Opinion
2021-007-L
04-17-2023
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 (via electronic filing system) For Appellants: Lisa Johnson, Esquire Marc T. Valentine, Esquire (via electronic filing system) For Permittee: Miller, Esquire Jake Oresick, Esquire Brian Lipkin, Esquire (via electronic filing system)
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: Miller, Esquire Jake Oresick, Esquire Brian Lipkin, Esquire (via electronic filing system)
Bernard A. Labuskes, Jr., Board Member and Judge
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 temporary supersedeas of a major modification of a solid waste management permit for 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 (the "Appellants") have filed a petition for supersedeas and application for temporary supersedeas in connection with their appeal of the issuance by the Department of Environmental Protection (the "Department") of a major permit modification to Tri-County Landfill ("Tri-County"). 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 permit modification was issued in December 2020 and the Appellants filed their appeal in January 2021. The hearing on the merits is already underway, having begun on April 5, 2023, and it is scheduled to continue through the end of April.
The Appellants' supersedeas filings came on Friday, March 31, 2023. 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. On April 12, 2023, we issued an Order denying the application for temporary supersedeas. This Opinion is in support of that Order.
The affidavit from Jane Cleary does not identify who she is, but because she has already testified as a witness for the Appellants in the ongoing merits hearing we know that she is affiliated with CEASRA. The affidavit from Robert Pebbles also does not identify who he is, but we again know from the merits hearing that he is a Liberty Township supervisor.
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.
The sudden urgency prompting the Appellants' supersedeas filings in this appeal, which has been pending since January 2021, appears to stem from a letter dated March 30, 2023 sent from Tri-County to the Grove City Airport that says without elaboration: "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." The Appellants do not provide any additional information with any degree of specificity through affidavits or otherwise on what this "construction" might be. They merely allude to some earthmoving at the site.
Notwithstanding the apparent urgency, the Appellants ask that we hold off holding a supersedeas hearing until no sooner than 30 days after the close of the ongoing merits hearing on the waste permit.
However, 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. There is no indication that Tri-County has begun receiving new waste or relocating the historic waste at the site. There is no indication of any actual or imminent discharge to waters of the Commonwealth. Beyond the Appellants' unsupported speculation that bad things could happen, we see no evidence of any actual or realistic potential possibility of pollution pending our scheduling of a hearing on the petition for supersedeas, to the extent such a hearing is necessary given the ongoing merits hearing. It is perhaps ironic that the Appellants complain about the construction of a sedimentation basin since the very purpose of a sedimentation basin is to ensure that no uncontrolled pollution of the waters of the Commonwealth takes place. See Blose v. DEP, 1999 EHB 638, 640-41 (petition seeking supersedeas for construction of haul roads, sedimentation controls, and other pre-mining activities denied).
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.
In both their petition for supersedeas and application for temporary supersedeas, the Appellants appear to have copied around 60 pages of material from their pre-hearing memorandum's statement of facts submitted in advance of the merits hearing. There is virtually nothing in the application addressing the criteria for a temporary supersedeas or explaining how the Appellants have met those criteria. The Appellants do not identify any specific immediate and irreparable injury they will suffer as a result of anything that is currently happening at the site. The Appellants have not laid out any concrete injury stemming from digging the sedimentation basin that they are suffering now and will continue to suffer until a hearing on the petition for supersedeas.
There is also nothing in the affidavits filed by the Appellants that explains what immediate and irreparable injury is occurring. Jane Cleary's affidavit only makes a vague claim of injury from earthmoving work:
Earth moving can affect the hydrology of the area, which is already vulnerable based on the facts set forth in Exhibit 158, described below, and the NPDES Fact Sheet, Exhibit 33 to the Appellants' Pre-Hearing Memorandum, which lists the unnamed tributary to Black Run as "impaired" from unknown causes.(Cleary Affidavit at ¶ 15.) Ms. Cleary has no pertinent expertise. The Appellants do not explain how or in what ways any earthmoving activities conducted by Tri-County are affecting the hydrology at the site or impacting an unnamed tributary to Black Run. There are no specific allegations of injury or quantification of impact to an unnamed tributary to Black Run, or explanation of a credible threat to any waters of the Commonwealth.
Instead of demonstrating that there is any threat of imminent injury to the Appellants or the public, the Appellants digress into a discussion of the merits. For example, they say that Tri-County "cannot be trusted to engage in activities under the Permit in accordance with applicable laws" due to their compliance history. They say that the landfill will violate Liberty Township's obligations under Article I, Section 27 of the Pennsylvania Constitution. They aver that Tri-County is required to obtain a building permit from the Township prior to constructing the landfill. The Appellants' application to some extent discusses irreparable harm per se, claiming that the Department did not act in accordance with applicable laws and regulations when it issued the waste permit to Tri-County. We question whether the temporary supersedeas mechanism was ever intended to address irreparable harm per se, but in any event, whether Tri-County has the necessary permits from the Township, the parties' respective responsibilities under the Pennsylvania Constitution, and whether there is harm per se, are things that are better addressed in the context of likelihood of success on the merits for a supersedeas as opposed to a temporary supersedeas.
It is interesting to note that the rules regarding temporary supersedeas speak in terms of injury rather than harm.
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. The Appellants themselves have asked that we hold off scheduling a supersedeas hearing until at least 30 days after the conclusion of the ongoing merits hearing. That request belies any allegation of urgency. It also makes perfect sense given the ongoing hearing on the merits, which makes it impractical to schedule a hearing any sooner in any event. Most importantly, we 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.
A separate hearing on the supersedeas petition to, among other things, assess the likelihood of success on the merits may prove to be redundant in light of the completion of the merits hearing.
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. An Opinion in support of this Order will follow.