No. 403 January Term, 1976, No. 409 January Term, 1976, Appeals from Order of the Commonwealth Court of Pennsylvania at No. 107 C.D. 1975, reversing the Adjudication of the Environmental Hearing Board at Docket No. 73-304-W and 73-314-W.
Egli, Reilly, Wolfson & Feeman, James T. Reilly, Lebanon, for appellants at No. 403.
Michael S. Alushin, Asst. Atty. Gen., Harrisburg, for appellant at No. 409.
Samuel G. Weiss, Jr., Lebanon, for appellee, City of Lebanon.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Manderino, J., filed a dissenting opinion in which Nix, J., joins. Packel, former J., did not participate in the decision of this case.
The City of Lebanon, Pennsylvania, which began to fluoridate its water supply in 1972, sought permission of the Department of Environmental Resources (DER), to cease such fluoridation; the request was denied. By this appeal we are asked to determine whether the DER has the legal authority to compel the City of Lebanon to continue with the fluoride treatment of its water supply and, if such authority exists, whether in this case the DER exercised that authority without abusing its discretion. We conclude that sufficient authority is vested in the DER by statute to prescribe continued fluoridation and that the agency's decision
with regard to Lebanon's proposed permit modification was a reasonable and justifiable exercise of the department's statutory authority.
The City of Lebanon was issued a water supply permit in 1970*fn1 which authorized construction and operation of a water treatment plant for the city to replace the one then in service. The permit specified that the water to be distributed from the new plant would be fluoridated.*fn2 By November, 1972 fluoridation was in practice at the new plant. On January 8, 1973 the City Council of Lebanon passed a resolution requesting the DER to approve a revision of Lebanon's water permit so as to eliminate fluoride as a component of the water to be furnished to citizens of Lebanon, to the end that fluoridation could be discontinued. When DER denied the request, one Daemon C. Strickler and certain other citizens of the City appealed to the Environmental Hearing Board,*fn3 and the City of Lebanon intervened.*fn4
The Board, one member dissenting, sustained the action of the DER in refusing to alter the permit so as to allow ...