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WARREN E. BERGER v. COMMONWEALTH PENNSYLVANIA (04/24/79)

decided: April 24, 1979.

WARREN E. BERGER, LAVERNE BERGER AND MIDDLE PAXTON CONCERNED CITIZENS, INC., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT. PENNSYLVANIA ENVIRONMENTAL MANAGEMENT SERVICES, INC., INTERVENOR



Original jurisdiction in case of Warren E. Berger and Laverne Berger and Middle Paxton Concerned Citizens, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources.

COUNSEL

Michael C. Fox, with him Michael Q. Davis, and Nauman, Smith, Shissler & Hall, for petitioners.

Karin W. Carter, Assistant Attorney General, for respondent.

Richard L. Berkman, for intervenor.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 42 Pa. Commw. Page 207]

We have for disposition the preliminary objections filed by the Department of Environmental Resources (DER) to a petition for review filed by two individual residents of Middle Paxton Township, Dauphin County, and a nonprofit corporation. The petitioners commenced this proceeding in an effort to object to the manner in which, they allege, DER is reviewing and processing the application of the Pennsylvania Environmental Management Services, Inc. (PEMS) for a permit to construct and operate a sanitary landfill.

Petitioners allege that, upon inquiry, DER employees have stated that the permit application review process would not include consideration of the Dauphin

[ 42 Pa. Commw. Page 208]

County Solid Waste Management Plan (County Plan), either in its current form or in its future updated form; nor would it include consideration of zoning, population estimates, engineering, economics of the county, highway accessibility, residential proximity, area-wide economic impact, watershed impact, effects on game trails, effects on forest land, and aesthetic values. Petitioners allege that DER's lack of consideration of the aforesaid items in its permit application review process would violate the Pennsylvania Solid Waste Management Act, Act of July 31, 1968, P.L. 788, as amended, 35 P.S. § 6001 et seq., and Article I, Section 27 of the Pennsylvania Constitution. Petitioners admit that DER has not yet completed its review process and has not granted the permit but allege that they will suffer irreparable harm if the review process is allowed to continue in its present manner. Petitioners also allege that DER has failed to enforce the County Plan. Petitioners seek relief under the Declaratory Judgments Act, 42 Pa.C.S. § 7531 et seq., or by injunction or mandamus requiring DER to stop processing the PEMS permit application until the aforesaid information is available and to incorporate this information into its review. Petitioners also request an order in mandamus requiring DER to order Dauphin County to institute the current County Plan.

DER's preliminary objections raise, inter alia, the question as to whether or not the petition for review here is premature and accordingly should be dismissed.

Petitioners admit, at paragraph 41 of their petition for review, that "[t]he refusal of the Department, through its employees, to give consideration to the information mandated both under the statute, and under the Constitution, does not constitute an order, decree, decision, determination, or ruling by the Department, ...


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