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DEL-AWARE UNLIMITED v. COMMONWEALTH PENNSYLVANIA (12/09/88)

decided: December 9, 1988.

DEL-AWARE UNLIMITED, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES ET AL., RESPONDENTS. DEL-AWARE UNLIMITED, INC. ET AL., PETITIONERS V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES ET AL., RESPONDENTS. PHILADELPHIA ELECTRIC COMPANY, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT. NORTH PENN AND NORTH WALES WATER AUTHORITIES, PETITIONERS 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. v. Commonwealth of Pennsylvania, Department of Environmental Resources and Neshaminy Water Resources Authority and Philadelphia Electric Company and North Penn and North Wales Water Authorities, EHB Docket No. 86-028-R (Consolidated Appeals), 87-037-R, 87-038-R, 87-039-R, 87-040-R, and 87-041-R; Del-AWARE Unlimited, Inc., et al. v. Commonwealth of Pennsylvania, Department of Environmental Resources and Neshaminy Water Resources Authority and Philadelphia Electric Company, EHB Docket No. 82-177-R and 82-219-H.

COUNSEL

Robert J. Sugarman, Sugarman & Cohen, for petitioners, Del-AWARE Unlimited, Inc., et al.

Bernard M. Chanin, with him, William G. Frey, Pamela S. Goodwin and Michael M. Meloy ; Of Counsel: Wolf, Block, Schorr and Solis-Cohen, for petitioner/respondent, Philadelphia Electric Company.

Jeremiah J. Cardamone, with him, Ann Thornburg Weiss, Timoney, Knox, Hasson & Weand, for petitioners/respondents, North Penn and North Wales Water Authorities.

Louise S. Thompson, for respondent, Department of Environmental Resources.

President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and McGinley. Opinion by President Judge Crumlish, Jr. Judges MacPhail did not participate in the decision in this case.

Author: Crumlish

[ 121 Pa. Commw. Page 584]

Del-AWARE Unlimited, Inc. (Del-AWARE) appeals two decisions of the Environmental Hearing Board (Board) each dated May 27, 1987.

In No. 1462 C.D. 1987, Del-AWARE challenges an order dismissing ten appeals from several permit extensions and modifications for construction and operation of the Point Pleasant water diversion project (project). In the appeal docketed at No. 1463 C.D. 1987, the Board

[ 121 Pa. Commw. Page 585]

    denied Del-AWARE's motion to enforce a 1984 Board opinion and order remanding in part for the Department of Environmental Resources (Department) to reevaluate two permits also related to the project. In addition, Philadelphia Electric Company (PECO), North Penn and North Wales Water Authorities (North Penn/North Wales) have separately appealed portions of the latter order. (Nos. 1843 C.D. 1987 and 1851 C.D. 1987, respectively). The project has generated much litigation.*fn1 Because of its protracted history and complexity, we will address each of these appeals seriatim, delineating only those facts necessary for the present disposition.

Our scope of review of a Board decision is limited to determining whether an error of law has been committed, constitutional rights have been violated, or any necessary findings of fact are unsupported by substantial evidence. Einsig v. Pennsylvania Mines Corp., 69 Pa. Commonwealth Ct. 351, 452 A.2d 558 (1982).

Nos. 1843 C.D. 1987 and 1851 C.D. 1987

Pursuant to their cross appeal, North Penn/North Wales initially contend that all of Del-AWARE's appeals from the instant temporary permit extensions should be

[ 121 Pa. Commw. Page 586]

    dismissed because each of the extension periods has since expired, thus rendering the corresponding appeals moot. They note further that Del-AWARE has in the meantime appealed the subsequent extensions and will not be denied an opportunity to pursue any legitimate concerns it may have at such time as the Department acts to permanently extend the permits. Del-AWARE answers that its appeals are not moot because the facts applicable to each permit extension may be unique in light of changed circumstances which serve as a basis for future extensions.

An appeal will be dismissed when the occurrence of an event renders it impossible for the court to grant the requested relief. Goldsmith v. Lower Moreland School District, 75 Pa. Commonwealth Ct. 288, 461 A.2d 1341 (1983). The only exceptions to this rule occur where the issues involved are of a recurring nature, of important public interest, and capable of repeatedly evading review. Goldsmith.

Ordinarily, the facts underlying the mere extension of an existing permit would not vary significantly from the factual basis of the permit as originally approved. However, based on the project's complexity, its long duration and the numerous technical, legal and political changes that have surrounded it, we are concerned that material permit variations might improperly be excluded from review ...


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