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COMMONWEALTH PENNSYLVANIA v. O'HARA SANITATION COMPANY (08/04/89)

decided: August 4, 1989.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLANT,
v.
O'HARA SANITATION COMPANY, WILLIAM J. O'HARA AND BETTY E. O'HARA, APPELLEES



Appeal from Common Pleas Court, Montgomery County; Honorable Samuel W. Salus II, Judge.

COUNSEL

Mary Young, Asst. Counsel, Philadelphia, for appellant.

Steven Speece, King of Prussia, Robert J. Kerns, Landis, Williams & Kerns, Lansdale, John M. Elliott, James D. Morris, Mark J. Schwemler, Leslie E. Bowser, Philadelphia, for appellees.

Barry, McGinley and Smith, JJ.

Author: Mcginley

[ 128 Pa. Commw. Page 48]

The Department of Environmental Resources (DER) appeals an order of the Court of Common Pleas of Montgomery County (Chancellor) refusing DER's request to enjoin the recycling activities of the O'Hara Sanitation Company, Inc. (OSC). We affirm.

[ 128 Pa. Commw. Page 49]

On August 12, 1985, DER filed a complaint in equity and a petition for preliminary and special injunctive relief against OSC and William J. and Betty E. O'Hara (O'Haras) claiming that OSC was illegally engaged in solid waste processing activities without a permit at a location in Montgomery County known as the "garage site," and against the O'Haras as owners of the land upon which these activities were being carried out. On August 19, 1985, the Chancellor preliminarily enjoined OSC from "dumping, depositing, processing and burning, or allowing the dumping, depositing, processing and burning of solid waste, as defined in 35 P.S. ยง 6018.103 at the areas known as the Garage Site, the School Site and any other unpermitted places in Pennsylvania." (Order of the Chancellor, August 19, 1985, at 1.) The Chancellor also determined that the "present recycling activities may continue." Id.

DER thereafter sought an order to prohibit recycling activities which were previously found to be permissible. After a full hearing on March 14, 1986, to determine whether OSC's recycling activities constituted the processing of solid waste, the Chancellor denied DER's request for an injunction ruling that OSC's activities did not amount to processing, and dismissed the O'Haras from the case, finding that there was "not a scintilla of evidence in the record or at argument that the individuals in any way violated any provisions of the Solid Waste Management Act." (Opinion and Order of the Chancellor, April 23, 1986, (Opinion) at 1, Appendix 1 to DER's brief.) DER appeals this order.*fn1

OSC is in the business of the collection, transportation and disposal of municipal solid waste. At the garage site,

[ 128 Pa. Commw. Page 50]

OSC recycles construction and demolition waste, defined as "waste building materials, dredging materials, grubbing waste, and rubble resulting from construction, remodeling, repair, and demolition operation on houses, commercial buildings, and other structures and pavements." (Notes of Testimony, March 14, 1986, (N.T.) at 29.) The construction and demolition material is dumped from roll-off containers at a specific location at the garage site. A bulldozer spreads the materials out on the ground so that recyclable materials can be hand-picked out of the pile. (Deposition of Patrick M. O'Hara, secretary-treasurer of OSC, October 17, 1985, (O'Hara Deposition) at 35.) Approximately half of the material, including metal, cardboard and wood, is recycled; the other half is scooped up by the bulldozer, dumped into an open top trailer and transported off-site to permitted disposal sites. (O'Hara Deposition at 31, 36-37.)

DER requests this Court to reverse the Chancellor's decision and issue an injunction against OSC because: the Chancellor misinterpreted the Pennsylvania Solid Waste Management Act (Act);*fn2 the Act requires a permit for the operation of a solid waste transfer facility; and, the Act does impose ...


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