Opinion
EHB 2023-036-L
06-13-2023
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 AND ORDER ON PETITION FOR SUPERSEDEAS
BERNARD A. LABUSKES, JR. Board Member and Judge
Synopsis
The Board denies a petition for supersedeas of an NPDES permit issued in conjunction with the operation of a landfill because the Appellants have not shown that there is any evidence of irreparable harm that justifies the extraordinary relief of a supersedeas while the appeal proceeds on the merits. The Board denies the petition without a hearing because the Appellants have not stated grounds sufficient for granting a supersedeas in their petition or accompanying affidavits.
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 municipal waste landfill to unnamed tributaries to Black Run in Liberty Township, Mercer County. The landfill has been dormant for more than two decades and the NPDES permit is part of Tri-County's effort to reactivate the landfill. 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 treated wastewater from a future leachate treatment plant.
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 was not accompanied by affidavits when it was filed as required by 25 Pa. Code § 1021.62(a)(1), the Appellants on April 4, 2023 filed an affidavit from Jane Cleary, a member of CEASRA, Inc., and on April 7 they filed an affidavit from Robert Pebbles, a Liberty Township Supervisor. Cover letters accompanying the affidavits stated that they were being filed in support of both the Appellants' petition for supersedeas and application for temporary supersedeas.
Tri-County filed motions to strike each of these affidavits, which we denied with an Order on April 24, 2023.
We held a conference call with the parties on 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 and responses to the petition for supersedeas by May 24, due to the parties' involvement in litigating the recent merits hearing on the Appellants' appeal of a major modification to Tri-County's waste management permit for the same landfill. See EHB Docket No. 2021-007-L. On April 12, 2023, we issued an Order denying the Appellants' application for temporary supersedeas in the NPDES permit appeal. On April 19, we issued an Opinion in support of our Order denying the application for temporary supersedeas, which explained that the Appellants did not show through their affidavits or otherwise any evidence of immediate or irreparable injury as required for a temporary supersedeas. Liberty Twp. v. DEP, EHB Docket No. 2023-036-L (Opinion in Support of Order, Apr. 19, 2023). Both the Department and Tri-County have now filed responses in opposition to the petition for supersedeas, asserting among other things that the Appellants have failed to show any irreparable harm. Tri-County asks in its response that we deny the petition without a hearing. For the reasons explained below, we agree with the Department and Tri-County and deny the Appellants' petition for supersedeas without a hearing.
The Appellants also filed a petition for supersedeas and an application for temporary supersedeas in their appeal of the major permit modification at the same time that they filed their supersedeas papers in this appeal of the NPDES permit.
Although we are denying the petition for supersedeas without a hearing, it should be noted that we just completed the hearing on the merits of the Appellants' appeal of the major modification to Tri-County's solid waste permit, which spanned 12 days and gave us a very good idea of the nature of the project.
The Environmental Hearing Board Act of 1988, 35 P.S. §§ 7511 - 7514, provides adversely affected parties with the right to file an appeal from a Department action. No appeal acts as an automatic supersedeas, but the Board may grant a supersedeas upon cause shown. 35 P.S. § 7514(d)(1). The grant or denial of a supersedeas is guided by relevant judicial precedent and the Board's own precedent. 35 P.S. § 7514(d)(1); 25 Pa. Code § 1021.63(a). Among the factors to be considered in ruling on a petition for supersedeas are (1) irreparable harm to the petitioner, (2) the likelihood of the petitioner prevailing on the merits, and (3) the likelihood of injury to the public or other parties. 35 P.S. § 7514(d); 25 Pa. Code § 1021.63(a); Erie Coke Corp. v. DEP, 2019 EHB 481, 485.
In order for the Board to grant a supersedeas, a petitioner generally must make a credible showing on each of the three statutory and regulatory criteria. VanDuzer v. DEP, 2018 EHB 696, 699; Weaver v. DEP, 2013 EHB 486, 489; Neubert v. DEP, 2005 EHB 598, 601. In terms of irreparable harm, mere speculation that a petitioner will suffer irreparable harm is not enough for a supersedeas. Guerin v. DEP, 2014 EHB 18, 24 (citing Pa. Fish and Boat Comm'n v. DEP, 2004 EHB 473, 478-79). "General assertions of irreparable harm without greater specificity are not sufficient to establish irreparable harm." Mellinger v. DEP, 2013 EHB 322, 328. See also Stevens v. DEP, 2005 EHB 619, 625 (broad assertion of irreparable harm without any specificity not sufficient); Borough of Roaring Spring v. DEP, 2003 EHB 825, 835 n.20 (requiring a degree of definiteness for a showing of irreparable harm). Where a petitioner fails to satisfy any one of the supersedeas criteria, the Board is not obligated to consider the remaining criteria. Spencer v. DEP, 2019 EHB 756, 760 (citing Teska v. DEP, 2016 EHB 541, 547). See also PBS Coals, Inc. v. DEP, 2021 EHB 104, 107; Oley Twp. v. DEP, 1996 EHB 1359, 1369. In evaluating whether the criteria have been met, we are mindful that "a supersedeas is an extraordinary remedy and will not be granted absent a clear demonstration of need." PBS Coals, 2021 EHB at 106 (citing Del. Riverkeeper Network v. DEP, 2016 EHB, 41, 43).
Our Rules allow us to deny a petition for supersedeas without a hearing if the petition is deficient for any of the following reasons:
(1) Lack of particularity in the facts pleaded.
(2) Lack of particularity in the legal authority cited as the basis for the grant of the supersedeas.
(3) An inadequately explained failure to support factual allegations by affidavits.
(4) A failure to state grounds sufficient for the granting of a supersedeas.25 Pa. Code § 1021.62(c)(1)-(4). See also Mellinger, 2013 EHB 322; Hopewell Twp. Bd. of Supervisors v. DEP, 2011 EHB 732. Given the fact that a supersedeas is an extraordinary measure that is not to be taken lightly, we have held that it is critical for a petition for supersedeas to plead facts and law with particularity and to be supported by affidavits setting forth facts upon which the issuance of a supersedeas may depend. Dougherty v. DEP, 2014 EHB 9, 12 (citing 25 Pa. Code § 1021.62(a)). "The pleadings and affidavits must be such that, if the petitioner were able to prove the allegations set forth in its pleadings and affidavits at a hearing, and the Department and/or permittee did not put on a case, it would be apparent from the filings that the Board would be able, if it so chose, to issue a supersedeas." Id. at 12-13. In other words, the petitioner's papers must on their face set forth what is essentially a prima facie case for the issuance of a supersedeas. VanDuzer, 2018 EHB at 700 (citing Global Eco-Logical Servs. v. DEP, 2000 EHB 829, 832; A&M Composting v. DEP, 1997 EHB 1093, 1098). Where a petition and its supporting documentation do not provide the Board with a basis for granting a supersedeas, it will be denied. Mellinger, supra.
Since a ruling on a petition for supersedeas is a limited decision addressing the status of the Department's action during the time interval between the filing of the appeal and the full Board's final ruling on the merits, Erie Coke Corp., 2019 EHB at 484, it is important to have a sense of what is happening at the site. The landfill is not currently in operation or accepting waste. However, we are told that preparation is underway for the landfill to begin operating again. An exhibit the Appellants filed in support of their petition is a letter dated March 30, 2023 from Tri-County to the Grove City Airport notifying the airport that Tri-County would be commencing construction at the landfill. In its response to the petition, Tri-County says that the ongoing work at the site involves 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 says that it will then proceed with constructing temporary diversions to direct stormwater into the sedimentation basin, and then construct a landfill berm and roadway to convey upgradient drainage to the basin. This work is expected to be completed by the end of February 2024. Tri-County will then perform work excavating, grading, and installing the liner for landfill Cell 1, which is expected to continue through September 2024. Tri-County avers that all of this earth disturbance work on the site is outside of the limits of the existing waste held at the landfill from when the landfill was operated decades ago. Tri-County says that all of this work will occur before the landfill begins accepting any new waste for processing and disposal.
Any discharge from the yet-to-be-constructed leachate treatment plant appears to be even further off. Tri-County and the Department say that Tri-County still must obtain a water quality management permit for the construction of its treatment plant before any discharge of treated leachate can occur from that plant pursuant to the NPDES permit. Tri-County avers through the affidavits attached to its response that it will likely take more than two years for Tri-County to prepare and submit the application for the water quality management permit, to obtain that permit following the Department's review of the application, and to construct the treatment plant. We are told that, after the landfill begins accepting waste, Tri-County will truck any landfill leachate to another facility for treatment until the leachate treatment plant is in operation.
With this context in mind, the Appellants' petition must be denied without a hearing because together with its affidavits there is no credible showing of irreparable harm to the Appellants, the public, or the environment from any of Tri-County's activity, and the Appellants have fallen short of making out a prima facie case for the extraordinary relief of a supersedeas. Much of the material contained in the Appellants' petition for supersedeas is essentially the same as what was contained in their application for temporary supersedeas, which we found did not set forth any evidence of immediate and irreparable injury. The same is true here for irreparable harm. For instance, as in their application for temporary supersedeas, the Appellants claim that the landfill is currently polluting waters of the Commonwealth, including exceptional value wetlands, but again they provide no support to substantiate that claim in their petition or accompanying affidavits. Nor have the Appellants explained why granting a supersedeas of the NPDES permit would alleviate any alleged ongoing pollution.
In terms of the work currently happening at the site, the Appellants do not devote much time to addressing the sedimentation basin or the earthmoving work. The petition itself hardly touches on them at all. Both the Jane Cleary and Robert Pebbles affidavits (the bulk of which are identical to each other) contend that "earth moving can affect the hydrology of the area, which is already vulnerable…." They point to exhibits filed in support of the Appellants' case in their appeal of the waste permit modification that identify an unnamed tributary to Black Run as being impaired from unknown causes. However, neither in their petition nor in their affidavits do the Appellants explain how Tri-County's earthmoving work could affect the area's hydrology and cause irreparable harm. Ms. Cleary and Mr. Pebbles do not identify any relevant expertise on hydrology that bears on their unsupported claims. The Appellants have not explained how there will be any irreparable harm from the construction and operation of the sedimentation basin on the site or from any of the other earthmoving work that is currently underway and will continue into next year.
The same affidavits were filed in support of the Appellants' petition for supersedeas in the waste permit appeal.
Turning to the NPDES permit, the Appellants assert that the permit conditions do not demonstrate that there would be no adverse hydrologic impacts, water quality impacts, or water pollution to the unnamed tributary to Black Run, and all connected water sources from which people and wildlife drink. For purposes of obtaining a supersedeas, the Appellants must show us why the NPDES permit conditions are not sufficiently protective, and why there will be irreparable harm from operations conducted pursuant to that permit. To that end, the Appellants claim that the NPDES permit does not impose a limit on the volume of discharge to the unnamed tributary to Black Run, and that "there is no way of knowing" whether the stream can handle the discharge. They say that, if the stream does not have the appropriate capacity, there could be a disruption to the watershed's hydrologic balance, which "could result" in erosion of the stream banks and potential flooding. The Appellants never show that there will be erosion or a hydrologic impact, or that there is a reasonable likelihood of those things happening. Instead, they rely merely on conjecture. Such assertions without evidence are precisely the sort of speculation that we have held to be insufficient to demonstrate irreparable harm for a supersedeas. Guerin, 2014 EHB at 24. The Appellants have not provided any evidence that the volume of any discharge will have a negative impact on the unnamed tributary to Black Run.
Copying the objections from their notice of appeal into their petition, the Appellants contend that the NPDES permit does not include testing for the parameters of bromide, strontium, and "all radionuclides in pollutant group 7" from both of the stormwater outfalls and the outfall from the leachate treatment plant. But apart from asserting that the landfill may accept some amount of oil and gas waste, which they suggest might contain such substances, the Appellants do not explain why such parameters are necessary or why the lack of such sampling parameters will result in irreparable harm. The Appellants claim that Tri-County will be discharging radioactive material, but there is simply no credible support for that claim in their papers. The Appellants' claims again amount to mere speculation.
The likelihood of even the prospect of irreparable harm is significantly less here where any discharge from the treatment plant is potentially years away following Tri-County obtaining the water quality management permit and constructing the plant. The Appellants contest this, saying that "[t]he Department and Tri-County may claim that no irreparable harms will occur as a result of the issuance of the NPDES Permit because Tri-County cannot treat or discharge leachate onsite without a Part II WQM permit to begin construction on a treatment facility, but this is not true." (Petition at ¶ 5.) But crucially, the Appellants never explain why that is not true. They do not provide any support for their implication that there will be any discharge from the treatment plant without Tri-County first acquiring the water quality management permit. We presume that Tri-County will undertake all the necessary steps prerequisite to operating the treatment plant, including obtaining all necessary permits.
Finally, the Appellants assert that they have suffered irreparable harm because they had to prepare their notice of appeal of the NPDES permit while also preparing for the merits hearing on the solid waste management permit. As we said in our Opinion in support of our Order denying the application for temporary supersedeas, the administrative burden of preparing legal filings is not the type of irreparable harm that justifies the issuance of a supersedeas. See also Spencer, 2019 EHB at 761 (burden and costs of multiple litigation matters does not constitute an irreparable harm).
Simply put, the Appellants have not provided any justification for suspending the NPDES permit now while the case moves forward. The Appellants have not made a credible showing of irreparable harm from any discharge from the leachate treatment plant or sedimentation basin, from the construction of the sedimentation basin or the installation of any other erosion and sedimentation controls, or from any other activity conducted pursuant to the NPDES permit. The Appellants fail to allege with any degree of requisite specificity any credible harm at all, let alone irreparable harm that justifies a supersedeas while the appeal proceeds on the merits. "A supersedeas is an extraordinary remedy that places a heavy burden on the petitioners to make a clear showing of need." Center for Coalfield Justice v. DEP, 2018 EHB 758, 764 (citing Emerald Contura, LLC v. DEP, 2017 EHB 670, 672-73). See also Nicholas Meat, LLC v. DEP, 2021 EHB 96, 100 (quoting Erie Coke Corp. v. DEP, 2019 EHB 481, 484) (supersedeas will not issue "absent a clear demonstration of need" (emphasis in original)). Without any evidence of irreparable harm to the Appellants, the public, or the environment, there has been no appropriate showing of need here.
The Appellants also rely on a claim of irreparable harm per se, arguing that the Department lacked authority to issue the NPDES permit to Tri-County and that the Department failed "to properly apply applicable law." The Appellants make a vague reference to a 1991 memorandum of agreement between the Department and the Environmental Protection Agency, but they do not explain why this is relevant. Overall, the Appellants fail to substantiate any of these claims with an explanation of how the Department lacked the authority to issue the permit or acted unlawfully in issuing the permit.
The Appellants have not shown any irreparable harm to warrant the issuance of a supersedeas, so we do not need to consider the remaining criteria, such as likelihood of success on the merits or any irreparable harm to the other parties. M.C. Res. Dev. Co. v. DEP, 2015 EHB 261, 265; Dickinson Twp. v. DEP, 2002 EHB 267, 268. By failing to make a prima facie showing of irreparable harm in their papers, the Appellants have not stated grounds for the issuance of a supersedeas. Nor have they pled facts with any particularity that would support the extraordinary remedy of supersedeas relief. Therefore, we deny the petition for supersedeas without a hearing. 25 Pa. Code § 1021.62(c).
Accordingly, we issue the Order that follows.
ORDER
AND NOW, this 13th day of June, 2023, it is hereby ordered that the Appellants' petition for supersedeas is denied.