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COMMONWEALTH PENNSYLVANIA v. PRECISION TUBE CO. (05/28/76)

decided: May 28, 1976.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES AND COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION
v.
PRECISION TUBE CO., INC., APPELLANT



Appeal from the Order of the Environmental Hearing Board in case of In the Matter of: Precision Tube Co., Inc., dated August 29, 1975, Docket No. 74-271-W.

COUNSEL

Michael Sklaroff, with him Peter R. Pinney, James D. Crawford, J. Pennington Straus, and, of counsel, Schnader, Harrison, Segal & Lewis, for appellant.

Maxine Woelfling, Assistant Attorney General, for appellee.

John M. Hrubovcak, Assistant Attorney General, with him Gregory S. Ghen, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for intervening appellee.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 24 Pa. Commw. Page 649]

Precision Tube Co., Inc. (Appellant) appeals to us from an adjudication of the Environmental Hearing Board (Board). The Department of Environmental Resources (DER) granted two water obstruction permits to the Pennsylvania Department of Transportation (PennDOT) for the construction of culverts for a highway crossing over the Wissahickon Creek (Creek).

Although it did not overturn the original permits, the Board prohibited PennDOT from proceeding with any construction which did not conform to the plans approved in the original permits and remanded the matter to DER to consider PennDOT's proposed amendments to the permits.

The permits involved were issued to PennDOT in 1971 to construct stream crossings for the North Penn Expressway in Montgomery County. Permit DH 14159 authorized construction of a bridge over the Creek in Upper Gwynedd Township. Permit DH 14153 authorized the construction of culverts and channel changes in the Creek. Both permits specified that PennDOT must comply with criteria established by the then Water and Power Resources Board for the control of erosion and water pollution. It is the latter permit (Permit DH 14153) with which we are concerned in this appeal.

The specifications for the culverts as originally proposed by PennDOT in its permit application called for two box-type reinforced concrete culverts each with an opening of 16 feet by 10 feet. The lengths of the proposed culverts were to be 60 feet and 400 feet. The permit was granted based upon these specifications. Although PennDOT has apparently made no effort to modify the permit, it now plans to construct the culverts in such a way that their lengths will be 82 feet and 413 feet, respectively.

PennDOT's plans also call for pipes which will carry storm water runoff from the proposed highway into the

[ 24 Pa. Commw. Page 650]

Creek. No permits have been obtained for these ...


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