Opinion
2021-007-L
06-28-2023
LIBERTY TOWNSHIP and CEASRA v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and TRI-COUNTY LANDFILL, Permittee
OPINION AND ORDER ON MOTION FOR SITE VIEW
Bernard A. Labuskes, Jr., Board Member and Judge
Synopsis
The Board denies a motion for a site view where there has already been extensive visual evidence presented at the merits hearing and the facility subject to the appeal is not yet constructed or in operation.
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 hearing on the merits has already concluded, having begun on April 5, 2023 and lasting 12 days until April 28. The parties are currently in the midst of post-hearing briefing.
Before the Board is the Appellants' motion for a site view, which they have filed almost a month after the merits hearing concluded. The Appellants list in their motion 12 general areas and locations at the Tri-County landfill site that they would like to be covered in a site view. Those locations include: the permit boundaries of the former landfill and the current permitted landfill; areas of wetlands; existing monitoring well locations; the waste transfer station that Tri-County operates at the same site; the leachate detection zone that will be constructed underneath a future landfill cell; the location of a future leachate treatment plant; the location of existing disposed waste that Tri-County proposes to relocate; the location of future methane flares; and the locations of what the Appellants claim are seeps where they say leachate has discharged from the landfill into the underlying aquifer. They also ask that a site view be performed of the nearby Grove City Airport. The Appellants assert that a site view would help the Board in its review of the issues in this appeal. They request that the site view be attended by legal and technical representatives of each party and by all members currently serving on the Board.
The Department and Tri-County oppose the motion. They argue that a site view of an inactive landfill would hold no real probative value and would be costly and burdensome on the parties. They add that a view of the site will not help the Board better understand any of the extensive evidence that was presented at the merits hearing, and that some of the Appellants' proposed locations for the site view are not relevant or are beyond the scope of the Appellants' notice of appeal. For the reasons that follow, we deny the Appellants' motion.
Our Rules authorize us to conduct a site view of premises "when the Board is of the opinion that a viewing would have probative value in a matter in hearing or pending before the Board." 25 Pa. Code § 1021.115. The decision of whether to conduct a site view is fully committed to the Board's discretion. Kiskadden v. DEP, 2014 EHB 578, 580; Lucky Strike Coal Corp. v. DER, 1986 EHB 1233, 1235. The purpose of a site view is to help the Board better understand the record evidence in a case as a demonstrative aid. UMCO Energy, Inc. v. DEP, 2004 EHB 797, 801; Giordano v. DEP, 2000 EHB 1163, 1164-65. A site view does not in itself constitute any record evidence in an appeal, Perano v. DEP, 2011 EHB 275, 276 n.1, and it cannot serve as a substitute for establishing a party's case-in-chief, Giordano, 2000 EHB at 1164 (citing Lucky Strike Coal, 1986 EHB at 1235).
We do not think a site view is necessary. We have already held a 12-day hearing on the merits in this matter that contained extensive visual evidence by way of numerous maps, plan sheets, and photographs from the air and on the ground. The site was depicted in multiple formats through exhibits from all three parties. The Appellants also presented an in-flight aerial video taken by a pilot showing the landing approach route to the Grove City Airport and flying over the landfill site that was helpful in conveying the landscape and the spatial relationship between the landfill and the airport. We have a very good sense of the site in relation to the issues in dispute in this appeal.
We also find it significant that Tri-County's landfill is not currently in operation. The parties have told us that some preliminary earth disturbance work is underway for the construction of a sedimentation basin and the installation of erosion and sedimentation controls, but the Department has asserted that the landfill may be as much as two years away from accepting any waste for processing or disposal. The landfill's cells have not been excavated and the leachate and liner system has not been constructed for the disposal of new waste and the relocation of the older, existing waste at the site. The leachate treatment plant has not been constructed or permitted with a water quality management permit. Although we know from the merits hearing that Tri-County also operates a waste transfer station on the site, the transfer station is a separate operation subject to a different permit. A site view of a landfill is particularly useful when it provides an accurate representation of operating conditions and can contextualize the record evidence adduced at the hearing on the merits. Here, we would largely be viewing undeveloped land at a dormant landfill, which we can fully appreciate based on the evidence provided by the parties at the merits hearing. We do not believe that a site view would aid us in furthering our understanding of this appeal. Kiskadden, 2014 EHB at 580.
We will also note the potential cost and burden on the parties in participating in a site view. "In cases where the incremental value of the view as an aid to understanding does not outweigh that cost and inconvenience, a view should not be conducted." Giordano at 1165. Significant resources have already been expended by the parties litigating this case through pre-hearing practice and several weeks of hearing. The parties are currently in the middle of drafting post-hearing briefs. The logistical effort involved in coordinating and attending a site view among all of the representatives who the Appellants request to be present militates against holding a site view of only nominal value.
Accordingly, we issue the Order that follows.
ORDER
AND NOW, this 28th day of June, 2023, it is hereby ordered that the Appellants' motion for site view is denied.