Environmental Hearing Board Revokes Sewage Planning Exemption Issued for Apartment Complex in Kutztown, PA

January 2015Articles In the Zone

In Borough of Kutztown and Kutztown Municipal Authority v. Com. of Penna. DEP, Maxatawny Twp. and Advantage Point, LP, EHB Docket No. 2014-064-L decided December 16, 2014, the Pennsylvania Environmental Hearing Board (EHB) overturned a Pennsylvania Department of Environmental Protection (DEP) approval of a request for an Act 537 sewage facilities planning exemption for new land development, finding the DEP approved the request without the necessary certification of capacity from the local sewage authority.

A developer was proposing three apartment buildings containing 337 units with a clubhouse. The development was expected to discharge 69,000 gallons per day of sewage into Maxatawny Township’s sewer line, where it would flow into a 20-inch interceptor line owned by Kutztown Borough, and thereafter to a sewer plant operated by the Maxatawny Township Municipal Authority. There was an Inter-Municipal Agreement that governed Maxatawny’s use of the interceptor. Disputes had arisen over the Inter-Municipal Agreement, and Kutztown took the position that Maxatawny could not use the interceptor to convey sewage from the apartment development, because the Inter-Municipal Agreement was no longer viable.

When Maxatawny submitted its exemption request, it did not include a written certification from Kutztown. The DEP then sent an incompleteness letter attaching a blank certification form. Maxatawny had received a letter from Kutztown’s engineer, in which he noted that the interceptor could handle the additional sewage, but he questioned whether Maxatawny had legal authority to use the interceptor because the Inter-Municipal Agreement was in litigation. The apartment developer sent a copy of the engineer’s letter to DEP and asked if it could serve as the required certification. The DEP treated the letter as a written certification of capacity and granted the exemption. Kutztown then appealed to the EHB.

The EHB found that “the requirement to obtain a certification [of capacity] is mandatory,” and DEP “may not ignore the regulatory requirement for a certification from the permittee even if the department independently determines that capacity is available.” It held that Section 71.51(b)(2) requires both a DEP finding and an explicit written certification from the permittee of present and future capacity, and that neither requirement can be waived.

Further, the EHB said it is not DEP’s or the EHB’s role “to scrutinize the permittee’s motivation in withholding its certification.” Here, the EHB found that Kutztown withheld its certification to use its interceptor and that whether Kutztown was acting unreasonable or unfair was irrelevant for purposes of Chapter 71. As a result, the EHB found DEP acted unlawfully and it revoked the planning exemption, finding that the engineer’s letter “was not a certification” from Kutztown that could be relied upon by DEP.

So, the takeaway is that in all instances, a written certification is needed from the entity controlling an interceptor or sewer authority, and nothing short of an actual written certification can be accepted as proof of capacity by DEP.

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