Appeal from the Order of the Environmental Hearing Board in case of In the Matter of Newlin Township v. Commonwealth of Pennsylvania Department of Environmental Resources, Docket No. 78-127-D.
Thomas A. Riley, Jr., with him John C. Snyder ; of counsel, Lentz, Riley, Cantor, Kilgore and Massey, Ltd., for petitioner.
Bruce S. Katcher, with him Joseph M. Manko ; of counsel, Wolf, Block, Schorr & Solis-Cohen, and Keith Welks, Assistant Attorney General, for respondent.
President Judge Crumlish and Judges Rogers and Craig, sitting as a panel of three. Opinion by President Judge Crumlish.
[ 52 Pa. Commw. Page 516]
This appeal by Strasburg Associates (Strasburg)*fn1 concerns an adjudication and order of the Environmental Hearing Board (EHB) which sustained in part and dismissed in part the challenges to a sanitary landfill permit in Newlin Township, Chester County. Since the Township lacks standing to litigate the issue, we must reverse.
On August 15, 1975, the Department of Environmental Resources (DER) awarded a sanitary landfill permit for 22 acres of a 300-acre site owned by Strasburg in Newlin and West Bradford Townships, Chester County, Pennsylvania. Zoning disputes, groundwater problems, and erosion control measures halted construction of the landfill, for reasons material to this litigation, through October of 1978. Financing problems then forced Strasburg to enter investment negotiations with a three-corporation investment group, whereby a joint venture known as Strasburg Landfill Associates (SLA)*fn2 would purchase the 300-acre tract, lease it back to Strasburg, and enter into an agreement with Strasburg to manage the presently permitted landfill. However, in late August of 1978, DER notified Strasburg and SLA that the proposed joint venture would constitute a change of ownership requiring a transfer of the permit in accordance with
[ 52 Pa. Commw. Page 517]
DER Regulation, Section 75.22(f).*fn3 Accordingly, Strasburg and SLA submitted a Termination Agreement for this Landfill Lease-Management contract for DER's approval. DER's response letter, dated September 8, 1978, which accepts the Agreement's terms, put into motion the present litigation. The letter acknowledges receipt and approves prior-submitted modifications and specifications to the overall landfill plans for incorporation in the activated permit and its subsequent implementation. The revisions included a timetable for leachate storage tank installation, provisions for an access road to the leachate sump, and the installation of specific liner subdrains and a groundwater monitoring system. The letter also served as notice of the necessity for immediate corrective plans to correct secondary access road erosion on the site.
In the meantime, Strasburg, SLA, the American Bank, and the Chester County Industrial Development
[ 52 Pa. Commw. Page 518]
Authority (CCIDA) were negotiating a commitment and mortgage financing project for the purchase and construction of the landfill on the tract. On October 11, 1978, the final agreements were executed, the tract was sold to CCIDA, resold by installment sale to SLA, financed by an American Bank mortgage, and leased to Strasburg. DER then reviewed these transactions in November of 1978 and concluded there had been no change of ownership which required a reissuance of the permit under Section 75.22(f).
On October 9, 1978, Newlin Township appealed, contending that DER erred in its September 8th approval of landfill operations by SLA without the reissuance of a permit, and abused its discretion by approving the revisions and failing to condition continued landfilling on the soil and erosion control plan for the secondary access road. DER and Strasburg, the intervenor below, moved to dismiss the appeal for lack of EHB jurisdiction arguing that the September 8th letter did not ...