Appeal from the Order of the Pennsylvania Public Utility Commission in the case of In Re: Petition of Equitable Gas Company for allocation of costs incident to relocating its pipelines in Collier Township, Allegheny County, Pennsylvania, occasioned by construction of the Chartiers Valley District Flood Control Project, Petition No. P-78010124.
Lawrence B. Nydes, with him Jack F. Aschinger, for petitioner.
Gary D. Cohen, Assistant Counsel, with him Joseph J. Malatesta, Jr., Chief Counsel, for respondent.
T. P. Shearer, with him George D. Wenick, for intervenor Chartiers Valley District Flood Control Authority.
Timothy F. Nicholson, for intervenor, Pennsylvania Gas Association.
President Judge Crumlish, Jr. and Judges Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers. Judge Palladino did not participate in the decision in this case.
[ 65 Pa. Commw. Page 389]
We are asked to review the Pennsylvania Public Utility Commission's determination that it has no power to allocate to a municipal authority the costs sustained by a public utility in relocating its facilities, on account of a flood control project, from a public highway right-of-way to a newly constructed bridge replacing that portion of the highway previously occupied.
The Chartiers Valley Flood Control Authority in concert with the Pennsylvania Department of Environmental Resources and the United States Army Corps of Engineers determined the necessity of constructing an artificial "cut-off" channel designed to direct the flow of flood stage waters of the Chartiers Creek as part of a $20 million dollar flood control project benefiting the citizens of Washington and Allegheny Counties. This channel was to be so located as to require the replacement with bridges of portions of Legislative Route 50 and Steen Road in Collier Township, Allegheny County. Two gas pipelines owned by the Equitable Gas Company and located within the highway
[ 65 Pa. Commw. Page 390]
right-of-way at the locations of the proposed bridge structures were required by the flood control plan to be relocated onto the bridges at a cost of over $52,000.00.
In January, 1978, Equitable made application to the Commission for an order requiring the flood control authority to bear the relocation costs. The Commission treated this application as a Petition for Allocation of Costs and assigned the matter to an administrative law judge. The authority moved to dismiss the petition for lack of subject matter jurisdiction in the Commission and the administrative law judge recommended that the motion be granted. The Commission failed to adopt this recommendation and remanded the matter for further proceedings including an allocation of costs.
On remand the administrative law judge recommended the allocation of all relocation costs to the authority and, following the filing of exceptions by the Commission's trial staff, the Commission again failed to adopt this recommendation and remanded the matter for further proceedings including the receipt of evidence on the issue of the identity of those classes of individuals to be benefited by the flood control project. An evidentiary hearing was held in November, 1979, and, on the basis of evidence and argument there presented, the administrative law judge entered an initial decision holding that the Commission was, in the instant factual context, without power to allocate the utility relocation costs among the parties to the proceedings and ordering ...