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JAMES E. MARTIN v. COMMONWEALTH PENNSYLVANIA (10/07/88)

decided: October 7, 1988.

JAMES E. MARTIN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



Appeal from the Order of the Department of Environmental Resources in the case of James Martin v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket Nos. 83-121-G, 84-016-G and 84-028-G.

COUNSEL

Eugene E. Dice, for petitioner.

Zelda Curtiss, Assistant Counsel, for respondent.

Judges MacPhail and Smith, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Smith. This decision was reached prior to the resignation of Judge MacPhail.

Author: Smith

[ 120 Pa. Commw. Page 270]

Petitioner James E. Martin (Martin) appeals from the April 10, 1986 order of the Environmental Hearing Board (Board) which affirmed the Department of Environmental Resources' (DER) issuance of a compliance

[ 120 Pa. Commw. Page 271]

    order on December 14, 1983 citing Martin for failure to comply with provisions of an October 18, 1983 consent order and agreement. The decision of the Board is affirmed.

Questions presented for review are whether the Board's decision is supported by substantial evidence; whether the decision of the Board violated principles of due process of law; and whether the Board abused its discretion in refusing to admit evidence showing the absence of any adverse environmental effect caused by the alleged violation.

The 1983 consent order entered into between Martin and DER imposed obligations on Martin to update, in compliance with the Surface Mining Conservation and Reclamation Act (Act),*fn1 erosion and sedimentation controls at the surface coal mining site operated by Martin. Paragraph 4(a) of the 1983 consent order specifically required Martin to develop and implement an erosion and sedimentation control plan (Plan) by December 5, 1983 and also by that same date to submit the Plan to DER for its approval. Martin submitted the Plan on December 6, 1983 which DER stipulated at trial was a de minimis violation. N.T., pp. 275-80, July 30, 1985 Hearing.

Based upon an inspection of the mining site on December 8, 1983, DER found Martin to be in violation of the law in that he failed to install and implement the erosion and sedimentation controls as required by the 1983 consent order. As a consequence, DER issued the December 14, 1983 compliance order. On December 29, 1983, DER also sent a notice of proposed civil penalty which notified Martin that because of the violations set forth in the compliance order, Martin was liable for

[ 120 Pa. Commw. Page 272]

    a civil penalty of twenty thousand five hundred ...


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