Appeal from the Order of the Environmental Hearing Board in case of In The Matter of Daemon C. Strickler, et al. and City of Lebanon, et al., Intervenors, v. Commonwealth of Pennsylvania, Department of Environmental Resources, Nos. 73-304-W and 73-314-W.
Samuel G. Weiss, Jr., for appellant.
Michael S. Alushin, Special Assistant Attorney General, for appellee.
James T. Reilly, with him Egli, Walter, Reilly and Wolfson, for intervening appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman. Dissenting Opinion by Judge Wilkinson. Judges Rogers and Blatt join in this dissent.
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The City of Lebanon was issued a water supply permit by the Department of Health on February 19, 1970. Section 3 of the Act of April 22, 1905, P.L. 260, 35 P.S. § 713, (commonly known as the "Water Supply Act"). Lebanon's application for the permit, as well as the permit itself, recited the City's intent to fluoridate the proposed
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water source. Lebanon's new water treatment facility began operations on September 15, 1972, and fluoridation was initiated about two months later.
By letter dated January 12, 1973, Lebanon requested the Department of Environmental Resources (DER)*fn1 to allow a modification of the existing water supply permit, specifically, the discontinuance of the fluoridation treatment. DER responded by letter on September 6, 1973, and refused Lebanon's request. Thereafter, certain of Lebanon's citizenry filed an appeal from said refusal with the Environmental Hearing Board (EHB). On February 25, 1974, Lebanon's City Council adopted a resolution directing discontinuance of the fluoridation program within ninety days. This resolution prompted the institution of an action in equity, brought by a pro-fluoridation group of Lebanon's citizens, in the Lebanon County Court of Common Pleas. Finally, on March 27, 1974, by stipulation of the various interested parties, Lebanon agreed to stay its resolution to discontinue fluoridation pending a final judicial disposition of the legal questions raised. In return, Lebanon received permission to intervene in the appeal before the EHB. Additionally, the Common Pleas equity action was apparently discontinued. By opinion and order dated January 3, 1975, DER's refusal to allow a modification of Lebanon's water supply permit was sustained by the EHB. This appeal followed.*fn2
In its letter refusing the proposed modification of Lebanon's water supply permit, DER stated its rationale
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as the "discontinuation of the established fluoridation program would have detrimental public health effects. . . ." The use of the phrase "established fluoridation program" is not insignificant since DER has adopted a policy (which it attempts to enforce here) by which applicants for water supply permits are not required, on the one hand, to make provision for fluoridation treatment as a precondition to the receipt of a permit, while, under this same policy, those permit holders who initially elect to provide fluoridation are not allowed to modify their permits so as to ...