Appeal from the order of the Environmental Hearing Board in the case of Nemacolin, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources, EHB Docket No. 86-546-R, dated April 28, 1987.
Peter U. Hook, for petitioner.
Katherine S. Dunlop, Assistant Counsel, for respondent.
Judges Craig, Doyle and Palladino, sitting as a panel of three. Opinion by Judge Craig.
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Nemacolin, Inc. (Nemacolin) appeals from an order of the Environmental Hearing Board (board) granting the request for summary judgment of the Department of Environmental Resources (DER) and denying Nemacolin's appeal from a DER order directing that a swimming pool operated by Nemacolin be closed and drained and remain so until such time as Nemacolin secured a permit from DER to operate the pool.
The issues presented are (1) whether Nemacolin is precluded from arguing in this enforcement proceeding appeal that the statutory permit requirement does not apply to this pool by virtue of Nemacolin's failure to appeal DER's initial denial of the permit; (2) if Nemacolin is not so precluded, whether the statutory exclusion of condominium swimming pools from the definition of "public bathing place," except with respect to certain enumerated concerns, exempts such pools from the general permit requirement; (3) if it does, whether the design of the structure of a pool falls under DER's express
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statutory authority to regulate "safety equipment" at condominium swimming pools, and (4) if the "safety equipment" exception does not apply, whether DER has the authority to disapprove the design of the structure and to stop the operation of this pool under a general mandate to abate nuisances.
The material facts are not in dispute.*fn1 In the summer of 1985 Nemacolin built a swimming pool on land in Fayette County commonly known as Nemacolin Woodlands. Nemacolin operated and maintained the pool on behalf of the Maples Condominium and the Laurel Pond Condominium for the exclusive use of residents of the condominiums and their guests. The pool is twenty-six feet wide and fifty feet long, with no diving board.
On July 29, 1985, after the pool was built, Nemacolin filed an application with DER for a Bathing Place Permit under the Public Bathing Law, Act of June 23, 1931, P.L. 899, as amended, 35 P.S. §§ 672-680d. DER denied the application, on September 20, 1985, because the pool's design included a slope that began at a point less than six feet from the water surface, a so-called "hopper bottom," in violation of section 220.127.116.11 of DER's Bathing Place Manual.*fn2 Nemacolin did not appeal
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that denial. Nemacolin did, however, continue ...