7 Pa. Commw. 545 | Pa. Commw. Ct. | 1973
Lead Opinion
Opinion by
Middletown Township Municipal Authority, Bucks County, has appealed an order of the Environmental
The appellant Authority was created by Middletown Township. The Authority constructed sewers under permits of the Sanitary Water Board and leased them to and for operation by the Township, without, however, assigning the permits. The Township was not a party to the proceedings before the Sanitary Water Board. At some time subsequent to the issuance of the order, the Township notified the Department of Environmental Besources that since it had not been a party to the proceedings it was not bound by and would not comply with the order. Tree to its intention, the Township issued its permits for seven additional connections to the Authority’s sewers.
The Authority’s defense is that because it was created by the Township solely to construct the sewers and had leased the sewers for operation by the Township, and because it did not consent to or have advance knowledge of the unlawful connections authorized by the Township, it had not violated the Sanitary Water Board’s order. This argument lacks ethical, practical and jurisprudential appeal. The permits under which the Authority constructed the sewers and which are still held by it were granted subject to the express con - dition that the holder would comply with orders of the Sanitary Water Board. Further, Departmental regulations prohibit additional discharges into municipal sewers after notification of their incapacity to accommodate more sewage. Sections 201 and 202 of The Clean Streams Law, Act of June 22, 1937, P. L. 1987,
The Legislature of Pennsylvania has been especially diligent in its efforts to protect waters of the Commonwealth after decades of spoliation as well by municipalities as by private interests. By successively broader definitions of pollution, by successively higher goals of water quality and by successively sterner penalties for injuries to this essential resource, the Legislature has determined the public policy of the Commonwealth to be not only to prevent further pollution of the State’s waters but also to reclaim and restore them to a clean, unpolluted condition. Act of June 22, 1937, P. L. 1987, as supplemented and amended by the Act of August 23, 1965, P. L. 372 and the Act of July 31, 1790, P. L. 653, 35 P.S, §§691.1 et seq. This case falls, we believe, within the embrace of the general principle
We have considered the appellants’ other arguments concerning the amount of the penalty imposed, the absence of departmental rules and regulations for leaseback arrangements, and the procedures of the Board in this case and find them to be without merit.
Order
And Now, this 8th day of February 1973, the appeal of the Middletown Township Municipal Authority from the adjudication of the Environmental Hearing Board is dismissed.
Concurrence in Part
Concurring and Dissenting Opinion by
I agree with the majority’s determination that Middletown Township Municipal Authority violated an adjudicated order of the Sanitary Water Board.
However, I cannot agree with the majority’s dismissal of appellant’s contention that the fine imposed was excessive.
Section 605 of the “Clean Streams Law,” Act of June 22, 1937, P. L. 1987, Article II, as amended, 35 P.S. §691.605 provides: “. . . In determining the amount of civil penalty the board shall consider the wilfulness of the violation, damage or injury to the waters of the Commonwealth or their uses, cost of restoration, and other relevant factors. . . .”
Nowhere in the adjudication by the Environmental Hearing Board is there any indication that the above
Such a procedure fails to adequately explain the Board’s determination of the penalty, and handicaps this Court in its review of the adjudication.
My consideration of the factors outlined in the above-quoted portion of the “Clean Streams Law” indicates that the fine imposed here was excessive and should be modified.