decided: April 15, 1986.
DEL-AWARE UNLIMITED, INC. ET AL., PETITIONERS
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
Appeals from the Orders of the Environmental Hearing Board in the cases of Del-AWARE Unlimited, Inc. et al. v. Commonwealth of Pennsylvania, Department of Environmental Resources and Neshaminy Water Resources Authority and Philadelphia Electric Company, E.H.B. Docket Nos. 82-177-H and 82-219-H, dated June 18, 1984, and Docket Nos. 82-219-G and 82-177-G, dated August 30, 1984, amended September 7, 1984.
Robert J. Sugarman, with him, Robin T. Locke, Sugarman, Denworth & Hellegers, for petitioners, Del-AWARE Unlimited, Inc. et al.
James M. Neill, Hartzel and Bush, for petitioners, Friends of Branch Creek, Inc. et al.
Troy B. Conner, Jr., with him, Robert M. Rader, Conner & Wetterhahn, P.C. ; Of Counsel: Edward G. Bauer, Jr., and Eugene J. Bradley, and Bernard Chanin, with him, Pamela S. Goodwin, Wolf, Block, Schorr and Solis-Cohen, for petitioner/intervenor, Philadelphia Electric Company.
Louise S. Thompson, for respondent.
President Judge Crumlish, Jr., and Judges Rogers, Craig, MacPhail, Doyle, Barry and Colins. Opinion by President Judge Crumlish, Jr. Judge Colins dissents. Judge Palladino did not participate in the decision in this case.
[ 96 Pa. Commw. Page 363]
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,
[ 96 Pa. Commw. Page 364]
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of the Point Pleasant water diversion project (project) is to construct a system by which Delaware River water could be withdrawn by the Point Pleasant Pumping Station (pumping station) and pumped through a combined transmission main to the Bradshaw Reservoir and Pump House where (1)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.*fn1
[ 96 Pa. Commw. Page 365]
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.*fn2 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).*fn3
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*fn4 upholding DER's grant of various permits*fn5 to PECO
[ 96 Pa. Commw. Page 366]
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*fn6 by curtailing its presentation of evidence
[ 96 Pa. Commw. Page 367]
on aesthetic impact, alternative water supplies and adverse environmental effects merely to insure the hearing examiner's timely departure from the Board.*fn7 It argues that the hearing examiner improperly excluded the direct testimony of seven of its witnesses.*fn8 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.*fn9 We therefore hold
[ 96 Pa. Commw. Page 368]
that EHB did not abuse its discretion by limiting Del-AWARE's presentation of such evidence. 25 Pa. Code § 21.90.*fn10 See also Geders v. United States, 425 U.S. 80 (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).*fn11
[ 96 Pa. Commw. Page 369]
Secondly, Del-AWARE contends that DER failed to adequately consider the pumping station's impact on the natural, scenic, historic and aesthetic features*fn12 of the
[ 96 Pa. Commw. Page 370]
Delaware Canal (canal)/Roosevelt State Park (park) and surrounding Point 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.*fn13 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*fn14 merely require that DER determine
[ 96 Pa. Commw. Page 371]
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.*fn15
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
[ 96 Pa. Commw. Page 372]
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).*fn16 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
[ 96 Pa. Commw. Page 373]
and historic district.*fn17 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.*fn18 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 supplemental cooling water for the Limerick nuclear generating station from Blue Marsh Reservoir (Blue Marsh) as an alternative to diverting Delaware River water. It bases this contention on DER's admitted failure to consider Blue Marsh among the alternatives evaluated in its Environmental Assessment of the project. DER only reviewed Blue Marsh when pressed by Del-AWARE during the EHB hearings. We reject this contention. When reviewing permit applications, DER's pertinent regulation, 25 Pa. Code § 105.14(b)(7),*fn19
[ 96 Pa. Commw. Page 374]
requires it to consider only alternatives which are " available to minimize the adverse impact of the project upon the environment." (Emphasis added.) We are convinced by our review of the record that DER's omission of Blue Marsh from its Environmental Assessment was based on its reasonable conclusion that Blue Marsh was not an "available" or environmentally superior alternative. Moreover, there is substantial evidence to support EHB's conclusion that Blue Marsh is not a viable alternative due to its technical unfeasibility as an alternative supplemental cooling water source for even one unit at Limerick,*fn20 the legal impediments to the use of Blue Marsh*fn21 and the unfairness of giving all the unallocated water from the sole substantial reservoir on the Schuylkill River to one consumptive user.
Del-AWARE next contends that although EHB correctly ruled that NPDES permits were required for discharges into the North Branch Neshaminy and East Branch Perkiomen Creeks, it improperly ignored DER's coordinated permit review policy by remanding
[ 96 Pa. Commw. Page 375]
solely for acquisition of NPDES permits instead of vacating all the permits granted by DER and ordering an entirely new coordinated review.*fn22 We disagree. As EHB noted, nothing in the regulations governing the NPDES program requires coordinated review.*fn23 Moreover, DER naturally did not coordinate a pursuit of NPDES permits with its review of all other permits because it concluded that NPDES permits were not required. Our review of the record reveals nothing to indicate that vacating all the permits in question for a coordinated review with NPDES permits would significantly enhance DER's review. Although we do not advocate "piecemeal" review, there is no requirement of totally coordinated review and we do not believe that the drastic, impractical, and time consuming action requested by Del-AWARE is an appropriate way to enforce DER's laudable policy.
Del-AWARE's final contention is that EHB improperly relied on the findings and conclusions in a non-final NRC*fn24 Atomic Safety Licensing Board decision, concerning
[ 96 Pa. Commw. Page 376]
the impacts of the project's intake on fisheries resources at Point Pleasant, in reviewing DER's related environmental findings. We disagree. The record reveals no blind adoption of NRC's conclusions as to the impacts on the Delaware's aquatic life.*fn25 Indeed, Del-AWARE admits that at least some of EHB's findings were buttressed with factual details from other sources. As was the case regarding DER's use of findings by other agencies, we discern nothing prohibiting EHB from considering NRC's findings when evaluating the adequacy of DER's determination.
No. 2114 C.D. 1984
Friends of Branch Creek appeals that portion of the EHB order permitting high water velocities in the East Branch Perkiomen Creek (East Branch), caused by the discharge of Delaware River water from the east branch transmission main. The order authorized velocities of 2.0 fps or less in the East Branch and allowed even greater velocities if the benefits to be derived from the project clearly outweigh the quantified erosion damage, after mitigation, to the East Branch.
Friends of Branch Creek first contends that EHB's finding that no erosion will be caused by increased water velocities of 2.0 fps or less is not supported by substantial evidence. Specifically, it argues that EHB inappropriately considered evidence pertaining to aged canals*fn26 in arriving at an acceptable water velocity for
[ 96 Pa. Commw. Page 377]
the irregularly shaped and turbulent East Branch. We disagree. Our review of the record reveals substantial evidence supporting the Board's finding that the East Branch (1) in fact resembles an aged canal rather than a new one and (2) is principally shaped by floods with velocities as high as 7 to 10 fps.
Secondly, Friends of Branch Creek contends that the Payne cost-benefit analysis EHB imposed upon DER, for allowance of water velocities over 2.0 fps, fails to sufficiently protect the riparian rights of downstream landowners. It specifically argues that EHB provided this protection because it erroneously accepted DER's permit evaluation which was based on its regulations for stream crossings, outfalls and headwalls (which require that DER consider the erosive impacts of an outfall),*fn27 rather than those concerning proposed channel changes and dredging.*fn28 Friends of Branch Creek asserts that the higher water velocities could change the East Branch's channel. We agree that the latter regulations have more protective informational*fn29 and mitigative*fn30
[ 96 Pa. Commw. Page 378]
requirements. However, we must uphold EHB's conclusion that DER properly considered only possible erosive impacts because the permit was for an outfall, not
[ 96 Pa. Commw. Page 379]
for a proposed channel change or dredging, regardless of any unintended consequences.*fn31
In a related argument, Friends of Branch Creek asserts that EHB erred in concluding that private land could be entered by PECO pursuant to a permit condition or by DER to mitigate damage to the East Branch.*fn32 We disagree. Initially, EHB acknowledged that property owners could refuse to allow PECO on their land. More importantly, however, we hold that DER must enter and correct erosion damage caused by the diversion if PECO cannot, whether pursuant to the provisions of the Act of May 12, 1925*fn33 or the requirements of DER's outfall regulations, given DER's duty to reduce environmental incursions to a minimum under the second prong of the Payne test.
Friends of Branch Creek next contends that, although EHB conceded the existence of wetlands along the East Branch downstream from the discharge area, it erroneously concluded that the discharge would have no effect on the wetlands. We disagree. EHB's conclusion was based on its determination that neither Friends of Branch Creek nor Del-AWARE made the required demonstration that the discharge would overtop the East Branch's banks or otherwise inundate the wetlands. Our review of the record reveals substantial evidence supporting the underlying proposition that
[ 96 Pa. Commw. Page 380]
occasional increases in the water level which do not go beyond those naturally accommodated by the East Branch Perkiomen Creek's banks will not abnormally affect the wetlands.*fn34
Friends of Branch Creek's final contention is that EHB erred by accepting DER's failure to consider the alternative of discharging diverted water at a point downstream, where the East Branch's channel is larger, instead of into its narrower headwaters.*fn35 We disagree. Our review of the record supports the Board's conclusion that the reason DER did not consider this alternative was that it was not presented to DER prior to its hearings. Friends of Branch Creek cites no authority requiring EHB to remand to DER for consideration of this alternative based merely on the fact that it was mentioned briefly during EHB's hearing on Friends of Branch Creek's motion to intervene. To the contrary, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978), held that intervenors must structure their participation so that it alerts the agency of their contentions (obscure references to matters that "ought to be" considered are not sufficient).*fn36
[ 96 Pa. Commw. Page 381]
whereas here water will be diverted from one body of water (the Delaware River) to another (the East Branch). Unlike National Wildlife Federation, "addition from a point source occurs [because] the point source itself physically introduces a pollutant into the water from the outside world." National Wildlife Federation, 693 F.2d at 175. Most importantly, the definition of "point source" includes pipes, which are involved here.*fn39
[ 96 Pa. Commw. Page 383]
With respect to each appeal, we hold that there is substantial evidence in the record to support EHB's findings and that it committed no error of law in its adjudications.
Order in 2240 C.D. 1984
The orders of the Environmental Hearing Board, Nos. 82-177-H and 82-219-H dated June 18, 1984 and Nos. 82-219-G and 82-177-G dated August 30, 1984 (as amended by Nos. 82-219-G and 82-177-G dated September 7, 1984), are affirmed.
Order in 2114 C.D. 1984 and 2072 C.D. 1984
The order of the Environmental Hearing Board, Nos. 82-177-H and 82-219-H dated June 18, 1984, is affirmed.
Judge Colins dissents.
Judge Palladino did not participate in the decision in this case.