46 Pa. Commw. 416 | Pa. Commw. Ct. | 1979
Opinion by
We have before us an appeal from an order of the Environmental Hearing Board (Board) which affirmed the order of the Department of Environmental Resources (DER) directing the appellants cease the operation of a landfill. We affirm.
Appellants’ next argument is that the Commonwealth has capriciously discriminated against them by selective enforcement. This factual issue was presented to the Board and it found against appellants. Appellants had the burden on this issue and failed to meet it. See Frantz v. Baldwin-Whitehall School District, 8 Pa. Comonwealth Ct. 639, 304 A.2d 531 (1973), aff’d, 460 Pa. 192, 331 A.2d 484 (1975). Appellants assert they were prevented from presenting their evidence on this issue by the hearing examiner. A study of the record does not support this claim of error. Appellants were prevented from pursuing this point on cross-examination because it was outside the scope of the direct examination. However, the hearing examiner expressly stated at the time of that ruling that appellants could present such testimony in their case.
Accordingly, we will enter the following
Order
And Now, October 11, 1979, the order of the Environmental Hearing Board in its Docket No. 77-032-W, dated July 10, 1978, affirming the order of the Department of Environmental Resources directing Delmar Coward and Coward Contracting Company, Inc. to cease the operation of a landfill is affirmed.
Our position in this matter should come as no surprise to appellants for this Court, acting through Judge Mencek, granted the DER a preliminary injunction, enjoining appellants from operating this same landfill. See Commonwealth v. Coward, No. 1801 C.D. 1978 (unreported order entered September 22, 1978 and unreported opinion filed November 14, 1978).