Original jurisdiction in the case of Globe Disposal Company, Inc. and American Environmental Service, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources.
David J. Brooman, with him, John P. Judge, Cohen, Shapiro, Polisher, Shiekman and Cohen ; and Charles V. Stoelker, Jr., Meehan and Stoelker, for petitioners.
John Wilmer, Assistant Counsel, for respondent.
Judges Barry and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 105 Pa. Commw. Page 600]
The Commonwealth of Pennsylvania, Department of Environmental Resources (DER) filed preliminary objections to a Petition for Review and Application for Special and Injunctive Relief filed by Globe Disposal Company, Inc. (Globe) and American Environmental Services, Inc. (American). Globe and American then filed preliminary objections to DER's preliminary objections.
From 1975 to April 1985, Globe and American transported institutional municipal waste, including "infectious" and "pathological" hospital generated waste,*fn1 to sanitary landfills licensed by DER for disposal.
[ 105 Pa. Commw. Page 601]
Pursuant to DER instructions in April, Globe and American immediately ceased disposing of this waste in landfills and proceeded to incinerate it. On November 22, 1985, however, DER issued an order which prevented the incineration of this waste by Globe and American at Waste Technique Corporation's*fn2 Bridgeport, Pennsylvania incinerator, and the incinerator was closed due to its allegedly improper handling and disposal of the waste.
On November 25, 1985, Globe and Waste Technique Corporation filed an Appeal and a Petition for Supersedeas with the Environmental Hearing Board (EHB) concerning DER's closure of their incinerator, and DER alleges that that Appeal is currently before the EHB. On November 27, 1985, Globe and American filed a Petition for Review and an Application for Special and Injunctive Relief in this Court,*fn3 and an injunction was issued the same day which prohibited DER's interference with their use of landfills in the Commonwealth. On November 29, this Court issued an order clarifying the November 27, 1985 injunction and enjoining
[ 105 Pa. Commw. Page 602]
DER from prohibiting the dumping at landfills pending a hearing or until the incinerator was reopened. The EHB subsequently granted a supersedeas on December 4, 1985, which allowed the reopening of the incinerator. DER then filed preliminary objections to the Petition for Review and Application for Special and Injunctive Relief, to which Globe and American responded with preliminary objections. Upon a joint application by the parties, DER's appeal to the Pennsylvania Supreme Court of this Court's November 27 and 29, 1985 orders*fn4 and Globe and American's Application for Special and Injunctive Relief concerning the prohibitions of dumping at landfills were withdrawn.
DER preliminarily objects to this Court's jurisdiction to hear and decide the Petition for Review, arguing that Globe and American have failed to exhaust their exclusive administrative remedies by not appealing to the EHB within thirty days of the governmental action which prohibited the use of landfills. DER also argues that the November 22, 1985 closure of the incinerator is a matter for the EHB. In addition, DER has filed a preliminary objection in the nature of a demurrer.*fn5 In order to address the preliminary ...