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DEL-AWARE UNLIMITED v. COMMONWEALTH PENNSYLVANIA (04/15/86)

decided: April 15, 1986.

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



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.

COUNSEL

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.

Author: Crumlish

[ 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 ...


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