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JAMES MARINARI v. COMMONWEALTH PENNSYLVANIA (11/22/89)

decided: November 22, 1989.

JAMES MARINARI, JOHN MARINARI, ALBERT J. MARINARI AND NEW HANOVER CORPORATION, PETITIONERS,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



PETITION FOR REVIEW IN THE NATURE OF A COMPLAINT IN MANDAMUS, EQUITY, AND FOR DECLARATORY JUDGMENT (WITH NOTICE TO PLEAD).

COUNSEL

Marc D. Jonas, Silverman & Jonas, Norristown, for petitioners.

Mary Young, Asst. Counsel, Harrisburg, for respondent.

Doyle and McGinley, JJ., and Narick, Senior Judge.

Author: Narick

[ 129 Pa. Commw. Page 571]

The Department of Environmental Resources (DER) filed preliminary objections on July 6, 1989 to a petition for review in the nature of a complaint in mandamus, equity and for declaratory judgment (petition), filed by James Marinari, John Marinari, Albert J. Marinari and New Hanover Corporation (Petitioners) on June 1, 1989. We overrule the preliminary objections.

The facts as alleged in the petition can be summarized as follows. Petitioners submitted to DER a revised Phase I and Phase II application for a permit under Section 501 of the Solid Waste Management Act (SWMA)*fn1 on September 24, 1985 for a sanitary landfill in New Hanover Township, Montgomery County. Prior to the issuance of the permit, Petitioners filed a petition with this Court at No. 178 C.D.1988 on January 21, 1988, due to DER's failure to take a final action. This Court continued that litigation indefinitely because DER represented to us that a decision would be made on the permit application on or before February 17, 1988.

In a February 17, 1988 letter, DER informed Petitioners that it had decided to issue a solid waste permit for the proposed landfill, and that it predicted that the permit would be ready for issuance by February 24, 1988. However, in a February 24, 1988 letter, DER informed Petitioners that it needed more time to draft the permit conditions and requested that representatives of both parties meet on February 25, 1988 to discuss the conditions. One of the results of this meeting was an agreement entitled, "Acceptance of Permit Conditions and Waiver of Appeal Rights," (Agreement). Another result was a February 26, 1988 letter from DER to Petitioners, wherein the former promised to review the latters' application for a permit modification in an expeditious manner. The execution of the integrated Agreement and the permits for the proposed landfill were issued concurrently on March 1, 1988. On April 18, 1988, Petitioners withdrew the action at No. 178 C.D.1988.

[ 129 Pa. Commw. Page 572]

DER issued a permit for the proposed landfill on March 1, 1988 pursuant to the SWMA. It also issued a national pollutant discharge elimination system permit and a certification under the federal Clean Water Act.*fn2 New Hanover Township and the Paradise Watch Dogs appealed the issuance of the permits to the Environmental Hearing Board (EHB) on March 1, 1988.

Subsequent to the March 1, 1988 issuance of the solid waste permit for the proposed landfill, the Municipal Waste Regulations were revised. These new regulations required Petitioners to submit an application for a permit modification to show that the proposed facility would comply with the new regulations. Permit Condition No. 4 of the solid waste permit issued on March 1, 1988 contained notice that the new regulations would require Petitioners to obtain a permit modification prior to the construction of the landfill.

Petitioners submitted an application for a permit modification on July 27, 1988. On March 30, 1989, the Department issued technical comments on that application. Petitioners filed an appeal to that comment letter, which is still pending.

In its preliminary objections, DER contends that Petitioners' action should be dismissed because (1) they have an adequate and available administrative remedy; (2) DER has neither taken nor proposed final action against them; (3) DER has no mandatory duty to take the action requested; (4) they are seeking to enforce an agreement that does not require DER to do what they are requesting this Court to order it to do; ...


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