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GRAND CENTRAL SANITARY LANDFILL v. COMMONWEALTH PENNSYLVANIA (02/17/89)

decided: February 17, 1989.

GRAND CENTRAL SANITARY LANDFILL, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES AND THE ENVIRONMENTAL QUALITY BOARD, RESPONDENTS



Original Jurisdiction in the case of Grand Central Sanitary Landfill, Inc., v. The Pennsylvania Department of Environmental Resources, and the Environmental Quality Board.

COUNSEL

Vance E. Meixsell, for petitioner.

Jerome T. Foerster, Deputy Attorney General, with him, John G. Knorr, III, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.

Judges Doyle, Palladino and Smith, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 123 Pa. Commw. Page 499]

Before us for consideration are the preliminary objections of respondents, Department of Environmental Resources (DER) and the Environmental Quality Board (EQB), filed in response to a petition for review addressed to our original jurisdiction by petitioner Grand Central Sanitary Landfill, Inc., (Grand Central). The petition seeks declaratory and injunctive relief. We sustain the preliminary objections and dismiss Grand Central's petition.

The petition for review is in the nature of a pre-enforcement challenge to the constitutionality of EQB's amendments to the regulations which implement the Solid Waste Management Act (SWMA),*fn1 the Act of July

[ 123 Pa. Commw. Page 5007]

, 1980, P.L. 380, as amended, 35 P.S. ยงยง 6018.101 through 6018.1003. The purpose of the proposed amendments was stated at 17 Pa. B. 2303 (June 13, 1987) as representing "a comprehensive revision of the Commonwealth's existing municipal waste regulations." Four reasons for the revisions were given by EQB: (1) to provide consistency between the regulations and the requirements of SWMA; (2) to allow DER to apply experience gained subsequent to the development of previous regulations to the increasingly complex field of municipal waste management; (3) to state more precisely many of the requirements of the existing regulatory program, and; (4) to express more clearly the municipal waste regulations in order to meet the need for greater public understanding of DER's regulatory program. Id. at 2303-2304.

Grand Central contends (a) that the regulations as adopted are at substantial variance with, and have enlarged the purpose of, the amendments as first proposed, (b) that the regulations "are inherently ambiguous, arbitrary and capricious," and (c) that they "place an unreasonable and excessive burden of compliance on [Grand Central] and the entire waste management industry." DER and the EQB have preliminarily objected to the petition for review, asserting (1) that Grand Central has failed to exhaust administrative remedies, (2) that the case is not ripe for review because DER has neither taken nor proposed any action against Grand Central, and (3) that the petition fails to state a cause of action.

When reviewing preliminary objections, we consider as true all well-pleaded facts which are material and relevant. Ohio Casualty Group of Insurance Cos. v. Argonaut Insurance Co., 92 Pa. Commonwealth Ct. 560,

[ 123 Pa. Commw. Page 501500]

A.2d 191 (1985). Preliminary objections shall be sustained only when they are clear ...


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