Appeal from the Order of the Commonwealth Court Entered on March 10, 1988, at No. 2048 C.D. 1986, Affirming the Order of the Environmental Hearing Board Entered on June 6, 1986 at EHB Docket Nos. 83-062-M and 84-362-M. Pa. Commonwealth Ct. ,
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Larsen, J., files a dissenting opinion.
The issue presented for our review is whether an interpretative regulation promulgated by the Department of Environmental Resources (DER) comports with statutory intent or constitutes an arbitrary and capricious limitation of the Legislature's language.
In 1953 the Legislature provided statutory guidelines for payments of state money toward the cost of sewage treatment
facilities built by municipalities and school districts. Act of Aug. 20, 1953, P.L. 1217, as amended, 35 P.S. § 701-703 (Act 339). Under Section 701, the Commonwealth pays two percent of designated costs of acquisition and construction.*fn1 Section 702 then defines "construction" as follows:
Within the meaning of this act, the word "construction" shall include, in addition to the construction of new treatment works, pumping stations and intercepting sewers which are an integral part of the treatment facilities, the altering, improving or adding to of existing treatment works, pumping stations and intercepting sewers which are essential to the sewage treatment plant system, provided the acquisition and construction has been directed by the Department of Health, and said construction completed and facilities placed in operation in accordance with the act, approved the twenty-second day of June, one thousand nine hundred thirty-seven (Pamphlet Laws 1987).
On the basis of this language, DER subsequently published an interpretative regulation in its Rules and Regulations
of the Department, 25 Pa.Code 103.25(e):*fn2
(e) Interceptors which are considered integral portions of the sewage treatment works and therefore eligible for payment under the act shall include the following:
(1) That portion of an interceptor between the treatment facility and the first connection.
(2) An interceptor which picks up existing municipallyowned sewers which discharge untreated sewage into the same stream that receives the treatment facility effluent, regardless of the location of the point of discharge of the sewers. The interceptor is eligible from the treatment plant back to the point of interception of the furthest untreated sewage discharge from the plant.
(3) An interceptor which picks up existing municipallyowned sewers which discharge untreated sewage into a tributary stream if that stream contributes at least 15% of the average daily flow to the stream receiving the effluent of the treatment plant, as measured at the point of effluent introduction to this main stream.
(4) An interceptor which carries at least 50% of the total sewage flow from the sewered population of the applicant municipality to the treatment plant or sewer system of another municipality; provided that such interceptor meets the criteria described in paragraphs (1), (2) or (3). Where it is not feasible to obtain sewage flow statistics, demographic statistics may be used.
(f) Pumping stations on or constructed in lieu of interceptors eligible for payment under subsection (e) are also eligible as an integral part ...