completed.

[ 10 Pa. Commw. Page 62614]

. On June 19, 1972, DER issued orders to Latrobe Authority and Latrobe to negotiate an agreement with three surrounding municipalities of Derry, Unity and Youngstown by July 7, 1972. Latrobe Borough and Latrobe Authority appealed from this order; both appeals are still pending.

15. On July 10, 1972, the Commonwealth filed a petition to adjudge the respondents named in the caption above in contempt for their failure to comply with ...


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