Appeal from the Order of the Environmental Hearing Board in case of Highway Auto Service v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 79-114-W.
William A. Degillio, with him Lawrence D. MacDonald, for petitioner.
John R. Embick, Assistant Attorney General, for respondent.
Judges Rogers, Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Rogers. This decision was reached prior to the expiration of the term of office of Judge Palladino.
[ 64 Pa. Commw. Page 161]
Highway Auto Service (Highway Auto) appeals from an order of the Environmental Hearing Board (EHB) dismissing as moot its appeal from an order of the Department of Environmental Resources (DER).
Employees of the DER on July 29, 1979 detected a continuing discharge of an oily substance into the Susquehanna River from a portal known as the Butler
[ 64 Pa. Commw. Page 162]
Mine Tunnel in the City of Pittston, Luzerne County. Relying upon information it had received and old mine maps, the DER undertook an investigation of the surface and subsurface area in and around Highway Auto, a truck and auto repair station in Pittston Township. DER investigators obtained permission to examine Highway Auto's premises and discovered an 8-inch borehole leading to the underlying tunnel system. The investigators also revealed two subsurface lateral pipes originating from the direction of Highway Auto's garage and intersecting the borehole. While examining the borehole, the DER investigators observed liquid material clearly containing sewage waste entering the borehole from one of the subsurface pipes.
On August 3, 1979, pursuant to Section 610 of the Clean Streams Act,*fn1 the DER issued an order requiring Highway Auto, inter alia, to cease doing business on or after August 9, 1979 until a satisfactory, permanent waste disposal system was installed. Highway Auto ceased doing business on August 9, 1979 pursuant to the DER order.
During a supersedeas hearing before the EHB, the parties agreed to a stipulation which permitted Highway Auto to reopen if: (1) an interim sewage system were installed; (2) an application for an acceptable sewage system were submitted to the DER; (3) oil waste products were disposed of properly; and (4) the subsurface pipes leading to the borehole were sealed. Highway Auto complied with the terms of this agreement and reopened for business on August 16, 1979.
A hearing on the merits of the DER order was held before the EHB on October ...