24 Pa. Commw. 647 | Pa. Commw. Ct. | 1976
Opinion by
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
PennDOT has devised an erosion control plan designed to halt erosion under the topsoil and at culvert outlets.
Appellant’s place of business is along the Creek at a point near where the proposed expressway' will cross.
Appellant raised several challenges to both the proposed construction and to the original permits. After conducting extensive hearings the Board, on August 29, 1975, issued an adjudication and order remanding the matter to DER. Appellant has taken the position that the Board should have revoked the original permits rather than remand the matter to DER.
Section 2 of the Water Obstruction Law
The Board recognized that neither the proposed obstructions nor the proposed changes in the course of the Creek were authorized by the existing permits.
Appellant next contends that the Board should have revoked the permits because PennDOT failed to prove, and the Board failed to make a finding, that the obstructions would not cause flooding hazard.
In its adjudication, the Board found as a fact that: “47. The obstructions were designed initially in 1971 for a 50 year flood frequency; a preferred flood frequency today for design purposes is 100 years.”
The Board also noted that, based upon the figures and methodology employed by one of Appellant’s experts, a 1974 study submitted by PennDOT to DER seriously underestimated the actual flood magnitude of the Creek.
We remind Appellant that while the instant appeal technically does not concern the propriety of the granting of the original permits, we may not substitute judicial discretion for administrative discretion in matters involving technical expertise. East Pennsboro Township Authority v. Commonwealth of Pennsylvania, Department of Environmental Resources, 18 Pa. Commonwealth Ct. 58, 334 A.2d 798 (1975). Accordingly, it is not appropriate for this Court to adjudicate as to the adequacy of PennDOT’s flood control plan when the entire matter is being remanded to DER. DER has the technical expertise with which to analyze potential flood hazard in light of the Board’s findings as to preferred flood frequency.
Article I, Section 27 of the Pennsylvania Constitution provides:
Ҥ27. Natural resouces and the public estate
The people have a right to clear air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”
In Payne we announced a threefold test for striking a balance between the environmental and social concerns mandated by Article I, Section 27:
“(1) Was there compliance with all applicable statutes and regulations relevant to the protection of the Commonwealth’s public natural resources? (2) Does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum? (3) Does the environmental harm which will result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion?” 11 Pa. Commonwealth Ct. at 29-30, 312 A.2d at 94.
Appellant is correct when it argues that DER must evaluate the proposed construction of the expressway cross-over in accordance with the Payne tests and that PennDOT has the burden of proving compliance therewith. Commonwealth of Pennsylvania, Department of Environmental Resources v. Commonwealth of Pennsylvania, Public Utility Commission, 18 Pa. Commonwealth
Finally, Appellant contends that both The Clean Streams Law
As to the Federal law, neither the Board’s jurisdiction nor that of DER allows enforcement of Federal
As to The Clean Streams Law, we note that the act contains permit requirements for specific types of pollution
Finally, Appellant raises several objections to the notice and hearing procedures employed by PennDOT and DER. We summarily dismiss these objections because our examination of the record satisfies us that they are without merit.
We therefore
Order
And Now, this 28th day of May, 1976, the order of the Environmental Hearing Board dated August 29, 1975, Docket No. 74-271-W, is hereby affirmed.
. Act of June 25, 1913, P.L. 555, as amended, 32 P.S. §681 et seq.
. Page 15 of the Board’s adjudication.
. Page 17 of the Board’s adjudication.
. Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §691.1 et seq.
. Act of October 18, 1972, P.L. 92-500, 86 Stat. 816, 33 U.S.C. §1151 et seq. (1970).
. Section 201-213 of The Clean Streams Law, 35 P.S. §§691. 201-213, deal with sewage; Sections 301-314, 35 P.S. §§691. 301-314, deal with industrial waste and discharge from mine operations.
. These sections were changed to their current form by Section 14 of the Act of July 31, 1970, P.L. 653, No. 222.
. E.g., underground disposal of industrial wastes, 25 Pa. Code §97.71; diversion of surface water in strip mining operations, 25 Pa. Code §99.37.