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WILLIAM FIORE v. COMMONWEALTH PENNSYLVANIA (06/09/86)

decided: June 9, 1986.

WILLIAM FIORE, T/D/B/A MUNICIPAL AND INDUSTRIAL DISPOSAL COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



Appeal from the Order of the Environmental Hearing Board in the case of William Fiore, t/d/b/a Municipal and Industrial Disposal Company v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 84-311-G.

COUNSEL

Lee R. Golden, with him, Robert P. Ging, Jr., for petitioner.

Dennis W. Strain, Assistant Counsel, for respondent.

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

Author: Barry

[ 98 Pa. Commw. Page 36]

William Fiore, doing business as Municipal and Industrial Disposal Company (Fiore) appeals from a decision of the Environmental Hearing Board (EHB) which granted a motion to dismiss Fiore's appeal filed by the respondent, Department of Environmental Resources (DER). We must decide whether the EHB was correct in its conclusion that a Notice of Violation of the Pennsylvania Solid Waste Management Act (Act),*fn1 is not an action of DER which may be appealed.

An inspection of Fiore's waste disposal facilities was carried out by DER in January, 1984. On that occasion, numerous violations of regulations promulgated under the Act were noted. These included failure to remove the contents of a temporary disposal pit, as directed in a Consent Order and Agreement dated January 25, 1983, and which had been ordered by a subsequent directive of this Court;*fn2 Construction of a hazardous waste disposal

[ 98 Pa. Commw. Page 37]

    facility without obtaining the requisite permit;*fn3 maintenance of disposal operations in an unauthorized area;*fn4 and construction of a sanitary landfill without securing the required permit.*fn5 In the course of an ensuing inspection in July, 1984, these same violations were found to have continued.

Following the latter inspection DER directed a "Notice of Violation" to Fiore, detailing the results of the inspection and the specific regulations being violated.*fn6 That letter concluded with the declaration that "[t]his letter shall . . . not be construed as a final action of the Department of Environmental Resources."*fn7

Notwithstanding this declaration, Fiore nevertheless appealed from the notice to the EHB, averring, relevantly, that "[b]ecause the notice of violation establishes the present and future rights of [Fiore] with regard to future permit applications, the notice of violation constitutes an adjudication or action of the department." (Notice of Appeal at 2). DER thereupon moved to dismiss, maintaining that the notice was no more than a list of violations rather than an adjudication, positing, in turn, that the EHB thus lacked any jurisdiction over the matter. The EHB granted the motion, ruling that the "notice of violation is not an action of the DER

[ 98 Pa. Commw. Page 38]

    which is appealable to this Board." From this ...


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