Sharp & Carfley, John R. Carfley, Philipsburg, for appellant.
Thomas M. Burke, Sp. Asst. Atty. Gen., Pittsburgh, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case. Nix, J., filed a dissenting opinion.
On April 6, 1973, the Department of Environmental Resources (DER) ordered*fn1 Ramey Borough to plan, design, construct and operate a waste-water treatment facility. The DER found that approximately 90 of 200 homes in Ramey do not have septic tanks. Waste from these residences is discharged into a sewer which empties into Little Muddy Run, a tributary of Muddy Run which flows into the west branch of the Susquehanna River.
The borough appealed the order to the Environmental Hearing Board. On December 31, 1973, the board dismissed the borough's appeal and affirmed the order of the DER. The Commonwealth Court (en banc) affirmed the decision of the board in an opinion by President Judge Bowman (Kramer, J., filed a dissenting opinion). This appeal ensued.*fn2
The borough attacks the validity of the DER order because, it contends it is financially impossible to comply with the challenged order. We find appellant's argument to be unpersuasive and affirm the order of the Commonwealth Court.
There is no doubt that Ramey Borough is economically depressed. Ramey is a community of approximately 500 residents in Clearfield County. The mile square borough has no industry. There are two gas stations, one laundromat,
one garage and a bar. In 1973, the total assessed valuation of the real property in Ramey was approximately $400,000. Only 193 residents were listed on the borough's 1973 wage tax rolls. An estimated cost of a sewage treatment facility for the borough was $1.3 million.
Our inquiry at this juncture, however, is not to determine whether Ramey can afford to build such a treatment plant. The Clean Streams Law*fn3 provides a comprehensive scheme to protect and improve the quality of the waters of the Commonwealth. Section 5 of the Act empowers the DER to "order [a] municipality to acquire, construct . . . or operate a sewer system and/or treatment facility."*fn4 The Act provides a procedure by which appeals may be taken to attack the validity or content of DER orders.*fn5 See Commonwealth v. Derry Township, 466 Pa. 31, 351 A.2d 606 (Filed January 29, 1976). This is such an appeal.
The Clean Streams Law gives the DER broad discretion in issuing orders "necessary to implement the provisions of the act."*fn6 Nothing in the Act limits the DER to issuing orders only to municipalities which can afford to take the corrective measures necessary.*fn7 In fact, the economic condition of the municipality is not a major factor in the DER's statutorily governed decision to ...