5 Pa. Commw. 677 | Pa. Commw. Ct. | 1972
Opinion by
The appeal presently before this Court arises from an Adjudication and Order issued by the then Acting Secretary of the Department of Environmental Resources (Department), dated October 27, 1971. The Adjudication and Order dismissed the appeal and objec
Sandvik is engaged in the business of finishing stainless steel tubing for the chemical and nuclear industries. Stainless steel tubing arrives at the plant in an extruded state and is thereafter subjected to a finishing process. The finishing process at the Sandvik Plant entails the bathing of extruded tubing in acid to remove an oxide scale, formed during manufacture, followed by successive rinses in a neutralizing solution, cold water (twice) and hot water. At this point the tubing can be packaged for sale and distribution, or it can be further processed if additional reduction of tube size is desired.
The record indicates that three basic types of effluents are involved in the maintenance and operation of Sandvik. (1) Natural rinse and plant cooling waters, (2) sludges and (3) industrial wastes. Plans call for the disposal of type (3) from holding tanks or sanitary sewer discharge, but not into Ackerly Creek. Type (2) is to be concentrated in special holding tanks and later to be hauled away to an approved sanitary landfill. Type (1) is to be pumped to a high point on the Sandvik property, and from there it will flow by gravity to a discharge point on a hill adjacent to the swamp that forms the headwaters of Ackerly Creek.
The Department is the repository' of very broad powers conferred by the Legislature. The Act of December 3, 1970, P. L. 834, Act No. 275, 71 P.S. 510-1, et seq., creating the Department of Environmental Resources, states at Section 510.4:
“The Department of Environmental Resources shall have the power and its duty shall be:
“(1) To study, consider, and determine upon a public policy with regard to the conservation, marketing, and equitable distribution of the water and power to be derived from the utilization of the water resources
“(6) . . . and generally to devise all possible ways and means to conserve and develop the water supply and water resources of the Commonwealth for the use of the people thereof. . . .” Section 5 of the Clean Streams Law, 35 P.S. 691.5, similarly spells out broad powers granted to the Department in the- regulation and control of the use and discharge of the waters of the Commonwealth.
The scope of review of this Court is to determine whether the Department committed a manifest abuse of discretion or an error of law. Sierra Club, et al. v. Sanitary Water Board, 3 Pa. Commonwealth Ct. 110, 281 A. 2d 256 (1971). Furthermore, the Administrative Agency Law, Act of June 4, 1945, P. L. 1388, as amended, 71 P.S. 1710.1, et seq., to which the Department is subject, directs this Court, at 71 P.S. 1710.44, to affirm an adjudication of the Department: “. . . unless it shall find that the same is in violation of the constitutional rights of the appellant, or is not in accordance with law ... or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. . . .”
The hearing record discloses that the system to be employed by Sandvik, the “Lancy Closed Loop Integrated Neutralization System,” is capable of treating such waters as are intended to be discharged into Ackerly Creek so that they will be essentially of raw water purity and free of contamination, meeting effluent criteria as formulated by the Department. The Department conducted extensive and adequate investigations and. tests in determining that the Sandvik discharge into Ackerly Creek would satisfy all statutory and departmental requirements. These investigations and tests looked to water quality and quantity criteria, to
The record is devoid of evidence indicating any violations by Sandvik or the Department of any statute or regulation. Likewise the record is devoid of convincing substantial evidence that the proposed Sandvik discharge into Ackerly Creek will result in damage or injury to the protestants.
The Department, under its broad statutory powers, is permitted to allow for the diversion of waters from one watershed to another in instances wherein the diversion causes no injury to neighboring landowners. The holding of this Court in Chillisquaque Creek Watershed Association v. Sanitary Water Board, 2 Pa. Commonwealth Ct. 561, 280 A. 2d 132 (1971) and the holding of our Supreme Court in Borough of Media v. Edgmont Golf Club, 446 Pa. 388, 288 A. 2d 803 (1972) generally support this proposition.
In the absence of evidence of damage or injury arising from the diversion of waters, or caused by increased pollution or increased water volume, we find no basis in statute or in decisional law to inhibit the functioning of the Department. Protestants have failed to support the distinction they have drawn as between inter and intra watershed diversions. Their heavy reliance placed upon the case of McConigle v. St. Clair Coal Co., 76 Pa. Superior Ct. 135 (1921), necessitates particular comment. A reading of the Superior Court opinion and the paper books leaves little doubt that the injury involved in that case was not one arising merely from, increased water volume caused by an inter-watershed diversion. The Court was concerned with tangible and cognizable injury. The brief of the protestants in this case included a lengthy quote from the Superior Court opinion but omitted the very next line thereof which stated: “It is against the constant recur
A careful review of the record made in this case leads us to conclude that there is more than adequate substantial evidence to support the findings, conclusions and Order of the Department.
This result does not mean that Sandvik is given a permit to do damage to the raparían owners of land abutting Aekerly Creek. What we have determined in this case is that the Department properly issued a permit to Sandvik which will permit Sandvik to discharge its industrial waste waters under and subject to all of the conditions and requirements which are set forth in that permit. There is no evidence in the record of this case which would indicate that Sandvik’s proposed operation under this permit will cause any damage or injury to the riparian owners on Aekerly Creek. If, for some unforeseen reason, the protestants are injured or damaged as a result of the discharge of these industrial waste waters, the protestants will be adequately and legally protected under the laws of this Commonwealth.
In summary, we hold that the Department is empowered to issue permits allowing for the discharge of waste waters in instances where such discharge results from a diversion of waters from one watershed to an
At the time of application, August 3, 1970, the desired permit was denominated as a Sanitary Water Board Permit. The application was filed pursuant to the Clean Streams Law, Act of June 22, 1937, P. L. 1987, as amended, 35 P.S. 691.1, et seq.
We find, no statutory requirement placed upon the Department to hold pre-issuance hearings.