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COMMONWEALTH PENNSYLVANIA v. ELIZABETH STEWARD (05/17/76)

decided: May 17, 1976.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES
v.
ELIZABETH STEWARD, APPELLANT



Appeal from the Order of the Environmental Hearing Board of the Department of Environmental Resources, in case of In the Matter of: Brady Township, Gregg Township and Elizabeth Steward v. Commonwealth of Pennsylvania, Department of Environmental Resources and Lycoming County Commissioners, Intervenors, Docket No. 74-246-W.

COUNSEL

John C. Sullivan, with him Nauman, Smith, Shissler & Hall, for appellant.

Terry R. Bossert, Assistant Attorney General, with him Karin W. Carter, Assistant Attorney General, for appellee.

Robert J. Wollet, for intervening appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. Judge Kramer did not participate in the decision in this case.

Author: Crumlish

[ 24 Pa. Commw. Page 495]

This is an appeal from an adjudication and order of the Environmental Hearing Board (EHB), which sustained the issuance to the Commissioners of Lycoming County (Intervening Appellee) by the Department of Environmental Resources (DER) of a permit to construct and operate a sanitary landfill on the Allenwood Prison Camp in Brady Township, Lycoming County. We affirm.

Elizabeth Steward (Appellant) frames four issues for our resolution:

1. Was the permit issued in contravention of existing statutory authority, in that DER officials are required to comply with the Act of July 19, 1974, P.L. 486, 65 P.S. § 261 et seq., colloquially, the Sunshine Law?

2. Was there a valid waiver of the requirements found in Regulation Sections 75.84 and 75.113?*fn1

3. Did DER deny Appellant procedural due process in reviewing the application for the issuance of a permit?

4. Did DER act arbitrarily and capriciously in issuing a permit for a polyvinyl chloride (PVC) membranelined landfill?

[ 24 Pa. Commw. Page 496]

Initially, Appellant argues that the issuance of a permit by the Division of Solid Waste Management is in the nature of a deliberation*fn2 as contemplated by the Sunshine Law. Since it is admitted no public notice was given, she contends the permit is invalid.*fn3 Further, she argues EHB, when confronted with these facts, erred when it dismissed her contention on the ground of lack of jurisdiction. We disagree.

The EHB properly concluded that it lacked jurisdiction to resolve this issue. Section 9 of the Sunshine Law, 65 P.S. § 269, is unequivocal in providing:

"The Commonwealth Court shall have original jurisdiction of actions involving State agencies and the courts of common pleas shall have original jurisdiction of actions involving other agencies to render declaratory judgments or to enforce this act, by injunction or other remedy deemed appropriate by the court. The action may be brought by any person in the judicial district where such person resides or has his principal place ...


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