Opinion
EJB 2023-036-L
04-19-2023
LIBERTY TOWNSHIP and CEASRA, INC. v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and TRI-COUNTY LANDFILL, Permittee
DEP, General Law Division: Attention: Maria Tolentino (via electronic mail) For the Commonwealth of PA, DEP: Carl D. Ballard, Esquire Dearald Shuffstall, Esquire Michael A. Braymer, Esquire (via electronic mail) For Appellants: Lisa Johnson, 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 the Commonwealth of PA, DEP: Carl D. Ballard, Esquire Dearald Shuffstall, Esquire Michael A. Braymer, Esquire (via electronic mail)
For Appellants: Lisa Johnson, Esquire (via electronic filing system)
For Permittee: Alan Miller, Esquire Jake Oresick, Esquire Brian Lipkin, Esquire (via electronic filing system)
OPINION IN SUPPORT OF ORDER ON APPLICATION FOR TEMPORARY SUPERSEDEAS
BERNARD A. LABUSKES, JR., Board Member and Judge
Synopsis
The Board denies an application for a temporary supersedeas of an NPDES permit issued in conjunction with the operation of a landfill. The Appellants have not shown through affidavits or otherwise that there is any threat of immediate and irreparable injury to the applicants or that there is a likelihood of injury to the public pending a hearing on the petition for supersedeas.
OPINION
Liberty Township and CEASRA, Inc. (the "Appellants") have appealed the Department of Environmental Protection's (the "Department's") issuance of NPDES Permit No. PA0263664 to Tri-County Landfill, Inc. ("Tri-County") authorizing discharges from Tri-County's landfill to unnamed tributaries to Black Run in Liberty Township, Mercer County. The NPDES permit authorizes three discharges, two of which involve the discharge of stormwater runoff from the construction of landfill cells and earthen berms, and the other a discharge of leachate from a future treatment plant. The Appellants previously appealed a major modification of Tri-County's solid waste management permit. The merits hearing on the waste permit is currently underway, having begun on April 5, 2023, and it is scheduled to continue through the end of April.
The NPDES permit was issued March 10, 2023, to become effective on April 1, 2023. The Appellants filed their appeal of the permit on Friday, March 31, 2023. On the same day, they filed a petition for supersedeas and an application for temporary supersedeas. Although the Appellants' petition for supersedeas and application for temporary supersedeas were not accompanied by affidavits when they were filed as required by 25 Pa. Code § 1021.62(a)(1), see also 25 Pa. Code § 1021.64(b) (application for temporary supersedeas shall be accompanied by petition for supersedeas that comports with Section 1021.62), the Appellants on April 4, 2023 filed an affidavit from Jane Cleary, and on April 7 they filed an affidavit from Robert Pebbles. We held a conference call with the parties on the afternoon of Monday, April 3, 2023. Following the conference call, we ordered the Department and Tri-County to file responses to the application for temporary supersedeas by April 7. Both the Department and Tri-County filed responses in opposition to the application for a temporary supersedeas.
Although the affidavits from Jane Cleary and Robert Pebbles do not identify who they are, we know from their testimony at the merits hearing on the waste permit that Jane Cleary is a member of CEASRA, Inc. and Robert Pebbles is a Liberty Township supervisor.
At the same time, the Appellants also filed a petition for supersedeas and an application for temporary supersedeas in their appeal of the waste permit. On April 12, 2023, we issued Orders denying the applications for temporary supersedeas in both the waste permit appeal and the NPDES permit appeal. On April 17, we issued an Opinion in support of our Order denying the Appellants' application for temporary supersedeas in the waste appeal, which explained that the Appellants did not show any evidence of immediate or irreparable injury as required for a temporary supersedeas. See Liberty Twp. v. DEP, EHB Docket No. 2021-007-L (Opinion in Support of Order on Application for Temporary Supersedeas, Apr. 17, 2023). For this same reason, we have denied the application for temporary supersedeas of the NPDES permit. This Opinion addresses the application for a temporary supersedeas of the NPDES permit.
An application for temporary supersedeas is intended to provide an opportunity for emergency relief "when a party may suffer immediate and irreparable injury before the Board can conduct a hearing on a petition for supersedeas." 25 Pa. Code § 1021.64(a). Our rule on temporary supersedeas emphasizes the temporary nature of the relief by providing that a temporary supersedeas automatically expires in six business days unless otherwise ordered by the Board. 25 Pa. Code § 1021.64(f).
When deciding whether to grant or deny an application for temporary supersedeas, we consider the following factors:
(1) The immediate and irreparable injury the applicant will suffer before a supersedeas hearing can be held.
(2) The likelihood that injury to the public, including the possibility of pollution, will occur while the temporary supersedeas is in effect.
(3) The length of time required before the Board can hold a hearing on the petition for supersedeas.25 Pa. Code § 1021.64(e).
It is important to note at the outset that the Board does not consider the merits of the appeal in the context of an application for a temporary supersedeas. Beaver v. DEP, 2002 EHB 574, 580 n.5 ("We note that while likelihood of success on the merits is a factor in determining whether to grant a supersedeas it is not a factor in determining whether to grant a temporary supersedeas."). A party seeking a temporary supersedeas has a high burden to show that a temporary supersedeas is justified. Nicholas Meat, LLC v. DEP, 2021 EHB 96, 97. For purposes of a temporary supersedeas, a party must show that they will suffer immediate and irreparable injury until the Board can hold a hearing on the petition for supersedeas, not irreparable injury until the Board resolves the appeal. Ponderosa Fibres of Pa. P'ship v. DEP, 1998 EHB 1004, 1007. "The purpose of a temporary supersedeas is to provide an avenue for immediate relief pending a hearing on a petition for supersedeas. It is only available for this limited window of time." Clean Air Council v. DEP, 2017 EHB 132, 142.
In order to grant an application for temporary supersedeas, there needs to be credible evidence of immediate and irreparable injury. See Global Eco-Logical Servs., Inc. v. DEP, 1999 EHB 93 (denying application for temporary supersedeas where not enough evidence supporting injury); A&M Composting, Inc. v. DEP, 1997 EHB 965 (denying application for temporary supersedeas where application did not explain how party would be harmed during the time period until the Board could rule on the petition for supersedeas). We have held that general or speculative assertions of irreparable injury without greater specificity are insufficient to support issuance of a supersedeas, Mellinger v. DEP, 2013 EHB 322, 328; Al Hamilton Contracting Co. v. DER, 1993 EHB 329, 331, and we see no reason why speculative assertions of injury should be sufficient for the issuance of a temporary supersedeas.
Once again, the Appellants have not demonstrated through their application or their affidavits any immediate and irreparable injury that justifies the extraordinary relief of the issuance of a temporary supersedeas. The Appellants assert that the NPDES permit does not demonstrate that there will not be any adverse impacts to the unnamed tributary to Black Run in terms of hydrology, water quality, and water pollution. But for purposes of a temporary supersedeas, the Appellants have it backwards. The onus is on the Appellants to show with credible evidence that there is a reasonable likelihood that there will be adverse impacts to the unnamed tributary to Black Run that constitute immediate and irreparable injury in the time period before a supersedeas hearing can be held. Broad and unsubstantiated claims that a permit is not adequately protective of the environment without demonstrating why are insufficient for a temporary supersedeas.
After their initial supersedeas filings but on the same day, the Appellants filed an additional exhibit to their application that is a letter dated March 30, 2023 sent from Tri-County to the Grove City Airport. The letter provides: "In accordance with Condition 23, Section C of Solid Waste Permit No. 101678, Tri County Landfill, Inc. (TCL) is providing the Grove City Airport with notice of commencement of construction." This same letter was also supplied with the Appellants' supersedeas filings in the waste permit appeal. However, as we explained in our Opinion denying the temporary supersedeas of the waste permit, see Slip Opinion at 4-5, the Appellants do not provide any additional information with any degree of specificity through affidavits or otherwise on what this "construction" might be or what immediate and irreparable injuries might follow.
Tri-County in its response in opposition to the application for temporary supersedeas, which included affidavits, tells us that the work that has commenced and is ongoing at the site is the installation of erosion and sedimentation controls and earthmoving work for the construction of a sedimentation basin that will help manage stormwater on the site. Tri-County says the sedimentation basin is not expected to be completed until the end of June 2023 and there will be no discharge of stormwater from the basin under the NPDES permit until construction is finished. Tri-County also says the treatment plant that will have a discharge related to treated leachate and wastewater under the NPDES permit has not yet been built. Tri-County avers that it still needs to prepare and submit an application for a water quality management permit, and then be issued that permit by the Department, before the plant can be built. Tri-County estimates that any discharge from the treatment plant may be at least two years down the road.
The affidavits accompanying Tri-County's response are from David Smith, P.E., an engineer apparently familiar with the construction at the landfill, and Elizabeth Bertha, Environmental Health and Safety Director at Tri-County's parent company. Tri-County's representatives affirm that no waste is expected to be impacted on the site through at least January 31, 2024.
The Appellants have not provided any evidence to question Tri-County's representations regarding the timeline of its work. There is no indication of any actual or imminent discharge to waters of the Commonwealth, including the unnamed tributary to Black Run, from either the sedimentation basin or the leachate treatment plant. There is also no support in the Appellants' temporary supersedeas application or affidavits for their claim that the landfill is currently polluting waters of the Commonwealth. Beyond the Appellants' unsupported speculation that bad things could or might be happening at the site, we see no evidence of any actual or realistic potential possibility of pollution pending our scheduling of a hearing on the petition for supersedeas.
One of the few other assertions of injury in the Appellants' application and affidavits is a claim that they have been harmed because they have had to prepare their appeal of the NPDES permit and supersedeas filings while also preparing for the merits hearing on the waste permit. This alleged injury is simply not grounds for a temporary supersedeas. For a temporary supersedeas in a third-party appeal of a permit, the focus generally should be on the immediate and irreparable injury to the environment and its use thereof by the applicant and the public, not on any administrative burden in preparing for a hearing in a related appeal.
The rest of the Appellants' contentions are for the most part all arguments on the merits of the issuance of the NPDES permit, not credible allegations of immediate and irreparable injury. This is exemplified by the fact that the Appellants have copied the objections from their notice of appeal into their application for temporary supersedeas, almost all of which are geared toward merits claims as opposed to any claims of ongoing immediate and irreparable harm from anything happening at the site. For instance, the Appellants contend the Department exceeded its authority in issuing the permit. They say that Tri-County will discharge to waters of the Commonwealth that the Appellants claim are hydrologically connected to waters in West Virginia and Ohio. They argue that in issuing the permit the Department acted contrary to a 1991 memorandum of agreement, attached to their application, between the Department and the Environmental Protection Agency that appears to address the Department's role in administering the NPDES program in Pennsylvania. The Appellants do not fully explain this argument, but it is nonetheless an argument on the merits. The Appellants do not explain how this memorandum is relevant to any immediate and irreparable injury suffered by the Appellants and required for the issuance of a temporary supersedeas.
The Appellants argue that there is per se irreparable harm because the Department did not comply with the statutory and regulatory requirements in issuing the NPDES permit. They cite 25 Pa. Code § 105.21(a)(4), a regulation that appears to apply to dam safety and encroachments permits, not the NPDES permit at issue here, which says a proposed project must be consistent with the environmental rights and values secured by Article I, Section 27 of the Pennsylvania Constitution, PA. CONST. art. I, § 27, and with the duties of the Commonwealth as trustee to conserve and maintain the Commonwealth's public natural resources. As we held in our Opinion denying the temporary supersedeas of the waste permit, see Slip Opinion at 6, irreparable harm per se, and the Department's constitutional duties under the Environmental Rights Amendment, are issues better addressed in the context of likelihood of success on the merits for a supersedeas as opposed to a temporary supersedeas.
The Appellants also allege that the Department failed to give adequate public notice of the NPDES permit and that this is an irreparable injury because it interferes with the public's ability to identify and potentially appeal the permit. This argument is somewhat belied by the fact that the Appellants here evidently had notice of the NPDES permit and filed their appeal before the permit became effective. Nevertheless, the adequacy of public notice is another merits question better suited to a hearing on the petition for supersedeas, not grounds for a temporary supersedeas. See PRIZM Asset Mgmt. Co. v. DEP, 2005 EHB 819 (granting in part petition for supersedeas and requiring Department to re-notice permit).
Finally, in determining whether to grant an application for a temporary supersedeas, we must also consider the length of time required before the Board can hold a hearing on the petition for supersedeas. As in their supersedeas filings in the waste appeal, the Appellants have asked that we hold off scheduling a supersedeas hearing until at least 30 days after the conclusion of the ongoing merits hearing in the waste appeal. That request undermines any allegation of urgency. It also makes perfect sense given the ongoing hearing on the merits for the waste permit, which makes it impractical to schedule a hearing any sooner in any event. Most importantly, we again do not discern even a suggestion of a threat of either immediate or irreparable injury to the applicants or the public even during the period in question.
Perhaps implicit in the Appellants' application is a concern that, once work starts at the landfill, it is harder to stop, but absent a supersedeas Tri-County proceeds at its own risk in moving forward with its work at the site.
Accordingly, on April 12, 2023, we issued the Order that denied the application for a temporary supersedeas, a copy of which is attached.
ORDER
AND NOW, this 12th day of April, 2023, upon consideration of the Appellants' application for temporary supersedeas, and the responses of the Department and Tri-County Landfill in opposition thereto, it is hereby ordered that the application for temporary supersedeas is denied.