National Solid Wastes Management Ass'n v. Casey

• Decision Date: 25 November 1991
• Citation: 143 Pa.Cmwlth. 577,600 A.2d 260
• Parties: NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION, Petitioner, v. Robert P. CASEY, Governor and Department of Environmental Resources, Respondents.
• Court: Pennsylvania Commonwealth Court

Page 260

600 A.2d 260

143 Pa.Cmwlth. 577

NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION, Petitioner, v. Robert P. CASEY, Governor and Department of Environmental Resources, Respondents.

Commonwealth Court of Pennsylvania.

Argued Sept. 11, 1991.

Decided Nov. 25, 1991.

William J. Winning, for petitioner.

Amy L. Putnam, Deputy Gen. Counsel, for respondents.

Before CRAIG, President Judge, and DOYLE, COLINS, PALLADINO, McGINLEY, SMITH and PELLEGRINI, JJ.

COLINS, Judge.

Presently before this Court is a motion for summary judgment filed by petitioner, National Solid Wastes Management Association (Association) and a motion to strike certain portions of petitioner's memorandum of law filed by respondents, the Honorable Robert P. Casey, Governor of the Commonwealth of Pennsylvania (Governor), and the Pennsylvania Department of Environmental Resources (DER) (collectively, the Commonwealth).

The Association petitioned this Court for relief from Executive Order 1989-8 issued by the Governor on October 17, 1989 and published in the Pennsylvania Bulletin on October 28, 1989. Initially, the Association's petition contained three counts for relief, the first alleging a constitutional violation of the separation of powers, the second seeking relief in mandamus, and the third seeking declaratory relief. This Court, in an opinion filed September 11, 1990, ¹ ruled on the Commonwealth's preliminary objections by dismissing the first and second counts of the Association's petition. Therefore, the only relief now sought by the Association is a declaratory judgment that Executive Order 1989-8 is invalid.

Section 1 of Executive Order 1989-8 requires DER to stop reviewing applications or issuing permits for new municipal waste landfills or new resource recovery facilities, except in certain limited situations, until the Pennsylvania Municipal Waste Management Plan is adopted pursuant to that same executive order. Applications will be reviewed if the applicant shows first, a need for additional capacity and second, that at least 70% of the municipal waste to be received at that facility will be generated in Pennsylvania. Also pursuant to Section 1, an existing municipal waste landfill which is permitted but which seeks to expand its capacity to accept waste must establish first, a need for that additional capacity and second, that at least 70% of the municipal waste received is generated in Pennsylvania.

Section 2 of Executive Order 1989-8 requires DER to establish maximum and average waste volume limits for each operating landfill. Said limits are to be based on the actual daily volume disposed at that landfill during the period from October 26, 1988 to June 30, 1989. Section 2 also requires DER to order that all permits be immediately modified to limit disposal to the average volume currently accepted.

Section 3 of Executive Order 1989-8 requires DER to prepare a Pennsylvania Municipal Waste Management Plan. The Plan must address the "generation, management, processing and disposal of municipal waste in the Commonwealth for a period of 10 years from the development of the Plan...."

In its petition, the Association has alleged that Executive Order 1989-8 contravenes the Solid Waste Management Act, Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§ 6018.101-6018.1003 (Act 97) and the Municipal Waste Planning, Recycling and Waste Reduction Act, Act of July 28, 1988, P.L. 556, 53 P.S. §§ 4000.101-4000.1904 (Act 101). These acts, according to the Association, provide "a comprehensive legislative scheme for regulation of the operation and permitting of municipal waste landfills and for the imposition of waste volume limitations as a condition of municipal waste landfill permits." The Association states that Act 97 and the regulations promulgated pursuant to it "[set] forth extensive and detailed requirements for the operation of municipal waste landfills and the process by which municipal waste landfills are permitted in Pennsylvania." The Association further states that Act 101 "provides for the planning, processing and disposal of municipal waste by requiring all Pennsylvania counties to develop ten-year municipal waste plans by March 1, 1991[ ]" and by imposing waste volume limits for each municipal waste landfill. Basically, the Association alleges that Executive Order 1989-8 impermissibly amends Act 97, Act 101, and applicable regulations. According to the Association, Executive Order 1989-8 harms members of the Association which operate municipal waste landfills within Pennsylvania.

Motion to Strike Certain Portions of Petitioner's Memorandum of Law

The Commonwealth's motion alleges that certain portions of the Association's memorandum of law in support of its motion for summary judgment should be struck, because the testimony quoted therein on pages 15, 18, 19, and 20 is not part of the record before this Court and was not given in this matter. We deny the Commonwealth's motion, because the testimony of Keith C. Kerns, Chief of the Division of Waste Minimization Planning for DER's Bureau of Waste Management, is an admission, that is, an exception to the rules of evidence regarding hearsay.

The "words of a party constitute an admission and therefore may always be used against him." Evans v. Unemployment Compensation Board of Review, 86 Pa.Commonwealth Ct. 297, 304, 484 A.2d 822, 826-27 (1984). However, "[i]t is well settled in this Commonwealth that an agent's statements are admissible as admissions of the agent's principal only if the agent had the authority to make the statements." Ligon v. Middletown Area School District, 136 Pa.Commonwealth Ct. 566, 575, 584 A.2d 376, 381 (1990). Additionally, "[a]n admission need not be made to the opposing party in order to be admissible." Whitman v. Riddell, 324 Pa.Superior Ct. 177, 184-85, 471 A.2d 521, 525 (1984). We find that Keith C. Kerns, as Chief of the Division of Waste Minimization Planning for DER, was DER's agent and, therefore, was authorized to speak for DER, especially when testifying under oath in a proceeding before the Environmental Hearing Board. Additionally, although the statements made by him were not in this matter, they are admissible. For these reasons, we must deny the Commonwealth's motion to strike certain portions of petitioner's memorandum of law.

Motion for Summary Judgment

Pursuant to Pa.R.A.P. 106, this Court, when addressing a matter within its original jurisdiction, follows the practice and procedure set forth in the rules of civil procedure. With regard to motions for summary judgment, Pa.R.C.P. No. 1035(b) provides that "[t]he judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

The Association argues that summary judgment is appropriate, because the issue presented for this Court's review is purely legal. The Commonwealth opposes entry of summary judgment, because, it alleges the verifications accompanying the Association's petition for review and answers to interrogatories have not been made on the signer's personal knowledge, and because material facts are in dispute. Our review of the record reveals that the verifications signed by Bruce J. Parker, Esquire, General Counsel for the Association, are sufficient. Additionally, the issue of the Association's standing, which the Commonwealth revisits in its argument that material facts are in dispute, has been previously decided in favor of the Association in Association I.

The Commonwealth also argues that this Court should not entertain the motion for summary judgment, because the issue it raises has been previously decided in Association I. The Commonwealth contends that the first count of the petition for review, based on the separation of powers, has been retitled as a request for declaratory relief. According to the Commonwealth, the Association "is now attempting to circumvent [this Court's] Order by seeking to have this court issue a declaratory judgment that the Executive Order violates the separation of powers." The Association counters by arguing that the Commonwealth has distorted this Court's earlier decision. This Court, according to the Association, intended to preserve, by its Association I decision, the issues raised by the motion for summary judgment. In support of its argument, the Association quotes our earlier decision. "Because the Association's claim is premised on a constitutional violation and because that claim alleges both that the substance of the order violates the legislated regulatory scheme and that the Governor was without either constitutional or statutory authority to issue an order effectively altering that scheme, we must find that an action for declaratory judgment is the appropriate procedure by which to resolve the instant matter." Association I, 135 Pa.Commonwealth Ct. at 143-44, 580 A.2d at 898. With regard to the count for declaratory relief, we said, in Association I, that "the Association has pled facts sufficient to withstand the demurrer that the Governor did not have the power to take all or certain parts of the actions contained in the executive order. We will, therefore, overrule the Governor and [DER's] demurrer as to this count." Id. at 147, 580 A.2d at 900. Because our order sustaining the demurrer as to Count 1 was based on procedural, rather than substantive grounds, we agree with the Association that we have not yet decided whether the Governor had the authority to issue Executive Order 1989-8.

The Association argues, in support of its motion for summary judgment, that the Governor had no authority to issue Executive Order 1989-8. According to the Association, neither the Pennsylvania Constitution nor Acts 97 or 101 give the Governor the authority to have issued such an executive order. Quoti...