Appeal from the Order of the Department of Environmental Resources, in the cases of William H. Martin, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources, EHB Docket No. 87-465-W, and Southern Alleghenies Disposal Service, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources, EHB Docket No. 87-466-W, dated December 11, 1987.
Peter G. Veeder, with him, David G. Ries and Clifford B. Levin, Thorp, Reed & Armstrong, for petitioners.
Kenneth T. Bowman, with him, George Jugovic, Jr., for respondent, Department of Environmental Resources et al.
Richard DiSalle, with him, Stanley R. Geary, Rose, Schmidt, Hasley & DiSalle, and James P. Liekar, Liekar and Liekar, for respondent/intervenor, Township of Chartiers.
Judges Doyle, Barry and McGinley, sitting as a panel of three. Opinion by Judge Doyle.
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Before us is another in a series of appeals in the above-captioned matter which has been wending its way through our court system. Much of the procedural
[ 118 Pa. Commw. Page 99]
history in this case is set forth in our prior opinion in Chambers Development Co., Inc. v. Department of Environmental Resources, 110 Pa. Commonwealth Ct. 432, 532 A.2d 928 (1987). Thus, we need not reiterate it in detail here. Suffice to say that Petitioner, Chambers Development Co., Inc. (Chambers) seeks to honor certain contracts it entered into with various New Jersey municipalities calling for it to accept and dispose of New Jersey waste in Pennsylvania landfill sites. Respondent, Department of Environmental Resources (DER), however, has attempted to impose daily volume limits on the amount of waste to be received at the sites and such action will allegedly frustrate Chambers in the performance of its contracts. The Township of Chartiers as a host site for the waste is another Respondent herein.
We shall attempt to summarize briefly the salient events which have occurred since our prior decision was issued. When that opinion was filed on October 26, 1987, we indicated that the preliminary injunction enjoining DER from implementing its daily volume limit program was dissolved as a matter of law. DER then issued orders, on November 2, 1987, to Chambers placing limits on the daily volume of waste it could process. On November 4, 1987, Chambers appealed the November 2 order to the Environmental Hearing Board (EHB). In addition, Chambers petitioned the EHB for a stay of the November 2 order. Hearings were conducted on the supersedeas petition which was then denied by the EHB on December 11, 1987. On December 13, 1987, Chambers petitioned this Court for permission to review the "effective denial" of the EHB to certify two controlling legal questions to this Court and also sought an injunction pending appeal. This Court, on December 14, 1987, temporarily enjoined DER from enforcing the daily volume limit program pending further argument,
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and on December 17, 1987 the EHB issued an order granting certification of two issues different from those Chambers set forth in its motion filed with this Court.*fn1 The following day, December 18, 1987, Senior Judge Narick of this Court continued the stay of enforcement of DER's daily volume limit program pending a determination as to Chambers' petition filed with this Court. On February 2, 1988, this Court granted Chambers' petition for review and agreed to hear an appeal from the EHB's order of December 11, 1987 to the extent it presented the following controlling issue of law:*fn2
Is 25 Pa. Code § 21.78 invalid because it conflicts with the Pennsylvania Supreme Court's decision in Pennsylvania Public Utility Commission v. Process Gas Consumer Group, 502 Pa. 545, 467 A.2d 805 (1983)?
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Our February 2, 1988 order also continued the injunction pending appeal until final disposition of the petition. Subsequently, the EHB, on February 16, 1988, issued an order certifying the same two questions of ...