Ramey Borough v. Commonwealth

Opinion by President Judge Bowman, Ramey Borough appeals to this Court from an Environmental Hearing Board (EHB) adjudication affirming an April 16, 1973, Department of Environmental Resources (DER) order, wMch directed appellant to plan, design, construct and operate a sewage 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 sewage 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, 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 sew [604] age treatment facility. In addition, as part of the engineer’s report, the Borough received operational cost projections and other pertinent data necessary to comply with the DEE order. Appellant, despite initiating steps to comply with paragraph (a) of the DEE 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 sewage 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 Eun 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 DEE that untreated sewage is being discharged into Little Muddy Eun. 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 Eamey Borough are connected to a sewer system that discharges untreated sewage into Little Muddy Eun. 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 DEE order, that it is economically impossible for appellant to construct a sewage treatment facility. The EHB received [605] 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 sewage 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 sewage 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 predecessary 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. Superior Ct. 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 there [606] tofore 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 sewage entering the waters of the Commonwealth, we cannot now declare the futility of the administrative order, if otherwise valid, nor direct the EITB 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 sewage 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 [607] 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 uni’easonable 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.