Chillisquaque Creek Watershed Ass'n v. Sanitary Water Board , 2 Pa. Commw. 561 ( 1971 )

Opinion by

Judge Wilkinson,

This is an appeal from the adjudication of the Sanitary Water Board, predecessor of the Environmental Hearing Board, overruling appellants’ objections to the issuance to intervening appellee of a permit to discharge industrial waste from its proposed steam electric station into Chillisquaque Creek and directing the issuance of a permit when the Department of Environmental Resources is satisfied that intervening appellee has complied with all requirements of appropriate State governmental agencies relating to flood control. The permit was later issued, qualified by 16 standard conditions and seven special conditions.

The appeal is based on three basic propositions:

1. Granting this permit was an abuse of discretion by the Board without first establishing specific water quality criteria for Chillisquaque Creek;

2. Quantity as well as quality of the discharge should have been and was not considered by the Board;

3. Sufficient studies have not been made on which to issue a permit.

We cannot agree with the appellants’ position and, therefore, must dismiss this appeal.

Appellants do not direct us to any statutory requirement or court decision requiring the Board to establish specific water quality criteria prior to issuing a permit and we find none. Appellants state that such action is an abuse of the Board’s discretion. A careful review of the record satisfies us that, while appellants had competent evidence contra, there was more than ample competent evidence to support the Board’s third finding of fact that the discharge will meet applicable standards.

Appellants’ second point is simply factually inaccurate, from the record, from the adjudication, and, most importantly, from the special conditions of the permit. In the record and under the law as it existed at the time of the hearing, there was some confusion as to whether the Sanitary Water Board should concern itself with the possibility of flooding. In fact, it did concern itself with this most important aspect. The question of jurisdiction is now moot — under the new law, the Environmental Hearing Board has complete control. Act of December 3, 1970, P. L. , Act 275, §1921-A. (b), 71 P.S. 510-21. In this instance, the Sanitary Water Board, in its fourth finding of fact, found as a fact that the quantity of the discharge would not adversely affect the quality of the receiving waters. Finally, on the matter of flooding, special conditions provide that intervening appellee must conduct a study of possible flooding and if the study shows any adverse effects, including adverse effects on agricultural drainage, level of the water table, accessibility of stream crossings, etc., prompt steps are required to correct any such adverse effect.

Appellants’ last argument is equally without merit. It is true that if there were more time for studies, the permit could be issued with fewer than 23 conditions, one of which includes conducting continuing studies. However, these conditions more than cover all the doubts that appellants would have removed by studies. Indeed, one special condition requires that within six months, intervening appellee must submit to the Pennsylvania Department of Environmental Resources evidence of the efficiency and adequacy of the treatment, and if the treatment fails to meet all requirements, prompt measures must be taken to insure that the requirements will be met.

No good purpose would be served by here citing the long line of cases requiring our approval of an administrative board’s action when such action is based on competent evidence and does not constitute an abuse of discretion. The rationale of this line of cases is discussed at length by Chief Justice Stern in Blumenschein v. Pittsburgh Housing Authority, 379 Pa. 566, 109 A. 2d 331 (1954). Appellants do not contest this doctrine and appropriately do not cite a single case to support their position. This case turns entirely on the record of testimony offered which we find to more than amply justify the grant of the qualified permit here issued.

Appeal dismissed.