Browning-Ferris, Inc. v. Department of Environmental Resources

598 A.2d 1057, 143 Pa. Commw. 243, 1991 Pa. Commw. LEXIS 586

Opinion

BARBIERI, Senior Judge.

Petitioner, Browning-Ferris, Inc. (BFI), seeks review of an order of the Environmental Hearing Board (Board) denying its petition to intervene in an appeal taken by Clements Waste Services, Inc., Recycling Works, Inc. and Brian Clements (collectively referred to hereinafter as Clements) from the Department of Environmental Resources’ (DER’s) conditional approval of Berks County’s Municipal Solid Waste Management Plan (Plan). We will reverse the Board’s order. 1

BFI is the equitable owner of 426 acres of land in Berks County and is authorized to develop a municipal waste landfill thereon under a development agreement with the title holders of the land. Pursuant to a Disposal Service Agreement, BFI agreed to develop a landfill and pursue all necessary DER approvals and Berks County agreed to designate BFI’s proposed landfill on the Plan as the facility to receive all Berks County solid waste.

Berks County thereafter violated the terms of the Disposal Service Agreement by proposing a solid waste plan which failed to include BFI’s proposed landfill as a designated facility to receive Berks County solid waste. BFI initiated litigation, prompting a settlement, wherein BFI agreed to allow 500 tons per day of solid waste to go to a facility in Montgomery County and Berks County agreed to send all of its remaining solid waste, except certain tonnage still under contract to Western Berks Refuse Authority, to BFI’s proposed landfill.

Following DER’s conditional approval of the Plan, Clements, competitors of BFI, filed a notice of appeal with the Board, alleging that the Plan and DER’s approval thereof were inconsistent with certain statutory requirements. BFI subsequently sought to intervene in Clements’ appeal to protect its interests and substantial investment in its proposed landfill. According to BFI’s petition seeking inter vention, its designation in the Plan is a decisive element in securing its DER permit, 2 which process has, to date, cost it eleven million dollars.

The Board, after consideration, denied BFI intervention because, in its opinion, BFI lacked direct, immediate and substantial interests in the outcome of Clements’ appeal; failed to demonstrate that Berks County and DER would not adequately defend the Plan; and failed to disclose any evidence which it would produce or how its intervention would, assist the Board in resolving Clements’ appeal. 3

BFI now seeks our review, 4 raising the issue of whether the Board erred in denying its petition to intervene in Clements’ appeal. 5

Under Section 4(e) of the Environmental Hearing Board Act (Act), Act of July 13, 1988, P.L. 530, 35 P.S. § 7514(e), “[a]ny interested party may intervene in any matter pending before the [B]oard.” The Act, however, does not define the phrase “any interested party.”

In determining whether to grant or deny BFI intervention, the Board relied upon its regulatory provision at 25 Pa.Code § 21.62(b), which provides that “[intervention is discretionary with the Board and shall be subject to the terms and conditions as the Board may prescribe.” 6 This regulatory provision was promulgated under the authority of Section 1921-A of The Administrative Code of 1929 (The Administrative Code), Act of April 9, 1929, P.L. 177, as amended, added by Section 20 of the Act of December 3, 1970, P.L. 834, formerly, 71 P.S. § 510-21, repealed by Section 8(a) of the Act.

Although Section 1921-A was repealed by the Act, effective January 1, 1989, the respondents herein, DER and Clements, contend that this repeal did not preclude the Board from applying its regulatory provision at 25 Pa.Code § 21.62(b), as previously quoted. In support, they cite Section 4(g) of the Act, 35 P.S. § 7514(g): “[hjearings of the [B]oard shall be conducted in accordance with the regulations of the [Bjoard in effect at the effective date of this act until new regulations are promulgated under section 5.”

The new regulations referred to in Section 4(g) are specified in Section 5(c) of the Act, 35 P.S. § 7515(c), which directs, inter alia:

The rules committee shall recommend to the [B]oard regulations for hearings conducted by the [B]oard ... The regulations shall include time limits and procedure for the taking of appeals and locations of hearings----

This language, in our judgment, does not contemplate the promulgation of a new regulation for intervention, pending which the Board’s former regulation thereon should govern. Rather, it pertains only to regulations relating to time limits, procedure for taking appeals and hearing locations.

It is readily apparent that the legislature deliberately excluded intervention from coverage under Sections 4(g) and 5(c) of the Act, 35 P.S. §§ 7514(g) and 7515(c), because it had already specifically set forth, under Section 4(e) of the Act, 35 P.S. § 7514(e), the standard for intervention in stating that “[a]ny interested party may intervene in any matter pending before the [B]oard.” There was thus no need to promulgate a regulation therefor pursuant to Sections 4(g) and 5(c) of the Act. It follows that the Board’s regulatory provision at 25 Pa.Code § 21.62(b), promulgated as it was under the authority of Section 1921-A of The Administrative Code, formerly, 71 P.S. § 510-21, repealed by the Act, was not saved by virtue of Section 4(g) of the Act, 35 P.S. § 7514(g). 7

For the foregoing reasons, we conclude that there was no intent on the part of the legislature in enacting the Act to limit intervention in any matter pending before the Board beyond the requirement that one must be an “interested party” and that the Board abused its discretion and committed an error of law in departing from this standard by basing its decision upon standards inconsistent with its enabling act. While the Board has discretion in determining whether to grant or deny intervention in accordance with the standard set forth in Section 4(e) of the Act, 35 P.S. § 7514(e), it does not have discretion to do so, as was done here, based upon standards extending beyond Section 4(e).

Because the Act does not define the phrase “any interested party,” as previously noted, we must apply the rules of statutory construction to discern its meaning. Section 1903(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1903(a), directs, in relevant part:

Words and phrases shall be construed ... according to their common and approved usage; but technical words and phrases and such others as have acquired a peculiar and appropriate meaning ... shall be construed according to such peculiar and appropriate meaning or definition.

As set forth in Black’s Law Dictionary, “ ‘[p]arty’ is a technical word having a precise meaning in legal parlance; it refers to those by or against whom a legal suit is brought ... the party plaintiff or defendant ...” Id. at 1010 (5th ed. 1979). Obviously, BFI would not be a “party” to Clements’ appeal before the Board if the technical definition of that term attached here.

We note, however, that “[i]n the construction of the statutes of this Commonwealth, the rules [of statutory construction] shall be observed, unless the application of such rules would result in a construction inconsistent with the manifest intent of the General Assembly.” Section 1901 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1901 (emphasis added). In the instant context, the term “party” cannot be reasonably construed as limited to the litigants; otherwise, there would be no need to intervene and no provision made therefor. 8

To the contrary, here, in the context of intervention, the phrase “any interested party” actually means any person or entity interested, i.e., concerned, in the proceedings before the Board. The interest required, of course, must be more than a general interest in the proceedings; it must be such that the person or entity seeking intervention will either gain or lose by direct operation of the Board’s ultimate determination. See Black’s Law Dictionary 730 (5th ed. 1979); see also 2 Pa.C.S. § 101 wherein a party is defined as “[a]ny person who appears in a proceeding before an agency who has a direct interest in the subject matter of such proceeding.” To interpret this phrase any differently, under these circumstances, would lead to an absurd and unreasonable result as well as render the Act’s intervention provision ineffective; presumably, neither of which the legislature intended here. Section 1922(1), (2) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(1), (2).

After careful review of the record, BFI, in our opinion, is, as a matter of law, an “interested party” entitled to intervene in the proceedings pending before the Board. Having so determined, we find that the Board abused its discretion and committed an error of law in denying BFI’s petition to intervene in Clements’ appeal and we will therefore reverse the order in question.

ORDER

AND NOW, this 23rd day of October, 1991, the order of the Environmental Hearing Board, dated May 7, 1991, at EHB Docket No. 91-075-E, is hereby reversed.

1 . For a related case, see Browning-Ferris, Inc. v. Department of Environmental Resources, 143 Pa.Commonwealth Ct. 251, 598 A.2d 1061 (1991).

2 . See Section 507(a)(1) of the Municipal Waste Planning, Recycling and Waste Reduction Act, Act of July 28, 1988, P.L. 556, 53 P.S. § 4000.507(a)(1).

3 . By order dated July 8, 1991, this Court granted BFI’s motion for a stay of the proceedings before the Board pending disposition of the instant petition for review.

4 . In reviewing the Board’s denial of BFI’s petition to intervene, our scope of review is limited to determining whether the Board abused its discretion or committed an error of law. See Mack v. Zoning Hearing Board of Plainfield Township, 126 Pa.Commonwealth Ct. 80, 558 A.2d 616 (1989).

5 . Clements raises the additional issue of whether an order denying a petition to intervene is final and therefore appealable as of right. Such an order is final where, as here, a denial of intervention would be a practical denial of relief to which the petitioning party is entitled and can obtain in no other way. Richards v. Trimbur, 374 Pa.Superior Ct. 352, 543 A.2d 116 (1988).

6 . The Board stated that intervention is authorized at its discretion and is generally granted where the petitioning party establishes a direct, immediate and substantial interest which is not adequately represented by the other parties. Board’s Opinion, p. 4. The Board also stated that, in determining whether or not the petitioning party has met this burden, it considers:

1. the nature of the petitioning party's interest;

2. the adequacy of representation by other parties of the petitioning party’s position;

3. the nature of the issues;

4. the petitioning party’s ability to present relevant evidence; and,

5. the effect of the petitioning party’s intervention on the administration of the statute under which the proceeding is brought. .

Id.

7 . It is also interesting to note that the Act does not appear to require the Board to conduct a hearing prior to determining whether to grant or deny a request for intervention, thereby rendering Sections 4(g) and 5(c) of the Act inapplicable to such requests.

8 . We note Judge Colins’ opinion in Lower Allen Citizens Action Group, Inc. v. Department of Environmental Resources, 119 Pa.Commonwealth Ct. 236, 538 A.2d 130 (1988), wherein the terms ’’party" and "person” are discussed in the context of regulations promulgated prior to the Act. "Party,” as discussed therein, includes an intervenor.