ML20087M064
| ML20087M064 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 03/21/1984 |
| From: | Zitzer P LIMERICK ECOLOGY ACTION, INC. |
| To: | Brenner L, Cole R, Morris P Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8403280336 | |
| Download: ML20087M064 (32) | |
Text
_
RELATED CCRRESFCNDENCL In. merick ecology action n
(215) 326-9122
.kjhET f
BOX 761 POTTSTOWN, PA.19464 51 3R
'84 tlAR 27 R11:02 f
u O
[
21{,{198.4 March Giad & SEF O
z-O' NU Q.
Y Lawrence Brenner, Esq.
Chairman, Atomic Safety
[
y and Licensing Board c:
l U.S.
NRC O
E g
~
Washington, D.C.
20555 U
5 C
l Dr. Peter A.
Merris Atomic Safety and C
Licensing Board In the ?f a t t e r of C
i U.S.
NRC Philadelohia Electric Comoanv l
Washington, D.C.
20555 Limerick Generating Station C
Units 1 & 2
. 0, Docket Nos. 50-352, 50-353
,t Dr. Richard F.
Cole Atomic Safety and Licensing Board g
U.S.
NRC Uashington, D.C.
20555 g
u C
i Gentlemen, O
C In order to keen the Board and carties to this proceeding c
informed about matters ner.taining tc e h.
development of off-site o
emergency nlanning for the Limerick Generating Station, Limeric'k
,3 ;
Ecology Action hereby transmits the following:
h
- 1) Complaint of Philadelphia Electric Company vs. South Coventry Townshio, Civil Action (Equitv) filed on March 9, 1984 in the Chester County Court of Common Pleas (Attorney I.D. #09434) o
- 2) Defendents' Memorandum of Law in Opposition to Petition for a 4
Preliminary Injunction, No. 84-01645 (Response of South Cov n-
- d try Township) 6
- 3) Order of the Court dissolving a nreliminary injunction against O
South Coventry Township and scheduling a final hearing on y
March 23, 1984.
O Q
e=C a
O Sincerely, E
fhWJsfzer,v y
m Phyhis Zi President Limerick Ecology Action ec: Service List n
hO 8403280336 840321
.i PDR ADOCK 050003S2 G
D '.EC C 7 L~Sy; 3 g IN THE COURT OF COMMON PLEAS OF CHESTER COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY O
e PHILADELPHIA ELECTRIC COMPANY NO.
'84 mg 27 p,t.02 VS.
ATTORNEY I.D.
1 09434 SOUTH COVENTRY TOWNSHIP and IN EQUITY and for
,[,
JAMES OTTINGER DECLARATORY JUDGMENT
- .- AllCy" '
COMPLAINT Philadelphia Electric Company, Plaintiff, by its attorneys, Kaufman &
Hughes, files the following Complaint:
1.
Plaintiff is Philadelphia Electric Company, (PEco), a public utility with its principal place of business at 2301 Market Street, Philadelphia, Pennsylvania.
I 2.
Def endants are South Coventry Township and James Ottinger, its zaning and building code officer.
t 3.
PECo's Limerick Generating Station Unit 1 is nearing completion in Limerick Townsh'ip, Montgomery County, Pennsylvania, as authorized by a crnstruction permit (CPPR-106) issued by the United States Nuclear Regulatory Ccmmission'(NRC) pursuant to the Atomic Energy Act of 1954, as amended, 42 1
U.S.C. 2011 et seg.
4.
PEco has applied to the NRC for an operating license pursuant i
to said Atomic Energy Act and NRC's-regulations thereunder (10 CFR Part 50).
Oparating license proceedings are presently under way before a NRC Atomic
~ Safety and Licensing Board. Under PECo's present schedule for completion of.
i Unit 1, the unit.will be ready for fuel loading in August', 1984.
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s 5.
The NRC's regulations require that_the plans for coping with radiological emergencies, include the establishment of a system to provide j
j prompt notification to the population within an emergency planning zone (EPZ),
. which is an area within about a 10 mile radius f rom a reactor facility.
l 6.
To comply with the requirements of the NRC, PECo has surveyed the emergency planning zone surrounding its Limerick facility for.the purpose of determining the design, location and number of siren installations nscessary to comply with the requirements of the NRC.
The siren installation 4
cystem will also be available for use as part of the prompt notification system required to be provided by political subdivisions of the Commonwealth for emergency notification of the population pursuant to the Emergency Management Services Code, 35 Pa.CSA 7101 et seg.
N 7.
Within the township of South Coventry there arewhowe planned siren installation locations.
Each siren installation consists of a wooden pole approximately 50 feet to 60 feet above ground to which -is attached a 3' by 4' control cabinet approximately 12 feet above ground; a 4' by 5' platform cpproximately 15 feet above ground on which is mounted an enclosed air j
. ccmpressors an antenna approximately 45 feet above ground; and a rotating l
sound horn assembly at the top of the polg, which assembly is connected.to the air compressor by a 3 inch-diameter pipe.
The power supply for the installation is provided by a direct wire connection from the control cabinet i
j to the local electric distribution system.
A photograph showing a typical s
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siren installation is attached hereto, made a part hereof and marked Exhibit
'A*.
8.
The height of the individual siren installations and their 1ccation is based upon an evaluation of the local area population density and topography together with the physical and acoustical characteristics of the crea, with the objective of locating the siren installations in such a manner as to assure that the sirens will be audible to all members of the public within the EPZ when the system is activated.
The siren system is an integrated system in that the location of each siren installation is related to the location of the neighboring siren installations.
9.
Under NRC criteria the maximum sound levels to be received by any member of the public f rom such siren installations may not exceed 123 dscibels and PECo's siren installation system is designed to meet such criteria.
10.
Private right-of-way Grants were acquired by PECo from two landowners and residents of South Coventry Township, Chester County, Pannsylvania, specifically Mr. and Mrs. Michael Carlini, R.D.
fl, P.O. Box 265, Elverson, Pennsylvania and Charles J. Nesley, P.O. Box 7, R.D.
f4, Psttstown, Pennsylvania. True and correct copies of those Grants are attached hartto, made a part hereof and marked respectively Exhibit "B" and 'C'; and the installation of sirens has commenced on the Carlini and Nesley properties pursuant to the right-of-way grants.
11.
M r. and Mrs'. Michael Carlini and Charles J. Nesley have been cited or threatened with citation by South coventry Township and its zoning officer James Ottinger for alleged violations of the South Coventry Township Ordinances in failing to obtain a permit for the installation of the sirens by PEco on their property, in violating the Zoning Ordinance's height and setback
- requirements and in creating an easement without subdivision approval.
True and correct copies of letters to Mr. and Mrs. Michael Carlini and Charles J.
Nasley f rom the said.Mr. Ottinger dated February 17, 1984 and February 29, 1984, are attached hereto, made a part hereof and marked respectively Exhibit
'D' and *E".
12.
Facilities of a public utility such as PEco, other than buildings, are exempt and immune f rom such regulation as is being asserted by l
South coventry Township against PEco's f acilities described herein.
13.
South Coventry Township may not do indirectly what it is prohibited by law from doing directly, namely, regulating the herein described facilities of PECo.
14.
A scheduled July 25, 1984 exercise will be utilized by the.
P2nnsylvania Emergency Management Agency and the Federal Emergency Management Agency to evaluate for licensing purposes the effectiveness of required erergency planning relating to PECo's Limerick f acility, in'cluding the prompt notification system of which the siren system is part. A delay in the cchedule for construction, installation check out and testing of the siren system and its components.will jeopardize the scheduled exercise or its
.4 -
.__________..__.________m
ef fectiventss f or evaluation purposes.
Because of the involvement of state, fcderal and local agencies and personr.el, rescheduling the exercise could rssult in a substantial delay.
15.
If South Coventry Township is permitted to issue and pursue its crdinance violation citations against persons who have permitted PECo to erect utility facilities on their property, and to threaten legal action against those persons who grant or are inclined to grant right-of-way to PECo for siren installations, PECo will suffer and sustain actual and substantial injury, permanent and irreparable in character, not capable of adequate s
c:mpensation for damages or redress by an adequate, complete, practical and efficient remedy at law.
t_
i 16.
The granting of an injunction restraining the issuance and 5:
5 prosecution of Ordinance violation citations against persons who have granted E
or who will in the future grant to PECo the right to construct utility E
ficilities, that is, the siren installations, on their property, would not be 5
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s centrary to the public welfare and greater injury would be suffered by Plaintiff should an injunction not be issued than would be suffered by
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D2fcndants should an injunction issue.
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17.
Defendants' action in citing or threatening to cite persons who
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havo granted to PECo the right to erect facilities o.n their private property E
G Gffsetively denies Plaintiff the right to construct its facilities as E?
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d:ccribed herein and improperly regulates Plaintiff in violation of the 1
cxczption of such public utility f acilities f rom such regulation by local 55 r
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18.
The action of Defendants.in attempting to deny.to PECo the j
right to construct public utility facilities on private property in conjunction with the installation of the prompt notification system, which is an ancillary purpose, reasonably necessary or appropriate for the use of Limerick Generating Station, is unreasonable, unduly restrictive and deprives PECo of due process of law.
19.
PEco's rights, status and other legal relations are affected by-i Defendants' stated position that the facilities of PECo and the persons who have agreed to the installation of those facilities, are subject to municipal i
ordinances, and a determination of the applicability of the municipal ordinances of South Coventry Township and like municipalities to Plaintiff and its grantors, will terminate the controversy and remove the uncertainty caused by Defendants' stated position, both as to the persons who have been cited or 4
threatened with citation by Defendants and to such other residents and landowners in South Coventry Township as might otherwise be disposed to grant to PEco the right to construct its facilities on their property.
WHEREFORE, PECo requests that an injunction, preliminary in character and permanent thereafter, be issued restraining and enjoining Defendants south coventry and James Ottinger, their agents,-servants, workmen and employees from threatening to institute or from instituting or proceeding with criminal citations against PECo and/or any persons, including Mr. and Mrs. Michael Carlini and Charles J. Nesley, who have granted or Will in the future grant to 4 9 l
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,PECo the right to construct f acilities of PECo's prompt notification system on their property, and declare that the construction, erection, installation, maintenance and operation of the prompt notification system is exempt and immune from the municipal ordinances described herein and grant such other and f urther relief as is necessary and proper under the circumstances.
KAUFMAN & HUGHES
.,e s /
i By:
o 7-7,.
John G. Kaufman, IL9qdire Attorney for Plaintiff Philadelphia Electric Company 4 i
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_V _E _R _I _F _I _C _A _T _I _O _N ROBERT H. LOGUE Supervisor of Nuclear Service, Electric Production Department of Philadelphia Electric Company l
verifies that the statements made in the foregoing Complaint are true and correct and makes these statements subject to the penalties of 18 Pa.C.S.A.,
Section
- 4904, relating to unsworn falsification to authorities.
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- sr?* *e l'eruup acksusuledged, leuracley grient (u) e use. l*lillA!)ElJ#lllA i:lJI;tailU CtWJ' ANT (huruinartur mallsJ Cueguany), al.u '.;uccouuusi auki A.su s su, Lisa rJs'Ist ti, o sv t, cue i truc t, lesatall, uuu, s
irwpect, unintaan, ropsar, annow, and remove f.actistavu curuautang or as puls with a platfeais, coupruovor, utrun and g8 8'purten.arwcu attached therutu, on tho prestacu ut the al M W.
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It"" O l' l.H" L8'It"' I l"l' e und:rrutgnedi uituistu.i. U..a r'D 8 " 8 *
".I' a pss em,.
?T/ 8 ll.a. nonLor i s ein
.I 1.nu s e.1 1.sese... i r e.n f eansioil.
'as necessary for the establishment of an oeurguncy alorL vyulems.
TOCLTIIDt with the right to attach to said pole auch wirus or cables as nocessary h assurgina said alorL syutus.
ALSO 10CLTIEll with the right of isgroun und og uuu to sum! frum said facilitiou und' I th5 rigtat to tiria and keep triassed. In a uustaus11ku smuanur, utl treou asad brauschos of j trese, to the extent desemed neceawary by the Compary to provide surfielent clearonoe l Tur th3 proLuc& son uf thu afuruuulit (nuallLesas.
Coupasy shall have thu right to nuult.m thiu Accuuement Lv aug utility or guvern-muntal agency or rugulatory body hiaving jurludictiuss for maid emurguescy ulort systoa.
l Comparty chall lodge this agrecount for record.
'11:13 Agruessient utaall bu binding upon aux! inuru Lo the hussufit of cald parttuu,
} Lhulr !!airu, Sucuvuuuru and Auulgne.
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12kCtrtED this day of r7,, (,...
A.D. 190 *,
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' COUNTY Or On this, the day of li)U In furu mu, Liso tuulurui poud offluer, puroonally l
apteuured krr. aims b mas (or satisfactorily provon) to bu the peruon idsvue ruasmus oubocribed to the within isotrussent, and acknowledged tlust ozuculud the masso for the purpoues therein coritnined.
g he WILeeuuu Wiservur, I lauruunto nut og lount asal urflusui uussi.
sootury Publio
} as, or COUlrFY W ll On this, the day of 1Hf. A. II. bufuro ano, the unduruttpsuit astracur peruusually appeared ediu ackssuviusttrud talmasulf to be the fruvidentof
, a coalsorution. *and that he -
tu uuuh Prooident, being authorf sud to do no crocuted the forogulsig inotnenent for lies exaleauves thoroasi eus Lainvil'hy unscieng u o eview e,r Line cual.orntlems by hiseset r nu
- ruis tilunt.
9 In Witnese Idhereof, I hereunto set my luated and official usal, Estasay Public
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EXIIIDIT "D"
. 3 Fr. - 9519 i s'if 155
. he undersigned. owner (e) of premises situate en the South side of Rid e F.A.
(Rt. 23) South Covente:-) Twp., Che s t e.-
Co., Pa.
for and in consideration of O'"E E':'.*D2!'3 D0 LIARS ($100.00). the receipt of Wich is hereby acicr.swiedged. hereby g-ant (e) unto PI-'.ADC2!!A CJr2!C CO?OT (here'rsfter called Co:: par:y) its Successors and Assig=.s, me right to erect, corJtruct, ir. stall, use, inspect, maintain, repair. renev. and ressve facilities cor.statir.g of a pole with a platters, cocpressor, siren a-d e372rtenarece attached thed)etc, on the pre-'ses o'.the situate or, the S. Stoe of Ricge R:. (Rt.
). approx. hQ' S.9 of undersi. ed, line of Ve a Philadelphie Rd. (TL74) sne ce.I.ter as necessary for the establich.ent of an emerge.:y alert syntes.'
TOC."!Tt with the ric'.t to attach to said pole such wires or cables as necessary to energtze said alert system.
A!.50 TOCIE3t with the right of ingress and egrees to and from said facilities and the right to tria and keep trirzet. in a worice.anlike manner, all trees and brer.ches of
- rees. to the extent dee:ed necessary by 1.he Cocpeg to provide suffielent clearar.ce for the protestion of the aforessia faailities.
Cospeg shall have the ri-ht to assign this Agreement to av utility or govern.
mental agency or regulatory body inving juristiction for said ecergency aler* system.
Coway shall lodge this agreement for record.
This Agreement shall be binding upon and inure to the benefit of said parties, their feirs. Succesacrs e.9d Assigns.
EC!::"C3 this q 4L.
day of he_e.ad cf A.D. 196 5
$k Y 0
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4 Charles J.jse sley (
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OF SS.
CC 37Y OF
'On this, the day of 198
. before ce.
the undereagr.ed officer, persor. ally appeared kanten to me (or estisfactorily proven) to be the person those names subscribed to the within instrumente and acknowledged that executed the same for the purposes therein -
contained.
In Vit' ese Vhereof. I hereunto set g hand ar.d " official seal.
n botary M iac CF 1
h 35.
COC'.TY OF J
On this, the day of 190
.3. before me..
. Se ur.dersir.ed off:cer ;,erserally a;; eared.
, the scienowledged hi self to be ne President of s
, a serporation, and that he as such President beirg aut'erized to do so executed Se foregoing *.r.st:. cent for the p : poses therein centahei by signs.ng the r.a:e of *.he corporation by hl=se* f as President.
In vitsees idhereof, I hereunto set er hand and offietal osal.
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Wous WounSry Towuhip Covsntryviile ILad M ' vary 17,190h 20-2-37 Cheotnuthill Road Star B%-
Pottetown, Pa.19h64 Michael J A Caroline Carlini
- Box 265 Rs D. # 1 Elverson, Pa. 19520 Dear Mr. & Mrs. Carlini This is to inform you that the structure, pole and equipment, placed on your property January 26, 1984 Township Zoning Ordinance and the Subdivision and Land Developmentis Ordinance of 1983 The structure as placed is in violation of the following sectiono;
' 1. Zoning Ordinance Section 1707, Building Permite - construction permit.
without a
- 2. Zoning Ortlinance Section 1310, Height - the structure exceedo limitations within the Residential District of the township.
the height
- 3. Zoning Ort 11 nance Section 603, Subsection 3 - the structure in clooor than that allowed from the atmet right of way line.
- 4. Subdivision and Land Development Ordinance Section 622, Eaaements -
A plan for subdivision or eacement was not submitted to-the Planning Commission and reviewed or approved by the Board of Superviooru.
to comply to the Township Ordinance's. Failure to remove Ordinance, Section 1704, Penalties, is attached for your rev are.' This matter will be discussed at the next Board of scheduled for March 5,1984. After that date a citation could be filed in District Court.
If you have any q'uestions or desire to the matter please contact myself at 469-9331 between the hours of 6:
all day Saturday.
00 PM to 10:00 PM Monday thru Friday or s
i I
EXHIBIT "D"
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Bincerely,
.b e B. Ottin v,,,
.,,,.. -.ge r s
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South Coventry Township February 29,1984 Rt. 23 Star Rt.,
20-h-124 Chestnuthill Road Pottetown, Pa. 19h6h gggsWEDM-Mr. Charles J. Nesley GAR 0B19g4 P. O. Box 7 ED i k Pottetown, Pa. 19464 REF @ N
Dear Mr. Nonluy:
This is to inform you that the stzuoture, pole and equipment, as placed on your property la in violation of the South Coventry Townuhip Zoning Ozdinance and the Subdivision and Land Development Ordinance of 1983 The structure ao placed iu in violation of the following nootionus
- 1. Zoning Ordinance, Geotion 1702, Building Permits -
construction without a penait.
- 2. Zoning Ordinance, Scotiono 804 & 1310, Height -
the structure where placed exceeds the height limitations within the commercial District of the Township.
- 3. Zoning Ordinance, Sections 803, Sybsection 3 -
the stzuetuze in closer than that' allowed from the street right of vny lino.
- 4. Subdivision and Land Development Ordinanos, Bootion 622, Easements - a plan for subdivision or easement was not submitted to the Planning Cossaission and reviewed or l
4 approved by the Board of Supervisors.
I request that you or another party issnediately remove the structure to comply to the Township Ordinanco's. Failuze to zumove the structure will place you in violation.1 copy of the Zonong Ordinanoe, Section 170k, Penalties, is attached for your zeview.
p j
Planco adviue m'w in writing by March 15,1984 au to wlmt your intentions are. This matter will be discussed at the next Board of Supervisors meeting scheduled for March 5,1984. After Mazoh 15 =
i citation could be filed in Dictrict Court.
If you have any questions or desire to review the matter please contact myself at h69-9331 between the hours of 6:00PN to 10:00 PM Monday thzu Priday or all day Saturday.-
i Sincerely,
~ EXHIBIT "E"
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gg*, y?'CL US!!fi PHILADELPHIA ELECTRIC COMPANY IN THE COUR$40fyg @ ONld3:
AS CliESTER COUNTY, PE.NNSYLVANIA
- vs -
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01645C'-!! iw & SEE
-- "i NO. 84 BRANCH SOUTH COVENTRY TOWNSHIP and IN EQ UI TY and for JAMES OTTINGER DF.CLARATORY J UDGMENT
.O _R D-. _E _R AND NOW, TO WIT, March 16th, 1984, after hearing and argument, and upon consideration of the Memoranda of counsel, the
' preliminary injunction heretofore granteo on March 9th, 1984, is hereby dissolvedl; and a 1inal hearing shall be h ld on Friday, e
March 23rd, 1984, at 9:30 o' clock A.M.,
in Courtroom No.
4, Ches-ter County Courthouse, West Chester, Pennsylvania.
v BY THE COURT:
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ln order to sustain a I
preliminary - injunction, the plaintiff's right to relief must be clear, the need for relief must be imme-diate, and the injury must be irreparable if the injunction is not granted.
Shenango Valley Osteopathic Hospital v.
Department of Health, 499 Pa. 39, 50, 451 A.
2d 434, 439 (1982) from Bell v. Thornburgh, 491 Pa. 263, 267-68, 420 A.
2d 443,(q uoting l 445 (198U)).
We are not convinced, on this limited record, that the Plaintiff at ba r' has established prima facie that its right to relief is clear.
See, Fischer
- v. Department of Public Welfare, 497 Pa. 267, 271, 439 A. 2d 1172, Ll74 (1982); New Castle Ortho-pedic Associates v.
Burns, 481 Pa. 460, 192 A.
2d 1383 (1978).
In view of our disposition, we need not address the question of whether the Plaintiff has met the remaining criteria.
.___........JL.
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1J 3DENCf-i 00CMETED L:5.':F C IN THE COURT OF COMMON PLEAS OF CHESTER COUNTY, PENNSYLVANIA 27 A11:03 CIVIL ACTION - EQUITY
'.i',4f.0Ffi.~(".. ~
PHILADELPHIA ELECTRIC COMPANY NO.;84-01645 "
l VS.
ATTORNEY I.D. 909434 l
1 SOUTH COVENTRY TOWNSHIP and IN EQUITY and for JAMES OITINGER DECLARATORY JUDCMENT DEFENDANTS ' MEMORANDUM OF LAW IN OPPOSITION TO PETITION FOR PRELIMINARY INJUNCTION A.
BRIEF STATEMENT OF FACT.
Philadelphia Electric Company ("PECo") has commenced construction of certain pole and siren structures on at least two privately owned properties within South Coventry Township.
The owners of the respective properties, who have conveyed pri-vate " rights-of-way" to PECo for erection of the siren struc-tures, have been cited by the South Coventry Township Zoning Officer for various violations of the zoning Ordinance, as set forth on Exhibits "D" and "E" to' PECo's Complaint in this action.
PECo's action in equity seeks to enjoin the Townhsip l
f rom enforecement of its zoning regulations with respect to the subject siren structures.
~
The following issues are raised by PECo's Complaint and prayer for injunctive relief:
(a)
Are the siren structures proposed by PECo immune from municipal zoning and land use regulations? -- -
(b)
Has Federal law preempted stated municipal land use power with respect to the subject siren structures?
(c)
Is PECo entitled to a Preliminary Injunction against the Township's enforcement of its ordinance?
B.
THE PROPOSED SIREN STRUCTURES ARE SUBJECT TO LOCAL ZONING REGULATION PECo has argued that it has an absolute right to construct and situate its 50 to 60 foot high siren installations in the manner and places it deems expedient, and that the exercise of that right is subject neither to the zoning restrictions of the ef f ected municipality nor to prior review and approval by the Pennsylvania Public Utility Commission.
Thus, PECo argues, it need neither comply with South Coventry Township's height, set-back and building construction controls, or demonstrate to the Pennsylvania Public Utility Commission that the structures, pro-pose to be erected in violation of those controls, are reaso-nably necessary for the convenience or welf are of the public.
The authorities cited by PECo do not grant it any such unlimited exemption from regulation.
Section 619 of the Pennsylvania Municipalities Planning Code, ("MPC" ), Act of J uly 31, 19 6 8, P.L. 80 5, as amended, 53 P.S. Section 10619, provides for an exemption of public utili-l ties f rom zoning regulations, after a hearing and decision by l
l the Pennsylvania Public Utility Commission on the necessity of 1.
the particular construction proposed by the utility company.
Section 619 of the MPC states, in full:
Exemptions: This article tzoning3 shall not apply to any existing to proposed building, or extension thereof, used or to be used by a public utility cor-poration, if, upon petition of the corporation, the Pennsylvania Public Utility Commission shall, after a public hearing, decide that the present or proposed situation of the building in question is reasonably necessary for the convenience or welfare of the public.
5 Thus, for entitlement to zoning exemption, Section 619 required j
that the utility company seeking exemption first petition the b
+-
Public Utility Commission, and that upon such petition, the E
I Public Utility Commission must determine, on the basis of a L
u:
public hearing, that the proposed structures of the utility are f
reasonably necessary for public welf are or convenience.
This w
latter factor, which must be decided by the Public Utility
$t Commission to exist, will hereinafter by referred to as the 5
4.=
. requirement of "public necessi ty".
Ee E
Despite the above provision, PECo has argued that the sub-
=
=
m" ject siren, poles are immune f rom the local zoning regulation E
s even though it has not petitioned the Public Utility Commission b
for a hearing upon the public necessity question.
In so hs 9,,
arguing, PECo has relied heavily upon the case of Duquesne Licht
[L s
Company vs. Upper S t. Clair Township, 377 Pa. 323, 105 A.2d 287 j"@
L=
(1954).
Duquesne predated the enactment of the MPC, but
- fs construed a provision of the then existing First Class Township gj v.=
Code which paralleled the present Section 619 of the MPC.
The f4.
j liiin l
II w1.. hm t
l
- d*~h:
'ni
Duquesne Court found that, a public utility company was not sub-ject to local zoning, even in the absence of a public necessity determination by the Public Utility Commission, where the obj ect j
of the zoning regulations at issue was the siting and installa-tion of electrical service transmission lines.
The Duquesne case and those following it have established the principal that, once a public utility company is licensed to operate by virtue of the initial issuance of its certificate of public con-venience, the normal management decisions of the utility relating to the siting and installation of the facility transmitting utility service are not subject to on-going Public Utility Commission review.
Such utility transmission facilities are exempt f rom local zoning without the need for further Public Utility Commission proceedings.
This principal of the Duquesne line of cases should not be so broadly read and applied as to stand for the proposition that structures owned and maintained by public utilities, but only incidentally related to the transmission or conveyance of a,given utility service, are wholly exempt f rom all municipal and state regulations.
The Commonwealth Court, in a case which followed the enact-ment of the MPC, has held that, absent Public Utility Commission action upon a utility company request under Section 619, activi-ties of the utility company are not exempt f rom zoning regula-tion.
Denision vs. Petrenchak, 16 Pa. Comm. C t.
383, 328 A.2d 219 (1974).
In Denison, the Commonwealth Court held that 4_
i
township zoning regulations would apply to a railroad company's placement of a f uel storage tank car on to an existing railroad track within the township where the railroad company, operating as a public utility, had not requested the requisite exempting action by the Public Utility Commission.
The opinion of the Commonwealth Court in the Denison case is particularly signifi-cant because the Court observed that the tank car there involved was plainly not a " building", but rather was a structure other I
t than a building under the township's zoning ordinance.
i The Denison case thus supports the position of South l
Coventry Township in the instant case that the Duquesne line of E
reasoning has not been extended to exempt, E
from all regulatory
{
review, the siting and construction of structures which are h
themselves not the vehicles for transmission or conveyance of i
E the particular utility involved.
The erection of structure E
fa other than transmission utility facility is not an activity h
which is necessarily contemplated or authorized by the initial if 5
issuance of-a public convenience certificate.
In thi s latter respect, the erection of the proposed siren
((
structures by PECo is not similar to its unregulated management prerogative concerning the laying out of electrical transmission Ei
((
lines,1 as in Duquesne.
Nor is it akin to ' construction by a l
l
_55 1
?5 Even with regard to transmission lines, EE tions require that a public utility apply for and receive PUCthe current regula-EE approval of proposed construction and location of lines with E5 high design voltage. 52 Pa. Code 557.72.
~~~t=
EE 25 5"
Y
railroad of railroad tracks.
PECo is not in the business of designing and building public alert systems.
The principal that voluntary expansion or extention of public utility transmission f acilities lies in the discretion of company management, recited in the cases quoted by PECo, therefore has no application to the proposed siren towers involved in the instant case.
To hold that the non-utility structures are immune f rom zoning without any public utility commission determination of necessity, would be to eliminate any possible forum for an assessment of that necessity and for the formulation of appropriate conditions which might reduce the conflict of the proposed construction with the land-use policies contained in local zoning regulations.
An opportunity f or the assessment of such a need, and for the formulation of such conditions, would be properly presented for PECo to seek a variance under the South Coventry Township Zoning Ordinance and Section 912 of the Pennsylvania Municipalities Planning Code, 53 P.S. 10912.
Unless the zoning ordinance is enf orced, however, these issues will never be addressed by anybody of review.
While Section 701 of the Public Utility Code, act of J uly 1, 1978, P.L. 598, as amended, 66 Pa. CSA Section 701, pro-vides for the filing of Complaints with the public utility by any interested person, corporation or municipal corporation, such a Complaint may only concern the violation by a public uti-
)
lity of any regulation or order of the Commission, or of any law l~
t
which the Commission has jurisdiction to administer.
If section 619 of the MPC is held not to require a determination of public necessity with regard to the proposed siren structures, then the questions relating to the design and construction of the pro-posed structures are not within the purview of the PUC.
A railroad company, operating as a licensed public utility, has no tracks running through the Borough of West Chester, but has a yard located there.
It desires to implement a public warning system which would be activated in the event of, for example, a train car derailment.
As a part of its plan, it proposes to erect warning sirens in various locations, on private rights-of-way it has acquired by purchase, throughout the Borough of West Chester.
The Public Utility Commission regula-tions require no such siren system and provide no specific pro-cess for controlling its implementation.
Under the position argued by PECo, the ' railroad company could erect and operate its siren in an unrestricted manner, as it deems fit, in order to satisfy the f ederal saf ety demands.
In so doing, the railroad company may violate the borough zoning regulation without any process for review, or forum for complaint, by the borough or its residents.
The scenerio of the above hypothetical case directly parallels the f act presently involved.
It is a scenerio which lies beyond the scope and reasoning of the Duquesne line of cases.
Without a determination by the Public Utility Commission.
of the necessity of such an intrusion upon a municipality and its residents, the municipality itself must retain power under the MPC to regulate a land use so plainly impacting upon the community within its boarders.
PECo's proposed poles and sirens, like the tank car in Denison vs. Petrenchak, supra, are not likely transmissions or conveyance buildings or structures.
Like the tank car in Denison vs. Petrenchak, supra, the siren installation must be generally subject to local zoning regulation in the absence of a public hearing and determination of public necesrity by the Public Utility Commission.
FEDERAL LAW HAS NCyr PREEMPTED STATE AND MUNICIPAL LAND USE B.
REGULATION WITH RESPECT TO THE SIREN STRUCTLitES PROPOSED BY PECo.
This Honorable Court has raised the question of whether f ederal law has a preemptive ef f ect on the ability of Pennsylvania agencies or municipalities to regulate the proposed construction f rom a land use perspective.
The Atomic Energy Act of 1954, 4'2 U.S.C. Section 2011 et seg, may impose standard or requirements which necessitate the construction of f acility which would not be deemed reasonably necessary by the Public Utility Commission under the Public Utility Code, or by munici-palities under the MPC.
Of course, where the necessity for cer-tain activity is argued as being required under the Atomic Enerty Act or the NRC Regulations, then the question of preemp-tion is governed by whether the Atomic Energy Act itself dic- !
e
tates preemption of state and municipal regulation, not whether the Public Utility Code of the MPC calls for such preemption.
The f ederal Nuclear Regulatory Commission, purs uant to authority of the Atomic Energy Act of 1954 (hereinaf ter the
" Atomic Energy Act"), has promulgated certain regulatory stan-dards concerning preparedness for emergencies occuring in the operation of a nuclear reactor f acility, such as PECo's Limerick Plant.
Those regulations, found at 10 CFR Section 50. 47(b) and appendix E to part 50 of CFR, requi re, in general terms, that a preparation and implementation plans for prompt notification to 6
the public within an area of about a ten mile radius of a
~
nuclear facility.
While the Nuclear Regulatory Commission has issued certain criteria for the guidance of a nuclear utility 7
f f acility to comply with the public notification requirement of the emergency preparedness standards, it has not required that
~
any particular type of communication system be implemented.
In fact, up until two months ago, PECo had been planning for the implementat-ion of an entirely diff erent type of system involving telephone notification, rather than 'the recently proposed siren warning system.
In considering whether the Atomic Energy Act, or the Nuclear Regulatory Commission regulations promulgated thereunder, have ef f ected a preemption of state and local land use regulation regarding the structures here involved, it must be borne in mind that the regulation of public utilities, and of i l
3_
4 land use, are matters clearly within the traditional scope of the police power reserved for exercise by the respective states.
Thus, "...we start wi th the assumption that the historic police powers of the states were not to be superceded by the Federal Act, unless that was the clear and manif est purpose of j
Congress."
R i ce vs. Santa Fe Elevator Corp., 331 U.S.
218, 230, 67 S. Ct. 1146, 1152, 91 led. 1447 (1947).
The express provisions of the Atomic Energy Act itself speak to the limited preemptive ef f ect of the act.
Section 271 of the Act, 42 U.S.C. Section 2018 provides that:
Nothing is this chapter shall be construed to effec't the authority or regulations of aay f ederal, state or local agency with respect to the generation, sale, or transmission of elecric power produced through the use of nuclear f acilities licensed by the Commission: pr o-vided, that this Section shall not be deemed to conf er upon any f ederal, state or local agency any authority to regulate, cont rol, or restrict any activitics of the Commission.
Section 274 (k), 42 U.S.C.
Section 2021(k), provides that:
Nothing in this Section shall be construed to effect the authority of any state or local agency to regulate 4
activities for purposes other than protection against radiation hazards, s
The United States Supreme Court, in Pacific Gas and Electric Company vs. State Energy Resources Conservation and I
Development Commission, U.S.
, 103 S. C t.
1713, 1726 (1983), has held that the preemptive ef f ect of the Atomic Energy Act is limited to the area of saf ety regulation with regard to radiological hazards, and that the states continued to " exercise 1
, ~
their traditional authority over the need for additional generating capacity, the type of generating f acilities to be licens ed, land use, rate making and the like."
With regard to the siren towers involved in the present case, the height, setback and building permit requirements of South Coventry's ordinance are concerned with a matter alto-gether separate and distinct from the radiological saf ety issues addressed by the regulations of the Nuclear Regulatory C ommission.
Indeed, the zoning ordinance of South Coventry Township does not purport to in any way regulate the construc-tion or operation of nuclear reactors.
It is concerned, on the contrary, with the land use considerations of the siting, height, setback and structural soundness of all structures wi thin the township.
These land use concerns are not in any way addressed, must less displaced, by the federal scheme of safety regulation.
In this respect, a similar distinction has been made in the Pennsylvania cases finding a lack of preemption by the Solid Waste Management Act, 35 PS Section 6001 et seg, with regard to f
the land use regulatory power and municipalities with respect to landf ills.. For example, in Greene Township vs. Kuhl, 32 Pa.
f l
Commonwealth Ct. 592, 379 A.2d 1383 (1977), the Commonwealth 5
l court noted that while a local municipality could not set geolo-3 3
gical or engineering standards stricter than those established f
G by the Department of Environmental Resources for issuance of g
3 9
a l 3
8 v
permits for construction and operation of sanitary landfills, factors other than geological ones, such as those involving as the tics, population density and accessability, are the appropriate subject of local land use planning.
Greene Township vs. Kohl, 32 Pa. Commonwealth C t.
- 592, 3 79 A. 2d 1383, 1385 (1977).
It is true of course, that particular state regulations in a given field may be preempted, even if that field of regulation has not been entirely displaced, where requirements of the state regulations make impossible the compliance with f ederal regula-tions or the accomplishment of federal congressional purposes.
Florida Lime and Avacado Growers, Inc. vs. Paul, 373 U.S.
- 132, 142, 83 S. Ct. 1210, 1217-18 10 L. Ed.
2nd 248 (1963); H ei ns vs. Davidowi tz, 312 U.S. 52, 67, 61 S. C t.
399, 404, 85 L. Ed.
581 (1941).
H oweve r, in the present case, there is absolutely no indication that it is impossible to devise and implement a public notification system, the. placem ent and construction of which comply in all respects, or in at least some of the pre-sently violated respects, of the South Coventry Township Zoning O rdi nance.
Indeed, the evidence would indicate that PECo has considered other, must less obtrusive means of complying with the general public notification requirements of the Nuclear Regulatory Commission and that it was only a very short time ago that such alternative communication systems were replaced with 1
the present siren system plan. h
In any event, even if the siren pole type of system were the only one available, there is nothing to indicate that compliance wi th, for example, the setback requirements of the South Coventry Township Zoning Ordinance is infeasible.
Agai n, the land use issues, and any possible dif ficulties with compliance, are considerations which may be properly addressed in variance proceedings before the South Coventry Township's Zoning Hearing Board.
Absent such proceedings, the concerns of the township will never be direct 1,y addressed.
The standards and criteria of the Nuclear Regulatory Commission are concerned only with the adequacy of emergency preparedness. The Nuclear Regulatory Commission is neither authorized nor com-petent to way land use planning f actors in the balance, in assessing the adequacy of a particular f acility emergency pre-paredness plan.
This process can only be accomplished by a necessity hearing before the Public Utility Commission, or variance hearings bef ore the ef f ected municipality.
In s um, as is plainly evidenced by Section 274 (k) of the Atomic Energy Act, the traditional poiice power of the state and their municipalities to regulate public utilities anC land use planning may not be viewed as preempted by the Act or by the above-cited Nuclear Regulatory Commission rules.
Thus, if the siren structures are not exempted by Section 619 of our own Municipalities Planning Code, the power of the municipality to enforce their zoning regulations is not otherwise preempted by l c
i am7 law.
Ther ef or e, the proposed structures must comply with the reasonable requirement of the South Coventry Township Zoning Ordinance and the municipal review process provided thereunder.
C.
PECO IS NOT ENTITLED TO A PRELIMINARY INJUNCTION.
A Preliminary Injunction may only be granted where the rights of the Plaintif f are clear, the need for relief is imme-diate, and inj unctive relief is necessary to avoid inj ury that is irreparable and cannot be compensated for by damages.
Hospital Association vs. Commonwealth Department of Public Welfare, 433 A.2d 450 (1981); Mazzie vs. _ Commonwealth of Penns ylvani a, 432 A.2d 985, 987 (1981).
On the basis of the discussion in - the preceeding sections of this Memorandum, the Plaintif f's right to relief based on a claimed " exemption" for zoning regulation is anything but clear.
Thus, a f undamental prerequisi te to preliminary inj unctive relief cannot be established.
Mor eover, the evidence will demonstrate that there is no urgency which would warrant the granting of preliminary relief prior to a final hearing and disposition of the controversy.
PECo's Complaint and Supporting Affidavit appear to make much of a scheduled July 25, 1984 exercise for evaluation of emergency preparedness planning relating to PECo's Limerick _
facility, including its, " prompt notification system".
Howeve r,
neither the Complaint.of Affidavit purports to state in any.
+ -,
.n-
-a
concrete terms what the ef f ect of a postponement of such an exercise would be.
The evidence will demonstrate that the alledged potential delay in the exer cise would not in any realistic way j eopardize PECo's licensing procesu or its planned oper ations.
The Nuclear Regulatory Commission regulations, at 10 CFR Section 5047(d) make clear that, in the case of an operating license authorizing only f uel loading and/or low power opera-tions up to 5% of rated power, no Nuclear Regulatory Commission or Federal Emergency Managment Agency review, findings or deter-minations concerning the state of of f-site emergency prepared-ness are required prior to the issuance of such a license.
The evidence will show that PECo has no plans f or operations beyond f uel loading or low power operations up to 5% of its rated power
~
-for the near future.
The alleged necessity of scheduling exer-cises to enable findings by the responsible regulatory agencies
~
during the upcoming summer does not relate to the prevention of s
any truly immediate or irreparable harm.
Furthermore, the evidence will show that any delay in construction of the proposed sirens in South Coventry Township will not, of itself, require any postponement of the scheduled exercise which would not, in any event, occur, for other reasons.
In other words, the grant of the extraordinary remedy i
of Preliminary Injunctive Relief will not serve to prevent the delay which is alleged to constitute PECo's immediate and irre-l l f e
c..
parable harm.
- ECo has not yet commenced construction of planned siren ir.$t/allation in at least one other township, that being Charlestown Township.
The reason for this is that PECo has been unable to purchase private grants of right-of-way f or construction of the pole sirens.
PECo is, therefore, bei ng com-pelled to resci:t to condemnation proceedings in order to acquire the necessary property for the i ns tallations in Charlestown Towns hip.
In order to exercise that right of condemnation, it is clear that PECo must apply to the Pennsylvania Public Utility Commission for a Certificate of Public Convenience to exercise the power of eminent domain to acquire the necessary rights-of-way.
See Lower Chichester Township vs. Pennsylvania Public Utility Commission, 180 Pennsylvania Superior Court, 503 A.2d (1956); E.g.
Pa xtowne vs. Pennsylvania Public Utility Commission, 40 Pa. Commonwealth Ct. 646, A.2d (1979).
Thus, it is plain that any temporary delay of construction in South Coventry Township occasioned by a denial of Preliminary Inj unctive Relief' can not be considered of any effect considered the substantial ti,me which will be required for condemnation proceedings prior to any construction in Charlestown Township.
For the above and other reasons to be demonstrated upon hearing, PECo is unable to demonstrate the clear right to relief and the need to prevent immediate and irreparable harm '
.~,
which are essential preconditions to the grant of a Preliminary i
Inj unction.
D.
CONCLUS ION.
On the basis of all of the foregoing, Def en' dant South Coventry Township respectf ully submits that Plaintif f Philadelphia Electric Company is not entitled to preliminary equitable relief and Def endant respectf ully reques ts, therefore, that the prayer of the Petition for Preliminary Injunction be I
denied.
Respectf ully Submi tted,
~ MM ROB ERT W.~ LENTZ,/ ESQUIRE Attorney f or Def endant South Coventry Township 4
e _ _
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