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decided: October 29, 1974.


Appeal from the Order of the Environmental Hearing Board in case of In the Matter of Commonwealth of Pennsylvania, Department of Environmental Resources v. Ramey Borough, No. 73-108.


John R. Carfley, with him Sharp & Carfley, for appellant.

Thomas M. Burke, Special Assistant Attorney General, for appellee.

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

Author: Bowman

[ 15 Pa. Commw. Page 603]

Ramey Borough appeals to this Court from an Environmental Hearing Board (EHB) adjudication affirming an April 16, 1973, Department of Environmental Resources (DER) order, which directed appellant to plan, design, construct and operate a sewage treatment facility for the Borough within time frames requiring completion of construction in 1976.

Approximately two hundred three (203) homes are situated in Ramey Borough. Of this number, one hundred thirteen (113) homes discharge their effluent via individual septic systems, while the remaining ninety (90) homes connect to a sewer system that discharges the untreated sewage into Little Muddy Run. As part of its order, DER stated that this discharge of effluent into Little Muddy Run constituted "pollution" as defined by Section 1 of The Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. ยง 691.1.

Prior to and during the pendency of its appeal to the EHB, appellant, in compliance with paragraph (a) of the DER order requiring appellant to submit a proposal for a water treatment facility, secured the services of an engineering firm. This firm provided the Borough with estimates, based on 1973 prices, as to the approximate cost to the Borough of constructing a sewage

[ 15 Pa. Commw. Page 604]

    treatment facility. In addition, as part of the engineer's report, the Borough received operational cost projections and other pertinent data necessary to comply with the DER order.

Appellant, despite initiating steps to comply with paragraph (a) of the DER order, appealed the order to the EHB. Following its adverse adjudication, this appeal was taken which raises three issues for our consideration.

Appellant first contends that the Commonwealth failed to introduce evidence at the EHB hearing from which the EHB could make a finding that appellant is discharging untreated sewage into a stream of this Commonwealth. Failure by the Commonwealth to introduce such evidence, reasons appellant, precludes the EHB from concluding that appellant is polluting Little Muddy Run in violation of the provisions of The Clean Streams Law, for want of substantial evidence to support such a conclusion.

Appellant accurately points out that the record does not disclose evidence introduced by DER that untreated sewage is being discharged into Little Muddy Run. However, evidence does, in fact, exist in the record, and affords an adequate basis for a conclusion by EHB that such pollution does exist. Appellant's own witness testified that ninety (90) homes in Ramey Borough are connected to a sewer system that discharges untreated sewage into Little Muddy Run. Having introduced such uncontradicted evidence through its own witness, appellant cannot now assert that the record is devoid of evidence to support a conclusion by EHB that appellant is polluting a stream of the Commonwealth.

At the EHB hearing, appellant introduced evidence of projected construction and operating costs, and attempted to establish, as a defense to the DER order, that it is economically impossible for appellant to construct a sewage treatment facility. The EHB received

[ 15 Pa. Commw. Page 605]

    testimony on this issue, but prefaced its reception by stating that economic impossibility was not an available defense to appellant at that time, citing Commonwealth ex rel. Alessandroni v. Confluence Borough, 427 Pa. 540, 234 A.2d 852 (1966).

In Confluence the Supreme Court held that financial inability was not a defense to a mandamus action brought by the Commonwealth to secure compliance with a sewage treatment facility construction order. The Supreme Court indicated, however, that economic impossibility may be a factor to be considered by a court if the Commonwealth, in a later proceeding, attempted to enforce its judgment in mandamus.

We believe the rationale of Confluence is equally applicable to proceedings for administrative and judicial review of DER orders requiring the ultimate construction by a municipality of sewage treatment facilities to abate water pollution. If, as here, the municipality initiates administrative review of such an order and then pursues its right to judicial review of an adverse administrative adjudication, we can find no valid reason why, in such proceedings, it should be permitted to raise an issue of financial inability or economic impossibility to perform, the very issue a municipality was precluded from raising in Confluence in mandamus proceedings by the predecessary of DER to enforce an order from which no appeal had been taken. In two decisions predating Confluence, in which financial inability was raised in proceedings on judicial review of an administrative order, such a defense was similarly rejected. Sanitary Water Board of Commonwealth of Pennsylvania v. Wilkes-Barre, 199 Pa. Superior Ct. 492, 185 A.2d 624 (1962); Sanitary Water Bd. v. Boro of Coudersport, 81 Dauph. 178 (1963).

Just as in proceedings by the Commonwealth to enforce a judgment in mandamus, proceedings by the Commonwealth to enforce an ...

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