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12/04/97 JEFFERSON COUNTY v. COMMONWEALTH

December 4, 1997

JEFFERSON COUNTY, THE JEFFERSON COUNTY SOLID WASTE AUTHORITY, THE CLEARFIELD-JEFFERSON COUNTIES REGIONAL AIRPORT AUTHORITY, AND PINE CREEK TOWNSHIP, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION, AND LEATHERWOOD, INC., RESPONDENTS.



Before: Honorable Bernard L. McGINLEY, Judge, Honorable Dan R. Pellegrini, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Senior Judge Jiuliante.

The opinion of the court was delivered by: Jiuliante

OPINION BY

SENIOR JUDGE JIULIANTE

FILED: December 4, 1997

Jefferson County, Jefferson County Solid Waste Authority, Clearfield-Jefferson Counties Regional Airport Authority and Pine Creek Township (collectively "Petitioners") petition for review of the December 24, 1996 order of the Environmental Hearing Board (EHB) denying their petition to intervene in the case of Leatherwood, Inc. v. Department of Environmental Protection, EHB Docket No. 96-249-C (Leatherwood's Suspension Appeal). *fn1 The basis for the EHB's denial was that the issues Petitioners wished to raise are already being addressed in the case of Jefferson County Commissioners, et al., Pinecreek Township v. Department of Environmental Protection, EHB Docket No. 95-097-C (Petitioners' Permit Appeal).

The threshold issue before us is whether the December 24, 1996 order is appealable to this Court. We conclude that it is not and, therefore, quash the above-captioned appeal.

The background of this case is as follows. On May 12, 1995, the Department of Environmental Protection (Department) issued Solid Waste Permit No. 101604 to Leatherwood to operate a landfill in Jefferson County. On June 9, 1995, Petitioners filed a third-party appeal, the Permit Appeal, with the EHB challenging the Department's issuance of the permit.

Petitioners claim that the Permit Appeal was vigorously litigated up until October 10, 1996, when subsection (d) was added to Section 1220 of the Federal Aviation Reauthorization Act, 49 U.S.C. § 44718. Subsection (d) provides as follows:

(d) LANDFILLS - For the purposes of enhancing aviation safety, in a case where 2 landfills have been proposed to be constructed or established within 6 miles of a commercial service airport with fewer than 50,000 enplanements per year, no persons shall construct or establish either landfill if an official of the Federal Aviation Administration has stated in writing within the 3-year period ending on the date of the enactment of this section that 1 of the landfills would be incompatible with aircraft operations at the airport, unless the landfill is already active on such a date of enactment or the airport operator agrees to the construction or establishment of the landfill.

49 U.S.C. § 44718.

On the basis of Section 1220(d), the Department issued an October 21, 1996 order suspending Leatherwood's solid waste permit. (R.R. 8-12a.) On November 7, 1996, Leatherwood filed a notice of appeal with the EHB challenging the Department's October 21, 1996 suspension of its solid waste permit (Suspension Appeal). (R.R. 6-7a.)

On December 6, 1996, Petitioners filed a motion for leave to intervene in Leatherwood's 1996 Suspension Appeal. (R.R. 13-18a.) In a December 24, 1996 order, the EHB denied their request for intervention in Leatherwood's Suspension Appeal on the grounds that the issues that the Petitioners wished to raise were already addressed in their 1995 Permit Appeal. On January 21, 1997, Petitioners filed a petition for review in our Court therein challenging the EHB's denial of the motion for intervention. Below, we set forth our reasons for concluding that the December 24, 1996 order is not appealable to this Court.

Following the 1992 amendments to Pa. R.A.P. 341, an order denying a petitioner the right to intervene no longer may be deemed a final order within the meaning of Rule 341. The Note to Rule 341 states that, in an appropriate case, such an order might fall under Pa. R.A.P. 312, relating to interlocutory appeals by permission, or Pa. R.A.P. 313, relating to collateral orders.

Here, Petitioners did not follow any of the rules for securing appeal by permission set forth in Pa. R.A.P. 312. Thus, we must determine whether the EHB's order denying intervention is a collateral order under Pa. R.A.P. 313. See Cogan v. County of Beaver, 690 A.2d 763 (Pa. Commw.), ...


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