Appeal from the Order of the Environmental Hearing Board in case of In the Matter of: Commonwealth of Pennsylvania, Department of Environmental Resources, v. East Pennsboro Township Authority and East Pennsboro Township, Docket No. 73-287-W.
Jerry R. Duffie, with him Myers, Myers, Flower & Johnson, for appellants.
Eugene E. Dice, Assistant Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.
This is an appeal filed by East Pennsboro Township Authority and East Pennsboro Township (Pennsboro) from an order of the Environmental Hearing Board (Board), dated March 8, 1974,*fn1 which modified an order of the Department of Environmental Resources (DER) dated August 24, 1973, which latter order had totally prohibited any additional discharges to or connections with the sanitary sewer system of Pennsboro known as South Plant, without written authorization of DER. This type of prohibition is commonly called a sewer ban. The Board's modification of DER's sewer ban permitted the issuance of no more than three permits per month for dwelling units which will require connection to the South Plant system.
On or about October 6, 1958, the Sanitary Water Board*fn2 issued Sewage Permit No. 9132-S which approved an application by Pennsboro for the construction and operation of a sanitary sewer system. Although the permit does not specifically set forth the design capacity of Pennsboro's South Plant, the record indicates that the
plans and specifications attached to and referred to by the permit set forth a requirement that the design capacity of this primary treatment plant under said permit was to be 1.15 million gallons per day. The regulations established by the Environmental Quality Board (EQB) require a primary treatment plant such as South Plant to remove at least 35% of the organic pollution load. See 25 Pa. Code § 97.42.
Because of a proposed apartment development in Pennsboro, DER conducted an investigation and determined that the South Plant was receiving a waste load in excess of its design capacity. DER concluded that by virtue of this overload (referred to in the record as hydraulic overload) Pennsboro was polluting the waters of the Commonwealth. Based on its investigation and without hearing, DER issued its August 24, 1973 order which prohibited Pennsboro from making any additional connections to the sanitary sewer system of its South Plant without written authorization from DER. The order specifically exempted sewage discharges to be generated as a result of new construction for which building permits had been issued prior to August 24, 1973.
Pennsboro filed an appeal with the Board and a hearing was held. The Board thereafter issued its adjudication in which it found, among other things, that South Plant was hydraulically overloaded in that the daily influent frequently exceeded the design capacity but that the most recent available data (November 1972 through July 1973) indicated that the BOD (biochemical oxygen demand) removal was consistently within the permit requirement of 35%. The Board concluded that the South Plant is frequently operated with a hydraulic load in excess of its design capacity, but that it is not presently violating the 35% BOD removal requirement.*fn3 The record
indicates that during the period 1960 through 1971 the plant operated at less than its design capacity but that during the period of 1972 through September of 1973, the design capacity was exceeded on more than a majority of the days of operation. At times the volume went as high as 2.8 million gallons per day. It would appear that while the plans and specifications in 1958 estimated a design capacity of 1.15 million gallons per day, the actual operating capacity of this plant far exceeded that figure. In addition the record indicates that additional equipment was added to the system (e.g. chlorine contact facilities) which had increased the efficiency of the South Plant system.*fn4
In its appeal to this Court, Pennsboro contends that the Board erred in partially upholding the sewer ban because DER failed to establish that the South Plant was causing pollution or operating in violation of its permit. Pennsboro also contends that DER erred by not considering the economic impact of its sewer ban and that the Board acted arbitrarily and capriciously by limiting the monthly number of new connections to three.
Our scope of review of Board decisions is limited to a determination of whether ...