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MIGNATTI CONSTRUCTION COMPANY v. COMMONWEALTH PENNSYLVANIA (02/28/80)

decided: February 28, 1980.

MIGNATTI CONSTRUCTION COMPANY, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, ENVIRONMENTAL HEARING BOARD ET AL., RESPONDENTS. TOWNSHIP OF SALFORD AND TOWNSHIP OF WEST ROCKHILL, PETITIONERS V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



Appeals from the Order of the Environmental Hearing Board in case of Township of Salford and Township of West Rockhill and Stop The Quarry Committee v. Department of Environmental Resources and Mignatti Construction Company, Inc., No. 76-135-C.

COUNSEL

Robert G. Bricker, of Souder, Rosenberger & Bricker, with him Francis X. Grabowski, of Jaczun & Grabowski, for protestants.

Paul W. Callahan, for applicant.

K. W. James Rochow, Assistant Attorney General, for Department.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer and Rogers. Judges Blatt, DiSalle, Craig and MacPhail did not participate. Opinion by Judge Mencer. President Judge Bowman and Judge DiSalle did not participate in the decision in this case.

Author: Mencer

[ 49 Pa. Commw. Page 499]

On October 18, 1976, the Department of Environmental Resources (DER) issued to Mignatti Construction Company, Inc. (Mignatti) a surface-mining permit to operate a stone quarry on a 79.4-acre site in West Rockhill Township, Bucks County. Salford and West Rockhill Townships (Townships) appealed the issuance of the permit to the Pennsylvania Environmental Hearing Board (Board). The Board set aside the permit and required Mignatti to submit a "soil and erosion plan" (sic)*fn1 in accordance with 25 Pa. Code §§ 102.5(b) and 102.13(d)(1) (as it relates to surface-mining permits) and to submit an application for an air quality permit in accordance with Section 6.1 of the Air Pollution Control Act (APCA), Act of January 8, 1960, P.L. (1959) 2119, as amended, added by Section 6 of the Act of October 26, 1972, P.L. 989, 35 P.S. § 4006.1. From this order, Mignatti and the Townships have filed cross-appeals with this court.

Mignatti's Appeal

Mignatti first argues that the Board erred when it concluded that Section 6.1 of APCA requires the issuance of an air quality permit prior to the operation of a quarry. We disagree. Section 6.1 provides, in pertinent part, as follows:

(a) On or after July 1, 1972, no person shall construct, assemble, install or modify any stationary air contamination source, or install

[ 49 Pa. Commw. Page 500]

    thereon any air pollution control equipment or device . . . unless such person has applied to and received from the department written approval so to do. . . .

(b) No person shall operate any stationary air contamination source which is subject to the provisions of subsection (a) of this section unless the department shall have issued to such person a permit to operate ...


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