Original Jurisdiction in case of Chambers Development Company, Inc. et al. v. Commonwealth of Pennsylvania, Department of Environmental Resources; Arthur A. Davis in his capacity as Secretary of the Department of Environmental Resources and all others acting on their behalf.
David G. Ries, with him, Ralph F. Scalera, Peter G. Veeder and Clifford B. Levine, Thorp, Reed & Armstrong, for petitioners.
John C. Dernbach, Assistant Counsel, with him, Kenneth Bowman, for respondent.
Senior Judge Bucher. Judges Craig, Doyle and Barry, sitting as a panel of three. Opinion by Judge Doyle. Judge Barry did not take part in the disposition of this case.
[ 110 Pa. Commw. Page 433]
Before us for disposition are the preliminary objections of the Department of Environmental Resources (DER) filed in response to a Petition for Review filed with this Court in our original jurisdiction seeking declaratory and injunctive relief. Also before us are the preliminary objections filed by the Petitioner, Chambers Development Company, Inc. (Chambers), operator of a solid waste disposal facility, to the preliminary objections of DER.
This case began when Chambers filed its petition seeking to enjoin DER from "implementing an illegal regulatory program which would restrict throughout the Commonwealth the daily volume of solid, non-hazardous waste properly permitted landfills can accept." It was further averred that the program imposes daily volume limits on the amount of solid waste a landfill can accept, even if the volume does not cause the landfill to exceed the total volume of waste the landfill is authorized to accept under its permit.
At issue then is DER's attempt to impose daily volume limits on landfills. Chambers asserts that its permits do not contain daily limit restrictions and that information supplied to DER in the permit applications
[ 110 Pa. Commw. Page 434]
on daily limits (which are incorporated into the permits) was previously utilized by DER only for purposes of establishing bonding amounts. DER now, however, has suggested, via letters, the contents of which are detailed in a memorandum opinion of this Court written in support of a preliminary injunction entered by Judge Bucher,*fn1 that it intends to establish daily limits. Chambers asserts that the attempt to do so is invalid because it constitutes impermissible rulemaking, is violative of the Solid Waste Management Act, Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§ 6018.101-6018.1003, and violates numerous constitutional provisions. Prior to receiving notice of DER's intention to establish or enforce this daily volume limit program, Chambers had entered into several contracts to receive waste generated in four New Jersey counties situated in the northern part of that state. Compliance with those contracts will result in an increase of the daily volume of waste Chambers receives.
DER has insisted that Chambers apply for and receive modification of its permits before it accepts this waste. Chambers filed an appeal with the Environmental Hearing Board (EHB) seeking, in essence, a determination that the daily volume restrictions are inapplicable to it and a determination that it need not revise its permits to reflect such restrictions. That action is presently pending. Further, under protest, it filed requests for permit modifications. It has also filed the instant petition to this Court. We must now review the
[ 110 Pa. Commw. Page 435]
preliminary objections to that petition and the preliminary objections to the preliminary objections. In reviewing preliminary objections we consider as true only well-pleaded facts which are material and relevant. Ohio Casualty Group of Insurance Cos. v. Argonaut Insurance Co., 92 Pa. Commonwealth Ct. 560, 500 A.2d 191 (1985). ...