Ramey Borough v. Com. Dept. of Environmental Resources

• Citation: 15 Pa.Cmwlth. 601,327 A.2d 647
• Parties: RAMEY BOROUGH, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL RESOLURCES, Appellee.
• Decision Date: 06 January 1975
• Court: Commonwealth Court of Pennsylvania

Page 647

327 A.2d 647

15 Pa.Cmwlth. 601

RAMEY BOROUGH, Appellant, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL

RESOLURCES, Appellee.

Commonwealth Court of Pennsylvania.

Argued Sept. 6, 1974.

Decided Oct. 29, 1974.

Petition for Allowance of Appeal Granted Jan. 6, 1975.

Sharp & Carfley, Richard M. Sharp, Philipsburg, for appellant.

Thomas M. Burke, Sp. Asst. Atty. Gen., Pittsburgh, for appellee.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, WILKINSON, ROGERS and BLATT, JJ.

BOWMAN, President Judge.

Ramey Borough appeals to this Court from an Environmental Hearing Board (EHB) adjudication affirming an April 16, 1973, Department of Environmental Resources (DER) order, which directed appellant to plan, design, construct and operate a sewerage treatment facility for the Borough within time frames requiring completion of construction in 1976.

Approximately two hundred three (203) homes are situated in Ramey Borough. Of this number, one hundred thirteen (113) homes discharge their effluent via individual septic systems, while the remaining ninety (90) homes connect to a sewer system that discharges the untreated sewerage into Little Muddy Run. As part of its order, DER stated that this discharge of effluent into Little Muddy Run constituted 'pollution' as defined by Section 1 of The Clean Streams Law, Act of June 22, 1937, P.L. 1987, art. I, § 1, as amended, 35 P.S. § 691.1.

Prior to and during the pendency of its appeal to the EHB, appellant, in compliance with paragraph (a) of the DER order requiring appellant to submit a proposal for a water treatment facility, secured the services of an engineering firm. This firm provided the Borough with estimates, based on 1973 prices, as to the approximate cost to the Borough of constructing a sewerage treatment facility. In addition, as part of the engineer's report, the Borough received operational cost projections and other pertinent date necessary to comply with the DER order.

Appellant, despite initiating steps to comply with paragraph (a) of the DER order, appealed the order to the EHB. Following its adverse adjudication, this appeal was taken which raises three issues for our consideration.

Appellant first contends that the Commonwealth failed to introduce evidence at the EHB hearing from which the EHB could make a finding that appellant is discharging untreated sewerage into a stream of this Commonwealth. Failure by the Commonwealth to introduce such evidence, reasons appellant, precludes the EHB from concluding that appellant is polluting Little Muddy Run in violation of the provisions of The Clean Streams Law, for want of substantial evidence to support such a conclusion.

Appellant accurately points out that the record does not disclose evidence introduced by DER that untreated sewerage is being discharged into Little Muddy Run. However, evidence does, in fact, exist in the record, and affords an adequate basis for a conclusion by EHB that such pollution does exist. Appellant's own witness testified that ninety (90) homes in Ramey Borough are connected to a sewer system that discharges untreated sewerage into Little Muddy Run. Having introduced such uncontradicted evidence through its own witness, appellant cannot now assert that the record is devoid of evidence to support a conclusion by EHB that appellant is polluting a stream of the Commonwealth.

At the EHB hearing, appellant introduced evidence of projected construction and operating costs, and attempted to establish, as a defense to the DER order, that it is economically impossible for appellant to construct a sewerage treatment facility. The EHB received testimony on this issue, but prefaced its reception by stating that economic impossibility was not an available defense to appellant at that time, citing Commonwealth ex rel. Alessandroni v. Confluence Borough, 427 Pa. 540, 234 A.2d 852 (1966).

In Confluence the Supreme Court held that financial inability was not a defense to a mandamus action brought by the Commonwealth to secure compliance with a sewerage treatment facility construction order. The Supreme Court indicated, however, that economic impossibility may be a factor to be considered by a court if the Commonwealth, in a later proceeding, attempted to enforce its judgment in mandamus.

We believe the rationale of Confluence is equally applicable to proceedings for administrative and judicial review of DER orders requiring the ultimate construction by a municipality of sewerage treatment facilities to abate water pollution. If, as here, the municipality initiates administrative review of such an order and then pursues its right to judicial review of an adverse administrative adjudication, we can find no valid reason why, in such proceedings it should be permitted to raise an issue of financial inability or economic impossibility to perform, the very issue a municipality was precluded from raising in Confluence in mandamus proceedings by the predecessor of DER to enforce an order from which no appeal had been taken. In two decisions predating Confluence, in which financial inability was raised in proceedings on judicial review of an administrative order, such a defense was similarly rejected. Sanitary Water Board of Commonwealth of Pennsylvania v. Wilkes- Barre, 199 Pa.Super. 492, 185 A.2d 624 (1962); Sanitary Water Bd. v. Boro of Coudersport, 81 Dauph. 178 (1963).

Just as in proceedings by the Commonwealth to enforce a judgment in mandamus, proceedings by the Commonwealth to enforce an order of DER which has theretofore stood the test of administrative and judicial review on appeal, the issue of financial inability or economic impossibility may be a factor to be considered and evaluated by the Court. Such an issue will certainly be a factor to be considered by DER in determining whether judicial enforcement should then be sought as measured against then available or actual Federal and State grants for the project, more specific estimates or firm costs of construction and financing and available methods of financing, all of which would be speculative at best if such an issue were to be resolved in an administrative and judicial review of the DER order.

Confronted with fulfillment of the objectives and purposes of The Clean Streams Law and to not frustrate administrative action taken to abate the obvious health hazard of raw sewerage entering the waters of the Commonwealth, we cannot now declare the futility of the administrative order, if otherwise valid, nor direct the EHB to consider it on the grounds of financial inability or economic impossibility of performance by the municipality. Such an issue must await the future.

Appellant finally contends that the DER order is unconstitutional because the requirement that appellant construct and operate a sewerage treatment facility amounts to a confiscation of private property. This argument must fail for two reasons.

As noted above, at the current stage of the proceedings, the construction financing and operating cost projections are only estimates which may or may not prove to be accurate if and when the facility is actually constructed. Consequently, these estimates are speculative in nature, and a constitutional challenge cannot be sustained on the basis of supposition and speculation as to future events.

The second consideration raised by appellant's constitutional argument is its standing to assert same on behalf of the residents and property owners of the Borough. The gravamen of appellant's constitutional argument is that the projected operating costs would require that property owners pay an estimated $250.00 tap-on fee and an additional $293.31 per year in maintenance costs. This amount, appellant asserts, is unreasonable and amounts to a confiscation of the individual Borough resident's property.

Assuming Arguendo the accuracy of these estimated costs, the Borough does not have standing to assert what is essentially an individual property owner's claim. It is unnecessary at this time to fully explore what remedies, if any, are available to an individual whose property, he might allege, is confiscated. Suffice it to say that whatever remedies he does have are personal to the property owner and are inappropriately asserted by a third party without any interest in the property.

For the foregoing reasons, the decision of the Environmental Hearing Board is affirmed.

KRAMER, Judge (dissenting).

I respectfully dissent. I cannot agree that this Court is forced to preclude this small community from raising the defense of impossibility in a direct appeal from an order of the Environmental Hearing Board (Board) compelling construction of a sewage facility, the cost of which is over four times the total assessed valuation of the municipality. I do not believe that the cases cited by the majority, or common sense, necessarily compel such a result.

The majority relies on two appellate cases. The first of these is Sanitary Water Board of Commonwealth of Pennsylvania v. Wikes-Barre, 199 Pa.Super. 492, 185 A.2d 624 (1962), and reliance on it is not persuasive. In Wilkes-Barre the city was under an order which bears some resemblance to the one challenged in the instant case. Wilkes-Barre had been dumping large quantities of raw sewage into the Susquehanna River for years until the Sanitary Water Board (predecessor of the Department of Environmental Resources) ordered the discontinuance of the discharge, and the construction of an expensive sewage treatment facility.

The municipality argued that the decision of the Sanitary Water Board was 'discriminatory, unjust, unreasonable, inequitable, economically inadvisable, and constitutes a waste of the taxpayers' money.' 199 Pa.Super. at 499, 185 A.2d at 627. This argument denounces a host of sins, but still seems quite distinct from the assertion here that construction of the sewage treatment facility is Impossible. At the time of its appeal Wilkes-Barre...