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decided: May 7, 1986.


Appeal from the Order of the Environmental Hearing Board, in case of Commonwealth of Pennsylvania, Pennsylvania Game Commission v. Commonwealth of Pennsylvania Department of Environmental Resources and Ganzer Sand and Gravel, Inc., and Hammermill Paper Company, Inc., Docket No. 82-284-G.


Stuart M. Bliwas, Chief Counsel, for petitioner.

William J. Kelly, with him, Robert C. LeSuer, Elderkin, Martin, Kelly, Messina & Zamboldi, for respondent, Ganzer Sand and Gravel, Inc.

Daniel Brocki, Senior Attorney, for respondent, Hammermill Paper Company.

President Judge Crumlish, Jr., Judges Rogers, Craig, Doyle, Barry, Colins and Palladino. Opinion by Judge Colins.

Author: Colins

[ 97 Pa. Commw. Page 80]

This is a petition by the Pennsylvania Game Commission (Game Commission) seeking review of an order issued January 17, 1985, by the Environmental Hearing Board (Board) upholding a decision of the Department of Environmental Resources (DER) to grant a solid waste permit (permit) to Ganzer Sand & Gravel, Inc. (Ganzer).

The permit was first issued by DER on November 1, 1982, following over three (3) years of meetings and discussions between Ganzer, DER, and the Hammermill Paper Company (Hammermill), the producer of the waste to be deposited at the fill site. The permit was applied for and issued in accordance with the provisions of the Solid Waste Management Act (SWMA)*fn1 and its implementing regulations.*fn2

[ 97 Pa. Commw. Page 81]

The Game Commission then filed a notice of appeal within the thirty (30) days subsequent to issuance of the permit. Before holding hearings, the Board issued two orders, one issuing on March 29, 1983, denying the Game Commission leave to amend its grounds for appeal to assert a violation of Section 504 of the SWMA,*fn3 and the second, issuing on February 3, 1984, finding that the Game Commission lacked standing to assert the provisions of the Dam Safety and Encroachment Act (DSEA).*fn4 Nine (9) days of hearings were held before the Board,*fn5 at which extensive evidence was received regarding the effect of the issuance of the permit on the surrounding environment. The Board, on January 17, 1985, issued its adjudication, opinion, and order dismissing the Game Commission appeal. The Game Commission now petitions for review and presents seven issues on appeal.

The gist of the Game Commission's objection to the issuance of the permit is its allegation that the location of the waste fill site is threateningly close to State Game Lands No. 218-Siegel Marsh, a refuge maintained for game wildlife and plantlife. Thus, we are presented with a situation of two state agencies, one charged with the protection of the environment, the other charged with the regulation of game wildlife, carrying their differences to this Court in an attempt to settle their inter-agency policy disputes over how best to balance competing claims of industry and environment.

We begin by noting that our scope of review of Board decisions is limited by 2 Pa. C.S. § 704 to determining

[ 97 Pa. Commw. Page 82]

    whether the Board committed constitutional violations, errors of law, or whether any necessary findings of fact made by the Board were unsupported by substantial evidence. Willowbrook v. Department of Environmental Resources, 92 Pa. Commonwealth Ct. 163, 165, 499 A.2d 2, 3 (1985). When we review an administrative order, the prevailing party is entitled to the benefit of every inference which can be logically drawn from the evidence when viewed in a light most favorable to the prevailing party. Doerr v. Pennsylvania Liquor Control Board, 88 Pa. Commonwealth Ct. 610, 614, 491 A.2d 299, 302 (1985). Questions of resolving conflicts in the evidence, witness credibility, and evidentiary weight are properly within the exclusive discretion of the factfinding agency, and are not usually matters for a reviewing court. Chapman v. Pennsylvania Board of Probation and Parole. 86 Pa. Commonwealth Ct. 49, 484 A.2d 413 (1984). An administrative agency has wide discretion when establishing rules, regulations, and standards, and also in the performance of its administrative duties and functions, and this Court cannot overturn an agency's exercise of its discretion absent proof of fraud, bad faith, or blatant abuse of discretion. Wengrzyn v. Cohen, 92 Pa. Commonwealth Ct. 154, 158, 498 A.2d 61, 62 (1985).

I. Standing Under DSEA

The Game Commission contends first that the Board erred in denying it standing to raise violations of the DSEA*fn6 and its applicable regulations.*fn7 The main argument by the Game Commission is that it has standing to assert violations of the DSEA by virtue of its jurisdictional power to protect wildlife and the Commonwealth. See Sections 101, 210 and 214 of the Game Law Act.*fn8

[ 97 Pa. Commw. Page 83]

Section 24(a) of the DSEA*fn9 gives a right of appeal to "[a]ny person who shall be aggrieved by any action of the department under this act. . . ." The cases interpreting the requirements of standing under the "any person aggrieved" language requires that the party, to be aggrieved, must have a direct, immediate, and substantial interest in the matter to be adjudicated, and there must be a direct causal connection between the act complained of and the harm alleged. William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975); Snelling v. Department of Transportation, 27 Pa. Commonwealth Ct. 276, 366 A.2d 1298 (1976); Bahian v. Department of Public Welfare, 89 Pa. Commonwealth Ct. 644, 493 A.2d 803 (1985). See also Warth v. Seldin, 422 U.S. 490 (1975); K. Davis, Administrative Law, Vol. 4, §§ 24.16, 24.17 (2d Ed., 1983); Sands & Libonati, Local Government Law, § 15.44 (1982 & Supp. 1985) (discussing standing of third parties to challenge illegality of issued permit or license).

Looking to the DSEA itself, it is difficult to conclude that it has the preservation of wildlife as one of its central concerns. Sections 2(1), 2(3), and 2(4) of the Act specify that people and property, natural resources, and water obstructions are among the concerns of the Act.*fn10 Of course, wildlife are dependent for their continuing viability upon the natural resources of their ecosystem and habitat, but it is an illogical jump for us to proceed from this premise and conclude that as trustee of game wildlife in the Commonwealth, the Game Commission has standing under the DSEA to insure the maintenance of all natural resources required to sustain its faunal wards. Such a conclusion would give every Commonwealth

[ 97 Pa. Commw. Page 84]

    agency the right to intervene in another agency's proceedings, so long as the interest concerned was a "prerequisite" to the health or well-being of the interest entrusted to the rival agency.

This approach ignores the requirement of showing a direct, immediate, and substantial interest in the matter to be adjudicated. Such a requirement must be met by specific pleadings in at least some circumstances. Here, the Game Commission would have been required to show that violations of the DSEA bore a direct, immediate, and substantial relation to its status as a trustee of the Commonwealth's wildlife. Our review of the record indicates that the Game Commission failed to plead sufficient facts or law in support of its conclusion that it had standing.

Assuming arguendo that the Game Commission did have standing under the DSEA, we note that the requirements of the DSEA are waivable by the DER and the Environmental Quality Board (EQB) in many cases. Section 7(a) of the Act provides that the EQB may waive the permit requirements entirely, while Section 7(b) of the Act permits the DER in accord with EQB rules to issue "general permits" on a statewide or regional basis for similar types of projects."*fn11 Moreover, the DER has the ultimate power to issue permits under the DSEA in any event.*fn12 The waiver provisions are implemented at 25 Pa. Code § 105.12.

We further note that the DER has delegated to itself the task of preserving wetlands and determining threats to wildlife. See 25 Pa. Code § 105.17. An agency's interpretation of its own rules is entitled to great weight, and our scope of review is limited to finding errors of law, constitutional violations, and determining if

[ 97 Pa. Commw. Page 85]

    findings of fact were unsupported by substantial evidence. Westmoreland Manor v. Department of Public Welfare, 91 Pa. Commonwealth Ct. 155, 168, 496 A.2d 1282, 1288 (1985).

Finally, we note that there is a substantive issue on the merits as to whether the DSEA would itself even apply to the fill in question unless it fell within the purview of the jurisdictional specifications of Section 4 of the DSEA, particularly Section 4(c) of the DSEA, which states that the Act shall apply to "[a]ll water obstructions and encroachments other than dams, located in, along, across or projecting into any watercourse, floodway, or body of water, whether temporary or permanent."*fn13 The Game Commission, even if it had standing to invoke the DSEA, would still have to demonstrate that the project in question constituted either a "water obstruction" or "encroachment" "along" those wetlands. Our review ...

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