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CONCERNED CITIZENS FOR ORDERLY PROGRESS ET AL. v. COMMONWEALTH PENNSYLVANIA (06/21/78)

decided: June 21, 1978.

CONCERNED CITIZENS FOR ORDERLY PROGRESS ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES AND EMERALD ENTERPRISES, LIMITED, RESPONDENTS



Appeal from the Order of the Environmental Hearing Board in case of Concerned Citizens for Orderly Progress, Mary Sayer, Walter O. and Liesel Deichmann and Board of Supervisors of Upper Mount Bethel Township v. Commonwealth of Pennsylvania, Department of Environmental Resources and Emerald Enterprises, Limited, Nos. 76-106-W and 76-105-W.

COUNSEL

Robert J. Sugarman, with him Lois Reznick; Dechert, Price & Rhoads; Harold A. Lockwood, Jr., and, of counsel, Alan B. McFall; Cassebaum & McFall, P.C., for appellants.

Thomas L. Walters and John P. Krill, Jr., with them, Raymond J. DeRaymond; Coffin, DeRaymond, Shipman and Stitt ; and Dennis J. Harnish, Assistant Attorney General, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle.

Author: Per Curiam

[ 36 Pa. Commw. Page 194]

A citizen's organization, Concerned Citizens for Orderly Progress, affected landowners, Mary Sayer, Walter O. and Liesel Deichmann, and the Board of Supervisors of Upper Mt. Bethel Township (Appellants), petition for review of an order of the Environmental Hearing Board (Board), dated February 24, 1977, at Docket Nos. 76-106-W and 76-105-W, sustaining the action of the Department of Environmental Resources (DER), in issuing Water Quality Management Permit No. 4875402 (permit) to Emerald Enterprises, Inc. (Emerald).

The permit was originally issued by DER on July 21, 1975, and authorized construction and operation of sanitary sewers and a sewage treatment plant to serve an approved trailer park development. The effluent from this plant would be discharged into an unnamed tributary of the Allegheny Creek.*fn1 During periods of dry weather, primarily the months of April through September when the natural flow into the receiving stream may decrease, the effluent would be discharged across a bog area, through an overland flow feature, and would then enter the unnamed tributary. This overland flow feature, which entails passing the treated effluent through a perforated pipe, was included in the permit at the behest of DER. An appeal to the Board was taken from the issuance of this permit.

[ 36 Pa. Commw. Page 195]

On February 11, 1976, the Board set aside the permit and ordered the DER to obtain more detailed information concerning the discharge area and required Emerald to design a procedure for monitoring the efficiency of the overland flow feature. Following compliance with these directives, the permit was reinstated by DER on July 8, 1976. An appeal from the reissuance of the permit was thereupon taken. On February 24, 1977, after a full hearing before the Board, the reissuance of the permit was sustained. This appeal followed.

Initially, we note that our scope of review of Board decisions is governed by Section 44 of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. § 1710.44. Pursuant thereto, we must affirm the adjudication of the Board unless it is determined that Appellants' constitutional rights were violated, an error of law was committed, or any necessary finding of fact was not supported by substantial evidence. East Pennsboro Township Authority v. Department of Environmental Resources, 18 Pa. Commonwealth Ct. 58, 334 A.2d 798 (1975).

Appellants advance four major arguments in support of their proposition that the decision of the Board should be reversed and the permit revoked. They first contend that the issuance of the permit violated The Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.1 et seq. Next, they challenge the Board's action permitting the unconditional use of the overland flow feature, an allegedly experimental treatment system. They further challenge the issuance of the permit for the reason that the Board refused to consider the potential for flooding of the proposed sewage plant. Finally, Appellants contend that the Board violated Article I, Section 27 of the Pennsylvania Constitution in sustaining the permit issuance

[ 36 Pa. Commw. Page 196]

    without a showing that appropriate evaluations of environmental ...


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