Appeal from the Order of the Environmental Hearing Board in the case of Allegheny County Sanitary Authority v. Commonwealth of Pennsylvania, Department of Environmental Resources, No. 78-053-H.
Linda K. Caracappa, with her, Stephen B. Harris, Harris and Harris, for petitioner.
Louise S. Thompson, Assistant Counsel, for respondent.
Judges Craig, Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick. Dissenting Opinion by Judge Barry.
[ 114 Pa. Commw. Page 340]
This is an appeal by Northampton, Bucks County, Municipal Authority (Authority) from an adjudication of the Environmental Hearing Board (EHB) which concluded that certain interceptors were not eligible for state subsidy pursuant to the Act of August 20, 1953, P.L. 1217, as amended, 35 P.S. §§ 701-703 (Act 339). We affirm.
There is no factual contest herein. The Authority filed timely applications for the years 1981, 1982, 1983 and 1984 with the Department of Environmental Resources (DER) for subsidy under Act 339 with respect
[ 114 Pa. Commw. Page 341]
to three interceptors in Northampton Township:*fn1 (1) the Pine Run Interceptor; (2) the Iron Works Creek Interceptor; and (3) the interceptor from the junction of the Pine Run and Iron Works Creek Interceptors to a connection to the Neshaminy Interceptor in Lower Southampton (the N-IWPR Interceptor). Northampton Township does not own or operate a sewage treatment plant and sewage from Northampton Township is conveyed through interceptors to the Neshaminy Interceptor which then transports the sewage to Philadelphia for treatment and disposal.
The Authority in its applications to DER, at the hearing before the EHB, and in its appeal herein maintains the position that the total costs of its three intercepting sewers should be included in the total construction costs upon which the 2% subsidy authorized by Act 339 is based. The total construction costs for the three interceptors for the years 1981, 1982, 1983 and 1984 was $912,523.66 and the yearly 2% subsidy allowable pursuant to Act 339 would be $18,250.47.*fn2
In letters dated March 16, 1983 and September 24, 1984 DER informed the Authority that not all of the construction costs for the three interceptors were eligible for Act 339 subsidization. Rather, by applying the first connection limitation set forth in 25 Pa. Code § 103.25(e)(1), DER concluded that only the costs of construction of the N-IWPR Interceptor from the
[ 114 Pa. Commw. Page 342]
Neshaminy Interceptor back to the first connection on Langhorne Avenue were eligible for subsidy. According to DER, the yearly eligible construction costs were $23,244.42 and the yearly 2% subsidy was $464.89.
The Authority appealed DER's determination to the EHB contending that 25 Pa. Code § 103.25(e)(1) upon which DER based its decision was invalid per se, or in the alternative, invalid as applied. The EHB affirmed DER's determination. Hence, this appeal.*fn3
The sole issue presented for our resolution in this appeal is whether 25 Pa. Code § 103.25(e)(1) is unconstitutional and unenforceable as an arbitrary and capricious limitation of the statutory language of Act 339 or in the alternative that 25 Pa. Code § 103.25(e)(1) is invalid as ...