Opinion
2021-007-L
03-30-2023
LIBERTY TOWNSHIP and CEASRA v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and TRI-COUNTY LANDFILL, Permittee
For Appellants: Lisa Johnson, Esquire, Marc T. Valentine, Esquire. For Permittee: Alan Miller, Esquire, Jake Oresick, Esquire, Brian Lipkin, Esquire.
For Appellants: Lisa Johnson, Esquire, Marc T. Valentine, Esquire.
For Permittee: Alan Miller, Esquire, Jake Oresick, Esquire, Brian Lipkin, Esquire.
OPINION AND ORDER ON TRI-COUNTY LANDFILL'S MOTION IN LIMINE TO PRECLUDE EVIDENCE AND ARGUMENT ON POTENTIAL DISCHARGES OF LEACHATE
BERNARD A. LABUSKES, JR. BOARD MEMBER AND JUDGE.
Synopsis
The Board denies a motion in limine seeking to preclude the appellants from offering any evidence or argument on potential discharges of leachate from the landfill. Although the appellants cannot attack the terms and conditions of the landfill's NPDES permit in this appeal of its solid waste management permit, leachate management is integral to the operation of the landfill and issues associated with leachate discharge are not wholly irrelevant to this appeal.
OPINION
Liberty Township and Citizens Environmental Association of Slippery Rock Area, Inc. ("CEASRA") (hereinafter collectively the "Appellants") have appealed the issuance of a major permit modification to Tri-County Landfill ("Tri-County") by the Department of Environmental Protection (the "Department"). 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 hearing on the merits in this matter is scheduled to begin on April 5. In advance of the hearing, the Appellants have filed two motions in limine and Tri-County has filed eight motions in limine. The purpose of a motion in limine is to provide the Board with an opportunity to consider potentially prejudicial evidence and rule on the admissibility of such evidence before it is referenced or offered at trial. Penn Twp. Mun. Auth. v. DEP, 2021 EHB 72, 73; Kiskadden v. DEP, 2014 EHB 634, 635. See also 25 Pa. Code § 1021.121 ("party may obtain a ruling on evidentiary issues by filing a motion in limine").
In this motion, Tri-County seeks to prevent the Appellants from offering any evidence or testimony on the discharge of leachate generated by the landfill, which Tri-County maintains "is not relevant or ripe." Tri-County argues that the waste management permit under appeal explicitly does not authorize any leachate to be discharged to waters of the Commonwealth. Instead, Tri-County says that its permit application provides for leachate to be stored on site before being trucked to an off-site wastewater treatment facility. Tri-County also argues that one of the Appellants' experts, Dr. John Stolz, is not qualified to render an opinion on the discharge of leachate to surface waters, and that his report critiques an NPDES permit for the landfill, not the waste permit under appeal. Tri-County says in its motion, "When an NPDES permit is issued, a separate appeal could be filed to challenge its terms." (Mot. at ¶ 14.)
At the time Tri-County's motion was filed, an NPDES permit application was pending before the Department for the landfill's construction of a leachate treatment plant and an associated discharge of industrial waste to an unnamed tributary to Black Run. (See DEP PHM "Undisputed Facts" at ¶¶ 49, 54, 55.) In a somewhat interesting development, the Appellants tell us in their response that the Department issued the NPDES permit to Tri-County on March 10 and it will go into effect on April 1, 2023. The issuance of the NPDES permit is not really surprising. The Department tells us in its pre-hearing memorandum that a draft NPDES permit was published in the Pennsylvania Bulletin in November 2020 and a public hearing was held on the permit in April 2021. (DEP PHM "Undisputed Facts" at ¶¶ 54, 55.) Tri-County's motion in limine treats it as an inevitability that the NPDES permit would be issued at some point. (Mot. at ¶ 14; Memo. at 3.) The Department even tells us in its pre-hearing memorandum that "Tri-County Landfill cannot construct or operate the Landfill without an NPDES permit." (DEP PHM "Undisputed Facts" at ¶ 59.)
Indeed, it appears that the now-issued NPDES permit for the discharge of leachate and the waste permit under appeal have always been at least somewhat tied together. Tri-County's waste permit states that it does not authorize the discharge of leachate, but conditions that prohibition on Tri-County obtaining an NPDES permit for the discharge:
This permit does not authorize nor shall be construed to be an approval to discharge industrial waste including without limitation any leachate discharge from the permitted area to waters of the Commonwealth, absent a permit from the Bureau of Water Quality Management pursuant to the Clean Streams Law(General Permit Condition No. 4 (emphasis added).) The waste permit allows Tri-County to collect its leachate and transport it to off-site treatment plants that will handle the leachate, as Tri-County vigorously claims, but the permit suggests that the trucking of leachate will continue only as long as it takes for Tri-County to receive an NPDES permit:
An agreement between the permittee and at least 2 permitted treatment plants capable of accepting and treating the volume of leachate generated by the landfill shall be maintained at all times unless the permittee receives approval by the Department for an NPDES discharge permit or receives approval from both the Department and an off-site wastewater treatment plant for direct discharge. The Department shall be notified of any changes to the agreements between the landfill and the treatment plants accepting leachate.(Operating Permit Condition No. 26 (emphasis added).)
The Department's review memo accompanying the issuance of the permit also speaks to the connection between the waste permit and the NPDES permit. In fact, the review memo indicates that the construction of a leachate treatment plant by Tri-County, and its resultant discharge, was always envisioned for the landfill:
The leachate from the new waste disposal areas will be monitored and treated during disposal, further mitigating the potential environmental concerns for leachate from the relocated waste. Initial management of leachate will be addressed through trucking and disposal at permitted facilities. These facilities will require analysis of the leachate prior to acceptance to ensure proper treatment of the waste, regardless of the chemical makeup. Tri-County is also proposing construction of its own leachate treatment plant at the site. ….
Tri-County has submitted an application for a National Pollution Discharge Elimination System ("NPDES") permit for an industrial waste discharge to an unnamed tributary to Black Run associated with anticipated construction of a leachate treatment plant at the site to treat leachate from the new waste disposal areas… .Because leachate will be managed by trucking to a DEP-permitted facility for at least the first three years of operation and potentially longer the construction of a treatment plant is not planned for several years. In addition, Tri-County may propose a future connection to a permitted, publicly owned treatment works Accordingly, the DEP is not delaying the issuance of the Solid Waste Permit for the issuance of this NPDES permit.(App. Ex. 5, DEP Review Memo at 4-5, 6.) The Department's public comment response document attached to that review memo suggests that the trucking of leachate has been conditioned on Tri-County not yet having an NDPES permit, and now that it does, the trucking of leachate is apparently expected to cease:
Tri-County has applied for a NPDES permit application with the Clean Water Program. Tri-County Landfill has not received a NPDES permit at this time or supplied information regarding approval for direct discharge to a treatment plant. Tri-County Landfill will only be permitted to truck leachate until approval is received for the other options and information regarding those approvals is supplied to the Department.(App. Ex. 5 at 49 (emphasis added).)
The waste and discharge permits appear to be inextricably linked, judging by the Department's own review documents. Accordingly, we reject Tri-County's arguments that issues of leachate discharge are completely irrelevant in this appeal. In fact, Tri-County's argument that the waste permit does not authorize leachate discharges may even be moot. The argument that the Appellants' wastewater objections "depend on a hypothetical risk of harm from an activity that the Permit does not authorize" now rings somewhat hollow. (TCL Memo. at 4.) The largely hypothetical if not somewhat fantastic notion that the landfill would operate indefinitely trucking leachate has now apparently evaporated.
If the issuance of an NPDES permit was a matter of conjecture or nothing more than a distant possibility, Tri-County's motion in limine might have had some merit. Clearly it never was, but beyond that, the Department has further complicated the resolution of the issues raised in the motion by choosing to issue the NPDES permit less than a month before the hearing on the merits on the solid waste permit. Indeed, it appears that the permit was issued on the same day that the motion in limine was filed. It may be that the landfill can or will be operated for some period of time without a direct discharge of leachate, but it does not follow that we should pretend that this project can or will operate indefinitely without a direct discharge. Therefore, we cannot accept Tri-County's invitation to close our eyes to any and all evidence regarding a leachate discharge.
With that being said, we are mindful that the focus of this appeal, and the merits hearing, is the Department action under appeal-the approval and issuance of Solid Waste Management Permit No. 101678. See Winegardner v. DEP, 2002 EHB 790, 793 ("Our role is necessarily circumscribed by the Departmental action that has been appealed….We may not use an appeal from one Departmental action as a vehicle for reviewing the propriety of prior Departmental actions."). This is not an appeal of the NPDES permit. This appeal does not provide a mechanism for attacking the actual terms and conditions of the NPDES permit. This leaves us rather between a rock and a hard place. The best way to deal with this tension between ignoring all evidence regarding leachate discharge while not digging too deep into the weeds on the actual terms of the NPDES permit is to assess the admissibility of the evidence on a case-by-case basis. If certain portions of the hearing appear to veer too far into the territory of the NPDES permit, we are capable of dealing with it at that time.
The second part of Tri-County's motion lodges attacks on the qualifications of one of the Appellants' experts, Dr. Stolz, and his ability to opine on issues regarding radioactivity in the waste accepted into and the leachate generated by the landfill. Tri-County argues that Dr. Stolz should be precluded from testifying on the environmental impacts of leachate because he lacks relevant expertise. In Dr. Stolz's expert report, he states that his background is in microbiology and geobiology and he is a professor in the Department of Biological Sciences and the Director of the Center for Environmental Research and Education at Duquesne University. (App Ex. 72.) He says that his current research involves radioactivity in oil and gas brine and surface and groundwater quality. (Id.)
Rule 702 of the Pennsylvania Rules of Evidence governs the admissibility of expert testimony at a hearing. It provides the general standard by which a witness is qualified to render expert opinions:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;
(b) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and
(c) the expert's methodology is generally accepted in the relevant field.Pa.R.E. 702. Based only on our brief review of Dr. Stolz's CV, he appears to have more knowledge than a layperson on potentially relevant topics. See Fisher v. DEP, 2010 EHB 46, 47-48. The primary purpose of expert testimony is to assist the trier of fact in understanding complicated issues. Blythe Twp. v. DEP, 2011 EHB 433, 437 (citing Rhodes v. DEP, 2009 EHB 237, 239).
There is nothing blatantly incongruent with Dr. Stolz's expertise and his ability to offer some value on leachate issues and radioactivity, at least from what we can tell at this juncture.
Nevertheless, whether the Board ultimately finds Dr. Stolz qualified to render opinions on all the subjects on which he will testify, and the weight and credibility to lend to those opinions, are issues better left resolved at the hearing following an appropriate proffer and voir dire. As we said in Friends of Lackawanna v. DEP, 2016 EHB 815, 823, in the context of deciding another motion in limine seeking to exclude an expert's testimony:
In Board cases, the way that we typically address a proposed expert's qualifications is to allow the witness's proponent to elicit testimony describing the witness's qualifications at the hearing and then offer him or her up as an expert in specifically stated areas. After offering the opposing parties an opportunity for voir dire and/or object[ion], we then rule on the ability of the individual to give expert opinion testimony. Although in a blatant case a motion in limine based on lack of qualification might be appropriate, this is clearly not such a case based on our review of [this expert's] report and resume.
To the extent Tri-County objects to Dr. Stolz's qualifications or believes that any of the Appellants' questions proffered to Dr. Stolz exceed the areas of his expertise, it is free to make specific objections as they arise at the hearing.
Accordingly, we issue the Order that follows.
ORDER
AND NOW, this 30th day of March, 2023, it is hereby ordered that Tri-County Landfill's Motion in Limine to Preclude Evidence and Argument on Potential Discharges of Leachate is denied.