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MATTER WESTERN PENNSYLVANIA CONSERVANCY v. COMMONWEALTH PENNSYLVANIA (01/17/77)

decided: January 17, 1977.

IN THE MATTER OF: WESTERN PENNSYLVANIA CONSERVANCY
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES AND LAUREL MOUNTAIN DEVELOPMENT CORPORATION. LAUREL MOUNTAIN DEVELOPMENT CORPORATION, APPELLANT



Appeal from the Order of the Environmental Hearing Board in case of Western Pennsylvania Conservancy v. Commonwealth of Pennsylvania, Department of Environmental Resources and Laurel Mountain Development Corporation, Docket No. 74-028-C.

COUNSEL

Thomas P. Donahoe, with him John L. Spiegel, and Plowman and Spiegel, for appellant.

Marvin A. Fein, for appellee, Western Pennsylvania Conservancy.

Eugene E. Dice, Assistant Attorney General, for Department of Environmental Resources.

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

Author: Bowman

[ 28 Pa. Commw. Page 205]

This is an appeal from an adjudication and order of the Environmental Hearing Board (EHB) sustaining the appeal of the Western Pennsylvania Conservancy (Conservancy) and withdrawing the consent of the EHB to a settlement agreement entered into between the Department of Environmental Resources (DER) and the Laurel Mountain Development Corporation (Laurel Mountain).

On February 14, 1974, Laurel Mountain, as intervenor, appealed from a decision of DER denying Water Quality Management Permit Application No. 5673408 submitted by the Jenner Area Joint Sewer Authority (Authority) for the construction of a sewage facility to serve undeveloped areas of Laurel Mountain Village, a subdivision owned by Laurel Mountain and located in Jenner Township (Township),

[ 28 Pa. Commw. Page 206]

Somerset County. After several days of hearings over a period of eight months, DER and Laurel Mountain entered into negotiations resulting in a settlement agreement. This agreement provided that DER would issue the sewage permit upon fulfillment of a number of conditions by Laurel Mountain, the Authority, and the Township, although neither the Township nor the Authority were parties to the agreement. The agreement also provided for on-site holding tanks for a period of four years from the date the permit was issued while the sewage facility was being constructed.

This agreement was approved by the EHB and notice of its substantive provisions was published in the Pennsylvania Bulletin pursuant to the Rules and Regulations of the EHB.

Thereafter, the Conservancy appealed from the proposed settlement agreement. After hearings, the EHB issued an adjudication wherein it concluded that the proposed sewage facility of the Authority could not accommodate the full development of Laurel Mountain Village contemplated in the settlement agreement. Therefore, the EHB withdrew its consent from the agreement and remanded the matter to the DER and Laurel Mountain for a determination of the number of connections that could be made without overloading the proposed sewage facility, with instructions that the number of temporary holding tanks be restricted to that number. This appeal by Laurel Mountain followed.

The Conservancy has moved to quash on the ground that the adjudication and order of the EHB is interlocutory and non-appealable and DER has moved to dismiss the appeal as moot. On the merits, Laurel Mountain asserts that the EHB erred in determining that the Conservancy had ...


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