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COMMONWEALTH PENNSYLVANIA v. GLASGOW QUARRY (02/10/76)

decided: February 10, 1976.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES
v.
GLASGOW QUARRY, INC., APPELLANT



Appeal from the Order of the Environmental Hearing Board in case of Glasgow Quarry, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources, No. 73-334-B.

COUNSEL

John G. Kaufman, with him Bean, DeAngelis & Kaufman, for appellant.

Thomas J. Oravetz, Deputy Attorney General, for appellee.

Kingsley A. Jarvis, for Citizens Intervenors.

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

Author: Wilkinson

[ 23 Pa. Commw. Page 271]

On May 3, 1973, appellant, operating a quarry, applied for a permit under the provisions of the Surface Mining Conservation and Reclamation Act, Act of November 30, 1971, P.L. 554, as amended, 52 P.S. ยง 1396.1 et seq. Since November 30, 1972, appellant had been operating the quarry under an interim permit which was due to expire on May 20, 1973. After considerable negotiations, conferences, and exchange of correspondence, on September

[ 23 Pa. Commw. Page 27219]

, 1973, the permit requested in the May 3, 1973 application was denied on the grounds that the blasting procedures used and to be used did not adequately safeguard the public.

This was followed on September 27, 1973, with an order from the Department of Environmental Resources to appellant to cease and desist further operations. Appellant promptly appealed both actions to the Environmental Hearing Board. By agreement, a supersedeas order was issued permitting continued operation of the quarry under certain restrictions.

The Environmental Hearing Board held hearings on 10 separate days, followed by oral argument. A voluminous record of 2202 pages of testimony was transcribed. With even a casual reading of this testimony, it is apparent that all parties were sincerely and diligently seeking a solution to the blasting problem. There was more than ample testimony to have supported a finding in either party's favor. The Environmental Hearing Board, supported by a very carefully prepared adjudication by its chairman, sustained the denial of the permanent permit but ordered that one or more interim permits be granted appellant so that a satisfactory method of blasting could be achieved.

In its appeal to this Court, appellant raises two questions:

"I. When the Department of Environmental Resources refuses to license a lawful quarry operation, alleging nuisance, does the Department meet its burden of ...


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