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WARREN SAND & GRAVEL CO. v. COMMONWEALTH PENNSYLVANIA (07/09/75)

decided: July 9, 1975.

WARREN SAND & GRAVEL CO., INC., OIL CITY SAND & GRAVEL CO., INC. AND DAVISON SAND & GRAVEL COMPANY, APPELLANTS,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLEE. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLANT, V. WARREN SAND & GRAVEL CO., INC., OIL CITY SAND & GRAVEL CO., INC. AND DAVISON SAND & GRAVEL COMPANY, APPELLEES



Appeals from the Order of the Environmental Hearing Board in case of In The Matter of Warren Sand & Gravel Co., Inc., Oil City Sand & Gravel Co., Inc., and Davison Sand & Gravel Company v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket Nos. 72-194-B, 72-195-B, and 72-207-B.

COUNSEL

Edward Friedman and Robert J. Trace, for corporate appellants-appellees.

John P. Krill, Jr., Assistant Attorney General, for Commonwealth, appellant-appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.

Author: Kramer

[ 20 Pa. Commw. Page 188]

This case involves cross appeals filed by the Department of Environmental Resources (DER), on the one side, and, on the other side, Warren Sand and Gravel

[ 20 Pa. Commw. Page 189]

Co., Inc. (Warren), Oil City Sand & Gravel Co., Inc. (Oil City) and Davison Sand & Gravel Company (Davison),*fn1 from a final order of the Environmental Hearing Board (Board), dated May 3, 1974. A description of that order will be given hereinafter.

This case had its genesis when in October and November of 1971, the Gravel Companies filed applications for permits to remove sand and gravel from the bed of the Allegheny River. During February and March of 1972 DER conducted what it termed "a fact finding hearing," which it deemed to be "not an adjudicative hearing under the Administrative Agency Law" (Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. ยง 1710.1 et seq.). At this hearing the Gravel Companies were not permitted to cross-examine, but were given the right to offer and rebut evidence. The Gravel Companies were notified that they would receive written notice of the action taken by DER on the Gravel Companies' applications, and that they would be given a written statement of the basis for DER's action together with a description of appeal procedures. On April 10 and 12, 1972, DER issued permits for dredging operations by the Gravel Companies which apparently consisted of the same permit issued in previous years, but, in addition, added several pages of terms and conditions specifying in considerable detail the manner in which the dredging operations were to be conducted. One effect of these terms and conditions was to limit future dredging to areas previously dredged. On May 1 and 15, 1972 the Gravel Companies filed timely notices of appeal with the Board in which they excepted to three of the terms and conditions of the permits. The terms and conditions excepted to were as follows:

[ 20 Pa. Commw. Page 190]

"I. Dredging shall not take place any closer than fifty (50) feet from the shore line or from islands.

"II. Dredging shall not be permitted in the period between 6:00 p.m. Friday and 7:00 a.m. Monday, nor between 6:00 p.m. on the day preceding a national holiday and 7:00 a.m. on the day following the holiday.

"III. Dredging shall not take place in any natural and untouched areas."

Hearings were held before the Board, after which it issued an adjudication on August 8, 1973, which was deemed by a supplemental order (August 31, 1973) to be interlocutory. In its adjudication, which included extensive findings of fact and conclusions of law, the Board concluded that the first two conditions, quoted above, were arbitrary, unreasonable and not supported by the evidence. The Board decided the third condition was reasonable and supported by the evidence, but the Board remanded the matter to enable DER to consider the economic impact of the timing of such a permit condition. In response to the Board's adjudication, DER notifield the Gravel Companies, on October 18, 1973, that their proposed dredging into natural and untouched areas would be environmentally undesirable and that the economic impact of prohibiting same would be minimal. DER, therefore, denied the Gravel Companies' request for extension of dredging into natural and untouched areas.

In December 1973, further hearings were conducted before the Board relative to DER's October 18, 1973 determination, and on May 3, 1974, the Board issued its final adjudication and order affirming its interlocutory adjudication, but modifying its original adjudication by granting the extension of dredging by the Gravel Companies into specified new areas on a short-term basis. The Board concluded that the risk of severe adverse economic impact from a limitation of dredging to previously

[ 20 Pa. Commw. Page 191]

    dredged areas justified certain small extensions of dredging which would not interfere with or harm the ecologically important "riffle areas" of the river. On May 23, 1974, the Board denied the Gravel Companies' petition for modification of the May 3, 1974 order. DER and the Gravel Companies then appealed to this Court.

To give some perspective to this matter, we will set forth some historical and statistical facts taken from the record. The river in question is the Allegheny River which is about 200 miles long from the Kinzua Dam running southwardly. In preglacial times, this river flowed northwardly, but as a result of the uplifting of the entire area caused by the advance of glaciers into Western Pennsylvania, the direction was changed. As the glaciers melted, the waters carved into the rock formations of the area, eroding the earth into steep valleys where the rock formations were hard and into wider valleys where soft. The runoff of water carried with it portions of the earth whereby the valleys became choked with alluvium. The glaciation lasted for over a million years and ended about 11,000 years ago. The glacial deposits were carried downstream and through the processes of flooding and hydraulic actions, the velocity of the water caused a scouring whereby sand and gravel were deposited in varying depths. The physiographic features of the river and terrain caused riffles and eddies permitting sediment accumulations at the slower moving places.

Because of construction and road building, this natural deposit of sand and gravel has become an important economic resource. Some sand and gravel may be found in deposits presently on land sites. The deposits here in question, however, are all located under the navigable waters of the Allegheny River. The sand and gravel run to depths of about 40 feet.

The present-day dredging operations are carried out by means of ladder dredges, clamshell buckets, dragline

[ 20 Pa. Commw. Page 192]

    and front-load shovels. The dredges maintain a square face at the upstream and downstream ends of the dredge pools. Normally the annual progress along the stream axis is about 200 feet longitudinally for each of the Gravel Companies. The dredging techniques in the Allegheny River involve the lowering of buckets into a hole dug in the river bottom. The loaded bucket is raised to the stream water surface, held for a few seconds to allow excess water to drain, and then the sand and gravel are dumped onto barges which flank the dredge barges. The stationary dredge barge, which is about 35 feet wide, is normally flanked on both sides by transport barges about 26 feet wide. A typical section of the Allegheny River where dredging exists is about 1,000 feet wide at mean low water. As the digging progresses, the face of the dredge pool becomes an inclined slope caused by the force of water forcing additional sediment into the hole, thereby permitting a reworking of previously dredged areas. A dredged pool eventually becomes an eddy. The dredging season is from about the end of March to December and apparently involves a six-day work week. Since the construction of flood-control dams, such as Kinzua Dam, the natural flow of water is to some degree controlled, which apparently results in less scouring and, interestingly, has lowered the temperature of the water in the Allegheny River. The upper Allegheny River, where this type of dredging has taken place for more than a hundred years, supports an abundant fish population both above and below the dredging operation. The water in the upper Allegheny is of a high quality.

The Gravel Companies have maintained dredging operations in this area for about 45 years. Much of the sand and gravel removed by the Gravel Companies is purchased and used in the construction and maintenance of ...


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