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COMMONWEALTH PENNSYLVANIA v. BOROUGH CARLISLE AND CARLISLE BOROUGH SANITARY SEWER AUTHORITY (12/27/74)

decided: December 27, 1974.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLANT,
v.
BOROUGH OF CARLISLE AND CARLISLE BOROUGH SANITARY SEWER AUTHORITY, APPELLEES. BOROUGH OF CARLISLE AND CARLISLE BOROUGH SEWER SYSTEM AUTHORITY, APPELLANTS, V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLEE



Appeals from the Order of the Environmental Hearing Board in case of In the Matter of Commonwealth of Pennsylvania, Department of Environmental Resources v. Carlisle Borough Sewer System Authority and Borough of Carlisle, Nos. 73-155 and 73-156.

COUNSEL

Dennis J. Harnish, Special Assistant Attorney General, for Commonwealth.

William F. Martson, with him Martson and Snelbaker, for Borough of Carlisle.

John B. Fowler, III, with him Garber, Fowler & Addams, for Carlisle Borough Sanitary Sewer Authority.

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

Author: Blatt

[ 16 Pa. Commw. Page 343]

This action involves an appeal by the Department of Environmental Resources (DER) and cross-appeals by the Borough of Carlisle and the Carlisle Borough Sewer System Authority (cross-appellants) from an adjudication of the Environmental Hearing Board (EHB) restricting new connections to the sewage system of the Borough of Carlisle.

As early as April of 1971 the DER had ordered the Carlisle Sewer Authority to upgrade the sewage treatment facilities on LeTort Spring Run so as to meet new water quality criteria applicable to the entire Susquehanna River Basin. The Sewer Authority, in response, proposed to construct a new regional sewage treatment facility on the Conodoguinet Creek and to abandon the LeTort Spring Run facility. With this understanding, the parties established a timetable for construction, but, when the Sewer Authority seemed not to be cooperating, the DER instituted an enforcement proceeding in this Court. Commonwealth of Pennsylvania v. Carlisle Borough Sewer System Authority (No. 291 C.D. 1973, instituted March 9, 1973). On April 17, 1973, that suit terminated by consent of the parties and a decree issued

[ 16 Pa. Commw. Page 344]

    from this Court setting forth a new construction timetable providing for the completion and operation of the new treatment facility by October 1, 1976.

Ten days after issuance of the consent decree, on April 27, 1973, the DER issued a second order. This order, issued without prior notice or hearing, prohibited "any additional discharge into the sanitary sewer system which is tributary to the [current] Carlisle Borough Sewer System Authority treatment facilities unless written authorization for the discharge has been granted by the Department or for new construction for which building permits were issued prior to the date of receipt of this Order." This, of course, affected the cross-appellants, who were here required to report on measures being taken by them to enforce this sewer ban and also on steps being taken by them to reduce infiltration in the sewage collection system. They filed a timely appeal to the EHB, which, after taking testimony at hearings, first on a supersedeas petition on May 25, 1973, and then on the merits on June 15, 1973 and July 17, 1973, issued an adjudication on November 21, 1973, modifying the order so as to allow no more than four new sewer connection permits to issue per month.*fn1 It is this adjudication which is now before us for review.

[ 16 Pa. Commw. Page 345]

Our review of Environmental Hearing Board decisions is limited to a determination of whether constitutional rights were violated, errors of law were committed, or necessary findings of fact were unsupported by substantial evidence. Department of Environmental Page 345} Resources v. ...


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