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December 1, 2011

In a case decided in 2006, Colbert v. the Pennsylvania Department of Environmental Protection (DEP) and Middle Creek Quarry, a judge overturned a decision by the DEP to grant a major non-coal mining permit to quarry operator John Malti of Palmyra Township in Wayne County. Key to the rationale for vacating the permit was Section 3308 of the Surface Mining Act. That legislation says that the agency cannot grant a permit if:

“(i) the applicant has failed or continues to fail to comply with any of the provisions of this act or the act of May 31, 1945 (P.L. 1198, No. 418), known as the Surface Mining Conservation and Reclamation Act; or

(ii) the applicant has shown a lack of ability or intention to comply with any provision of this act or the Surface Mining Conservation and Reclamation Act, as indicated by past or continuing violations.”

In the case of the Middle Creek Quarry, at the time the major mining permit was granted there were no outstanding notices of violation (NOVs) or compliance orders. However, the DEP had previously found numerous and repeated violations on the quarry’s three existing five-acre permits, almost none of which had been remediated on a timely basis. The court concluded that the DEP had violated (b)(1)(ii) above, and that the issuance of an additional permit was hence not permissible.

The court, in short, forced the DEP to behave in a way in which most people behave out of plain common sense. When one trusts somebody with a small area of responsibility, and finds that they do not live up to even that small trust, one does not normally entrust them with a larger area of responsibility. Yet observing the Middle Creek case and the more recent, pending case of the Holbert Quarry in Lackawaxen, PA, that seems at least sometimes to be DEP policy.

The Colbert decision, for instance, says of DEP inspector Colleen Stutzman, “While she was aware that Middle Creek had been issued a compliance order for overmining, in her view, the operator had the option of choosing to file an application for a Large Permit in order to avoid further enforcement by the Department.”

Similarly, in the case of the Holbert Quarry, in 2007 an inspector told Holbert that no enforcement action would be taken against Holbert for the mining he had already done in excess of his permitted 10 acres if he succeeded in getting approval for a major mining permit.

To us, this is about like telling your teenagers they can use the family car as long as they get home by 11 p.m., having them come back drunk at 1 a.m. with the door caved in, and deciding that the solution is to buy them their own car and eliminate the curfew.