Appeal from the Order of the Environmental Hearing Board in the case of Maskenozha Rod and Gun Club, et al. v. Commonwealth of Pennsylvania, Department of Environmental Resources and Marcon, Inc. and Delaware Sewer Company, No. 79-155-S.
Charles B. Zwally, with him Daniel L. Sullivan, Shearer, Mette & Woodside, for petitioners.
Terry R. Bossert, with him Peter Shelley, McNees, Wallace & Nurick, for respondents.
Judges Blatt, MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge Blatt.
Marcon, Inc. and Delaware Sewer Co. (petitioners) appeal here an order of the Environmental Hearing Board (Board) which set aside certain permits granted them by the Department of Environmental Resources (DER).
The petitioners are a real estate development corporation and its wholly owned subsidiary. In order to develop a tract of land in Pike County, Pennsylvania, for residential use, they sought a National Pollutant Discharge Elimination System (NPDES) permit from the DER which would authorize them to discharge treated sewer effluent from their treatment facility to a tributary of Little Bushkill Creek referred to in the record as Sand Spring Run. When the permit was granted, several nearby landowners, mainly hunting and fishing clubs (clubs), appealed the issuance to the Board, which then reversed the DER and set aside the permit as violative of Article I, Section 27 of the Pennsylvania Constitution,*fn1 Section 5(a)(2) of The Clean Stream Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.5(a)(2), and 25 Pa. Code §§ 95.1(b) and (c). The appeal to this Court followed.
Our scope of review of Board decisions is limited to a determination of whether or not constitutional rights were violated, an error law was committed or if any necessary finding of fact was not supported by substantial evidence. East Pennsboro Township Authority v. Department of Environmental Resources, 18 Pa. Commonwealth Ct. 58, 334 A.2d 798 (1975).
The petitioners argue here that the Board erred in placing the burden upon the DER (and therefore
upon the petitioners, who were the beneficiaries of the DER's actions) to prove that the environment would not be harmed by the issuance of the sewage permit. The petitioners cite to 25 Pa. Code § 21.101(c)(3) which provides that:
(c) A party appealing an action of the Department shall have the burden of proof and burden of proceeding in the following cases ...