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COMMONWEALTH PENNSYLVANIA v. MONONGAHELA AND OHIO DREDGING CO. (10/28/75)

decided: October 28, 1975.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES
v.
MONONGAHELA AND OHIO DREDGING CO., APPELLANT



Appeal from the Order of the Environmental Hearing Board in case of In the Matter of: Monongahela and Ohio Dredging Co. v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 72-388-B.

COUNSEL

Frank E. Coho, for appellant.

Thomas M. Burke, Special Assistant Attorney General, with him Elissa A. Parker, Special Assistant Attorney General, for appellee.

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

Author: Crumlish

[ 21 Pa. Commw. Page 454]

This is an appeal from an adjudication and order of the Environmental Hearing Board (EHB) affirming the power of the Department of Environmental Resources (DER) to issue a cease and desist order, without hearing, against the Monongahela and Ohio Dredging Company (Appellant) restraining Appellant from all acts which result or may result in a change of the cross section of the Allegheny River until DER approval is obtained. The order from which the instant appeal was taken reversed an earlier EHB order dismissing Appellant's appeal for want of subject matter jurisdiction.

Underlying this appeal are the following facts: On October 12, 1972, DER issued a cease and desist order, under a covering letter, to Appellant. Prior to DER's Regional Sanitary Engineer issuing this order no hearings were held; yet, this letter order contained eight statements (findings) of fact*fn1 which purported to support the

[ 21 Pa. Commw. Page 455]

    conclusion of law that Appellant, by changing the cross section of the Allegheny River, without DER permission, had violated Section 2 of the Water Obstructions Act, Act of June 25, 1913, P.L. 555, as amended, 32 P.S. ยงยง 681-691 (Act of 1913). From this order, Appellant appealed to the EHB, and in the initial adjudication the appeal was dismissed for want of subject matter jurisdiction. However, following a petition for reargument and EHB consideration of the fact that subject matter jurisdiction had been raised sua sponte thus denying the parties the chance to brief or properly argue the issue, reargument on the limited issue of jurisdiction was granted. Following argument, EHB reversed its earlier adjudication and order, finding jurisdiction to determine the matter, and finally dismissed the appeal on the merits.

[ 21 Pa. Commw. Page 456]

Appellant frames four issues for our resolution:

1. Does the Act of 1913 authorize DER (through its Sanitary Engineers) to issue orders against dredging companies performing maintenance dredging, compelling performance which DER deems desirable under the Act?

2. Does DER under any other statute have authority to issue cease and desist orders in the manner here complained of to remedy alleged dredging violations?

3. Does DER or EHB have the duty to find the facts in a given case and limit orders to those ...


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