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TORO DEVELOPMENT CO. v. COMMONWEALTH PENNSYLVANIA (02/04/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 4, 1981.

TORO DEVELOPMENT CO., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES ET AL., RESPONDENTS

Appeal from the Order of the Environmental Hearing Board in case of Milan Melvin Sabock and Concerned Citizens of Garlow Heights Area Association by Raymond Bosnich, Vivienne Messina and David Forrest, Trustees ad Litem v. Commonwealth of Pennsylvania, Department of Environmental Resources, No. 78-085-B.

COUNSEL

Lee A. Donaldson, with him Charles W. Herald, for petitioner.

Ward T. Kelsey, Assistant Attorney General, with him James G. Groninger and Bruce E. Dice, for respondents.

Judges Mencer, Craig and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 56 Pa. Commw. Page 472]

Toro Development Company (Toro), as intervenor, petitions this court for review of an environmental Hearing Board (EHB) order concerning a trunk sewer permit issued by the Pennsylvania Department of Environmental Resources (DER) to Plum Borough to convey

[ 56 Pa. Commw. Page 473]

    the sewage of Greendale Village, Toro's residential development, to Plum Borough's pre-existing Garlow Heights Sewage Treatment Plant (plant). The EHB order set aside and remanded the permit with directions that DER review four described matters relating to the plant.*fn1 The statute principally involved is the Pennsylvania Sewage Facilities Act.*fn2

Toro's Greendale Village, with 145 units planned, has been partially built, according to counsel at argument; some dwelling units have been occupied pursuant to the construction and connection of the trunk sewer, the permit for which is at issue here.

Toro, seeking reversal of the EHB order, raises three issues:

1. Was this appeal to the EHB timely in relation to the issuance of the 1978 trunk sewer permit?

[ 56 Pa. Commw. Page 4742]

. May the EHB set aside or remand the trunk sewer permit solely upon the basis of treatment plant overload (rather than trunk sewer design or construction), in view of the 1977 approval of the borough's Sewage Facilities Plan Revision relating to the addition of the Greendale Village sewage to the plant?

3. Was there substantial evidence to support the EHB's finding that the plant does not have the capacity to handle the sewage from Greendale Village?

To summarize concisely, we present the chronology and data of this case in tabular form.

Provisions of Permit or

Plan (P:)

     or

Requirements in Letter

(R:)

     or

Evidence at Hearing (E:)

     or

Date Action Statements in Notice (S:)

1957 Plant Permit P: 1200 persons, design

     issued by state population*fn3

120,000 gpd, maximum

     influent*fn4

30 mg/1 maximum BOD,

     effluent*fn5

June 21 DER letter to R: 20 mg/1 BOD (5-day

1971 borough re: average) constitutes "ef-

     plant fluent requirements ap-

     plicable to your facilities

     necessary to achieve com-

     pliance with water quality

     standards"*fn6

1974 Plant Permit P: 30 mg/1 BOD (30-day

(federal) is- average)

     sued by state 45 mg/1 BOD (7-day

     as agent average) maximum, ef-

     fluent*fn7

Nov. 28 Revision to P: To include Greendale

1977 borough's Village development and

Sewage Facil- to include the trunk sewer

     ities Plan, ap- line

     proved by

     state

May 11-26 Plant: flow E: 86,000 gpd average in-

1977 measurement fluent

106,000 gpd average flow,

     including 20,000 gpd

     recirculation*fn8

June-Nov. Plant: organic E: Organic load (17

1977 analysis samples) ranging from less

     than 1 mg/1 BOD to 80,

     with 9 samples under 30

     mg/1, 8 over 30*fn9

Dec. 10 Notice in Pa. S: Notice of approval of

1977 Bulletin on above Revision to Sewage

Revision Facilities Plan

June 7 Trunk Sewer P: 538 persons, design

1978 Permit Issued population 35,000 gpd,

     average*fn10 daily flow

     from

     sewer; 30 mg/1 BOD, an-

     ticipated load, plant to

     stream (17 present, 13 ad-

     ditional in 5 yrs.)*fn11

June 16 Trunk Sewer

1978 Permit

Recorded

June 24 Notice in Pa. S: Notice of Trunk Sewer

Bulletin on Permit Issuance

Trunk Sewer

July 13 Trunk Sewer E:

1978 Construction

Started

July 22 Trunk Sewer E:

1978 Appeal filed

     by Objectors

[ 56 Pa. Commw. Page 476]

Timeliness of Appeal as to Trunk Sewer Permit

Toro first contends that the appeal to the EHB by Milan Melvin Sabock, a Plum resident, from DER's issuance of the trunk sewer permit on June 7, 1978, was untimely. Notice of issuance of the permit was published in the Pennsylvania Bulletin on June 24, 1978. Sabock filed a notice of appeal with the EHB on July 24, 1978.

[ 56 Pa. Commw. Page 477]

Actions under the Sewage Facilities Act, pursuant to regulations at 25 Pa. Code ยงยง 71.1 et seq., are subject to appeal to the EHB pursuant to 25 Pa. Code Chapter 21. At the time here pertinent, Section 21.21(a) stated:

An appeal to the board from an action of the department shall be commenced by the filing of a written notice of appeal with the board within 30 days from the date of the receipt of written notice of an action of the department, unless a different time is provided by statute.

Section 23(b) then provided:

Publication of a notice of action or proposed action by the department or board in the Pennsylvania Bulletin shall constitute notice to or service upon all persons, except a party, effective as of the date of publication.*fn12

Sabock's July 24 appeal, filed within 30 days after publication of notice, appears to have been timely filed under 25 Pa. Code 21.21(a) above because, Sabock not having been a party to the permit proceedings, the publication constituted the notice to him.

Toro's contention that the appeal was forty-seven days after permit issuance (and thirty-eight days after permit recording) is of no avail against the regulation provisions which thus start the appeal time from the publication date.

The fact that Toro had commenced construction on July 13, thirty-six days following permit issuance, cannot alter the effect of the regulation. Obliged to know

[ 56 Pa. Commw. Page 478]

    the law, Toro necessarily proceeded at its own risk when it went ahead earlier than the latest possible appeal date. Silverco, Inc. v. Zoning Board of Adjustment, 379 Pa. 497, 503, 109 A.2d 147, 150 (1954).

Nor does the regulation establish differing appeal periods as between applicant parties and potential third-person objectors. For each the appeal period is the same, thirty days after notice.

Therefore, an appeal as to the merits of the trunk sewer permit, itself, was properly before the EHB.

Authority of EHB To Set Aside This Trunk Sewer Permit After Sewage Facilities Plan Revision Approval

However, the design, construction and connection of the trunk sewer in itself has not been shown by the record, or even claimed by any of the parties, to be in violation.

Therefore, Toro's second position is that the matter actually presented to the EHB here, and acted upon by that body, was an attack upon DER's approval of the 1977 sewage plan revision, which had authorized sewage from Greendale Village to be processed by the Garlow Heights plant, rather than EHB consideration of the trunk line sewer permit itself. Toro claims that, because no timely appeal had been taken from the sewage plan revision approval, the EHB did not have the authority to set aside the trunk line sewer permit solely on the basis of evidence about the capacity and operation of the plant.

In support of this argument, Toro offered the testimony of DER engineers*fn13 as to sewage permit approval

[ 56 Pa. Commw. Page 479]

    procedure. The testimony revealed that once a sewage plan revision is approved, an applicant submits

[ 56 Pa. Commw. Page 480]

    the collector sewer and trunk line sewer applications as the final steps in a tripartite permit process. As long as those applications conform to the approved planning module, and meet DER specifications for other construction requirements,*fn14 they will be approved.

The objectors, in the hearing before the board, presented evidence wholly relating to the adverse effects of the Garlow Heights plant.

We agree with Toro that this evidence essentially attacked the original sewage plan revision approved by DER, rather than the trunk line sewer permit. An appeal from the sewage plan revision*fn15 approval, as such, could be taken only as late as January 9, 1978, thirty days after publication of DER approval in the Pennsylvania Bulletin.

As noted above, the objector did not file this appeal until July 24, 1978, so that the EHB, with no factual basis for overturning the trunk sewer permit, had no legal jurisdiction to re-open by way of appeal the sewage plan revision approval. We have repeatedly held that the EHB has no jurisdiction over a matter not timely appealed. Lebanon County Sewage Council v. Department of Environmental Resources, 34 Pa. Commonwealth Ct. 244, 382 A.2d 1310 (1978); Rostosky v. Department of Environmental Resources, 26 Pa. Commonwealth Ct. 478, 364 A.2d 761 (1976).

The EHB order here clearly rests upon the sewage plant issue arising from the 1977 revision; as quoted in footnote 1, the order deals with the plant's capacity

[ 56 Pa. Commw. Page 481]

    and the plant's odors and organic wasteload. That cannot be done by the EHB within the procedural framework of this appeal.

Evidence To Support Findings

In view of the decision reached, there is no need to review the factual findings.*fn16

Noting, however, that the sewage plant itself may well bear study (e.g., hydraulically, addition of approximately 35,000 gpd forecast from Greendale Village to the 86,000 gpd inflow, as measured in May of 1977, could reach or exceed the 120,000 gpd limit imposed by the original sewage plant permit), we also note that DER has authority, apart from these appeal procedures, to prevent nuisances and require remedial measures as to sewage treatment plants, sufficient to protect the public interest.

The present EHB decision, however, must be reversed.

Order

Now, February 4, 1981, the order of the Environmental Hearing Board dated November 2, 1979 (EHB order) is reversed and Water Quality Permit No. 0278434 is reinstated.

Disposition

Reversed. Permit reinstated.


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