Opinion
2021-007-R
10-27-2022
LIBERTY TOWNSHIP and CEASRA v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and TRI-COUNTY LANDFILL, Permittee
OPINION AND ORDER ON APPELLANTS' MOTION FOR SUMMARY JUDGMENT AND DEPARTMENT'S AND PERMITTEE'S MOTIONS FOR PARTIAL SUMMARY JUDGMENT
THOMAS W. RENWAND, CHIEF JUDGE
Synopsis
Summary judgment is granted to the Department of Environmental Protection and Permittee on a limited number of issues in this appeal of a major permit modification for a landfill.
OPINION
Introduction
This matter involves the issuance of a major permit modification (the permit) to Tri-County Landfill (Tr-County) by the Department of Environmental Protection (Department). The permit authorizes Tri-County to operate a municipal waste landfill in Liberty Township and Pine Township, Mercer County within the boundary of an inactive landfill that was operated by Tri-County from 1950 to 1990. Tri-County currently operates a waste transfer station at the site of the old landfill.
On January 27, 2021, an appeal of the permit was filed with the Environmental Hearing Board (Board) by Liberty Township, Pine Township, William C. Pritchard and Lisa L. Pritchard, and CEASRA. On February 17, 2021 the appellants filed an amended appeal. On June 16, 2021, William Pritchard, Lisa Pritchard and Pine Township petitioned to withdraw from the appeal and their petitions were granted on June 17, 2021. On September 28, 2021, Pine Township petitioned to be reinstated as an appellant, and on October 22, 2021, it filed both a Motion to Reinstate and a Petition to Intervene. The Board denied the Motion to Reinstate but granted the Petition to Intervene. On October 14, 2022, Pine Township again petitioned to withdraw from the appeal, and the petition was granted on October 26, 2022.
CEASRA is a citizens group registered as Citizens Environmental Association of the Slippery Rock Area, Inc. (Tri-County's Motion, Exhibit B.)
The matter now before the Board is the Appellants' Motion for Summary Judgment and the Department's and Tri-County's Motions for Partial Summary Judgment. This Opinion addresses all three motions.
Discussion
Liberty Township and CEASRA (the Appellants) have appealed the issuance of the permit on several grounds including the following: 1) the permit is void under 25 Pa. Code § 271.211 (e), which requires that waste disposal commence within five years of the permit issuance; 2) the information contained in the permit application is out-of-date because it includes material from previous applications; 3) the Appellants and other governmental bodies were not given appropriate notice and opportunity for comment; 4) the landfill fails to comply with Liberty Township's height restrictions; 5) Tri-County failed to perform an adequate harms - benefits analysis; 6) the landfill poses a risk to the Grove City Airport; and 7) the permit will harm water resources, wetlands and endangered species. The Appellants have moved for summary judgment, while the Department and Tri-County have moved for partial summary judgment.
Summary judgment is appropriate when the record, including pleadings, depositions, answers to interrogatories, and other related documents, shows that there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. No. 1035.1-1035.2; Sunoco Pipeline, L.P. v. DEP, 2021 EHB 43, 45 (citing Williams v. DEP, 2019 EHB 764, 765-66); Camp Rattlesnake v. DEP, 2020 EHB 375, 376. In evaluating whether summary judgment is appropriate, the Board views the record in the light most favorable to the non-moving party. Sunoco Pipeline, 2021 EHB at 45; Stedge v. DEP, 2015 EHB 31, 33. All doubts as to whether genuine issues of material fact remain must be resolved against the moving party. Eighty-Four Mining Co. v. DEP, 2019 EHB 585, 587 (citing Clean Air Council v. DEP, 2013 EHB 404, 406).
Summary judgment is granted only in the clearest of cases and usually only in cases where a limited set of material facts are truly undisputed, and a clear and concise question of law is presented. Sludge Free UMBT v. DEP, 2015 EHB 469, 471, Consol Pa. Coal Co. v. DEP, 2011 EHB 571, 576; Citizens Advocates United to Safeguard the Environment v. DEP, 2007 EHB 101, 106. In cases involving complex issues of fact and law, the Board has found that summary judgment may be inappropriate and has held that such matters should be decided on a fully developed record at a merits hearing. Three Rivers Waterkeeper v. DEP, 2020 EHB 87, 89; Center for Coalfield Justice v. DEP, 2016 EHB 341, 347.
We believe that many of the issues raised in this appeal would be more appropriately decided on a fully developed record. A review of the parties' motions, responses and replies reveals that the issues are complex and a number of facts upon which the parties rely are in dispute. In culling through the parties' motions, briefs, statements of undisputed material facts, responses, replies and numerous exhibits, we find that there are only a limited number of issues presented here for which summary judgment is appropriate. They are addressed below:
Notice and Opportunity for Comment
Objections X, Z, AA, BB, and OO of the Amended Notice of Appeal allege that the Appellants and other governmental bodies were not given an opportunity to comment on the permit. The Department and Tri-County move for summary judgment on the basis that the Appellants abandoned this objection in discovery. In response to both the Department's and Tri-County's Requests for Admissions, the Appellants admitted that they no longer objected to the permit on the basis that they were not provided with an opportunity to comment on it. (Responses to Department's Request for Admissions - Department's Motion, Exhibit 6, para. 52, 79; and Exhibit 7, para. 49, 52, 79; Tri-County's Request for Admissions - Tri-County's Motion, Exhibits W, para. 49.)
The objections are set forth in paragraph 3 of the Amended Notice of Appeal.
Objections X, Z, AA, BB and OO cite different regulations, but all state the same or similar claim regarding a lack of notice and opportunity to comment.
The Appellants do not dispute the fact of the admissions. Nor do they address the Department's and Tri-County's argument that their objection regarding notice and opportunity to comment is abandoned. Rather, they discuss the need for due process. While notice and an opportunity to be heard may be important elements of due process, the Appellants, by their own admission, no longer assert that they were denied notice or the opportunity to comment on the permit. As the Board has held, "Admissions are conclusive within the proceeding unless their withdrawal or an amendment to them is permitted on motion." United Environmental Group, Inc. v. DEP, 2017 EHB 644, 649 (citing Poli v. South Union Township Sewage Authority, 424 A.2d 568, 569 (Pa. Cmwlth. 1981)). The Appellants have not moved to withdraw their admissions. Therefore, summary judgment is granted to the Department and Tri-County on Objections X, Z, AA, BB and OO of the Amended Notice of Appeal.
Counsel for Appellants changed during the course of this appeal. Nonetheless, the Appellants are bound by their earlier admissions.
Tri-County moves for summary judgment on Objections I and J of Appellants' Amended Notice of Appeal which state as follows:
I. The Permit was issued in violation of 49 U.S. Code Section 44718, for the permitting of a landfill, that had not previously received a study conducted by the U.S. Secretary of Transportation.
J. The Permit was issued in violation of 49 U.S. Code Section 44718, for the permitting of a landfill, that had not previously received a report by the U.S. Secretary of Transportation.
Subsection (b) of 49 U.S.C. § 44718 requires the Secretary of Transportation to issue a study and report in the following circumstances: adverse impact on the use of the navigable airspace or unacceptable risk to national security. Tri-County asserts that the requirements for when the Secretary of Transportation must submit a study and report are not applicable here nor have the Appellants offered any evidence in support of their claims. The Appellants do not respond to Tri-County's argument, nor have they come forth with any issue of disputed fact.
Under the Board's rules:
When a motion for summary judgment is made and supported…an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading or its notice of appeal, but the adverse party's response, by affidavits or otherwise provided by this rule, must set forth specific facts showing there is a genuine issue for hearing. If the adverse party does not so respond, summary judgment may be entered against the adverse party.25 Pa. Code § 1021.94a(1).
Because the Appellants have not responded to Tri-County's argument and have not demonstrated that there is a genuine issue for hearing, as required by 25 Pa. Code § 1021.94a(1), summary judgment is entered against the Appellants on the question of whether the permit issuance violates 49 U.S.C. § 44718, as set forth in Objections I and J of the Amended Notice of Appeal.
Compliance with Height Restriction
Objection W of the Amended Notice of Appeal states that "[t]he Permit was issued in violation of Liberty Township's zoning restriction against 40-foot structures." The Department and Tri-County assert that this matter has already been addressed in previous litigation. Pursuant to a Consent Order entered into between Tri-County, the Mercer County Regional Planning Commission, Pine Township, and Liberty Township before the Mercer County Court of Common Pleas ("Consent Order") on November 30, 2018, the court found, among other things, that so long as the landfill does not exceed 1,353.4 feet in Liberty Township, excluding flare stacks and gas wells, the landfill is deemed to comply with the height limitations in Liberty Township's zoning ordinance. (Department's Motion, Exhibit 11, p. 3, para. 2.B.)
As to flare stacks and gas wells, the Consent Order states:
To the extent that the DEP shall require flare stacks and/or landfill gas wells to be located on the Landfill Site and the height of the flare stacks and/or landfill gas wells exceeds the mandated elevation in either municipality, the flare stacks and landfill gas wells shall be deemed to be in compliance with the height limitations in the municipality.(Id. at para. 2.D) (emphasis added).
The Department argues that the Appellants are collaterally estopped from relitigating this issue. Additionally, Tri-County points out that in response to its Request for Admissions, the Appellants admitted that Liberty Township and Pine Township agreed to and signed the Consent Order and that all methane flares and silos to be constructed under the permit are deemed to be in compliance with each township's zoning ordinances. (Tri-County's Motion, Exhibits P, Q and R, para. 1-5.)
The Appellants do not dispute that Liberty Township entered into the aforesaid Consent Order. (Response to Tri-County's Statement of Undisputed Material Facts, para. 43.) They further admit that the permit sets the final maximum elevation of the landfill at 1,353.4 feet in Liberty Township and this is "in compliance with Liberty Township's zoning requirements and the Consent Order." (Response to Department's Statement of Undisputed Material Facts, para. 14.)
Rather, the Appellants state they are concerned that the Department will not adequately enforce the height restriction. However, future compliance and enforcement actions are not a subject of this appeal which is limited to challenging the permit. Should Tri-County violate the terms of its permit regarding height restrictions, as set forth in the aforesaid Consent Order, that matter may be subject to future enforcement action by the Department, but it is not grounds for an appeal of the permit itself. See Middleport Materials, Inc. v. DER, 1997 EHB 78, 88 (citing North Pocono Taxpayer Association v. DER, 1994 EHB 449, 479) ("In an appeal challenging the issuance of a permit, alleged post-issuance violations are not relevant and will not be considered.")
Therefore, summary judgment is granted to the Department and Tri-County on the issue of height restrictions set forth in Objection W of the Amended Notice of Appeal.
Violation of 35 P.S. § 691.5(b)(1)
In Objections A and B of the Amended Notice of Appeal, Appellants allege that the Department's issuance of the permit violates Section 5(b)(1) of the Clean Streams Law, 35 P.S. § 691.5(b)(1), due to alleged degradation of wetlands and drinking water sources. Section 5(b)(1) states that "the [D]epartment shall have the power and its duty shall be to . . . formulate, adopt, promulgate and repeal such rules and regulations and issue such orders as are necessary to implement the provisions of [the Clean Streams Law]."
The Department has moved for summary judgment on this issue, asserting that, in this appeal of the issuance of a permit, "there is no aspect of the Department's action relevant to any claim that the Department failed to exercise its duty to formulate, adopt, promulgate, or appeal any rules or regulations, or issue any orders." (Brief in Support of Department's Motion, p. 17.)
The Appellants do not respond to this argument and present no genuine issue for hearing. Therefore, summary judgment is granted to the Department and Tri-County on the question of whether the permit issuance violates 35 P.S. § 691.5(b)(1). 25 Pa. Code § 1021.94a(1).
Violation of 35 P.S. § 691.402
Objections A and B of the Amended Notice of Appeal allege that the Department's issuance of the permit violates Section 402 of the Clean Streams Law, 35 P.S. § 691.402, due to alleged degradation of wetlands and drinking water sources.
Sections 402(a) and (b) state that if the Department finds that an activity not otherwise requiring a permit creates a danger of pollution to the waters of the Commonwealth, the Department may require a permit for that activity, and the permittee's failure to abide by that permit constitutes unlawful conduct. Section 402(c) deals with NPDES permits and certain options available to NPDES permittees.
The Department moves for summary judgment on the grounds that Section 402 is inapplicable: Section 402 simply provides the Department with authority to require a permit when it finds there is a danger of pollution; it cannot, therefore, serve as the basis for appealing the issuance of a permit. As to subsection (c) which deals with NPDES permits, the Department argues that this section also is inapplicable since the NPDES permit has not yet been issued.
The Appellants do not respond to this argument and present no genuine issue for hearing. Therefore, summary judgment is granted to the Department and Tri-County on the question of whether the permit issuance violates 35 P.S. § 691.402. 25 Pa. Code § 1021.94a(1).
Violation of 25 Pa. Code §§ 109.1, 105.17 (1) and 298.1
In Objection C of the Amended Notice of Appeal, the Appellants allege that the permit was issued in violation of 25 P.S. § 109.1 for allegedly permitting a landfill within a wellhead protection area. Since 25 P.S. § 109.1 does not exist, we believe the Appellants intended to refer to 25 Pa. Code § 109.1, which is the "Definitions" section for Chapter 109 of the Department's regulations (Safe Drinking Water).
The Department has moved for summary judgment on this issue. It argues that Section 109.1 does not contain any required activities or regulatory standards that the Department must meet, but merely defines the terms that are used throughout Chapter 109. The Appellants do not respond to the Department's argument. Therefore, summary judgment is entered for the Department on this issue. 25 Pa. Code § 1021.94a(1).
In Objections D, E, F, G, and H, Appellants allege that the Department's issuance of the permit violates 25 P.S. § 105.17(1). Again, this statutory citation does not exist, and, therefore, we believe that the Appellants intended to refer to 25 Pa. Code § 105.17(1). Section 105.17(1) contains a description of one of the characteristics of exceptional value wetlands: "[w]etlands located along an existing public or private drinking water supply, including both surface water and groundwater sources, that maintain the quality or quantity of the drinking water supply." The Department moves for summary judgment on this issue because Section 105.17(1) merely contains a definition and no regulatory requirement that must be met. Again, the Appellants do not respond to the Department's argument, and, therefore, summary judgment is entered in favor of the Department on this issue. 25 Pa. Code § 1021.94a(1).
In Objection JJ of the Amended Notice of Appeal the Appellants assert that the permit violates 25 Pa. Code § 298.1, the definitions section for Chapter 298 (Management of Waste Oil), by permitting the disposal of liquid waste. The Department moves for summary judgment on this issue on the basis that Section 298.1 does not contain any required activities or regulatory standards but merely defines the terms that are used throughout Chapter 298. Tri-County moves for summary judgment on the basis that the Appellants have offered no evidence in support of their claim.
In response, the Appellants state the following: "Appellants advised Tri-County and the Department that Appellants withdrew this objection as filed with the Board on January 13, 2022, and the Motions are moot with respect thereto; provided, however, Appellants reserve the right to object under this regulation as the [sic] facts surrounding TENORMS in the waste streams together with the Existing Waste." (Brief in Support of Appellants' Joint Response, p. 13, Item no. 3.)
Therefore, summary judgment is entered in favor of the Department and Tri-County as to all matters pertaining to 25 Pa. Code § 298.1, with the exception of "TENORMS in the waste stream."
TENORMS is the acronym for Technologically Enhanced Naturally Occurring Radioactive Material 25 Pa. Code § 287.1. It is defined by EPA as "naturally occurring radioactive materials that have been concentrated or exposed to the accessible environment as a result of human activities such as manufacturing, mineral extraction, or water processing." Technologically Enhanced Naturally Occurring Radioactive Materials (TENORM) | U.S. EPA. We make no ruling on the relevancy of this issue or its admissibility at a hearing on the merits.
Violation of Payne v. Kassab
Appellants claim in Objections M, N, Q, S, U, and LL of the Amended Notice of Appeal that the Department violated Payne v. Kassab, 312 A.2d 86 (Pa. Cmwlth. 1973), aff'd, 361 A.2d 263 (Pa. 1976). Payne v. Kassab set forth a three-part analysis with regard to Article 1, Section 27 of the Pennsylvania Constitution, also known as the Environmental Rights Amendment. In Pa. Environmental Defense Foundation v. Commonwealth, 161 A.3d 911 (Pa. 2017), the Pennsylvania Supreme Court overruled Payne and abandoned the three-part test. Because Payne is no longer good law, the Department moves for summary judgment on this issue. In response, the Appellants acknowledge that Payne has been overturned. Therefore, we grant summary judgment to the Department and Tri-County on this issue.
Conclusion
Summary judgment is granted to the extent set forth above. Summary judgment is denied as to all remaining issues because there are disputed issues of material fact that would be better resolved at a hearing.
ORDER
AND NOW, this 27th day of October, 2022, it is ordered as follows:
1) The Appellants' Motion for Summary Judgment is denied.
2) The Department's and Tri-County's Motions for Partial Summary Judgment are granted in part and denied in part as follows:
A) Summary judgment is entered against the Appellants as to Objections C, D, E, F, G, H, I, J, M, N, Q, S, U, W, X, Z, AA, BB, LL and OO of the Amended Notice of Appeal, as set forth in this Opinion.
B) Summary judgment is entered against the Appellants as to Objections A and B of the Amended Notice of Appeal to the extent they allege violations of 35 P.S. § 691.5(b)(1) and 35 P.S. § 691.402.
C) Summary judgment is entered against the Appellants on the issue raised in Objection JJ with the exception of "TENORMS in the waste stream" as set forth in this Opinion.
D) Summary judgment is denied as to all other issues.
MICHELLE A. COLEMAN Judge, BERNARD A. LABUSKES, JR. Judge
Judge Steven C. Beckman is recused and did not participate in this decision.