Del-Aware Unlimited, Inc. v. Com., Dept. of Environmental Resources

• Decision Date: 15 April 1986
• Docket Number: DEL-AWARE
• Citation: 96 Pa.Cmwlth. 361,508 A.2d 348
• Parties: UNLIMITED, INC. et al., Petitioners, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL RESOURCES, Respondent. FRIENDS OF BRANCH CREEK, INC. et al., Petitioners, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL RESOURCES, Respondent. PHILADELPHIA ELECTRIC COMPANY, Petitioner, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL RESOURCES, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 348

508 A.2d 348

96 Pa.Cmwlth. 361

DEL-AWARE UNLIMITED, INC. et al., Petitioners, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL

RESOURCES, Respondent.

FRIENDS OF BRANCH CREEK, INC. et al., Petitioners, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL

RESOURCES, Respondent.

PHILADELPHIA ELECTRIC COMPANY, Petitioner, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL

RESOURCES, Respondent.

Commonwealth Court of Pennsylvania.

Argued June 5, 1985.

Decided April 15, 1986.

John E. Flaherty, Jr., Lois Reznick, Cechert, Price & Rhoads, Philadelphia, for Neshaminy Water Resources Authority.

Troy B. Conner, Jr., Conner & Wetterhahn, Washington, D.C., for Philadelphia Elec. Co. pro hac vice granted.

Bernard Chanin, Pamela S. Goodwin, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, for Notice of Intervention.

Louise Thompson, Philadelphia, for Dept. of Environmental Resources.

Robin T. Locke, Robert J. Sugarman, Sugarman, Denworth & Hellegers, Philadelphia, for Del-Aware Unlimited, Inc. Notice of Intervention.

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

OPINION

CRUMLISH, Jr., President Judge.

For our consideration and disposition herein are various challenges to the resolution by the Environmental Hearing Board (EHB) of disputes surrounding the permits required to construct facilities to supply water for cooling a nuclear generating station in Limerick, Montgomery County, Pennsylvania, and meeting the citizens' requirements of Bucks and Montgomery Counties.

Again, we recognize that this construction has inspired widespread public discussion and disagreement. See Sullivan v. County of Bucks, 92 Pa.Commonwealth Ct. 213, 499 A.2d 678 (1985). Nonetheless, we are obliged and intend to confine our consideration to the merits of the legal issues presented.

As we wrote in Sullivan, 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 (pumping station) and pumped through a combined transmission main to the Bradshaw Reservoir and Pump House where (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 (NP) and North Wales (NW) 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

The Department of Environmental Resources (DER) granted all permits necessary to commence construction. Del-AWARE Unlimited, Inc. (Del-AWARE), appealed this decision to EHB. Friends of Branch Creek, Inc. (Friends of Branch Creek), then intervened. ² Although EHB upheld DER's decision in part, it remanded to DER requiring (1) National Pollutant Discharge Elimination System (NPDES) permits for diversion of water from the Delaware River into the North Branch Neshaminy and East Branch Perkiomen Creeks, (2) that the need for the project be balanced against the impact of erosion on the receiving streams if the velocities in the streams cannot be reduced to 2.0 feet per second (fps) and (3) that PECO's permit be conditioned on a cutoff when the water flows measured at the Bucks Road Gauge exceed 125 cubic feet per second (cfs). ³

Our scope of review of an EHB 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. Einsig v. Pennsylvania Mines Corp., 69 Pa.Commonwealth Ct. 351, 452 A.2d 558 (1982).

NO. 2240 C.D. 1984

Del-AWARE appeals that portion of the EHB order ⁴ upholding DER's grant of various permits ⁵ to PECO and the Neshaminy Water Resources Authority (NWRA).

Del-AWARE first contends that EHB violated its constitutional due process right to a full, fair and impartial hearing ⁶ by curtailing its presentation of evidence on aesthetic impact, alternative water supplies and adverse environmental effects merely to insure the hearing examiner's timely departure from the Board. ⁷ It argues that the hearing examiner improperly excluded the direct testimony of seven of its witnesses. ⁸ However, our review of the record reveals substantial evidence to support EHB's conclusion that this proffered testimony was either cumulative, speculative or irrelevant and, therefore, had no likelihood of causing it to alter the findings of fact in its adjudication. ⁹ We therefore hold that EHB did not abuse its discretion by limiting Del-AWARE's presentation of such evidence. 25 Pa.Code § 21.90. ¹⁰ See also Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (trial judge may refuse to allow cumulative, repetitive or irrelevant testimony). It also argues that EHB improperly cut short the testimony of one of its rebuttal witnesses, excluded that of another and denied its oral and written motions for reopening and rebuttal. However, we hold that, in rejecting Del-AWARE's proffered rebuttal, EHB did not abuse its discretion by excluding this rebuttal evidence because it could have been presented during the case in chief. See Downey v. Weston, 451 Pa. 259, 301 A.2d 635 (1973). ¹¹

Secondly, Del-AWARE contends that DER failed to adequately consider the pumping station's impact on the natural, scenic, historic and aesthetic features ¹² of the Delaware Canal (canal)/Roosevelt State Park (park) and surrounding Point Pleasant historic district (historic district).

Del-AWARE asserts that DER must explicitly find an "overriding public necessity" for allowing the intake pipeline to cross under the Commonwealth-owned canal. ¹³ It argues that this was not done because DER (1) at most made an implicit finding of necessity, (2) incorrectly assumed that the conclusion that the canal must be crossed was inherent in its initial decision to approve the project and (3) failed to inquire as to (a) alternative locations or (b) methods to minimize the pumping station's intrusiveness. We reject these arguments. The relevant statutes ¹⁴ merely require that DER determine that a service line is (1) necessary for public service and (2) at least reasonably required to cross Commonwealth land, before it grants a right-of-way through Commonwealth lands. Moreover, we discern nothing to indicate that DER's determination must take the form of an explicit finding. It appears from the record that (1) DER did not err by declining to consider alternative locations for the pipeline because, given the location of the property on which the pumping station would be built, there were no logical/feasible alternatives and (2) the initial approval of the project by DER necessarily involved a right-of-way across the canal. More conclusively, however, our review of the record reveals substantial evidence in support of EHB's conclusion that DER's finding, that the intake pipeline was necessary and was reasonably required to cross Commonwealth land, was implicit in its decision to grant the right-of-way. Finally, we hold that EHB reasonably concluded that construction of the intake will not adversely affect the canal and that the right-of-way will involve minor patch-up work which would cause no permanent deleterious effect to Commonwealth land. ¹⁵

Del-AWARE also asserts that DER gave no consideration to the actual aesthetic impacts of the pumping station on the park and the historic features of Point Pleasant Village, which is visible from and integral to the park. It argues that DER thus failed to render a decision, balancing environmental and social concerns pursuant to PA. CONST. art. I, § 27, which would pass the three-prong test set forth in Payne v. Kassab, 11 Pa.Commonwealth Ct. 14, 312 A.2d 86 (1973), aff'd, 468 Pa. 226, 361 A.2d 263 (1976). ¹⁶ Specifically, it complains that DER's only expert, by restricting his consideration to the aesthetic impact of structures and occurrences within the park's boundaries, precluded any evaluation of the dominating visual effect of the nearby pumping station on the park and historic district. Also, it claims that EHB improperly found that DER examined a full set of drawings, showing evaluations and landscaping plans for the pumping station, alleging that these drawings fail to depict a parking lot, transformer pad and twenty-foot embankment. Although DER admits that the pumping station's aesthetic effect on the park and historic district was not considered by its expert, it contends that EHB correctly found that DER lawfully relied on reviews of the pumping station by the Pennsylvania Historical and Museum Commission, Corps of Engineers and the Nuclear Regulatory Commission (NRC), all of which found that the pumping station would be compatible with the park and historic district. ¹⁷ We agree. Although this Court, in Community College of Delaware County v. Fox, 20 Pa.Commonwealth Ct. 335, 342 A.2d 468 (1975), held that DER may not second-guess the propriety of decisions properly made by other agencies while conducting its own constitutionally mandated evaluation of environmental concerns, it did not prohibit DER from considering the relevant findings of other agencies while engaged in such a review. ¹⁸ Moreover, we cannot say that the drawings were not reasonably accurate, even if the alleged deficiencies did exist.

Del-AWARE's third contention is that EHB erred by finding that DER adequately considered the withdrawal of...