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COMMONWEALTH PENNSYLVANIA v. JOSEPH R. BIERMAN (03/11/76)

decided: March 11, 1976.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES
v.
JOSEPH R. BIERMAN, M.D., EMANUEL ROTH, LUTHER BILHEIMER, CAROL A. ZIMMERMAN, PAULINA L. CURTIS AND F. MURRAY IOBST, DVM, APPELLANTS



Appeal from the Order of the Environmental Hearing Board in case of In the Matter of: Joseph R. Bierman, M.D., Emanuel Roth, Luther Bilheimer, Carol A. Zimmerman, Paulina L. Curtis and F. Murray Iobst, D.V.M. v. Commonwealth of Pennsylvania, Department of Environmental Resources, City of Allentown, Intervenor, No. 74-140-W.

COUNSEL

William H. Platt, for appellants.

Michael S. Alushin, Special Assistant Attorney General, for appellee.

Alan M. Black, Solicitor, for City of Allentown.

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

Author: Mencer

[ 23 Pa. Commw. Page 647]

This is an appeal from an adjudication by the Environmental Hearing Board (Board) which dismissed appellants' objections to the issuance of a public water supply permit by the Department of Environmental Resources (DER) to the Allentown Water Authority (Authority). The permit allows the Authority to provide for fluoridation of its water supply. Appellants are persons who use the Allentown water supply and are opposed to fluoridation.

Specifically, appellants are opposed to the addition of hydrofluorosilicic acid (H[2]SiF[6]) to the Allentown water supply in sufficient quantities to produce a concentration of approximately one part per million of fluoride. Appellants

[ 23 Pa. Commw. Page 648]

    raise several issues on appeal, not all of which are properly within the ambit of our review.

The scope of review of this Court is to determine whether there exists a manifest abuse of discretion or an error of law on the part of the Board. Sierra Club v. Sanitary Water Board, 3 Pa. Commonwealth Ct. 110, 281 A.2d 256 (1971). Under Section 44 of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. ยง 1710.44, we must affirm the adjudication of the Board unless there has been a violation of appellants' constitutional rights, an error of law, or a lack of substantial evidence to support any necessary findings of fact. Belin v. Department of Environmental Resources, 5 Pa. Commonwealth Ct. 677, 291 A.2d 553 (1972).

Based on testimony before the Board in hearings held on December 18, 19, and 20, 1974, the hearing examiner made the following findings of fact:

"18. Fluoridation at approximately one ppm (part per million) is recognized as safe, efficient, and economical by the ...


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