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CARROLL TOWNSHIP v. COMMONWEALTH PENNSYLVANIA (01/21/80)

decided: January 21, 1980.

CARROLL TOWNSHIP, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES AND THE BOROUGH OF DILLSBURG AND THE DILLSBURG BOROUGH AUTHORITY, RESPONDENTS



Appeal from the Order of the Environmental Hearing Board in case of In the Matter of: Carroll Township v. Commonwealth of Pennsylvania, Department of Environmental Resources and the Borough of Dillsburg and The Dillsburg Borough Authority, No. 77-037-W.

COUNSEL

Laurence T. Himes, Jr., with him Russell F. Griest, for petitioner.

Eugene E. Dice, Assistant Attorney General, for respondent.

P. Nelson Alexander, with him Alexander & Alexander, for intervenors.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt. This decision was reached prior to the expiration of the term of office of Judge DiSalle.

Author: Blatt

[ 48 Pa. Commw. Page 592]

This is an appeal by Carroll Township (Township) of York County from an adjudication of the Environmental Hearing Board (Board) affirming an order of the Department of Environmental Resources (DER) which directed the Township to implement a sewage facilities plan.

This case had its origin when, in 1974, the Township submitted to the DER a comprehensive facilities plan in accordance with the Pennsylvania Sewage Facilities Act, Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S. § 750.1 et seq. (Sewage Facilities Act). The plan, which called for the construction of sewage lines to connect portions of the Township's sewage system to that of a neighboring municipality, was approved by the DER and scheduled for gradual implementation. For reasons which are not clearly revealed in the record, the Township underwent what the Board below called "an official change of mind" about its plan and it then halted implementation. The DER responded with an order directing the Township to commence implementation, and the Township appealed to the Board, contending that it had no present or future need for the facilities previously proposed in its plan. After a hearing, the Board affirmed the DER order on the basis that the DER had sustained its burden of showing a need for the facilities. The Township contends in its appeal here that the Board's

[ 48 Pa. Commw. Page 593]

    findings were not based on substantial evidence. We cannot reach this issue, however, because we believe the case must be resolved on jurisdictional grounds.

Section 5(a) of the Sewage Facilities Act requires each municipality of the Commonwealth to prepare a comprehensive sewage facilities plan for submission to the DER for approval or disapproval. 35 P.S. § 750.5(a). If the DER approves the plans, Section 10 of the Act*fn1 requires implementation. The municipality is not locked into its initial plans after approval, however, because Section 5 of the Sewage Facilities Act provides that the municipality may revise its plans at any time, although the revisions are again subject to the approval of DER:

(a) Each municipality shall submit to the department an officially adopted plan for sewage services for areas within its jurisdiction within such reasonable period as the department may prescribe, and shall from time to time submit revisions of such plan as may be required by rules and regulations adopted hereunder or by order of the department: Provided, however, That a municipality may at any time initiate and submit to the department revisions of the said plan. ...


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