Opinion
2021-007-L
10-13-2023
LIBERTY TOWNSHIP and CEASRA v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and TRI-COUNTY LANDFILL, Permittee
For the Commonwealth of PA, DEP: Carl D. Ballard, Esquire Dearald Shuffstall, Esquire Michael A. Braymer, Esquire Angela N. Erde, Esquire For Appellants: Lisa Johnson, Esquire Marc T. Valentine, Esquire For Permittee: Alan Miller, Esquire Jake Oresick, Esquire Brian Lipkin, Esquire
For the Commonwealth of PA, DEP: Carl D. Ballard, Esquire Dearald Shuffstall, Esquire Michael A. Braymer, Esquire Angela N. Erde, 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 PETITION TO REOPEN THE RECORD
Bernard A. Labuskes, Jr., Board Member and Judge
Synopsis
The Board denies a petition to reopen the record where the appellants have failed to satisfy the criteria for reopening the record set forth in the Board's Rules at 25 Pa. Code § 1021.133. In addition, the new evidence proposed to be added to the record is not admissible for multiple reasons.
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. The parties have filed their post-hearing briefs, and the Appellants' reply brief is due on October 16, 2023.
The Appellants have filed a petition to reopen the record prior to the issuance of our Adjudication in this matter. Their petition was filed on September 26, 2023. The Appellants seek to reopen the record to enter into evidence two exhibits attached to the petition: (1) an aerial photograph of what the Appellants say is the Tri-County Landfill taken on July 19, 2023 (Exhibit A); and (2) a "Strike Report" dated July 15, 2023 that appears to document a bird striking an airplane on July 14, 2023 (Exhibit B). The Appellants have not asked for the record to be reopened for any additional testimony. The Department and Tri-County oppose the petition. For the reasons explained below, the petition is insufficient to justify reopening the record and must be denied.
Our Rules provide that, following the conclusion of the merits hearing but before the Board issues its adjudication, the record may be reopened "upon the basis of recently discovered evidence" when the following circumstances are present:
(1) Evidence has been discovered which would conclusively establish a material fact of the case or would contradict a material fact which had been assumed or stipulated by the parties to be true.
(2) The evidence is discovered after the close of the record and could not have been discovered earlier with the exercise of due diligence.
(3) The evidence is not cumulative.25 Pa. Code § 1021.133(b). A petition to reopen the record must (1) identify the evidence the petitioner seeks to add to the record, (2) describe the efforts the petitioner made to discover the evidence prior to the close of the record, and (3) explain how the evidence was discovered after the close of the record. 25 Pa. Code § 1021.133(d). The petition must also be verified. 25 Pa. Code § 1021.133(d)(3).
Reopening the record is a decision within the discretion of the presiding judge. Friends of Lackawanna v. DEP, 2017 EHB 664, 666 (citing Wheeling-Pittsburgh Steel Corp. v. Dep't of Envtl. Prot., 979 A.2d 931, 943 (Pa. Cmwlth. 2009); Al Hamilton Contractor Co. v. Dep't of Envtl. Res., 659 A.2d 31, 35 (Pa. Cmwlth. 1995)). Even when all the above criteria in our Rules are met, the decision to reopen the record remains within the Board's discretion. M&M Stone Co. v. DEP, 2010 EHB 227, 235. The circumstances under which a record will be reopened are narrow:
"Our rule allows the record to be reopened to remedy mistakes, not simply to add more evidence." [M&M Stone Co. v. DEP, 2010 EHB 227, 235] (quoting Lang v. DEP, 2006 EHB 7, 25-26). We are generally reluctant to give parties "two bites at the proverbial apple," Noll v. DEP, 2005 EHB 24, 32 (quoting Exeter Citizens' Action Comm. v. DEP, 2004 EHB 179, 181), because hearings, like many other things in life, must eventually come to an end, even if the ending is less than perfectly satisfying to all concerned.Perano v. DEP, 2011 EHB 270, 272-73.
Before we even get to the criteria for reopening the record set forth in 25 Pa. Code § 1021.133 and our case law, there must be some indication that the evidence is admissible to justify the extraordinary measure of opening the record. Exhibits A and B standing alone are clearly not admissible. First, the Appellants make no attempt to authenticate the documents, other than boilerplate verifications from the spokespersons for the Appellants themselves, Jane Cleary and Robert Pebbles, neither of whom are pilots. The strike report is not signed and there is no other indication who wrote it. We have been provided with no basis for finding that the items are what the proponents claim them to be. Pa.R.E. 901. Authentication is not particularly difficult in Board proceedings, but here there is nothing.
Nor do we want to speculate that the exhibits would necessarily be admissible had they been supported by testimony.
In Pine Creek Valley Watershed Association v. DEP, 2011 EHB 579, there was a dispute among the parties as to whether a proposed development would harm bog turtle habitats. Subsequent to the hearing, the U.S. Fish and Wildlife Service sent a letter to the Department stating that it had found two bog turtles at the site. The appellant petitioned to reopen the record to include this letter and we granted the petition. Unlike here, in Pine Creek Valley there was no question as to the authenticity or authorship of the piece of evidence that was sought to be introduced.
Relatedly, we have no indication that whoever wrote the report made the comments contained therein based on personal knowledge. Pa.R.E. 602. See also Gibson v. Workers' Comp. Appeal Bd., 861 A.2d 938, 947 (Pa. 2004) ("another fundamental rule of law is that witnesses must have first-hand knowledge of the subject on which they are testifying for that testimony to be admissible.").
The bird strike report is inadmissible hearsay. It is an out of court statement offered for the truth of the matters asserted therein. Pa.R.E. 801(c). Indeed, that is even assuming that the hearsay document was not based on hearsay statements of another person, making for hearsay within hearsay. The Appellants have not shown that the document would fall within any exception to the hearsay rule. The Appellants offer, again without proper verification, that the bird strike report was submitted to the Federal Aviation Administration (FAA), but to the extent this can be interpreted as a claim that the document is a public record, that exception to the prohibition against hearsay applies to "a record of a public office" that was created by someone performing an "official public duty." Pa.R.E. 803(8). This report does not appear to have been created as an official public duty by someone at the FAA; it appears to be a report filled out by an unidentified person who may or may not have been a pilot involved in the alleged incident.
Beyond the lack of authentication, lack of a showing of personal knowledge, and inadmissible hearsay, the report is made more problematic by the fact that it contains what appear to be gratuitous editorial comments about the landfill expansion that go beyond what we think would be appropriate in such a report. The report says, "Landfill off the east end of the runway attracts birds. We are usually only at 400-500 foot AGL as we approach runway 28 and cross the landfill. The landfill is scheduled to be expanded and this is a threat to aviation safety." (Exhibit B at 2.)
Even if it were appropriate to add such comments about a landfill expansion in a bird strike report, no proper foundation has been laid for what are obvious opinion statements. We think that it would require expert testimony to link a certain species of bird, let alone an individual bird involved in a strike with an airplane, to the operations happening at the landfill, which currently do not include the disposal of any waste. Indeed, at the merits hearing both the Appellants and Tri-County presented extensive testimony from experts opining on whether the landfill posed a threat to aviation safety due to potential bird strikes. The Appellants have not established that the unidentified author of the report is a qualified expert capable of rendering such opinions.
Turning to the criteria for reopening the record, even if the evidence were admissible, it would at best be cumulative. There was a wealth of testimony and evidence at the 12-day hearing on the merits on the threat of bird strikes even in the absence of landfilling. The parties' respective experts' testimony spanned two full days and more than 400 pages of the transcript. There does not seem to be any dispute among the parties that bird strikes happen. The bird strike report at best stands for no more than that. The report standing alone tells us nothing about the bird strike and the disposal of waste at a landfill. The Appellants use the photo to show there is a pond at the landfill site, but the report alone does not show that there is any connection. The report would simply add more evidence, not remedy any mistake in the record. Perano, supra, 2011 EHB at 272.
The proffered bird strike report in no way conclusively establishes a material fact or contradicts a material fact of the case. 25 Pa. Code § 1021.133(b)(1). The evidence does not support a finding that landfilling would increase the risk of bird strikes. For example, the report appears to refer to a bird species, purple martin, that is not associated with landfilling. There was no mention of a purple martin during the hearing. There has been no indication that purple martin is a species that is attracted to landfills.
The Appellants assert that entering the report and photograph into the record would not result in the further continuation of these proceedings, but we fail to see how that could be the case, particularly since there has not been a basic foundation laid for the documents. In Pine Creek Valley, supra, the record was reopened to admit evidence of a discrete material fact regarding the existence of bog turtles at the site. The letter in Pine Creek Valley did not require any additional testimony or additional evidence to be considered in conjunction with the letter. The parties even stipulated to the main fact contained in the letter that a certain individual with the U.S. Fish and Wildlife Service found two bog turtles on the site.
The situation here is more like Friends of Lackawanna v. DEP, 2017 EHB 664, where the appellant claimed that the letter contained "self-explanatory Department admissions." We rejected that characterization and found that the letter would at least require further explanation from the author, with appropriate cross-examination from the other parties, and potential testimony from other witnesses. The additional testimony and evidence required to contextualize the letter was one of the factors that militated toward us denying the petition to reopen the record. Here, there is no question that reopening the record would necessitate additional testimony and evidence from all parties to explain the bird strike report and to debate the opinions contained therein. See Perano, 2011 EHB at 273 ("This case illustrates that reopening the record to add one more piece of evidence will rarely end the matter."); Perano v. DEP, 2011 EHB 275, 278 ("reopening the record to allow Perano to present his new theory would in fairness require us to accept evidence regarding the Department's response to that theory.").
Finally, it is not clear why the July report and photograph are only being offered now. The bird strike report says that the bird strike occurred on July 14, 2023. The Appellants say in their petition that they had knowledge of the bird strike on that same day, July 14, and that the Appellants notified the Department and Tri-County about the incident the next day on July 15. The Appellants say the photograph was taken on July 19. There is no explanation for why the Appellants waited more than two months, until September 26, 2023, to file their petition to reopen the record. The Appellants say they are not interested in delaying the adjudication of this matter, but their own delay is puzzling.
Accordingly, we issue the Order that follows.
ORDER
AND NOW, this 13th day of October, 2023, it is hereby ordered that the Appellants' petition to reopen the record is denied.