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PENNSYLVANIA ENVIRONMENTAL MANAGEMENT SERVICES v. COMMONWEALTH PENNSYLVANIA (01/14/86)

decided: January 14, 1986.

PENNSYLVANIA ENVIRONMENTAL MANAGEMENT SERVICES, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES ET AL., RESPONDENTS



Appeal from the Order of the Environmental Hearing Board in case of Pennsylvania Environmental Management Services, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources, County of Chester, New Garden Township and Concerned Citizens, Docket No. 79-153-M.

COUNSEL

Thomas A. Riley, Jr., Riley Law Associates, Inc., with him, Hershel J. Richman and Jane Massey Licata, Cohen, Shapiro, Polisher, Shiekman and Cohen, for petitioner.

Kenneth A. Gelburd, Assistant Counsel, for respondent.

George A. Brutscher, Brutscher, Brutscher & Foley, for intervenors, New Garden Township and Concerned Citizens of Southern Chester County.

Janet M. Colliton, Solicitor for intervenor, Chester County.

President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by President Judge Crumlish, Jr. Judge Rogers did not participate in the decision in this case. Judge Palladino dissents.

Author: Crumlish

[ 94 Pa. Commw. Page 184]

The Department of Environmental Resources (DER) denied an application by Pennsylvania Environmental Management Services, Inc. (PEMS), for a solid waste management permit to operate a landfill in New Garden Township, Chester County. PEMS appeals an Environmental Hearing Board (EHB) order upholding this denial. New Garden Township, Chester County, and Concerned Citizens of Southern Chester County intervene opposing the permit.

PEMS' application was originally denied by DER, pursuant to the Pennsylvania Solid Waste Management Act (1968 Act),*fn1 because the landfill would create a hazard by attracting foraging birds into the flight path of small planes using the nearby New Garden Flying Field. PEMS appealed that denial to EHB. EHB reversed, holding that PEMS had established that it was capable of controlling the "bird strike" hazard, and remanded to DER retaining jurisdiction.

DER then began a re-evaluation of the application. It required PEMS to answer (1) a compliance history questionnaire to enable DER to perform its duties under Sections 503(c) and (d) of the newly passed

[ 94 Pa. Commw. Page 185]

Solid Waste Management Act (1980 Act)*fn2 and (2) a questionnaire enabling DER to conduct an Environmental Assessment Process (EAP) in order to render a decision, balancing environmental and social concerns pursuant to PA. CONST. art. I, ยง 27,*fn3 which would pass the three-pronged test set forth in Payne v. Kassab, 11 Pa. Commonwealth Ct. 14, 312 A.2d 86 (1973), aff'd, 468 Pa. 226, 361 A.2d 263 (1976).*fn4 PEMS challenged the propriety of this re-evaluation through a petition to EHB for a determination of the ...


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