Appeal from the Order of the Environmental Hearing Board in case of Bethlehem Township Municipal Authority v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 80-155-H.
Maxine Woelfling, Assistant Counsel, for petitioner.
Daniel L. Sullivan, with him Charles B. Zwally, Shearer, Mette & Woodside, for respondent.
Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Judge MacPhail concurs in the result only.
[ 77 Pa. Commw. Page 403]
Before this Court is an appeal by the Department of Environmental Resources (DER) from a decision and order of the Environmental Hearing Board (EHB) sustaining an appeal by the Bethlehem Township
[ 77 Pa. Commw. Page 404]
Municipal Authority (Authority) from a refusal by the DER to certify an amendment to the Authority's sewage construction grant to the federal Environmental Protection Agency (EPA).
The facts in this case are undisputed. The Authority, seeking a federal construction grant to aid in the development of a sewer system pursuant to the federal Clean Water Act, 33 U.S.C. §§ 1251-1376 (1978), submitted a development plan to the DER for certification. Certification by the DER of said plans is a prerequisite to their submission to the EPA for funding. The DER certified the plan on June 21, 1977. The EPA, however, as the final approving authority, objected to a portion of the proposed sewer system including an aspect designed to serve a development in the Township known as Oakland Hills I. The basis for the objection was a lack of a demonstrable need for sewers at that time. As a result of the objection, the Authority eliminated, inter alia, the Oakland Hills I portion of the plan from its grant application and the EPA approved funding. In conjunction with this approval, the EPA informed the Authority by letter dated October 18, 1977, that the deleted aspects of the project could be reinstated upon a demonstration of a sufficient need for sewers in the area in question.*fn1
[ 77 Pa. Commw. Page 405]
Due to an increasing number of malfunctions in the on-lot sewer systems in Oakland Hills I, some of which are irreparable, the Authority sought to amend its construction grant on April 15, 1980, so as to reinstate the Oakland Hills I aspect of the project. The DER, however, refused to certify the amendment to the EPA on the grounds that it constituted a "change in scope" in the project and therefore was subject to 25 Pa. Code § 103.14(b)(2), the criteria of which the authority failed to meet.*fn2 The Authority appealed to the EHB which sustained the appeal on the grounds that the amendment application in the instant case did not constitute a "change in scope." Accordingly, the DER was ordered to certify the amendment to the EPA. The appeal to this Court followed in which the DER contends that application of 25 Pa. Code § 103.14(b)(2) was proper in this case and should operate to require rejection of the amendment application.
This Court's scope of review in cases such as that before us is limited to a determination of whether there has been a violation of constitutional rights, an error of law, or a lack of substantial evidence to support a necessary finding of fact. Department of Environmental ...