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ADRIAN C. ECKERT ET AL. v. THOMAS PIEROTTI ET AL. COMMONWEALTH PENNSYLVANIA (01/20/89)

decided: January 20, 1989.

ADRIAN C. ECKERT ET AL.
v.
THOMAS PIEROTTI ET AL. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLANT. ADRIAN C. ECKERT ET AL. V. THOMAS PIEROTTI ET AL. THOMAS PIEROTTI, HUGH A. RICH, AND NEIL NEARING, INDIVIDUALLY AND AS SUPERVISORS FOR HAMILTON TOWNSHIP, AND HAMILTON TOWNSHIP, MCKEAN COUNTY, PENNSYLVANIA, APPELLANTS



Appeals from the Order of the Court of Common Pleas of McKean County, in the case of Adrian C. Eckert, et al. v. Thomas W. Pierotti, et al. and Commonwealth of Pennsylvania, Department of Environmental Resources, No. 1349 C.D. 1987.

COUNSEL

Dennis Luttenauer, for appellants, Thomas Pierotti, et al.

Gary A. Peters, Assistant Counsel, for appellant, Department of Environmental Resources.

David W. Swanson, Swanson, Bevevino and Millin, P.C., for appellees.

Judges Doyle and Smith, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 123 Pa. Commw. Page 9]

This is an appeal by permission, pursuant to Pa. R.A.P. 1311(b) and Section 702(b) of the Judicial Code, 42 Pa. C.S. § 702(b), from an interlocutory order of the court of Common Pleas of McKean County which denied Defendant-Petitioner Hamilton Township's (Township) and Intervenor-Petitioner Department of Environmental Resources' (DER) motion for judgment on the pleadings. We reverse.

The genesis of this matter originated with a letter dated January 3, 1985, from DER to the Township officially

[ 123 Pa. Commw. Page 10]

    notifying the Township of the "need and requirement to update the Official Sewage Plan for the Village of Ludlow" within 120 days, pursuant to Section 5 of the Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S. § 750.5, known as the Pennsylvania Sewage Facilities Act*fn1 (Act 537). By resolution adopted February 5, 1985, the Township authorized the engineering firm of Edwards & Moncreiff to revise its Act 537 Official Sewage Plan. The Township then adopted the revised plan by resolution on June 17, 1986 and, as required by Act 537, submitted it to DER for approval. DER, by notice dated September 12, 1986, notified the Township that it had completed its review and that the revised sewage plan for the Village of Ludlow was approved. The notice further stated that DER would "hold Hamilton Township responsible for the timely implementation of the sewage disposal program as described in the said plan."

Thereafter, on March 11, 1987, pursuant to the federal Clean Water Act of 1977,*fn2 and the Pennsylvania Clean Streams Law,*fn3 DER issued to the Township a National Pollutant Discharge Elimination System Water Quality Management Part I sewage permit (NPDES permit) which authorized the Township to discharge treated wastes from a facility located therein to receiving waters known as Two Mile Run, in accordance with effluent limitations, monitoring requirements and other conditions set forth in the permit. Both the Township's application for the permit, and DER's issuance thereof, were advertised in the Pennsylvania Bulletin respectively at 17 Pa. B. 424, 431 (January 24, 1987) and 17 Pa. B. 1327 (March 28, 1987).

[ 123 Pa. Commw. Page 11]

Subsequently, by resolution dated June 23, 1987, the Township authorized the submission to DER of an application for a Water Quality Management Part II permit. This permit, pursuant to Section 207 of the Clean Streams Act, 35 P.S. § 691.207, allowed the Township to construct and operate a waste water collection system and treatment facility as described in the revised Act 537 Official Sewage Plan for the Village of Ludlow. The resolution further authorized the Township to proceed with the construction and operation of the system and facility upon approval of the application for, and the issuance of, the permit. The Township caused the resolution to be advertised in the Kane Republican, a newspaper of general circulation in McKean County, for three successive weeks beginning June 29, 1987. The advertisement stated, inter alia, that DER, by notice dated September 12, 1986, had approved the revised Act 537 plan for the Village of Ludlow.

This advertisement did not go unnoticed because on or about July 16, 1987, a written protest against the construction of the proposed system and facility was filed in the McKean County Prothonotary's office. The protest was filed pursuant to Section 1502 of the Second Class Township Code (Code), Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 66502, and was signed by persons (Plaintiffs) purporting to constitute at least sixty percent of the total property owners affected by the proposed system.

DER subsequently issued to the Township, on November 13, 1987, a Water Quality Management Part II permit, authorizing the construction of the sewer system and facility as described in the plans and specifications submitted by Edwards & Moncreiff, which was duly recorded in McKean County on November 25, 1987. Both the Township's application for, and DER's issuance of, the Part II permit were published in the Pennsylvania Bulletin respectively at 17 Pa. B. 2832, 2833 (1987) and

[ 123 Pa. Commw. Page 1217]

Pa. B. 5077, 5079 (1987). Said notices advised all interested parties that DER's actions could be appealed to the Environmental Hearing Board within thirty days of the ...


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