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decided: September 24, 1975.


Appeal from the Order of the Environmental Hearing Board in case of In the Matter of: James L. Flynn, No. 74-138-W.


John P. Krill, Jr., Assistant Attorney General, with him Dennis J. Harnish, Assistant Attorney General, for appellant.

Jeffrey H. Gribb, with him Leonard Tintner, for appellee.

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

Author: Blatt

[ 21 Pa. Commw. Page 265]

On December 31, 1973, James L. Flynn entered into an agreement of sale for the purchase of a 2.15 acre lot located adjacent to Clarks Creek in Middle Paxton Township (Township). Mr. Flynn intended to build a home for himself there and recognized that, because there was no public sewer system in the vicinity, a sewer permit for the installation of an on-site sewage disposal system would have to be obtained. He also realized that the issuance of such a permit was not a certainty by any means, and so he made sure that his obligation to purchase the property under the agreement was contingent upon his obtaining the necessary permit. Shortly after entering into the agreement, Flynn contacted Lester H. Bitner, the Township official responsible for issuing sewage disposal system permits, and asked Bitner what procedures he would have to follow in order to acquire such a permit. Bitner advised him that soil and percolation tests would have to be conducted on the lot and recommended Earl Kunkle, a soil scientist, as the best man in the area to conduct those tests. Flynn consequently engaged Kunkle's services and on January 7, 1974 Bitner accompanied Kunkle to the lot in question and watched Kunkle as he measured the depth of the water level beneath the surface at the location on the lot best suited for the system. Kunkle used a hand auger which penetrated to a depth of about four feet and which indicated that there was no water to that depth. On the basis of this test and other information supplied by Kunkle, Bitner issued a permit on January 11. On the permit form he

[ 21 Pa. Commw. Page 266]

    recorded the depth to seasonal high water table as eight feet, although he admitted in later testimony that he had no actual way of knowing the conditions below four feet. Upon presenting his sewer permit to the appropriate Township official, Flynn was issued a building permit. He then purchased the lot on February 4 and began construction of his home in April.

On May 10 several representatives of the Department of Environmental Resources (DER) visited Flynn's lot and conducted tests on soil located in a ditch which Flynn had dug for the purpose of draining surface water. These tests indicated that the seasonal high water table was above the depth required by DER regulations. On May 13, therefore, the DER wrote to the Township requesting it to revoke the permit, and on May 24 the DER ordered Flynn to refrain from installing an on-site sewage disposal system until he should receive written approval from the DER for such installation. By that time 75% of Flynn's home had already been constructed, and he has estimated that his incurred costs on the house up to that date were about $50,000.

The DER representatives returned to the lot on June 3 with Bitner and Kunkle. A six-foot deep backhoe pit was excavated at that time and the tests conducted therein again indicated that the DER regulations would be violated. This pit, however, was not located at the site which had originally been approved in the permit, and so the DER representatives returned for a third visit on July 18 and tested the soil at the proper site. They then again determined that a sewer system there would violate DER regulations. Meanwhile, Flynn had appealed the DER order to the Environmental Hearing Board (EHB), and a hearing was held before an examiner on August 21. The EHB reversed the DER order on October 31 and the DER has now appealed to this Court.

The Township's authority to issue a sewer permit in this case was derived from Sections 7 and 8 of the Sewage

[ 21 Pa. Commw. Page 267]

Facilities Act*fn1 as that Act existed on the date of the permit issuance.*fn2 At that time the Act required individuals to obtain a permit from the municipality before constructing a sewage disposal system, and the municipality was required to conform to the statewide standards and regulations adopted by the DER. At 25 Pa. Code § 73.11(c) there is found the following regulation which Flynn's plans would apparently violate: "The maximum elevation of the seasonal ground water table or perched water table, as determined by direct observation of the water table by the presence of soil mottling*fn3 shall be at least four feet below the bottom of the aggregate to be used in the subsurface absorption area." (Footnote added.) Because the DER at 25 Pa. Code § 73.71(b)(5) requires the trench bottom to be at a minimum depth of two feet, there must be at least six feet between ...

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