Appeal from the Order of the Environmental Hearing Board in case of Metzger and PCS v. Montoursville Borough and Commonwealth of Pennsylvania, Department of Environmental Resources, No. 74-147-C.
Richard H. Roesgen, with him McNerney, Page, Vanderlin & Hall, for appellant.
John P. Krill, Jr., Assistant Attorney General, with him Robert E. Yuhnke, Assistant Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.
On April 17, 1974 Carl L. Metzger filed an application with the Borough of Montoursville (Borough) for a permit to install a sewage disposal system pursuant to the Pennsylvania Sewage Facilities Act, Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S. § 750.1 et seq. Both the Borough's sewage enforcement officer and the Borough Council disapproved the permit on the basis that the proposed system failed to comply with the standards contained in the regulations of the Environmental Quality Board. Metzger then took an appeal to the Environmental Hearing Board (Board) which conducted a hearing on August 30, 1974 and issued an adjudication on February 7, 1975. The appeal was dismissed.
The testimony of Metzger himself, who was the only witness at the hearing, led the Board to the finding that "[t]here is a perched water table approximately two feet below the surface of the ground upon which the sewage disposal facilities have been proposed to be installed." As a result, the Board found that the system would not be in compliance with 25 Pa. Code § 73.11 (c) which at the time of the adjudication provided:
"The maximum elevation of the seasonal ground water table or perched water table, as determined by direct observation or by observation of soil mottling shall be at least four feet below the bottom of the excavation for the subsurface absorption area." (4 Pa. Bull. 819.)
In addition, the Board found that it was impossible from the evidence to determine the characteristics of the soil
four feet below the bottom of the excavation so that it could not be determined whether or not the proposed system would be in compliance with 25 Pa. Code § 73.11 (d) which then stated at the time of the Board's adjudication:
"Rock formations and impervious strata shall be at a depth at least four feet below the bottom of the excavation for the subsurface absorption area. For purposes of this subsection rock formations shall be deemed to be rock which is so slowly permeable that it prevents downward passage of effluent, or rock with open joints or solution channels which permit such rapid flow that effluent is not renovated. This includes masses of shattered rock fragments with insufficient fine soil to fill the voids between the coarse fragments." (4 Pa. Bull. 819.)
This version of 25 Pa. Code § 73.11(c) and (d), however, had become effective on May 12, 1974, a short time after Metzger had filed his application. The pertinent ...