Original jurisdiction in case of Commonwealth of Pennsylvania, Department of Environmental Resources v. Gilpin Township, Armstrong County, Walter Robinson; Daniel Bartel; Wilbur Mathieson; Peter Bosin; Gary Ronge; Vera Riggle, Secretary; and Gilpin Township Sewage Authority, Milio Ravotta, Chairman; Ed Fouse; Frank Contino; William Carroll; John Danka; and George Sober.
Zelda Curtiss, Assistant Attorney General, with her Thomas Y. Au, Assistant Attorney General, for plaintiff.
Timothy J. Geary, for defendants.
Judges Mencer, Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Mencer.
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The Department of Environmental Resources (DER) has filed a complaint in equity naming as defendants Gilpin Township, its supervisors, Gilpin Township Sewage Authority, and its members. The complaint alleges that Gilpin Township has no community sewage treatment system and that malfunctioning on-lot sewage systems pollute the streams and create a nuisance.
Defendants filed an answer and new matter to the complaint. Paragraphs 54-64 of defendants' new matter
[ 52 Pa. Commw. Page 416]
allege that the objectives of The Clean Streams Law*fn1 and the Pennsylvania Sewage Facilities Act*fn2 require DER to reclaim or plan to reclaim the Kiski River into which Gilpin Township's streams flow. Therefore, defendants allege, in the absence of such a plan, ordering Gilpin Township to abate its sewage nuisance is an abuse of discretion. DER filed preliminary objections to paragraphs 54-64 of defendants' new matter.*fn3
The background for this litigation can be briefly stated.
On January 15, 1971, Gilpin Township adopted the Armstrong County Sewer and Water Plan as its official plan, pursuant to Section 5(a) of the Pennsylvania Sewage Facilities Act, 35 P.S. § 750.5(a). The official plan provides that, within 10 years, Gilpin Township will provide sanitary sewage service to a regional sewage treatment plant.
Accordingly, the Kiski Valley Water Pollution Control Authority (Kiski) was formed by 13 area municipalities, including Gilpin Township, to construct and operate a regional sewage treatment plant. Under a service agreement, dated July 1, 1973, between Kiski and the 13 municipalities, the member ...