WATERS, Chairman,
On November 23, 1977, the Department of Environmental Resources (DER) issued an order which [160]*160prohibited appellant, City of Lancaster, hereinafter “City,” from allowing further connections to the municipal sewage treatment plant, which the DER had determined to be hydraulically overloaded. Appellant moved for summary judgment on two grounds: first, that under the doctrine of Federal preemption the DER and this board are bound by the determination of plant capacity contained in appellant’s National Pollutant Discharge Elimination System (NPDES) permit; second, that regulation 94.21(3) prohibiting sewer connection “except as approved by the department” is unreasonable and invalid in light of regulations governing the imposition of sewer bans. The second issue raised by appellant has also been raised in a number of recent appeals from “prohibitions” issued by the department.1 Oral argument on appellant’s motion was held March 6, 1978.
We do not agree with appellant’s first contention, but as we do agree with appellant’s second contention, we deem it unnecessary to discuss the first except to say that the dispute as to plant capacity, to the extent that it remains an issue, will have to be resolved after hearing at which the capacity set forth in the NPDES permit may be offered as evidence.2 Although disputed, we will assume, for the [161]*161purpose of disposing of the motion before us, that the DER’s figures are accurate and that the permit limitation is 9.49 million gallons per day (mgd). Indeed, appellant does not deny that this figure has consistently been exceeded.
The aforesaid prohibition order was issued pursuant to a regulation promulgated by the Environmental Quality Board and adopted on October 25, 1977. The regulation in question, 25 Pa. Code §94.21, 7 Pa. Bull. 1380 (1977), provides among other things that if the department determines that either the hydraulic or organic load on the sewerage facilities is exceeding the capacity provided in the permit, then the permittee shall:3 “(3) Prohibit new extensions of or connections to the sewer system tributary to the overloaded sewerage facilities except as approved by the Department.”
[162]*162It is clear that the DER can employ the above regulation to stop further sewer connections without the necessity of imposing a sewer ban which is provided for under Regulation 25 Pa. Code §94.33. In order to impose a sewer ban, the law provides that:
“(b) The Department will publish the order imposing the ban in one newspaper of general circulation in the area affected by the ban beginning no later than 48 hours after the imposition of the ban or as soon thereafter as publication schedules allow for a period of two consecutive weeks. The Department will publish the order imposing the ban, following imposition of the ban, once in the Pennsylvania Bulletin, provided, however, that failure or delay in so publishing by the Department shall not in any way affect the date of imposition or validity of the ban.
“(c) The Department, at the time of imposition of the ban, will give notice of the ban to any governmental entity which issues building permits in the area of the ban. No building permit which may result in a connection to the sewer system or increase the waste load to that system shall be issued by such governmental entity after the ban is effective; provided, however, that failure or delay in such notification shall not, in any way, affect the date of imposition or validity of the ban.”
We wonder why the DER would ever bother to impose a sewer ban when the same ends could be [163]*163reached by simply imposing a prohibition? No satisfactory answer has been forthcoming.
Intervenor, Home Builders Association of Lancaster County, has raised a question about the constitutionality of the DER’s action under the due process clause. It is true that section 1921-A of the Administrative Code of April 29, 1929, P.L. 177, as amended, 71 P.S. §510-21, does require that no DER action shall be final as to a person “. . . until such person has had the opportunity to appeal such action to the Environmental Hearing Board.” (Emphasis supplied.) Clearly, the due process requirements are met when intervenor came before the board to contest the DER’s action. This opportunity was immediately available: Com. v. Borough of Carlisle, 16 Pa. Commonwealth Ct. 341, 330 A. 2d 293 (1974); and Com. v. Derry Township, 10 Pa. Commonwealth Ct. 619, 134 A. 2d 868 (1973).
The real problem that we find with §94.21(3) is the fact that it, in effect, delegates unlimited discretion to the department to do what it must do according to articulated standards under §94.31 and other regulations contained in Chapter 94. Regulation 94.21(3) therefore appears to us to be unreasonable and invalid on its face. If the department determines that an organic or hydraulic overload exists, it may impose the sewer ban under §94.31 or, it appears, it may prohibit connections except as approved by it under §94.21(3). In order to impose a ban under §94.31 the department must find that one or more of thrée conditions exist.4 [164]*164Under §94.21(3), there are no guidelines for the imposition of a prohibition other than the existence of the same hydraulic overload that is an occasion for the imposition of a ban under §94.31. Thus, there is no discernable basis for an affected party to seek redress for an arbitrary decision. If the DER decides to lift or not to lift a prohibition, to grant or not grant an exception, a party is in the position of not knowing what, if anything, can be done to insure some relief. No doubt the board could simply read the regulations together and construe §94.21 as incorporating the provisions of §94.31, §94.55 and §94.56. This, however, was clearly not the intention of the Environmental Quality Board, and we will not construe a regulation in a manner we know was not intended. Secondly, we could write in limitations as we were forced to do in developing case law around the sewer ban orders issued prior to the promulgation of these regulations, incorporating what we deemed to be the minimal requirements to pass the test of reasonableness: [165]*165Com. v. Borough of Carlisle, 16 Pa. Commonwealth Ct. 341 (1974), supra; Com. v. East Pennsboro Township, EHB Docket no. 73-287, aff'd 18 Pa. Commonwealth Ct. 58, 334 A. 2d 798 (1975); Com. v. Bitner, EHB Docket no. 73-154-W, issued December 12, 1973. We are not so disposed.
The DER argues that a “prohibition”as opposed to a “ban” gives it more flexibility to approve connections under certain conditions such as an agreed-upon reduction of flow. However, in response to questions at oral argument as to how the DER would exercise its discretion in considering requests for exceptions to a “prohibition,” the considerations stated seemed to be the same as those set forth for modification and removal of a ban under Regulations 94.41 and 94.42. After the imposition of a sewer ban, there are specific provisions for modifications or removal thereof.5 One such [166]
Free access — add to your briefcase to read the full text and ask questions with AI
WATERS, Chairman,
On November 23, 1977, the Department of Environmental Resources (DER) issued an order which [160]*160prohibited appellant, City of Lancaster, hereinafter “City,” from allowing further connections to the municipal sewage treatment plant, which the DER had determined to be hydraulically overloaded. Appellant moved for summary judgment on two grounds: first, that under the doctrine of Federal preemption the DER and this board are bound by the determination of plant capacity contained in appellant’s National Pollutant Discharge Elimination System (NPDES) permit; second, that regulation 94.21(3) prohibiting sewer connection “except as approved by the department” is unreasonable and invalid in light of regulations governing the imposition of sewer bans. The second issue raised by appellant has also been raised in a number of recent appeals from “prohibitions” issued by the department.1 Oral argument on appellant’s motion was held March 6, 1978.
We do not agree with appellant’s first contention, but as we do agree with appellant’s second contention, we deem it unnecessary to discuss the first except to say that the dispute as to plant capacity, to the extent that it remains an issue, will have to be resolved after hearing at which the capacity set forth in the NPDES permit may be offered as evidence.2 Although disputed, we will assume, for the [161]*161purpose of disposing of the motion before us, that the DER’s figures are accurate and that the permit limitation is 9.49 million gallons per day (mgd). Indeed, appellant does not deny that this figure has consistently been exceeded.
The aforesaid prohibition order was issued pursuant to a regulation promulgated by the Environmental Quality Board and adopted on October 25, 1977. The regulation in question, 25 Pa. Code §94.21, 7 Pa. Bull. 1380 (1977), provides among other things that if the department determines that either the hydraulic or organic load on the sewerage facilities is exceeding the capacity provided in the permit, then the permittee shall:3 “(3) Prohibit new extensions of or connections to the sewer system tributary to the overloaded sewerage facilities except as approved by the Department.”
[162]*162It is clear that the DER can employ the above regulation to stop further sewer connections without the necessity of imposing a sewer ban which is provided for under Regulation 25 Pa. Code §94.33. In order to impose a sewer ban, the law provides that:
“(b) The Department will publish the order imposing the ban in one newspaper of general circulation in the area affected by the ban beginning no later than 48 hours after the imposition of the ban or as soon thereafter as publication schedules allow for a period of two consecutive weeks. The Department will publish the order imposing the ban, following imposition of the ban, once in the Pennsylvania Bulletin, provided, however, that failure or delay in so publishing by the Department shall not in any way affect the date of imposition or validity of the ban.
“(c) The Department, at the time of imposition of the ban, will give notice of the ban to any governmental entity which issues building permits in the area of the ban. No building permit which may result in a connection to the sewer system or increase the waste load to that system shall be issued by such governmental entity after the ban is effective; provided, however, that failure or delay in such notification shall not, in any way, affect the date of imposition or validity of the ban.”
We wonder why the DER would ever bother to impose a sewer ban when the same ends could be [163]*163reached by simply imposing a prohibition? No satisfactory answer has been forthcoming.
Intervenor, Home Builders Association of Lancaster County, has raised a question about the constitutionality of the DER’s action under the due process clause. It is true that section 1921-A of the Administrative Code of April 29, 1929, P.L. 177, as amended, 71 P.S. §510-21, does require that no DER action shall be final as to a person “. . . until such person has had the opportunity to appeal such action to the Environmental Hearing Board.” (Emphasis supplied.) Clearly, the due process requirements are met when intervenor came before the board to contest the DER’s action. This opportunity was immediately available: Com. v. Borough of Carlisle, 16 Pa. Commonwealth Ct. 341, 330 A. 2d 293 (1974); and Com. v. Derry Township, 10 Pa. Commonwealth Ct. 619, 134 A. 2d 868 (1973).
The real problem that we find with §94.21(3) is the fact that it, in effect, delegates unlimited discretion to the department to do what it must do according to articulated standards under §94.31 and other regulations contained in Chapter 94. Regulation 94.21(3) therefore appears to us to be unreasonable and invalid on its face. If the department determines that an organic or hydraulic overload exists, it may impose the sewer ban under §94.31 or, it appears, it may prohibit connections except as approved by it under §94.21(3). In order to impose a ban under §94.31 the department must find that one or more of thrée conditions exist.4 [164]*164Under §94.21(3), there are no guidelines for the imposition of a prohibition other than the existence of the same hydraulic overload that is an occasion for the imposition of a ban under §94.31. Thus, there is no discernable basis for an affected party to seek redress for an arbitrary decision. If the DER decides to lift or not to lift a prohibition, to grant or not grant an exception, a party is in the position of not knowing what, if anything, can be done to insure some relief. No doubt the board could simply read the regulations together and construe §94.21 as incorporating the provisions of §94.31, §94.55 and §94.56. This, however, was clearly not the intention of the Environmental Quality Board, and we will not construe a regulation in a manner we know was not intended. Secondly, we could write in limitations as we were forced to do in developing case law around the sewer ban orders issued prior to the promulgation of these regulations, incorporating what we deemed to be the minimal requirements to pass the test of reasonableness: [165]*165Com. v. Borough of Carlisle, 16 Pa. Commonwealth Ct. 341 (1974), supra; Com. v. East Pennsboro Township, EHB Docket no. 73-287, aff'd 18 Pa. Commonwealth Ct. 58, 334 A. 2d 798 (1975); Com. v. Bitner, EHB Docket no. 73-154-W, issued December 12, 1973. We are not so disposed.
The DER argues that a “prohibition”as opposed to a “ban” gives it more flexibility to approve connections under certain conditions such as an agreed-upon reduction of flow. However, in response to questions at oral argument as to how the DER would exercise its discretion in considering requests for exceptions to a “prohibition,” the considerations stated seemed to be the same as those set forth for modification and removal of a ban under Regulations 94.41 and 94.42. After the imposition of a sewer ban, there are specific provisions for modifications or removal thereof.5 One such [166]*166provision permits the DER to lift the ban if steps have been taken which have resulted in “the reduction of the actual loading to less than the capacity provided in the permit....” We note that there is no similar provision for lifting a “prohibition.” Further, we note that a sewer ban may be modified if it appears that the actual capacity of the plant is greater than indicated on the permit and steps are being taken for an amendment to the permit. Again, there is no such provision extended to cover a party foreclosed by a prohibition under §94.21 from connecting to a sewer system. Finally, a ban may be modified where there is no danger to the public health and there is a “public need” for the proposed new connections coupled with a program for reduction of the overload. No related provision applies to a sewer connection prohibition. There is even a priority system for allowing such modifications of sewer bans.6 The most glaring shortcoming in §94.21 is the fact that it provides for no exception — not even the standard ones where a [167]*167building permit has previously been obtained or where the new source is on the same property, replacing an old one.7
It is now beyond dispute that in order for a rule or regulation promulgated by an administrative agency to be valid and enforceable, it must be reasonable: Erie Lighting Co. v. Pa. Public Utility Commission, 131 Pa. Superior Ct. 190, 198 Atl. 901 (1938). In Jenkins Unemployment Comp. Case, 162 Pa. Superior Ct. 49, 56 A. 2d 686 (1948), the Superior Court, in a per curiam opinion, said: “The exercise by an administrative agency of its rule-making function is however subject to various limitations arising out of the fact that the authority is a delegated legislative power, and one indispensable requirement is that the regulation shall be reasonable. 42 Am. Jur. ‘Public Administrative Law,’ §100.” The authority to review regulations to determine their reasonableness arises not from any specific constitutional or statutory provision, but rather from the inherent review power of courts: Penn Anthracite Min. Co. v. Delaware & H. R. Corp., 16 F. Supp. 732 (M.D. Pa. 1936), aff'd 91 F. 2d 634 (3d Cir. 1937), cert. denied 58 S. Ct. 283. This is well stated in 1 P.L.E. 348, §84. “Generally, the determination of an administrative officer or body is subject to review to ascertain whether the action taken is arbitrary, unreasonable, capricious [168]*168or unlawful, since the courts exercise a supervisory capacity to protect parties from an arbitrary and capricious exercise of authority.”8
In order to be valid, a rule or regulation should be uniform in operation: Com. Tr. Co. v. First Nat. Bk. of New Kensington, 84 D. & C. 421 (1953). It should be reasonable: Pa. R. Co. v. Driscoll, 336 Pa. 310, 9 A. 2d 621 (1939); Phila. v. Pa. P.U.C., 164 Pa. Superior Ct. 96, 63 A. 2d 391 (1949); and not arbitrary or violative of a statute: Robeson v. Phila. Tax Review Bd., 13 Pa. Commonwealth Ct. 513, 319 A. 2d 201 (1974); or violative of any constitutional provision: Bortz Coal Co. v. DER, 7 Pa. Commonwealth Ct. 362, 299 A. 2d 670 (1973). We are unable to say that 25 Pa. Code §94.21(3) is reasonable when read in the light of §94.31 and the other sewer ban provisions.
We believe the regulation in question can stand if it is construed as a method of giving notice to a municipality or sewer authority that the DER believes it to have a hydraulic overload. If the party notified agrees with this determination it can then take immediate steps to reduce the load and, concurring in the findings of the DER, it can properly prohibit further sewer connections. If, however, as in this case, there is a dispute about the applicability of a prohibition, it can refuse to prohibit further connections unless or until the DER issues a sewer [169]*169ban pursuant to its regulations or takes other legal means9 to accomplish that end.
As the DER’s letter of November 23, 1977, contained a direction to appellant to comply with all of the requirements of §94.21, including the filing of a plan to reduce hydraulic overload, the granting of appellant’s motion for summary judgment on the question of the validity of §94.21(3), does not entirely dispose of this appeal. To the extent that a dispute remains as to appellant’s obligations under §94.21(1) and (2), the appeal is continued and will be scheduled for hearing.
ORDER
And now, April 10,1978, after argument and due consideration of a motion for summary judgment filed on behalf of appellants in the above-captioned matters, the same is hereby granted.