Del-Aware Unlimited, Inc. v. Pennsylvania Public Utility Com'n

• Decision Date: 13 August 1986
• Docket Number: DEL-AWARE
• Citation: 513 A.2d 593,99 Pa.Cmwlth. 634
• Parties: UNLIMITED, INC., Petitioner, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 593

513 A.2d 593

99 Pa.Cmwlth. 634

DEL-AWARE UNLIMITED, INC., Petitioner, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent.

Commonwealth Court of Pennsylvania.

Argued June 11, 1986.

Decided Aug. 13, 1986.

Robert J. Sugarman, Sugarman, Denworth, Hellegers, Philadelphia, for petitioner.

Christine B. Garvey, Louise A. Knight, Charles F. Hoffman, Harrisburg, Bernard Chanin, Pamela S. Goodwin, Wolf, Block, Schorr & Salis-Cohen, Philadelphia, for respondent.

Before CRUMLISH, Jr., President Judge, and CRAIG, MacPHAIL, BARRY and COLINS, JJ.

OPINION

CRUMLISH, JR., President Judge.

Once again, we must consider and dispose of a challenge to the construction of facilities to supply water for cooling a nuclear generating station in Limerick, Montgomery County, and meeting the citizens' requirements of Bucks and Montgomery Counties.

As before, we are obliged and intend to confine our consideration to the merits of the precise legal issues presented, despite the widespread public discussion and disagreement inspired by the construction. See Sullivan v. County of Bucks, 92 Pa.Commonwealth Ct. 213, 499 A.2d 678 (1985), and Del-AWARE Unlimited, Inc. v. Department of Environmental Resources, --- Pa.Commonwealth Ct. ---, 508 A.2d 348 (1986).

As we wrote in Sullivan and Del-AWARE, the purpose of the Point Pleasant water diversion project (project) is to construct a system by which Delaware River water could be withdrawn by the Point Pleasant Pumping Station and pumped through a combined transmission main to the Bradshaw Reservoir and Pump House (Bradshaw). From Bradshaw, the proposed site of which is Plumstead Township, Bucks County, (1) water for public use by Bucks and Montgomery Counties would travel through the north branch transmission main, discharge into the North Branch Neshaminy Creek and flow along the creek to the north branch water treatment plant where it would be pumped, in part, to the North Penn and North Wales Water Authorities and (2) supplemental cooling water for the Limerick nuclear generating station, owned by the Philadelphia Electric Company (PECO), would be pumped through the east branch transmission main, discharge into the East Branch Perkiomen Creek and flow along the creek to the Perkiomen Pump House where it would be withdrawn and pumped to Limerick. Supplemental cooling water is necessary because PECO is denied access to Schuylkill River water for several months each year. ¹

Del-AWARE Unlimited, Inc. (Del-AWARE), ² now appeals a Pennsylvania Public Utility Commission (PUC) order determining that the proposed site of the Bradshaw pumphouse is reasonably necessary for the convenience or welfare of the public, thus exempting it from local zoning ordinance provisions under Section 619 of the Pennsylvania Municipalities Planning Code (Code). ³

Our scope of review of a PUC decision is limited to a determination of whether an error of law has been committed, constitutional rights have been violated or any findings of fact are unsupported by substantial evidence. Norfolk and Western Railway Co. v. Pennsylvania Public Utility Commission, 489 Pa. 109, 413 A.2d 1037 (1980).

Del-AWARE contends that the PUC's finding that the proposed site of the Bradshaw pumphouse is reasonably necessary for the public convenience or welfare is unsupported by substantial evidence. Specifically, it avers that Bradshaw is not necessary because PECO's needs could be met by readily available, cheaper and less environmentally harmful alternatives to the diversion of Delaware River water. However, Section 619 pertinently provides that the Code shall not apply to a proposed public utility building if, upon petition of the utility, the PUC decides that its site is reasonably necessary for the public convenience or welfare. We do not interpret this provision as requiring the PUC to reevaluate the entire project. It merely directs the PUC to determine whether the site of the Bradshaw pumphouse is appropriate to further the public interest. ⁴ Our review of the record reveals substantial evidence supporting the PUC's finding of reasonable necessity for the site.

Del-AWARE also contends that the PUC did not properly review Bradshaw's environmental impact under PA. CONST. art. I § 27 pursuant to the three-prong test of Payne v. Kassab, 11 Pa.Commonwealth Ct. 14, 312 A.2d 86 (1973), aff'd, 468 Pa. 226, 361 A.2d 263 (1976). However, this Court has held that Section 27 cannot legally operate to expand the powers of a statutory agency. Borough of Moosic v. Pennsylvania Public Utility Commission, 59 Pa.Commonwealth Ct. 338, 429 A.2d 1237 (1981). The Moosic Court viewed this section as "self-executing only as it applies to the commission's regulation of a utility's own conduct which is within the ambit of the regulatory jurisdiction of the commission as created by statute and directly affects the environment." (Emphasis deleted; emphasis added.)

In this case, the PUC is empowered only to decide whether the proposed site of the Bradshaw pumphouse is reasonably necessary for the public convenience or welfare. Therefore, we hold that it may evaluate only the environmental impacts of placing the pumphouse at the proposed location. Although Del-AWARE argues that the PUC should have considered the impacts of (1) the pumphouse architecture and location on aesthetics, (2) noise from the pumphouse, (3) the Bradshaw reservoir and (4) the pumphouse and reservoir on the East Branch Perkiomen Creek, the Department of Environmental Resources (DER), as upheld by the Environmental Hearing Board (EHB), evaluated many of these environmental impacts ⁵ when...