Opinion
2021-053-L
11-18-2022
GENE STOCKER v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and BENNER TOWNSHIP AND SPRING-BENNER-WALKER JOINT AUTHORITY, Permittees
For the Commonwealth of PA, DEP: David M. Chuprinski, Esquire For Appellant: Christine L. Line, Esquire For Benner Township: Rodney A Beard, Esquire For Spring-Benner-Walker Joint Authority: Robert A. Mix, Esquire
For the Commonwealth of PA, DEP:
David M. Chuprinski, Esquire
For Appellant:
Christine L. Line, Esquire
For Benner Township:
Rodney A Beard, Esquire
For Spring-Benner-Walker Joint Authority:
Robert A. Mix, Esquire
ADJUDICATION
Bernard A. Labuskes, Jr., Judge
Synopsis
The Board denies an appeal of the Department's approval of a township's special study revision to its Act 537 plan that provides public sewer to an area of anticipated growth and commercial development near an interstate interchange and also provides public sewer to several residential areas along the sewer route. The appellant has the burden of proof in the appeal, but he did not meet that burden with respect to any of his claims.
FINDINGS OF FACT
1. Appellant Gene Stocker is an adult individual residing at 1864 Walnut Grove Drive, State College, Benner Township, Centre County, PA 16801, within a residential development known as Walnut Grove Estates. (Stipulation of Parties No. 1.)
2. The Commonwealth of Pennsylvania, Department of Environmental Protection (the "Department") is the administrative agency vested with the authority and responsibility to administer and enforce the requirements of the Sewage Facilities Act ("Act 537"), 35 P.S. §§ 1 750.1 - 750.20a, the Clean Streams Law, 35 PS. §§ 691.1 - 691.1001, and the rules and regulations promulgated thereunder. (Stipulation of Parties No. 2; Stipulation of Facts No. ("Stip.") 3.)
3. Benner Township (the "Township"), is a political subdivision, a township of the Second Class, with a place of business located at 1224 Buffalo Run Road, Bellefonte, PA 16823. Among other statutes and regulations, the Township is governed by the Second-Class Township Code, 53 P.S. §§ 65101 - 68701. (Stipulation of Parties No. 3; Stip. 1.)
4. Sewer services within the Township are provided by the Spring-Benner-Walker Joint Authority (the "Authority"). (Stip. 10.)
5. The Authority is a Pennsylvania municipal authority with a place of business located at 170 Irish Hollow Road, Bellefonte, PA, 16823 providing public sewer service to its customers in its incorporating or joining municipalities: Spring, Benner, and Walker Townships. Among other statutes and regulations, the Authority is governed by the Municipality Authorities Act, 53 Pa.C.S. §§ 5601 - 5623. (Stipulation of Parties No. 4.)
6. The University Area Joint Authority (UAJA) is a Pennsylvania municipal authority with a place of business located at 1576 Spring Valley Road, State College, PA, 16801 providing public sewer service to its customers in its incorporating or joining municipalities: College, Ferguson, Halfmoon, Harris, and Patton Townships, and State College Borough. Among other statutes and regulations, UAJA is governed by the Municipality Authorities Act, 53 Pa.C.S. §§ 5601 - 5623. (Stipulation of Parties No. 6.)
7. Benner Township is required to have an officially adopted sewage facilities plan for providing sewage services for areas within its boundaries (an "Act 537 Plan"). 35 P.S. § 750.5. (Stip. 2.) 2
8. The Township's original Act 537 Plan was approved by the Department in 2003. (Notes of Testimony Page No. ("T.") 155-56, 335-36.)
9. The Township's 2003 Act 537 Plan identified an area in the Township around Shiloh Road as a location for potential extension of public sewer service and also identified residential areas at Rock Road, Big Hollow Road, and Walnut Grove Estates as areas where public sewer service may be extended. (T. 335-36.)
10. The homes in Walnut Grove Estates are currently served by on-lot sewage systems. (T. 125; Stocker Exhibit No. ("Stocker Ex.") 2 (at 15-19).)
11. The 2003 Act 537 Plan established that Walnut Grove Estates and other areas of the Township should be subject to a Sewage Management Plan and monitored. (T. 415-17, 455.)
12. At the time of the Township's 2003 Act 537 Plan, Interstate 99 had not yet been built, but its subsequent construction created an interchange with Shiloh Road. (T. 397-99; Authority Exhibit No. ("Auth. Ex.") 36.)
13. There has been interest for a number of years in commercially developing the Shiloh Road interchange and providing public sewer to the area, including interest from the owners of two commercial properties known as the Claire and Rogers properties. (T. 194-95, 335-36, 398-99.)
14. The Department advised the Township that if it wished to extend sewer service to Shiloh Road and the residential properties in Rock Road, Big Hollow Road, and Walnut Grove Estates, it would be required to revise its current Act 537 Plan by adopting a special study. (T. 336-37, 357.)
15. A "special study" is a type of Act 537 plan revision that is "[a] study, survey, investigation, inquiry, research report or analysis which is directly related to an update revision. 3 Such study shall provide documentation or other support necessary to solve specific problems identified in the update revision." 35 PS. § 750.2. See also 25 Pa. Code § 71.1. (T. 337-38.)
16. On February 11, 2019, the Township published notice in the Centre Daily Times that it would be discussing a potential sewer line extension at its February 18, 2019 meeting. (T. 526; Township Exhibit No. ("Twp. Ex.") 1.)
17. At that meeting, there was a public discussion of extending public sewer service to the residential properties in Rock Road, Big Hollow Road, and Walnut Grove Estates, as well as to the commercial area of Shiloh Road. (Twp. Ex. 6.)
18. On March 4, 2019, the Township held a meeting at which it appointed the Authority as its agent to commence with the review and amendment of the Township's Act 537 Plan. (T. 401; Twp. Ex. 6; Auth. Ex. 8.)
19. On April 1, 2019, the Township held a meeting where it authorized a special study process to amend the Township's Act 537 Plan to include public sewer services for Shiloh Road, Rock Road, Big Hollow Road and Walnut Grove Estates. (Twp. Ex. 6.)
20. As the agent of the Township, the Authority was responsible for writing the Act 537 Special Study, but the Authority still relied on the Township to review and determine what areas should be sewered. (T. 154-55, 337.)
21. Public notice of the availability of the Special Study for public review and the opening of a 30-day comment period was published in the Centre Daily Times on October 30, 2019. The notice stated that the Township would be considering the amendment of its Act 537 Plan at its next regular meeting on November 4, 2019 and that the Special Study would be presented at that meeting. (T. 527; Twp. Ex. 1.) 4
22. On November 16, 2029, the Township mailed postcards to affected residents, including those who would be connected to public sewer, notifying them of consideration of the Act 537 Special Study at a meeting on December 16, 2019. (T. 528-29; Twp. Ex. 2.)
23. Due to the high public interest in the Act 537 Special Study, the Township published notice on December 1, 2019 in the Centre Daily Times of its decision to extend the public comment period until December 31, 2019. (Stip. 34; T. 527-28; Twp. Ex. 1.)
24. Another public notice was published by the Township on December 2, 2019 in the Centre Daily Times, advising the public that the Special Study would be discussed at a meeting to be held on December 16, 2019. (T. 528; Twp. Ex. 1.)
25. The Township published newsletters in Spring 2019 and Spring 2020, notifying residents of consideration of the Act 537 Special Study. (T. 529-30; Twp. Ex. 3.)
26. On May 19, 2020, the Township mailed another postcard to affected residents notifying them that the Township would discuss the Special Study at a meeting on June 1, 2020 and could act to adopt the Special Study at that meeting. (T. 529; Twp. Ex. 2.)
27. The Township Supervisors conducted and participated in public meetings where the Special Study was discussed on the following dates: November 5, 2018; January 7, 2019; January 14, 2019; February 18, 2019; March 4, 2019; April 1, 2019; August 5, 2019; November 4, 2019; December 16, 2019; June 1, 2020; October 5, 2020; January 4, 2021; and April 5, 2021. (T. 193-94, 473-74; Twp. Ex. 6.)
28. Members of the public attended the public meetings at which the Act 537 Special Study was discussed. (Stip. 35) 5
29. Gene Stocker was present at and participated in at least the following public meetings where the Special Study was discussed: January 7, 2019; August 5, 2019; November 4, 2019; December 16, 2019; and June 1, 2020. (Twp. Ex. 6.)
30. Members of the public, including Gene Stocker, provided comments and opinions to the Township Supervisors during public meetings at which the Special Study was discussed. (Stip. 36.)
31. The minutes of the Supervisors' March 4, 2019 meeting note that Gene Stocker had submitted comments on the proposed sewer extension. (Twp. Ex. 6.)
32. Members of the public, including Stocker, submitted written comments regarding the Special Study. (Stip. 15, 33; T. 79-80.)
33. Gwin, Dobson & Foreman, as the engineer retained by the Authority to work on the Special Study, responded to all constituent comments received regarding the Special Study. (Stip. 17; T. 283-84.)
34. The Township approved Gwin, Dobson & Foreman's responses to all public comments that were submitted regarding the Special Study. (T. 237, 530-31; Stocker Exhibit 2 (at 959); Twp. Ex. 4.)
35. UAJA had an opportunity to comment on the Special Study but did not submit any comments. (T. 130-31.)
36. The Township supervisors approved the Special Study by way of resolutions dated June 1, 2020 and October 5, 2020 and thereafter submitted the Special Study to the Department in October 2020. (Stip. 37; Stocker Ex. 1; Twp. Ex. 6, 7.)
37. On October 27, 2020, the Department denied the Special Study because it was administratively incomplete. (T. 224, 226, 487-88; Department Exhibit No. ("DEP Ex.") 1.) 6
38. The Township cured all of the administrative deficiencies identified by the Department with the submission of a revised Special Study in January 2021. (T. 226, 488-90, 499, 534; Stocker Ex. 2; DEP Ex. 2a; Twp. Ex. 7.)
39. The Department identified one technical deficiency in the Township's January 2021 Special Study due to the omission of tables and exhibits corresponding to layouts and associated costs for the various alternatives listed in the plan. (T. 489-90, 499-500; DEP Ex. 2b.)
40. In April 2021, the Township submitted to the Department an addendum to the Special Study that addressed and corrected the technical deficiency. (T. 492-93, 499-500; Stocker Ex. 3; DEP Ex. 3a.)
41. The Department considers the January 2021 Special Study and the April 2021 Addendum to be one complete sewage planning amendment. (T. 492; Stocker Ex. 2, 3.)
42. The Township's January 2021 Special Study and the Township's April 2021 Addendum collectively were administratively and technically complete. (T. 255-56, 498-500, 549-50, 553; Stocker Ex. 2, 3.)
43. The Department approved the Township's Special Study on April 19, 2021. (T. 255-56; Stocker Ex. 20; DEP Ex. 5.)
44. Multiple employees of the Department thoroughly reviewed the various iterations of the Township's Special Study. (T. 144-45, 211-12, 489, 494, 504, 506, 511.)
45. The Township's Special Study provides for sewage facilities up to the Shiloh Road interchange so that they will be there for future growth and development in the area. (T. 287.)
46. With the Special Study, the Township is planning for the sewage needs for future commercial development in the area of the Shiloh Road interchange. (T. 195, 309.) 7
47. The Special Study contemplates that development in the Shiloh Road area will be phased in over several years. (T. 288-89.)
48. The Special Study is designed to accommodate the sewage from future growth and development 20 to 30 years into the future. (T. 367.)
49. It is common for municipalities to plan for growth in interchange areas. (T. 269.)
50. The Authority is confident that there will be growth and development at the Shiloh Road interchange. (T. 474-76.)
51. Existing or proposed land development plans are not a necessary prerequisite for the Department's approval of an Act 537 plan revision. (T. 265, 269.)
52. The Township determined that it would be appropriate to extend public sewer service to the residential areas in the Special Study because of the presence of lots under one acre in size, which is the minimum size for on-lot septic systems, the unsuitability of the soils for on-lot septic systems, 25% of the lots being considered potential malfunctioning systems, and the presence of lots and on-lot septic systems in a floodplain. (T. 368, 371-72; Stocker Ex. 2 (at 7-10, 15-19, 34).)
53. The Special Study determined that many soils in the study area were not suitable for on-lot systems because of slow or very fast percolation rates, depth to bedrock, or seasonal high water tables. (Stocker Ex. 2 at 15.)
54. Although there are no documented existing on-lot malfunctions in Walnut Grove Estates, the Authority identified potential and suspected on-lot septic system malfunctions in the study area based on Sewage Enforcement Officer reports, poor soils, rock outcroppings, slopes, and homes within a floodplain. (T. 331-32, 370-73, 420.) 8
55. On-lot system failures are not a prerequisite for municipal planning or Department approval of a plan to provide sewer to an area with on-lot systems. (T. 265, 455.)
56. Public sewers are generally environmentally safer than on lot septic systems because public sewers have more advanced treatment systems that can be adjusted depending on the contaminants present in the sewage. (T. 265-66.)
57. As part of its alternatives analysis, the Special Study identified nine alternatives and further evaluated two that the Township deemed to be feasible, cost-effective, and environmentally sound: (1) extending public sewer from the Authority, and (2) a no-action alternative. (T. 285-86; Stocker Ex. 1 (at 31-50), 2 (at 33-52).)
58. The Township, at the Department's request, then evaluated three different routes for providing public sewer from the study area to the Authority's collection system in its alternatives analysis. (T. 285-86, 378-79; Stocker Ex. 3 (at 3-17).)
59. The sewer lines to the Special Study area would tie into the Authority's existing sewer lines at the University Park Airport. (T. 358-59.)
60. The most direct route to sewer Shiloh Road from the Authority's system runs through Walnut Grove Estates, making it more efficient and economical, with lower residential tap-in fees, to provide sewer to Walnut Grove Estates now rather than later as part of an independent project. (T. 301-02, 368, 374-75, 379.)
61. The estimated cost of the construction of the sewage facilities outlined in the Special Study is $4 million. (T. 293-94; Stocker Ex. 1, 2, 3.)
62. The Authority has the ability to finance the project, although it has not decided on the mix of financial instruments to achieve the financing. (T. 411, 475.) 9
63. The Special Study did not evaluate in its alternatives analysis utilizing UAJA's existing system. (T. 131-32.)
64. In order for UAJA to provide public sewer to Walnut Grove Estates, Benner Township would need to remove the area from the Authority's service area in the Township's Act 537 Plan, and the Centre Region Council of Governments would need to revise its Act 537 Plan to add Walnut Grove Estates. (T. 131.)
65. The Centre Region Council of Governments' Act 537 Plan does not include the entire Shiloh Road interchange area. (T. 461.)
66. The Centre Region Council of Governments' Act 537 Plan permits UAJA to provide sewer service to only two commercial properties along Shiloh Road but does not permit it to provide sewer service to the rest of the Shiloh Road interchange area in Benner Township or to the residential properties in or along Rock Road Rock, Big Hollow Road and Walnut Grove. (T. 120-21, 126-27, 128-29, 130, 461.)
67. UAJA could only provide sewer service to two commercial properties along Shiloh Road (the Claire and Rogers properties) if UAJA and the Authority reached an agreement for UAJA to provide sewer service, but UAJA and the Authority have never been able to reach such an agreement. (T. 118, 120-21, 126-27, 128.)
68. Prior discussions between UAJA and the Authority broke down because UAJA did not want to count the Shiloh Road area as a wholesale customer and UAJA wanted to obtain nutrient offset credits from the Township. (T. 118-20.)
69. The Department does not instruct a municipality which alternative to select in an Act 537 plan. (T. 220-21.) 10
70. Throughout the iterations of the Special Study and the correction of deficiencies from October 2020 through April 2021, the selected alternative and the overall sewering plan remained the same. (T. 315, 317, 326, 551; Stocker Ex. 1 (at 31-50), 2 (at 33-52), 3 (at 3-17).)
71. When the selected alternative in a plan revision remains the same, the Department does not require public notice to be re-published as administrative and technical deficiencies are corrected. (T. 551, 552-53.)
72. The Department became aware of the existence of per- and polyfluoroalkyl substances (PFAS) in Benner Township in September 2019. (T. 106.)
73. PFAS are a family of chemicals that are manmade in a number of household items as well as industrial uses. (T. 103; Stocker Ex. 21.)
74. The Department informed Benner Township in the summer of 2020 that the Department had discovered PFAS in the Township, but the Department did not notify the Authority. (T. 113-14. See also Stip. 26.)
75. In June 2021, a Due Diligence Report prepared by an engineering firm at the request of the Department identified that PFAS was contained in flame dousing foam used by the University Park Airport between 2006 and 2019. (T. 107; Stocker Ex. 32.)
76. PFAS contamination has been detected in properties in Walnut Grove Estates, including Mr. Stocker's water well. (T. 39-40, 112-13; Stocker Ex. 46.)
77. The Department does not view contaminated soils as necessarily precluding sewage planning at the municipal level, as long as the plan can still be implemented. (T. 218-19, 252-54.) 11
DISCUSSION
Gene Stocker is appealing the Department of Environmental Protection's (the "Department's") approval of a Special Study revision to Benner Township's Act 537 Plan. The Special Study was submitted by the Township, which relied on its water authority, the Spring-Benner-Walker Joint Authority (the "Authority"), to develop the Special Study. The Township designated the Authority to act as the Township's agent with respect to sewage planning. The Special Study lays out a plan to provide public sewage to an area where the Township anticipates there will be future growth and commercial development at the interchange of Shiloh Road and interstate highway I-99. In developing the Special Study to provide public sewage to the Shiloh Road area, the Township decided that it would be efficient and cost-effective to also provide sewage to several residential areas near the anticipated sewer line route that are currently served by on-lot septic systems-Rock Road, Big Hollow Road, and Walnut Grove Estates. The Special Study was first submitted to the Department in October 2020. The Township submitted a revised Special Study in January 2021 and an addendum in April 2021 to resolve administrative and technical deficiencies identified by the Department. The Department ultimately approved the revised package in April 2021.
Gene Stocker lives in Walnut Grove Estates and is opposed to the Special Study. He contends that there is no need for public sewer, particularly in the Shiloh Road area, because there is no concrete proposal for any development on the table. With respect to Walnut Grove Estates, Stocker says the on-lot systems are working fine and there are no confirmed malfunctions of those systems. He also argues that the Township Supervisors were not fully engaged in the sewer planning process, and the Township improperly delegated its sewage planning role to the Authority, an arrangement which he says runs afoul of various municipal 12 statutes. He also takes issue with the failure to account for the existence of per- and polyfluoroalkyl substances (PFAS) in the water and soils in the Walnut Grove area.
Stocker further argues that the "most appropriate" alternative for providing sewer was not considered in developing the Special Study. Stocker advocates for a neighboring sewage authority that serves other municipalities, the University Area Joint Authority, to service the Shiloh Road area, and Walnut Grove Estates if they must be disconnected from their on-lot systems. He critiques the Department's review of the Special Study and says the Department did not do a thorough enough investigation of the proposed plan revision. Finally, Stocker contends that there was inadequate public notice of the Special Study, and that each of the three iterations of the Special Study that existed during the process of correcting administrative and technical deficiencies should have been opened up to their own individual public comment periods.
As a third party appealing the Department's approval of the Special Study revision to the Township's Act 537 Plan, Stocker bears the burden of proof for his claims. 25 Pa. Code § 1021.122(c)(2); Joshi v. DEP, 2019 EHB 356, 364; Jake v. DEP, 2014 EHB 38, 47. He must show that the Department's action was unlawful, unreasonable, or not supported by our de novo review of the facts. Logan v. DEP, 2018 EHB 71, 90; Friends of Lackawanna v. DEP, 2017 EHB 1123, 1156. In order to be unlawful, the Department must have not acted in accordance with all applicable statutes, regulations, and case law, or not acted in accordance with its duties and responsibilities under Article I, Section 27 of the Pennsylvania Constitution. Ctr. for Coalfield Justice v. DEP, 2017 EHB 799, 822; Brockway Borough Mun. Auth. v. DEP, 2015 EHB 221, aff'd, 131 A.3d 578 (Pa. Cmwlth. 2016).
To carry the burden of proof, Stocker must prove his case by a preponderance of the evidence. United Refining Co. v. DEP, 2016 EHB 442, 448, affd, 163 A.3d 1125 (Pa. Cmwlth. 2017); 13 Shuey v. DEP, 2005 EHB 657, 691 (citing Zlomsowitch v. DEP, 2004 EHB 756, 780). The preponderance of evidence standard requires that he show that the evidence in favor of his proposition is greater than that opposed to it. Telegraphs v. DEP, 2021 EHB 279, 288; United Refining, 2016 EHB 442, 449. In other words, Stocker's evidence challenging the Township's Special Study plan revision must be greater than the evidence supporting the Department's determination that the plan revision was reasonable, appropriate, and in accordance with the applicable law. Morrison v. DEP, 2021 EHB 211, 218; Del. Riverkeeper Network v. DEP, 2018 EHB 447, 473. For the reasons explained below, we find that Stocker has not met the burden of proof on his claims.
Need for the Special Study
Stocker argues that there is no need for a revision to the Township's 537 Plan by way of this Special Study. He says there had been talk of a commercial development in the Shiloh Road area but that development has so far not materialized. He contends that, without a concrete plan for a development, it does not make any sense to provide public sewer to the area. Stocker also argues that there is no need for public sewer at his home in Walnut Grove Estates. He maintains that the existing on-lot sewage systems are functioning properly and there have been no documented malfunctions.
The Shiloh Road area is at the interchange of Shiloh Road and Interstate I-99 in the Township. The Township and the Authority believe that the area is primed for commercial development if public sewer is routed there. The Shiloh Road area was originally identified in the Township's 2003 Act 537 Plan as a potential area for sewer extension. The Special Study extends sewer up to the Shiloh Road area so that sewage facilities will be there for future development. The Township does not believe that commercial development will happen 14 immediately, but instead, the Special Study contemplates that development in the Shiloh Road area will be phased in over several years. The Township is planning for the eventual development of the entire area, not simply one or two parcels of land. Warren Miller, the Executive Director of the Authority, testified that the Special Study was designed to accommodate sewage from potential future growth and use for 20 to 30 years in the future. (T. 367.)
Contrary to Stocker's assertions, there is no restriction that a municipality can only engage in sewage planning or revise its Act 537 Plan when there is a development proposal waiting to break ground. Instead, sewage planning is meant to be forward-looking and to lend enough flexibility to a municipality to provide sewage to areas where it can reasonably anticipate growth and development in the years to come.
The Sewage Facilities Act requires official plans and the revisions thereto to look ahead and anticipate the future development needs in a municipality:
Every official plan shall…Take into consideration all aspects of planning, zoning, population estimates, engineering and economics so as to delineate with all practicable precision those portions of the area which community systems may reasonably be expected to serve within ten years, after ten years, and any areas in which the provision of such services is not reasonably foreseeable.35 P.S. § 750.5(d)(4) (emphasis added). See also Carroll Twp. v. Dep't of Envtl Res., 409 A.2d 1378, 1381 (Pa. Cmwlth. 1980) ("Section 5 of the Sewage Facilities Act also indicates that mandatory planning is not designed merely to correct deficient municipal facilities, as is The Clean Streams Law, but that its purpose is also to improve all present and future facilities."). The Sewage Facilities Act charges municipalities to assess their sewage needs while looking out more than ten years into the future and then plan accordingly. Revisions to Act 537 Plans must likewise anticipate future growth and plan for the sewage facilities needed to serve that growth. 15 35 PS. § 750.5(a) (revisions to official plans shall conform to the requirements of subsection (d) quoted above). Even the statutory definition of "official plan revision" states that its purpose is in part forward-looking "to provide for additional or newly identified or future sewage facilities needs." 35 P.S. § 750.2. See also 25 Pa. Code § 71.1 (regulatory definition). The Sewage Facilities Act is about engaging in rational planning by trying to stay ahead of the curve on development.
The forward-looking nature of planning is reiterated again and again in the sewage planning regulations. The stated scope of the sewage facilities planning regulations at Chapter 71 includes "providing] for the sewage disposal needs of new land development and otherwise to provide for future sewage disposal needs of a resident or landowner in a municipality." 25 Pa. Code § 71.2 (emphasis added). One of the purposes of Chapter 71 is to "provide[] a comprehensive sewage planning mechanism to identify and resolve existing sewage disposal problems, to avoid potential sewage problems resulting from new land development and to provide for the future sewage disposal needs of a municipality." 25 Pa Code § 71.3 (emphasis added). This is reiterated in Section 71.11, which imposes a general duty upon municipalities to create plans that not only "provide for the future sewage disposal needs of new land development," but also "provide for the future sewage disposal needs of the municipality." 25 Pa. Code § 71.11. Section 71.12 then places a duty on municipalities to revise their plans whenever they are "inadequate to meet the existing or future sewage disposal needs of the municipality or portion thereof." 25 Pa. Code § 71.12(a) (emphasis added).
Thus, while the sewage planning program contemplates planning for a specific new land development, see, e.g., 35 P.S. § 750.5(b) (addressing private requests from developers), it also clearly allows for planning for future sewage needs even without a new development in the 16 wings. When those future needs can be anticipated, it is simply good planning to revise a plan to address them. Municipalities attuned to the future needs of their communities are to be proactive in planning for those needs and must ensure that adequate sewage resources are available to meet the demand. "Flexibility rather than rigidity is what makes planning activities meaningful and able to accommodate changing circumstances." Lobolito, Inc. v. DER, 1993 EHB 477, 489. The planning scheme affords a municipality the flexibility to reasonably plan for its future needs and not be tied to first finding a development in order to proceed with planning. To hamstring sewage planning to only areas where development is all but certain would turn planning on its head and make it merely reactive instead of planning for the future.
In this case, the Department understands the purpose of sewage planning. As Tom Randis, the Department's Clean Water Program Manager for the Northcentral Regional Office, testified, the purpose of planning is "[t]o provide for current and future sewage needs in a municipality at their discretion." (T. 237.) To this end, the Department correctly does not require there to be an existing or proposed land development plan in order for a municipality to undertake a revision to its Act 537 plan and obtain approval by the Department. Indeed, Randis testified that most municipalities plan for growth in interchange areas even in the absence of an existing development proposal. (T. 269.) We think that the Township has more than enough reason to justify its planning decision to accommodate future growth in the Shiloh Road area. Although there is no crystalized development plan for the Shiloh Road area, there is a reasonable likelihood of development happening in that area that is entirely consistent with Benner Township's responsibility and authority to engage in sewage planning for its future needs.
In the same way that a concrete development proposal is not a necessary prerequisite for sewage planning, neither are existing on-lot system malfunctions needed to provide for public 17 sewer in an area. Walnut Grove Estates was placed on a Sewage Management Plan in the Township's 2003 Act 537 Plan to monitor the on-lot systems. Walnut Grove Estates were included in the Special Study, in part, because the most economical way to service the Shiloh Road area with sewage was with a route that would pass by Walnut Grove Estates. Combined with the knowledge of Walnut Grove being comprised of on-lot systems, the Township thought it would be prudent to include Walnut Grove in the Special Study, which would lower the cost of residential tap-in fees compared to the fees if sewer were to be provided to Walnut Grove as part of its own project in the future. In addition, the Authority and the Township thought that Walnut Grove Estates had the potential for malfunctioning systems due to poor soils, rock outcroppings, slopes, and homes built within the floodplain.
The Department does not require there to be malfunctioning on-lot systems for sewage planning to occur in a given area. Stocker's own expert agreed that on-lot malfunctions are not required to plan for public sewer. (T. 455.) Stocker's expert did not go out and do any field work with respect to the on-lot systems to see how they were performing, nor did he claim to have the expertise to investigate an on-lot system. (T. 456-57, 458.) Instead, it seemed as if Stocker's expert was mostly concerned about the cost of providing public sewer to homes that might not have an existing on-lot malfunction. (T. 458-59, 460-61.) But Stocker's expert only provided a generalized critique of the overall cost of implementing the plan. Stocker presented no evidence of what the actual tap-in cost would be for each resident of Walnut Grove Estates or whether that would be unreasonably high. Stocker did not otherwise carry his burden of proof to show that including Walnut Grove Estates in the Special Study was unreasonable or contrary to law. Instead, it seems entirely reasonable for a municipality to want to provide public sewer to homes within its boundaries when it has the opportunity to do so in a more cost-effective manner. 18
Per- and Polyfluoroalkyl Substances (PFAS)
One of the key considerations in sewage planning, both for the Department's review and the Board's subsequent review, is whether a plan is capable of being implemented.
The pertinent regulation, 25 Pa. Code § 71.32(d)(4), provides that, in approving or disapproving an official plan, "the Department will consider … (4)[w]hether the official plan or official plan revision is able to be implemented". Also, 25 Pa. Code § 71.31(f) specifies that: "[t]he municipality shall adopt the official plan by resolution, with specific reference to the alternatives of choice and a commitment to implement the plan within the time limits established in an implementation schedule." These provisions taken together suggest that the Department should not approve a make-believe plan. Rather, its approval depends on a showing that the municipality is in fact able and committed to implementing its plan update.Wilson v. DEP, 2010 EHB 827, 832 (quoting Guest v. DEP, 2010 EHB 257, 258-59).
Stocker argues that there is no assurance that the Special Study can be implemented because of a plume of PFAS contamination that apparently includes parts of the Special Study area. The Special Study would provide public sewer, but not public water, to Walnut Grove Estates. Since some properties within Walnut Grove Estates have tested positive for PFAS, (T. 112-13), Stocker is concerned that well water containing PFAS will be conveyed through the new sewage system to the Authority, which he says is not currently equipped to treat sewage containing PFAS. Since the Authority's treatment plant discharges to Spring Creek, Stocker is concerned about PFAS entering the stream. Stocker also claims that the installation of the sewer lines will spread PFAS into Spring Creek.
The Department, the Township, and the Authority all argue that Stocker has waived this issue because there is nothing about PFAS in his notice of appeal or amended notice of appeal. See Morrison v. DEP, 2021 EHB 211, 219 (issues not raised in a notice of appeal are generally waived). They are correct that his notice of appeal and amended notice of appeal contain no reference to PFAS. However, to the extent the issue was not waived, and assuming arguendo 19 that PFAS not only could be considered but should have been considered in the Special Study, Stocker has not justified a reversal or even a remand. He did not show the PFAS contamination would make the project infeasible or unsafe or that there are better alternatives because of it or any other relevant standard of review on sewer planning. Critically, Stocker has not shown that the Special Study is not "able to be implemented" due to the existence of PFAS. 25 Pa. Code § 71.32(d)(4).
There is simply no evidence in the record to support Stocker's assertion that PFAS contamination will be exacerbated by the installation of the sewer lines or by connecting homes to public sewer. In his reply brief, Stocker tries to invert the burden of proof by contending that "there is no assurance that the plan can be implemented as the contamination radius continues to grow," and that "the Department has more work to do to determine if the project can be permitted." (Reply Brief at 5.) To a very large extent, Stocker assumes facts not in evidence. It is on Stocker to show based on the evidence adduced at the hearing that the plan cannot be implemented, not to claim that there is no assurance that the plan can be implemented. Stocker presented no evidence that there is likely to be any contamination to Spring Creek, either during the installation of the sewer lines, or from a discharge to Spring Creek from the Authority's sewage treatment plant. Nor has he sought to quantify any such contamination. At this point, it is merely supposition and speculation. An appellant bearing the burden of proof cannot simply point to the existence of PFAS, without more, and treat it as a foregone conclusion that all activity in an area with PFAS should be put on indefinite hold.
Stocker also makes an argument under Article I, Section 27 of the Pennsylvania Constitution in terms of the existence of PFAS. However, to make his argument, Stocker relies 20 on the three-part test established in Payne v. Kassab, 312 A.2d 86 (Pa. Cmwlth. 1978), which was overruled by the Pennsylvania Supreme Court in Pa. Environmental Defense Foundation v. Commonwealth, 161 A.3d 911 (Pa. 2017) (" PEDF "). In PEDF, the Court held that the Payne v. Kassab test "is unrelated to the text of Section 27 and the trust principles animating it" and that it "strips the constitutional provision of its meaning." Id. at 930. The Court "rejected] the test… as the appropriate standard for deciding Article I, Section 27 challenges." Id.
Article I, Section 27 of the Pennsylvania Constitution provides:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all people.Pa. Const. art I, § 27.
A distillation of our articulation of the standard for assessing Article I, Section 27 challenges after PEDF has been:
We first must determine whether the Department has considered the environmental effects of its action and whether the Department correctly determined that its action will not result in the unreasonable degradation, diminution, depletion or deterioration of the environment. Next, we must determine whether the Department has satisfied its trustee duties by acting with prudence, loyalty and impartiality with respect to the beneficiaries of the natural resources impacted by the Department decision.Del. Riverkeeper Network v. DEP, 2018 EHB 447, 493 (citing Center for Coalfield Justice v. DEP, 2017 EHB 799, 858-59, 862; Friends of Lackawanna v. DEP, 2017 EHB 1123, 1163). However, "[t]he burden of showing that the Department acted unconstitutionally rests with the third-party appellant." Logan v. DEP, 2018 EHB 71, 115 (citing Stedge v. DEP, 2015 EHB 577, 617; Brockway Borough Mun. Auth. v. DEP, 2015 EHB 221, 250). Largely for the same reasons that Stocker did not meet his burden of proof to show that the Special Study was not able to be implemented due to the PFAS issue, his argument that the existence of PFAS renders the 21 approval unconstitutional also fails. He has not established the baseline proposition that there will be harm to or degradation of natural resources as a result of the Special Study.
Alternatives Analysis
An Act 537 Plan revision must identify and evaluate alternatives available to provide for new and improved sewage facilities for each area of need. 25 Pa. Code § 71.21(a)(4) and (5). The plan must then select an alternative to meet the needs of a study area and show that that selection is "technically, environmentally and administratively acceptable." 25 Pa. Code § 71.21(a)(6). See also 25 Pa. Code § 71.52(a)(3)-(5). In approving a municipality's selected alternative, the Department will assess the technical feasibility of the alternative and the feasibility of its implementation to provide adequate sewage service to an area. 25 Pa. Code § 71.61.
The Township's selected alternative in its Special Study is to provide public sewer to the Shiloh Road area and to connect several residential areas along the way. The Township also evaluated a no-action alternative and then evaluated a number of routes to provide public sewer to the Special Study areas from the Authority's treatment plant. The Township chose the selected alternative because it was the most efficient and cost-effective way of providing sewer to the Shiloh Road area, and in its opinion, it made sense to provide sewer to the residential areas at the same time.
Stocker says that "the most appropriate alternative" was not considered by the Township and the Authority. He asserts that the University Area Joint Authority (UAJA), a different municipal authority serving other municipalities, can provide sewer service to the Walnut Grove Estates and Shiloh Road areas. Stocker also seems to reiterate his assertion that Walnut Grove 22 Estates should be allowed to continue with their on-lot systems instead of being connected to public sewer.
As we said in Pine Creek Valley Watershed Association v. DEP, 2016 EHB 748, a plan revision need not select "the most appropriate alternative" in order to be approved by the Department:
A plan is not subject to disapproval because the Department or this Board believes that the municipality did not select the "best" alternative. Wilson v. DEP, 2015 EHB 644, 673. The selected alternative need only be "technically, environmentally and administratively acceptable." 25 Pa. Code § 71.21(a)(6). Indeed, a prior version of Section 71.21(a)(6) was changed in 1997 to specifically eliminate the need to select the "best" alternative. See 27 Pa.B. 5880 (Nov. 8, 1997). See also Noll v. DEP, 2004 EHB 712, 721-22.Id. at 754. This is because it is the municipality that is in charge of making the planning decisions it believes are the most appropriate for its own needs:
It is well-settled that primary decision-making responsibility regarding sewage facilities plans lies at the municipal level. It is a municipality's decision to adopt a treatment alternative in accordance with the terms and conditions of the Sewage Facilities Act. The Department plays a supervisory role, being charged with approving or disapproving plans and plan revisions and ensuring that the systems are in conformity with local planning and consistent with statewide supervision.Scott Twp. Envtl. Pres. Alliance v. DEP, 1999 EHB 425, 429. However, "even [the Department's] supervisory role is limited and it is not empowered to undertake this planning itself." Lobolito Inc. v. DER, 1993 EHB 477, 487. Cf. Cmty. Coll. of Del. Cnty. v. Fox, 342 A.2d 468, 480 (Pa. Cmwlth. 1975) ("It is clearly not for the DER, under these sections of The Clean Streams Law, to withhold the issuance of a sewer permit where it independently determines that land might be better planned as open or recreational space rather than for commercial or residential uses."). Indeed, as we have said many times, "Neither the Department nor this Board function as überplanners, and we must be wary of any scheme that would have us make planning 23 choices in lieu of the municipality." Pine Creek Valley, 2016 EHB at 754 (quoting Borough of Kutztown v. DEP, 2016 EHB 80, 93; Northampton Twp. v. DEP, 2008 EHB 563, 567).
Tom Randis of the Department testified that the Department leaves the selection of the sewer line route up to the municipality, and as long as the selected alternative meets the requirements of Act 537 and the regulations and it is implementable, the Department will not second-guess the municipality's choice. (T. 221, 222, 269.) The Department's articulation of its role in evaluating a municipality's selected alternative is perfectly in line with Act 537 and our myriad decisions delineating the Department's role in the planning process.
Even if we entertain Stocker's argument, the situation is not quite as simple as he makes it seem. The UAJA option, as it was presented at the hearing, is far from a viable alternative. For one, the areas to be provided with sewer in the Special Study are within the coverage area of the Authority, not UAJA. Cory Miller, UAJA's executive director, testified that the only way UAJA could service the area was if UAJA and the Authority came to an agreement for UAJA to provide service. (T. 120-21.) Earlier efforts in 2015 on reaching an agreement between the two authorities proved unsuccessful. (T. 117-18.) UAJA did not want to count the Shiloh Road area as a wholesale customer and UAJA wanted nutrient credit offsets from the Township. A resolution never panned out.
It is simply not true, as Stocker contends, that the Township did not consider the possibility of utilizing UAJA. Instead, they considered and rejected it. As one of the Township Supervisors put it, the Township went with the Authority instead of UAJA because UAJA is not the Township's sewer authority. (T. 192.) It seems entirely reasonable to us that a municipality would choose its own sewer authority to service an area within a planning revision. The inability of UAJA to service the entire study area without several other contingencies occurring is a 24 significant barrier that goes directly to the ability to implement the alternative advanced by Stocker. By contrast, he has not produced evidence to show that anything renders the Township's selected alternative as unable to be implemented, or that it is not feasible from a technical or environmental point of view.
Stocker also expresses some concern about the cost of constructing the sewer lines that are contemplated by the Special Study, which was estimated to be $4 million at the time the Special Study was drafted and approved by the Department. Stocker says the cost must be higher now. (See T. 453.) The engineer who prepared the Special Study testified that he felt $4 million was still relatively accurate because he factored into his estimate the time it would take before the sewer lines were actually built. (T. 293-94.) We do not know what the estimated cost would be today. Stocker certainly did not substantiate his expert's claim that it would be twice as much money now with any sort of study or construction cost figures. (T. 453.) However, even if that we assume Stocker is correct, he has not shown how he might be personally impacted by the cost, whether $4 million or higher, why it is an unreasonably high cost, or why the cost means that the Special Study cannot be implemented, or the selected alternative is not technically, environmentally and administratively acceptable. The Authority testified that it is committed to financing the project, that it has the money to finance the project, and that the only thing it needs to determine is the mix of financial instruments to accomplish the financing. (T. 411, 475.) We have nothing from Stocker to dispute that.
Benner Township's Involvement in the Special Study
One of the recurring themes of Stocker's case is that the Township Supervisors were not actively engaged enough in the sewage planning process. Instead, the Township relied on the Authority to develop the Special Study when the Township designated the Authority as its agent 25 to handle the Special Study process. Stocker says this was inappropriate and the Township improperly delegated its role in sewage planning to the Authority. He says that there is no document outlining the agency relationship between the Township and the Authority as he claims is required by the Intergovernmental Cooperation Act, 53 P.S. § 2307. He also argues that the Township "is not permitted to delegate legislative authority to a municipal authority," and that the Township acted contrary to the Second-Class Township Code.
It is a common trope of challenges to sewage facilities planning actions that the Department should have considered other, largely municipal issues in its review of an Act 537 plan or subsequent revision. See Borough of Kutztown v. DEP, 2016 EHB 80 (appellant arguing Department should have disapproved township's plan revision because it was allegedly inconsistent with intermunicipal agreement and litigation in the Courts of Common Pleas over that agreement). But, as we just laid out with respect to the alternatives analysis, that again is simply not the Department's role in sewage planning:
As stated by the Commonwealth Court in affirming our Adjudication in Oley Township v DEP, 1996 EHB 1098, although sewage facilities planning touches on a divergent set of issues in the law, it is not the Department's place to insert itself into all of these areas of dispute, which are properly resolved before other tribunals:
Under the Sewage Facilities Act, the [Department] is entrusted with the responsibility to approve or disapprove official plans for sewage systems submitted by municipalities, but, while those plans must consider all aspects of planning, zoning and other factors of local, regional, and statewide concern, it is not a proper function of the [Department] to second-guess the propriety of decisions properly made by individual local agencies, even though they obviously may be related to the plans approved. Moreover, impropriety related to matters determined by those agencies is the proper subject for an appeal from or a direct challenge to the actions of those agencies as the law provides, not for an indirect challenge through the [Department]. As we read the Sewage Facilities Act, the function of the [Department] is merely to insure that proposed sewage systems are in conformity with local planning and consistent with statewide supervision of water quality management . . .26
Oley Twp. v. Dep't of Envtl Prot., 710 A.2d 1228, 1230 (Pa. Cmwlth. 1998) (quoting Cmty. Coll. of Del. Cnty. v. Fox, 342 A.2d 468, 478 (Pa. Cmwlth. 1975))Borough of Kutztown, 2016 EHB at 93.
Stocker has not explained to us why the Department or this Board need to be concerned about the various machinations of municipal government when reviewing a revision to an Act 537 Plan, or why we should be concerned about potential disputes under the Second-Class Township Code, 53 P.S. §§ 65101 - 68701, or the Intergovernmental Cooperation Act, 53 P.S. §§ 2301 - 2317.
We have previously refused to inject ourselves into intermunicipal conflicts that are properly resolved before other courts or tribunals. This is because "grievances which fall within the category of a 'local government agency function' are not appropriate for indirect challenge through the Department." Force v. DEP, 1998 EHB 179, 189 (citing Cmty. Coll. of Del. Cnty., supra), affd, 977 CD. 1998 (Pa. Cmwlth. Dec. 30, 1998). In Force, we determined that the issue of the apportionment of costs between a resident and the township to connect to public sewer was not an issue within the Board's domain under the Sewage Facilities Act. We held that "[t]he Appellants' remedy, therefore, is not with the Board under the Sewage Facilities Act, but may exist in the courts of common pleas pursuant to the First Class Township Code." Force, 1998 EHB at 190. The same holds true here with respect to Stocker's claims under the Second-Class Township Code.
In Welteroth v. DER, 1989 EHB 1017, for instance, we declined to decide the appellants' contention that the issuance of a Dam Safety and Encroachment permit for the removal of a bridge violated provisions of the Second-Class Township Code. Instead, we determined that the Department "ha[d] no obligation to assure Clinton Township's compliance with the Second 27 Class Township Code" and that the Department did not err when it did not specifically consider the Second-Class Township Code in issuing the permit. Id. at 1029-31.
In any event, we do not find anything inherently wrong or improper about a municipality relying on the expertise of other entities in making decisions within the municipality, whether that be sewage planning, traffic planning, land use planning, or some other municipal function. The engineers who assisted the Authority in developing the Special Study testified that it is common for them to work with municipal sewage authorities as agents of a township when going through the plan revision process. (T. 315-16, 320.) Regardless, the Township was significantly involved in the consideration of the decision to develop a Special Study to sewer Shiloh Road, Walnut Grove Estates, and the other residential areas. There were at least 13 public meetings held on the subject from late-2018 through the spring of 2021. The Authority's engineer made at least two presentations to the Township Supervisors regarding the plan. (T. 284-85.) The Township passed resolutions at public meetings in June 2020, October 2020, and January 2021 explicitly approving the submittal of the Special Study to the Department. (Twp. Ex. 7.) The Authority also testified that it is the Township that ultimately makes the decisions for which areas of the Township will be sewered. (T. 337.) Stocker has not convinced us that there is anything inappropriate about the Township's approach to sewage planning that should concern us in reviewing the Special Study's approval under the Sewage Facilities Act.
In a similar vein, Stocker argues that running sewage to Walnut Grove will interfere with a forest conservation zoning district in the Township. He says that providing sewer will increase the density of development in Walnut Grove Estates, which will increase the amount of impervious surface, which will thereby result in more runoff and flooding and "defeat[] the original intent of the forest conservation zoning." (Stocker Brief at 34.) The argument about the 28 forest conservation district is not well-developed, but it is not the role of the Department or this Board to resolve any potential zoning issues. Regardless, Stocker has not shown that the existence of a forest conservation district means that the Special Study is not capable of being implemented or contrary to any other provision of the Sewage Facilities Act or sewage planning regulations.
The Department's Review
Stocker also challenges the adequacy of the Department's review of the Special Study. He says the Department did not review the Township's ordinances or procure "an independent copy" of the reports from the sewage enforcement officer. He says the Department did not conduct its own water or soil testing or make an independent investigation of whether the on-lot systems in Walnut Grove Estates were at risk of potential malfunction or were currently malfunctioning. But Stocker has not produced any of his own evidence showing that the ordinances present any barrier to approval of the Special Study, or produced his own soil testing, or otherwise shown that the on-lot systems are performing well (even if that were relevant to their replacement with public sewer).
As we have said many times before, "given the Board's extensive de novo review, an appellant who rests on the fact of an inadequate investigation or analysis alone often does so at its peril." Sludge Free UMBT v. DEP, 2015 EHB 469, 484 (citing Kiskadden v. DEP, 2015 EHB 377, 410). This is because "[o]ur function in this proceeding is not to critique the Department's procedures generally or as employed in this case. While an inadequate investigatory process may be evidence of a potentially dispositive finding, it is not dispositive in and of itself." Kiskadden, 2015 EHB at 410 (quoting O'Reilly v. DEP, 2001 EHB 19, 45). 29
Stocker makes much of the Department's use of a checklist in determining the completeness of the Special Study during its review. Stocker says Dan Thetford, the Sewage Planning Chief in the Department's Northcentral Regional Office as well as the Acting Regional Director, relied on the checklist to measure the Special Study for completeness and merely skimmed some portions of the Special Study instead of reading the entire thing. However, the testimony reflects that Thetford reviewed the entire January 2021 and April 2021 submissions. (T. 489, 494, 504, 506, 511.) Tom Randis also reviewed portions of October 2020 and January 2021 Special Studies and the entire April 2021 Addendum. (T. 144-45.) The January 2021 Special Study and the April 2021 Addendum was the package that was ultimately approved by the Department so it is the only one that concerns us in this appeal, and it appears that it was adequately reviewed by the Department, Even so, both Thetford and Randis only act in supervisory roles in reviewing Act 537 plan revisions. (T. 500.) The Department employee with the primary responsibility for reviewing this Special Study was Rob Everett. (T. 211, 511-12.) But for some reason Everett was not called by any party to testify at the hearing. Stocker's complaints about the Department not reading every page of each iteration of the Special Study ring somewhat hollow without any questioning of the person who performed the primary administrative and technical review of the Special Study.
In any event, Stocker has not shown us why any perceived inadequacy in the Department's review has any continuing relevance or why the alleged inadequate review renders the Department's approval of the Special Study unsupportable or contrary to law. In Delaware Riverkeeper v. DEP, 2004 EHB 599, 657, we concluded as a matter of law that, "[although the Department is required to use its independent judgment in reviewing the needs and alternatives analysis in an Act 537 Plan, neither the Sewage Facilities Act nor the Department's regulations 30 thereunder require the Department to perform its own independent study of sewage needs or alternatives analysis." This is not a situation like in Baney Road Association v. DER, 1992 EHB 441, where the Department failed to conduct any evaluation to determine whether a planning module satisfied the regulations and instead relied entirely on the applicant. There is no evidence that the Department used the checklist in lieu of performing a review of the Special Study. There is no evidence that the Department simply checked the boxes to see if certain components were present instead of actually reading the components to determine whether they satisfied applicable statutory and regulatory requirements. We find nothing inappropriate in using a checklist as an aid to the Department in reviewing planning modules.
Public Notice
Stocker argues that the public notice provided by the Township of the Special Study was inadequate. Stocker's main issue is that, while the Township published notice of the original 2020 Special Study and opened a public comment period, the Township did not publish notice of the subsequent changes to the Special Study as the Township corrected the administrative and technical deficiencies identified by the Department. Stocker believes that the revised Special Study submitted to the Department in January 2021, and the subsequent addendum of April 2021 both needed to be subject to the public notice provisions of the Sewage Facilities Act and regulations. The Department takes the position that, when a municipality's selected alternative remains the same in an Act 537 Plan or plan revision, the plan does not need to be re-noticed.
Stocker points to Section 5(i) of the Sewage Facilities Act for the public notice requirement, which says:
Any publication of proposed adoption of or revision to an official plan or notice of application for a permit for department approval required by this act or the regulations promulgated under this act may be provided by the applicant or the applicant's agent, municipality or the local agency by publication in a newspaper31
of general circulation as required by department regulation. Where an applicant or applicant's agent provides the required publication, the municipality and local agency shall be relieved of the obligation to publish.35 PS. § 750.5(i). This section sets forth a general publication requirement but leaves the specifics to be determined by regulation. Stocker notably does not discuss the relevant regulation containing the specific requirements for public notice, but it is found at 25 Pa. Code § 71.31. It provides that a municipality needs to publish notice of a proposed plan adoption at least once in a newspaper of general circulation and open up a 30-day public comment period:
A municipality shall submit evidence that documents the publication of the proposed plan adoption action at least once in a newspaper of general circulation in the municipality. The notice shall contain a summary description of the nature, scope and location of the planning area including the antidegradation classification of the receiving water where a discharge to a body of water designated as high quality or exceptional value is proposed and the plan's major recommendations, including a list of the sewage facilities alternatives considered. A 30-day public comment period shall be provided. A copy of written comments received and the municipal response to each comment, shall be submitted to the Department with the plan25 Pa. Code § 71.31(c).
Stocker also says that the notice did not satisfy a provision of the Second-Class Township Code, which provides: "No sanitary sewer system shall be constructed under this article unless a resolution of the board of supervisors authorizing the construction is published in a newspaper of general circulation in the township once a week for three successive weeks." 53 P.S. § 67503. As discussed above, the Board is not the forum to contest alleged violations of the Second-Class Township Code. But further, even if we were, this provision by its own terms applies to the construction of a sanitary sewer system, not the sewage planning process. No construction will occur until the Department issues a permit for the work contemplated by the Special Study plan.
There is evidence of extensive public outreach regarding the Special Study. The Township held at least 13 public meetings where the Special Study was discussed from 2018 to 2021. (Finding of Fact No ("FOF") 27.) The Township published notice four times in the Centre Daily Times, as well as mailing out postcards to affected residents and publicizing it in the township newsletter. (FOF 16, 21-26.) Warren Miller of the Authority also testified that at some point he went out and put flyers on the doors of homes that would be affected by the Special 32 Study. (T. 355-56.) The Township also extended the public comment period by 30 days on the initial Special Study. The notice provided by the Township here exceeded the regulatory standard.
Although the record is replete with evidence of public outreach, the key question here is whether public comment periods should have been opened for the revised January 2021 Special Study and the April 2021 Addendum. Our decision in Ainjar Trust v. DEP, 2001 EHB 927, is instructive for considering what circumstances require an Act 537 plan to be re-noticed due to changes that have occurred from when the plan was first proposed. Similar to Stocker's complaint here, in Ainjar Trust, the appellant's "main complaint [was] that the [planning] Module evolved to some degree over time such that the Module, which eventually emerged from the Township as approved by it and which it submitted to the Department, was different in some ways than the one described in this notice." Ainjar Trust, 2001 EHB at 981. In Ainjar Trust, from the time the plan was first proposed in December, to when it was approved the following August, several things had changed:
The acreage involved in the development changed from approximately 26 acres to approximately 32 acres, the number of dwelling units was reduced from 192 to 156, the total number of EDUs was consequently reduced from 222 to 186, and the calculation for Gallons Per Day (GPD) per EDU was changed from 400 GDP per EDU to 265 GPD per EDU.Id. at 981. We said it was not unreasonable to expect that some aspects of a plan would change along the way during the development and review process because that, in some ways, is the entire reason for public participation in the process. Id. at 984. Although the plan in Ainjar Trust changed in certain respects from the time it was first submitted to the time it was approved, we concluded: "We do not think that new publication had to be undertaken with each or any of the changes to the project that we have reviewed here." Id. at 984. Instead, Ainjar Trust provides the 33 guidance that, in evaluating whether a plan should be re-noticed, we should consider whether the changes to a plan are so fundamental that they represent a new or different plan. Id. at 984. See also Wilson v. DEP, 2015 EHB 644, 687 (noting township made changes to plan update after receiving comments and published a second notice, but the second notice was not required under 25 Pa. Code § 71.31(c)).
Here, nothing so fundamental changed through the various iterations of the Special Study that it essentially became a completely different plan. The Township's selected alternative stayed the same from the initial Special Study submitted in October 2020 to the final addendum submitted in April 2021 and approved by the Department shortly thereafter. The Special Study was always about providing public sewer to Shiloh Road and connecting residential areas with on-lot systems along the route. That remained true through all versions of the Special Study. The Township did not make any fundamental changes but was merely correcting administrative and technical deficiencies. These involved, for example: providing evidence that the Township gave the Special Study to the Bellefonte Borough Authority for review and comment and confirmation of capacity; providing additional tables and charts; and confirming that the Authority's engineer had the authorization of the Township to respond to the public comments. (T. 224-26, 243-44, 488-90, 499-500; Stocker Ex. 82; DEP Ex. 1, 2b.) None of those changes rises to the level of fundamentally altering the plan and none require repeating the public notice process.
We also noted in Ainjar Trust that the appellant actually had access to the planning module to comment on it. 2001 EHB at 980. Stocker clearly had such notice and an opportunity to comment here. Minutes from the Township Board of Supervisors' meetings show that the issue of extending sewer to Shiloh Road and Walnut Grove Estates was extensively discussed at 34 the public meetings from November 2018 through April 2021. Stocker was present at several of these meetings and spoke publicly during meetings to present his comments, and also had his concerns presented by his counsel and engineer. (Twp. Ex. 6.) He also submitted written comments on the Special Study. (T. 79-80.) There is no evidence that Stocker was somehow inhibited from voicing his concerns about the Special Study during the two-and-a-half years that it was publicly discussed and debated in the Township.
In sum, Stocker has raised several claims in his appeal, but he has not produced the necessary evidence to substantiate those claims and he has not shown that the Department erred in its approval of Benner Township's Special Study revision to its Act 537 Plan. He did not establish that the Special Study cannot be implemented or that any aspect of it is unreasonable or conflicts with the Sewage Facilities Act or the relevant regulations.
CONCLUSIONS OF LAW
1. The Environmental Hearing Board has jurisdiction over this matter. 35 P.S. § 750.16(b); 35 P.S. § 7514.
2. As a third-party appellant appealing the Department's approval of an Act 537 Plan revision, Gene Stocker bears the burden of proof. 25 Pa. Code § 1021.122(c)(2); Wilson v. DEP, 2015 EHB 644, 684; Del. Riverkeeper Network v. DEP, 2004 EHB 599.
3. Stocker did not prove by a preponderance of the evidence that the Department's approval of the Township's Special Study was not reasonable, appropriate, supported by the facts, or in accordance with the applicable law. Del. Riverkeeper Network v. DEP, 2018 EHB 447, 473; United Refining Co. v. DEP, 2016 EHB 442, 448, affd, 163 A.3d 1125 (Pa. Cmwlth. 2017); Shuey v. DEP, 2005 EHB 657, 691 (citing Zlomsowitch v. DEP, 2004 EHB 756, 780). 35
4. Stocker did not establish that the Special Study cannot be implemented. 25 Pa. Code § 71.32(d)(4).
5. Stocker did not establish that the Department violated Article I, Section 27 of the Pennsylvania Constitution in approving the Special Study. Pa. Const. art I, § 27; Pa. Envtl Def. Found. v. Cmwlth, 161 A.3d 911 (Pa. 2017); Del. Riverkeeper Network v. DEP, 2018 EHB 447, 493; Logan v. DEP, 2018 EHB 71, 115.
6. A municipality acts appropriately in sewage planning when it plans for future growth even in the absence of a land development plan. 35 P.S. § 750.5(d)(4); 25 Pa. Code §§ 71.2, 71.3, 71.11, 71.12(a).
7. Stocker did not establish that the Township's selected alternative was not technically, environmentally, or administratively acceptable. 25 Pa. Code §§ 71.21(a)(6), 71.61.
8. A municipality does not need to select the "best" or "most appropriate" alternative in its Act 537 Plan. Pine Creek Valley Watershed Ass'n v. DEP, 2016 EHB 748, 754; Wilson v. DEP, 2015 EHB 644, 673; Noll v. DEP, 2004 EHB 712, 721-22.
9. The Board is not the appropriate forum to resolve intermunicipal disputes that do not directly impact sewage planning. Borough of Kutztown v. DEP, 2016 EHB 80, 93; Force v. DEP, 1998 EHB 179, 189 (citing Cmty. Coll. of Del. Cnty. v. Fox, 342 A.2d 468 (Pa. Cmwlth. 1975)), affd, 977 CD. 1998 (Pa. Cmwlth. Dec. 30, 1998).
10. Benner Township provided adequate public notice of the Special Study. 25 Pa. Code § 7131(c); Ainjar Trust v. DEP, 2001 EHB 927, 984. 36
ORDER
AND NOW, this 18th day of November, 2022, it is hereby ordered that the Appellant's appeal is dismissed.
THOMAS W. RENWAND Chief Judge and Chairman, MICHELLE A. COLEMAN Judge, BERNARD A. LABUSKES, JR. Judge, STEVEN C. BECKMAN Judge 37