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

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 ...


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