Appeal from the Order of the Environmental Hearing Board in the case of Ferri Contracting Company, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 84-134-G.
Timothy P. O'Reilly, for petitioner.
Zelda Curtiss, Assistant Counsel, for respondents.
Judges Craig and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Colins.
Ferri Contracting Company, Inc. (petitioner) petitions for review of an order of the Environmental Hearing Board (Board) quashing an appeal seeking review of a decision by the Department of Environmental Resources (DER) that certain additional sewage
project construction costs were ineligible for reimbursement under a grant agreement between the Environmental Protection Agency (EPA) and the Deer Creek Drainage Basin Authority (Deer Creek). The sewage project grant agreement was entered into by EPA and Deer Creek in 1976 under the auspices of the Sewage Treatment Works Grant Program (grant program) of the Water Pollution Control Act Amendments of 1972 (Clean Water Act)*fn1 and the federal regulations promulgated thereunder.*fn2
Petitioner was hired by Deer Creek under a separate contract to construct a portion of the sewers in the Deer Creek Drainage Basin. Petitioner executed change orders to cover unforeseen costs incurred in the course of performing the contract. Petitioner and Deer Creek came to a settlement of the change order whereby petitioner executed three change orders in the amounts of $104,984.60, $85,134.17 and $103,772.83, for a total of $293,891.60. The actual portion of this sum Deer Creek was obligated to pay was made contingent upon EPA approval of reimbursement to Deer Creek as grantee, under the grant program, provided that the portion owed would be no less than $225,000.00 and no more than $300,000.00.
This dispute arose when DER, acting in its role as administrator of the grant program, approved only $238,954.29 of the total of $293,891.60 which Deer Creek sought to have reimbursed. Deer Creek did not
appeal that decision, and petitioner's attempt to appeal the decision and/or have Deer Creek compulsorily joined and made to appeal the decision was quashed for lack of standing before the board.
The issue is whether a contractor of a grantee has standing to appeal a grant administrator's determination denying reimbursements to the grantee under the Clean Water Act grant program. On appeal, petitioner argues first that it meets the standing requirements of William Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975), and second that Pa. R.C.P. Nos. 2227 and 2229 should somehow be applied to compel the joinder of Deer Creek and force it to take an appeal of the DER's ...