Opinion
2021-007-L
10-18-2023
LIBERTY TOWNSHIP and CEASRA v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and TRI-COUNTY LANDFILL, Permittee
DEP, General Law Division: Attention: Maria Tolentino (via electronic mail) For Grove City Aviation, LLC Kenneth D. Perkins, Esquire (via electronic mail) For the Commonwealth of PA, DEP: Carl D. Ballard, Esquire Dearald Shuffstall, Esquire Michael A. Braymer, Esquire Angela N. Erde, Esquire (via electronic filing system) For Appellants: Lisa Johnson, Esquire Marc T. Valentine, Esquire (via electronic filing system) For Permittee: Alan Miller, Esquire Jake Oresick, Esquire Brian Lipkin, Esquire (via electronic filing system)
DEP, General Law Division: Attention: Maria Tolentino (via electronic mail)
For Grove City Aviation, LLC Kenneth D. Perkins, Esquire (via electronic mail)
For the Commonwealth of PA, DEP: Carl D. Ballard, Esquire Dearald Shuffstall, Esquire Michael A. Braymer, Esquire Angela N. Erde, Esquire (via electronic filing system)
For Appellants: Lisa Johnson, Esquire Marc T. Valentine, Esquire (via electronic filing system)
For Permittee: Alan Miller, Esquire Jake Oresick, Esquire Brian Lipkin, Esquire (via electronic filing system)
OPINION AND ORDER ON MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
BERNARD A. LABUSKES, JR. Board Member and Judge
Synopsis
The Board denies a motion for leave to file an amicus curiae brief because the motion was filed too late, and because it does not satisfy the criteria for filing such a brief set forth in the Board's Rules.
OPINION
Liberty Township and CEASRA (the "Appellants") have appealed the issuance by the Department of Environmental Protection (the "Department") of a major permit modification to Tri-County Landfill's ("Tri-County's") solid waste management permit. The permit authorizes Tri-County to operate a municipal waste landfill in Liberty and Pine Townships, Mercer County, within the boundary of an inactive landfill that was operated by Tri-County from 1950 to 1990. The landfill is located approximately 6,000 feet from the Grove City Airport. The hearing on the merits has concluded, having begun on April 5, 2023 and lasting 12 days until April 28. Posthearing briefing has now been completed and the Board has begun preparation of the Adjudication.
On October 12, 2023, four days before the last post-hearing brief was due, Grove City Aviation, LLC ("GCA") filed a motion for leave to file an amicus curiae brief. Tri-County opposes the motion. The Department indicated by letter that it will not file a response. The Appellants indicated by letter that they support the motion. For the interrelated reasons that follow, we deny the motion.
First, given what the motion seeks, it is much too late. The last brief of the parties was filed on October 16, 2023. An amicus briefing request should not be used as a vehicle for, or have the effect of, delaying adjudication of the appeal. If the motion were granted, it would undoubtedly necessitate further responsive briefing and concomitant further delay and expense. This appeal was filed in January 2021. No further delay is warranted. GCA has provided no explanation or excuse for why the motion has been filed so late. The late filing is particularly curious because GCA is owned by Michael Baun. Mr. Baun testified on behalf of the Appellants at the hearing on the merits in April, more than five months ago. Mr. Baun has been an active opponent of the landfill for quite some time.
We might have been more receptive to the motion if it had not asked to exceed the limits of amicus participation as contemplated by our Rules. Those Rules provide for an amicus curiae brief or memorandum of law on distinct legal issues. 25 Pa. Code § 1021.25. Instead, GCA has asked for permission to address the largely factual issues regarding the "negative impact TCL's landfill will have on the Grove City Airport and GCA including economic impact, aviation safety, public safety, FAA regulations and TCL's Bird Control Plan." These are not the sort of discrete legal issues that are appropriate for amicus briefing. GCA is essentially asking to step into the role of a litigating party, after all the parties who did actively participate in the hearing have completed their briefing. If GCA wanted to intervene, which is essentially what it is asking, it should have petitioned to do so long ago. See 25 Pa. Code § 1021.81(a) (person may petition to intervene prior to the initial presentation of evidence).
Further, GCA in its two-page motion fails to explain how its proffered brief would add any value in these proceedings. It sounds like it merely wants to parrot the Appellants' case, but we already have nearly 200 pages of briefing from the Appellants who were represented by able counsel. Aviation issues were front and center in the parties' presentations. We have the benefit of almost 600 pages of briefs from all of the parties. We heard the perspective of several pilots including Mr. Baun at the hearing.
Accordingly, we issue the Order that follows.
ORDER
AND NOW, this 18th day of October, 2023, it is hereby ordered that the motion for leave to file an amicus curiae brief is denied.
ENVIRONMENTAL HEARING BOARD