Appeal from the Order of the Environmental Hearing Board in case of In the Matter of: Mrs. Cyril G. Fox and Natural Lands Trust, Inc., appellants; Central Delaware County Authority, Permittee; Community College of Delaware County, Intervenor, v. Commonwealth of Pennsylvania, Department of Environmental Resources, No. 73-078-B.
D. Barry Gibbons, with him George P. Noel, and Gibbons, Buckley and Smith, for appellants, Community College of Delaware County and Community College of Delaware County Authority.
Herbert Goldfeld, with him Goldfeld & Friedman, for intervening appellant.
Robert J. Sugarman, with him William A. White, Warren Vogel, and Dechert, Price & Rhoads, for appellees.
William H. Markus, with him Markus, Riethmuller & Smith, for amicus curiae, Pennsylvania Municipal Authorities Association.
William M. Eichbaum, General Counsel, with him Douglas R. Blazey, Assistant Attorney General, for amicus curiae, Commonwealth of Pennsylvania, Department of Environmental Resources.
Fronefield Crawford, Jr., with him Crawford & Diamond, for amici curiae, Tri-County Conservancy of the Brandywine, Inc., Pennypack Watershed Association, Chester-Ridley-Crum Watershed Association, Del-Ches-Co Regional Council.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. Concurring Opinion by Judge Mencer. Concurring Opinion by President Judge Bowman. Judge Kramer joins in this concurring opinion.
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This action arises out of an appeal by Mrs. Cyril G. Fox and the Natural Lands Trust, Inc. (hereinafter Mrs. Fox and Natural Lands), from the grant of a sewage permit to the Central Delaware County Authority (Authority) by the Department of Environmental Resources (DER). Mrs. Fox and Natural Lands directed their appeal to the Environmental Hearing Board (EHB), which vacated the permit and remanded the matter to the DER. The Authority and the Community College of Delaware County (College) have now appealed to this Court from the two successive EHB adjudications.
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The sewage permit issued by the DER allowed the Authority to run a twenty-four inch diameter sewer extension (24-inch interceptor) for a distance of approximately 7,500 feet along a stream known as Crum Creek, from a point where this extension intercepts a currently existing thirty-inch line on Crum Creek northwesterly to an unnamed tributary of Crum Creek (tributary). From that point the permit allowed the authority to run an eight-inch diameter extension (8-inch interceptor) for a distance of approximately 4,400 feet northerly along the tributary to the Marple Township Campus of the College. To the west of the intersection of the interceptors is situated a large dam across Crum Creek behind which lie the waters of the Springton Reservoir, a public water supply. To the west of the reservoir is a state park, and to the north of the reservoir is land which is largely undeveloped. The property owned by Mrs. Fox and Natural Lands lies east of the reservoir at the intersection of the two sewer interceptors. The College Campus lies north of this property and east of the undeveloped tract.
The 24-inch interceptor provides a flow capacity of 1,500,000 gallons per day, ten percent of which would be used to serve the College through the 8-inch interceptor. This would leave, of course, a 1,350,000 gallon per day reserve capacity for other unspecified purposes. It is this reserve capacity which gives rise to the controversy here involved.
In their appeal to the EHB, Mrs. Fox and Natural Lands asserted that the DER should not have issued the permit to the Authority without analyzing the long-range and indirect environmental impact of the construction of the sewer lines.*fn1 Such analysis was mandated, they
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argued, by The Clean Streams Law*fn2 and by the Pennsylvania Sewage Facilities Act*fn3 as both must be construed now in the light of Article I, Section 27 of the Pennsylvania Constitution, the Environmental Rights Amendment (hereinafter Section 27). During the pendency of the appeal to the EHB, construction was suspended by an EHB order of supersedeas. Then, on the basis of the evidence taken at the supersedeas hearing along with depositions taken subsequently, the EHB in two successive adjudications ruled that the DER, as Mrs. Fox and Natural Lands had argued, was in error in that it had not adequately considered environmental impact.
Focusing upon the issues raised in the appeal from the DER adjudication, the EHB made the following pertinent findings of fact:
"8. The provision of the sewer interceptor, with 1,350,000 gpd reserve capacity, would tend to induce and/or accelerate development in the area capable of being served by the interceptor, namely the area in the watershed of the Unnamed Tributary to Crum Creek where the Community College Campus is located and in the undeveloped portion of the Crum Creek watershed tributary to Springton Reservoir in Marple and Newton Townships. This area is now undeveloped largely because of the non-provision of public sewerage services; the soil is unsuitable for on-lot sewage treatment facilities.
"9. Such induced and/or accelerated development is likely to produce erosion and siltation effects, as well as other potential water pollution effects, on downstream areas, including Springton Reservoir and the Fox-Natural Lands Trust property, unless safeguards
[ 20 Pa. Commw. Page 341]
are provided prior to development. No adequate safeguards have been provided.
"10. The Department did consider the issue of indirect pollutional effects, but concluded that the Department's recently adopted Erosion and Sedimentation Control Regulations, 25 Pa. Code Chapter 102, provided an adequate safeguard. They do not.
"12. Development induced and/or accelerated by construction of the interceptor in question would destroy the option to preserve all or part of the area of Crum Creek and its various tributaries upstream from the Fox-Natural Land Trust property as regional open space, recreational land, and/or natural areas.
"13. The Department did not consider the possibility that any portion of these lands might be, or perhaps should be, retained as regional open space, recreational or natural areas, nor did it consider issues relating to the pace, nature, or intensity or development in the area that could be served by the interceptor. Nor did it look to see whether any municipal and/or regional planning had been done to deal with these issues.
"14. The lands in question are logical -- indeed choice -- lands to be considered for use as regional open space recreational or natural areas. The area is now largely undeveloped, and is adjacent to the east of Ridley Creek State Park. If it were ever desired to expand Ridley Creek State Park, or to provide ancillary County or Regional Parks, this would be a logical area in which to do so.
"15. None of the relevant municipal or regional plans considered the alternative of regional open space, recreational or natural area use for the lands in question. Nor did they consider issues relating to the pace, nature, or intensity of development. They
[ 20 Pa. Commw. Page 342]
all simply assumed that development without considering the desirability, nature, pace, or intensity of that development, would take place."
It is clear, of course, that when proceeding under either The Clean Streams Law or the Sewage Facilities Act, the DER must operate within the limitations of Article I, Section 27 of the Pennsylvania Constitution, which provides:
" Natural Resources and the Public Estate
"The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people."
The first sentence of this Section grants to the public a right to the described environmental values, while the second and third sentences establish the Commonwealth as trustee of all public natural resources. Here, however, because we have held that Section 27 is self-executing,*fn4 the EHB ruled that when the DER issues a sewage permit (or, perhaps, when it takes any other action within its legislative authority) Section 27 also requires the DER to determine that the municipal planning process has considered or, in the alternative, requires that the DER itself consider:
(1) the direct impact upon each of the environmental values listed in the first sentence of Section 27;
[ 20 Pa. Commw. Page 343]
(2) the long-range indirect impact on these values, due to possible increased development or other secondary results of action;
(3) alternate methods of using the resource in question; and
(4) alternate methods of attaining the objective sought by a permit applicant.*fn5
Because the EHB found that the DER and all municipal planning agencies here concerned had failed to evaluate adequately the considerations listed above, the sewage permit issued to the authority was vacated and the action was remanded to the DER for further studies in accordance with the EHB adjudications.
With this background in mind, we will now consider the argument on appeal to this Court by the Authority and the College, who assert first that Mrs. Fox and Natural Lands were not individually or together a "person aggrieved" by the DER issuance of the permit and, therefore, that they did not possess the standing necessary to challenge its issuance in their appeal to the EHB. We believe, however, that they had the necessary standing, although not for the reasons assigned by the EHB.
As we said in Committee To Preserve Mill Creek v. Secretary of Health, 3 Pa. Commonwealth Ct. 200, 281 A.2d 468 (1971), a litigant must meet the "person aggrieved" standard in order to have standing to challenge the action of an administrative agency through an appeal procedure. In its opinion here, the EHB seems to have rejected this rule as a requirement for standing in situations where an appeal is asserted to challenge the action of the DER as a violation of its duties as a trustee of
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the public natural resources under Section 27. The EHB's opinion would appear to broaden the privilege of challenge to an action of this administrative agency by appeal in a case such as this so as to include litigants such as Mrs. Fox and Natural Lands who might not traditionally be considered aggrieved under some prior decisions. We must hold it in error for so doing, for we believe that, in any administrative appeal, a party must still be a "person aggrieved" by the adjudication in order to appeal from it. We do not rule that a more broad standard might not apply to standing in an original action as a direct challenge to an administrative agency for a violation of its duties as trustee of public natural resources.*fn6 But here the challenge is being made, not directly by means ...