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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (03/06/89)

decided: March 6, 1989.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA GAME COMMISSION, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, GANZER SAND & GRAVEL, INC. AND HAMMERMILL PAPER COMPANY



Appeal from Order of the Commonwealth Court, dated May 7, 1986, at No. 407 C.D. 1985, affirming adjudication of Environmental Hearing Board at Docket No. 82-284-G. Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Larsen, J., joins in this opinion and files a concurring opinion in which Papadakos, J., joins. Zappala, J., files a concurring opinion.

Author: Nix

[ 521 Pa. Page 123]

OPINION

This is an appeal by the Pennsylvania Game Commission ("Commission") from an order of the Commonwealth Court, 97 Pa. Commw. 78, 509 A.2d 877 affirming an adjudication of the Environmental Hearing Board ("Board"). We granted review to address the alternative holding of the court below regarding the Commission's standing to litigate the matter in controversy.

The subject of this case is a solid waste permit granted by the Department of Environmental Resources ("DER"), under the provisions of the Solid Waste Management Act,*fn1 to Ganzer Sand & Gravel, Inc. ("Ganzer"). The permit would allow Ganzer to establish and operate a solid waste landfill on a certain 40-acre tract in Erie County, for the purpose of providing a disposal site for residual waste from the Hammermill Paper Company. The property on which the fill is to be located is adjacent to a 1,343-acre tract of wetlands maintained by the Commission as a waterfowl refuge. The Commission raised various environmental objections to the proposed landfill, and subsequently challenged the issuance of the permit by taking an appeal to the Board pursuant to section 1921-A of the Administrative Code of 1929.*fn2

In its appeal to the Board, the Commission asserted that allowance of the landfill violated several environmental laws, namely, regulations promulgated under the Solid Waste Management Act, provisions of the Dam Safety and Encroachments Act,*fn3 and the environmental rights article of

[ 521 Pa. Page 124]

    the Pennsylvania Constitution, Article I, § 27. The appellant also alleged that the operation of the landfill, in its actual effect, would produce polluted ground water and surface-water runoff, and that such would adversely impact upon the eco-system of the waterfowl sanctuary.

In its argument based on the Solid Waste Management Act, the Commission objected to the ratio of waste to renovative soil that would exist at the landfill, and to the fact that the fill would not have a liner or leachate collection system. According to the appellant, such defects would be violative of design standards mandated by regulations implementing the statute and would be environmentally injurious.

The Commission's central statutory challenge, however, was based on the Dam Safety and Encroachments Act ("DSEA"). That statute, like others has as one of its express purposes the protection of natural resources and environmental values, 32 P.S. § 693.2(3). To that end, the DSEA provides, inter alia, that "[n]o person shall construct, operate, maintain . . . any dam, water obstruction or encroachment without the prior written permit of [DER]." 32 P.S. § 693.6(a) (emphasis added). DER did not consider the DSEA applicable to the landfill; thus, a water-obstruction permit was deemed unnecessary. The Commission, however, contended that the Ganzer fill would create a "water obstruction" as to be subject to the foregoing provision, and that the absence of the special license mentioned therein negated the validity of the solid waste permit. In sum, the Commission urged that DER could not legitimately authorize the Ganzer landfill without first securing compliance with the DSEA. These same contentions were reiterated by the appellant as its exclusive basis for asserting that permission of the landfill would offend Article I, § 27 of the state constitution.

The Board preliminarily questioned whether the Commission, as a sister agency of DER in the Commonwealth governmental structure, had standing to challenge DER's issuance of the waste permit. Subsequently, in a pre-hearing

[ 521 Pa. Page 125]

    ruling, the Board determined that the Commission did have standing to prosecute the appeal.

After conducting hearings de novo, the Board entered an extensive written adjudication in which it rejected each of the Commission's challenges on the merits, and sustained the issuance of the permit to Ganzer. With particular regard to the arguments based on the Dam Safety and Encroachments Act, the Board found as a matter of fact that no streams or drainage courses run through the landfill site, and that the site was higher in elevation than any neighboring watercourses and the wetlands constituting the Commission's wildlife refuge. On the strength of those findings, the Board concluded that the Ganzer landfill would not create a "water obstruction" as that term is defined by the DSEA,*fn4 and thus, that the statute was not applicable to the case.

With the rejection of the Commission's assertions under the DSEA, so too failed its argument pursuant to the environmental rights article of the Pennsylvania Constitution, since the constitutional challenge was based exclusively on the appellant's contentions regarding the DSEA. Although it is clear from the record that the Board's resolution of the DSEA argument was based on its conclusion that the statute did not apply to the case, the Board articulated that result by loosely stating that the Commission did not have "standing" to make the statute an issue.

It should be emphasized that the Board's adjudication sustaining the Ganzer permit was not restricted to a determination that the Commission had not met its burden of proof and that its particular legal challenges lacked efficacy. The Board went further and gauged the propriety of the solid waste permit under the governing environmental statutes, and under the ...


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