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DANIEL E. BLEVINS v. COMMONWEALTH PENNSYLVANIA (09/14/89)

decided: September 14, 1989.

DANIEL E. BLEVINS, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



PETITION FOR REVIEW, (ENVIRONMENTAL HEARING BOARD).

COUNSEL

John C. Snyder, Robert W. Lentz, Lentz, Cantor, Kilgore & Massey, Ltd., Paoli, for petitioner.

Kenneth A. Gelburd, Asst. Counsel, Dept. of Environmental Resources, Philadelphia, for respondent.

William T. Wilson, Roger E. Legg, West Chester, Legg, Wilson & Smith, for Southeastern Chester County Refuse Authority.

Colins and Palladino, JJ., and Barbieri, Senior Judge.

Author: Colins

[ 128 Pa. Commw. Page 535]

Daniel E. Blevins (petitioner) petitions for review of a November 7, 1988 order of the Environmental Hearing Board (Board). The order denied petitioner's request to appeal nunc pro tunc from an action by the Department of Environmental Resources (DER) modifying a permit held by the Southeastern Chester County Refuse Authority (SECCRA) for operation of a solid waste landfill facility. We will affirm.

In 1977, DER issued permit No. 101069 (the permit) to AAK Corporation for the operation of a solid waste landfill facility on the site in question, located in London Grove Township, Chester County, Pennsylvania. The facility was only in operation for a very short period before being shut down as a result of a local ordinance which limited operation of these types of facilities to a municipal authority or a municipality.*fn1

[ 128 Pa. Commw. Page 536]

In 1982, the permit was reissued to New Garden Township. Petitioner and others appealed to the Board from the reissuance of the permit. New Garden Township relinquished its interest in the permit in 1984 and SECCRA, the present operator, applied for a second reissuance of the same permit. The permit was reissued to SECCRA on October 16, 1984 and petitioner timely appealed that second reissuance of the permit. The two appeals of the two reissuances of the permit were consolidated by the Board.

The Board conducted a series of hearings on the appeals from April 1, 1986 through July 14, 1987. Issues raised by petitioner included SECCRA's failure to comply with required soil depth under DER regulations, its failure to properly vent landfill gases, the failure of DER to require a liner for the landfill, DER's failure to address the landfill's impact on traffic and ground water, soil pollution, and DER's failure, generally, to meet its obligations to safeguard the environment under the Pennsylvania Constitution. PA. CONST. art. I, ยง 27. A briefing schedule was issued November 3, 1987. Petitioner submitted his brief and the appeal is still awaiting decision by the Board.

In the meantime, SECCRA had applied for a modification of the permit with respect to several aspects of the landfill's design and operations. DER granted the modification and issued an amended permit on September 9, 1987. Consequently, on December 22, 1987, instead of submitting a brief on the merits of petitioner's appeal, SECCRA filed and served a motion to dismiss the appeal or for additional hearings and/or to suppress portions of petitioner's brief. In its motion, SECCRA alleged that the permit amendment so impacted upon the issues ...


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