State Water Pollution Control Bd. v. Salt Lake City, 8560

• Decision Date: 09 May 1957
• Docket Number: No. 8560,8560
• Citation: 311 P.2d 370,6 Utah 2d 247
• Parties: d 247 The STATE WATER POLLUTION CONTROL BOARD of the State Utah, Plaintiff and Appellant, v. SALT LAKE CITY, a municipal corporation, Defendant and Respondent.
• Court: Utah Supreme Court

Page 370

311 P.2d 370

6 Utah 2d 247

The STATE WATER POLLUTION CONTROL BOARD of the State Utah, Plaintiff and Appellant, v. SALT LAKE CITY, a municipal corporation, Defendant and Respondent.

No. 8560.

Supreme Court of Utah.

May 9, 1957.

E. R. Callister, Jr., Atty. Gen., Raymond W. Gee, Asst. Atty. Gen., for appellant.

Sidney G. Baucom, Donald B. Holbrook, Salt Lake City, for respondent.

CROCKETT, Justice.

This case involves a controversy between The State Water Pollution Control Board and Salt Lake City concerning the City's failure to conform to certain of the Board's regulations pertaining to sewerage systems. The fundamental contention of the City is that it is not subject to these regulations.

The Water Pollution Board was created by the 1953 Legislature. Its declared purpose was to 'Control, Prevent and Abate the Pollution of Surface and Underground Waters of the State.' ¹ Pursuant to the Act, ² the Board adopted a set of regulations for sewerage systems to which some of the practices Salt Lake City has followed for many years do not conform.

The three regulations which provide the basis for the dispute here are these: (1) prohibiting any cross-connection between a drinking water system and a sewage system; (2) prohibiting the use of any public sewer pipe less than eight inches in diameter; and (3) requiring mechanical ventilation in all underground pump stations.

The City was charged with violating each of the foregoing rules and appeared before the Board for a hearing consequent to which it was ordered to discontinue such practices. In accordance with the provisions of 73-14-11 U.C.A.1953, the City sought in the district court a review and reversal of the order. The court granted its motion for summary judgment on the ground that the Board had no jurisdiction over the City's sewer problems above referred to. From that judgment the Board had appealed.

In arguing that the Water Pollution Act was not intended to give the Board jurisdiction over the internal sewage disposal problems of municipalities, the City calls attention to the fact that it, too, is vitally interested in the prevention of water pollution, the quality of its drinking water, and the health of its inhabitants and has for many years maintained its system in a manner completely adequate for those purposes. It further contends that the things about which this case is concerned create no genuine danger of pollution and that the Board's attempt to impose the regulations in question constitutes an unreasonable intrusion into its internal affairs by a department of state government which is acting on a theoretical basis completely removed from practicalities and the needs of the community.

Appraisement of the City's argument in that regard requires an understanding of the charged violations. The first one concerns the use of sewer flush tanks, which equipment has been part of the City's public sewer system for many years, and which it has continued to install in spite of regulations of the Board to the contrary.

The flush tanks operate in the following fashion: At the highest elevation of each sewer line is a cement tank of 100 to 200 gallon capacity which is connected at its bottom to the sewer. Near its top is a tap or faucet on an intake from a one-inch city water line. When the faucet is turned on, water runs into the tank until it reaches a certain level, approximately 10 inches below the faucet; then a mechanical device automatically releases the water, flushing out the sewer line. This operation is done by city employees who visit each tank about once a month. They open the faucets, but do not remain to watch the entire operation; they go about their other duties and return in about an hour, during which time the tank will fill and flush about four times. The City actually takes pride in this particular system and attributes to it the fact that in comparison to other cities it has a very low incidence of sewer cloggings and a minimum of difficulties in that regard. It argues the extreme unlikelihood, if not complete impossibility, of any water pollution from such a flush tank.

Such an occurrence would require the synchronization of a number of unusual events. The sewer would have to clog below the tank and force the sewage water back up through the sewer line into the tank sufficiently to cover the end of the fresh water tap. This would have to occur during the flushing operation when the tap was open; meanwhile there would have to be a break in the water line, and this would have to be at a lower level so that its drainage would cause a suction (they call it negative pressure) in the water pipe which would suck in the sewage. Should all of the foregoing factors occur at the same time, in order for the pollution to occur, it would further require that the workmen also fail to discover or ignore them. Even then it would be hard to see how any polluted water could get beyond the break in the water pipe. There is no record of any such simultaneous combination of circumstances in the history of the City.

The violation relating to size of pipe concerns the installation of two short lines of six-inch sewer pipe. The reason for the Board's 8-inch pipe regulation is that smaller ones are apt to clog, which might result in an overflow of sewage from manholes, and thence through surface drainage facilities and eventually into water courses and thus pollute 'waters of the state.' The City concedes the desirability of using eight-inch pipe in sewer laterals generally, and such is its practice, but in the two instances installed six-inch pipe in laterals of less than 100 feet length and having a maximum potential of five service connections. It again points to the remoteness of any possibility of water pollution because of this fact, and that it maintains adequate safeguards to keep these sewer pipes clean.

The pump station for which no ventilation is provided, and about which the Board complains, was built by the City to serve the needs of a laundry which was dumping large amounts of hot suds into the sewer. Rather than have them go directly into the sewer line and thus possibly overload it at one time, the City constructed a large tank to discard the suds in. The tank's contents are automatically pumped into the main sewer line after they reach a certain depth. The Board's purpose in requiring a fan or ventilating system is to make it more comfortable and safe for workmen who on occasion must clean or repair the tank. The City considered it unnecessary and impractical to install such a fan for various reasons. It indicates that there is much less danger of gases from the suds of the laundry than there would be from a regular sewer tank and that the large perforated manholes which give the tank continuous natural ventilation are adequate. It also points out that because of the heat from the suds it would be impossible to work on the tank while the laundry was in operation anyway, and further, that the City has never had any difficulty or objections from workmen in cleaning them. More important than this, the City strongly urges that this has no bearing whatsoever upon or relationship to the possible pollution of public waters, even if such a fan were desirable, and that this regulation epitomizes the meddlesome character of the Board's attempted intrusion into the internal operations of the City Water Department in matters where it has no legitimate concern.

Regarding the latitude of the Board's sphere of authority: there seems to be no doubt that the Act was meant to give it jurisdiction over cities for certain purposes. This is manifest by various provisions of the Act: It defines the word person to include bodies politic; ³ it provides for representation of 'municipalities' on the Board; ⁴ it gives the Board jurisdiction over all waters of the state and then proceeds to define waters of the state as 'all other bodies or accumulations of water, surface and underground, natural or artificial, public or private, which are contained within * * * this state or any portion thereof * * *;' ⁵ it states as a declaration of policy that one of its purposes is to maintain and improve the quality of waters for public water supplies; ⁶ and after giving the Board authority to review plans and specifications for disposal systems, ⁷ goes on to define disposal systems to include sewerage systems, which are further defined as including pipelines and pumping stations ⁸ and treatment works. ⁹

The contention of the City is that if the Water Pollution Act is so construed as to give the Board authority to make and enforce such regulations over it as those in question here, the Act is contrary to Article VI, Section 29 of our Utah Constitution:

'The legislature shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, to levy taxes, to select a capitol site, or to perform any municipal functions.'

It is evident that if the Board's position is correct, it would be supervising and in a sense 'interfering' with the City's sewer and its operation. It is contended by the Board however, that because the constitutional restriction upon interference with activities of the City above referred to, speaks of 'municipal improvements' and 'municipal functions' it was meant only to apply to those activities of the municipality which it pursues in a private or proprietary capacity. It reasons that matters concerning health and sanitation to which water pollution relates are of a purely governmental nature and are thus subject to control by the Board, even if it be deemed a special commission.

As both parties argue in terms of the distinction between governmental and proprietary functions in order to include or exclude the sewage disposal regulations under the constitutional provision, it is...