Appeal from the Order of the Pennsylvania Environmental Hearing Board in case of In the Matter of: City of York, et al. v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket Nos. 75-073-W, 75-122-W, 75-123-W, 75-132-W, 75-138-W, 75-139-W, 75-141-W, 75-142-W, 75-143-W, 75-144-W and 75-145-W.
Dennis J. Harnish, Assistant Attorney General, for appellant.
John W. Thompson, Jr., City Solicitor, for appellee, City of York.
Raymond L. Hovis, with him D. Reed Anderson, for appellees, York Township, Jacobus Borough and Wrightsville Borough.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate. Opinion by President Judge Bowman.
[ 26 Pa. Commw. Page 604]
This is an appeal by the Department of Environmental Resources (DER) from an adjudication of the Environmental Hearing Board (EHB) concluding that DER lacks statutory authority to compel implementation of a regional solid waste management plan. The plan was adopted by appellees and approved by
[ 26 Pa. Commw. Page 605]
DER as provided by the Pennsylvania Solid Waste Management Act (Act), Act of July 31, 1968, P.L. 788, as amended, 35 P.S. § 6001 et seq.
The underlying facts are as follows: Pursuant to the provisions of Section 5(a) of the Act, 35 P.S. § 6005(a), the City of York and other York County municipalities*fn1 adopted an official plan which was submitted to and approved by DER. The pertinent provisions of the plan call for the creation of the York County Solid Waste Refuse Authority (Authority) and the vesting in it of responsibility to purchase and operate solid waste disposal sites. One such site, which is the focus of this litigation, and the necessary equipment were purchased by the Authority in Hopewell Township and the necessary operating permit was obtained from DER.
This litigation arises from the refusal of appellees to implement that portion of the official plan calling for them to delegate, by resolution or ordinance, to the Authority their powers regarding solid waste disposal.*fn2 Instead, appellees are employing a site not provided for in the official plan for which DER approval was granted.*fn3
By orders dated on or about March 7, 1975, DER sought to compel appellees to utilize the Hopewell Township site and to otherwise implement the official plan. In proceedings brought by appellees before EHB, it was determined ...