Environmental Hearing Board Issues Supersedeas On Blasting Authorization
In Brewster v. DEP and Highway Materials, EHB Docket No. 2008-196C (Issued September 18, 2008) , the Board granted the Brewester’s petition for supersedeas, effectively suspending blasting authorization issued by DEP to Highway Materials for quarry production blasting.
Highway Materials had filed an action in the Montgomery County Court of Common Pleas relative to the blasting authorization at its quarry. The Court, relying on local zoning, issued an order authorizing Highway Materials to blast within 25’ of the Brewester’s property line and restricted the Brewsters’ from occupying certain portions of their property during blasting activity.
Highway Materials submitted a revised blast plan to DEP, consistent with the Court of Common Pleas’ Order. DEP approved the revised blast plan authorizing blasting within 25’ of the property line and in effect within 300’ of the Brewsters’ residence.
The Brewsters appealed DEP’s approval of the blast plan. The Board conducted a hearing on the petition for supersedeas. After initially denying the petition for supersedeas, the Board reconsidered its decision and held that 52 P.S. §3316, section 16 of the Non-coal Surface Mining Act of December 19, 1984, P.L. 1093, pre-empts local regulation of blasting activity and that the local zoning ordinance, which would allow blasting within 25’ of a property line, is potentially in conflict with the 300’ setback from an occupied dwelling under the Department’s regulations at 25 Pa. Code §77.504. The Board held that the Brewsters were likely to prevail on the merits of their appeal given the clear regulatory requirement for a waiver to blast within 300’ of an occupied dwelling. The Board also held that the Brewsters had made a credible case in terms of showing irreparable harm.
