Opinion
2021-007-L
01-08-2024
LIBERTY TOWNSHIP and CEASRA v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and TRI-COUNTY LANDFILL, Permittee
DEP, General Law Division: Attention: Maria Tolentino. For the Commonwealth of PA, DEP: Carl D. Ballard, Esquire, Dearald Shuffstall, Esquire, Michael A. Braymer, Esquire, Angela N. Erde, Esquire. For Appellants: Lisa Johnson, Esquire, Marc T. Valentine, Esquire. For Permittee: Alan Miller, Esquire, Jake Oresick, Esquire, Brian Lipkin, Esquire.
DEP, General Law Division: Attention: Maria Tolentino.
For the Commonwealth of PA, DEP: Carl D. Ballard, Esquire, Dearald Shuffstall, Esquire, Michael A. Braymer, Esquire, Angela N. Erde, Esquire.
For Appellants: Lisa Johnson, Esquire, Marc T. Valentine, Esquire.
For Permittee: Alan Miller, Esquire, Jake Oresick, Esquire, Brian Lipkin, Esquire.
ADJUDICATION
Bernard A. Labuskes, Jr., Board Member and Judge. [*]
Synopsis
The Board denies a township and citizens group's appeal of a major modification to a solid waste disposal permit for the operation of a municipal waste landfill. The appellants have not met their burden of proof to show that the Department erred in determining that the benefits of the proposed project outweigh the known and potential harms. The threat to a nearby airport posed by birds being attracted to the landfill has been mitigated by the permittee's comprehensive bird control plan. The appellants did not establish that any other of the landfill's harms should have caused the Department to deny the application for a major permit modification.
Procedural History
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 (Permit No. 101678).The permit authorizes Tri-County to operate a municipal waste landfill on 99 acres in Liberty and Pine Townships, Mercer County, within the boundary of an inactive landfill that was operated from 1950 to 1990, a portion of that time by one of Tri-County's related companies, Tri-County Industries. Tri-County currently operates a waste transfer station at the landfill site.
Other parties that were part of the appeal when it was filed, including Pine Township, withdrew their participation during the course of this appeal.
On October 27, 2022, the Board granted in part motions for partial summary judgment filed by the Department and Tri-County, which entered summary judgment against the Appellants with respect to certain objections raised in their amended notice of appeal. Liberty Twp. v. DEP, 2022 EHB 324. On February 2, 2023, this appeal was transferred to Board Member and Judge Bernard A. Labuskes, Jr. for primary handling upon the retirement of Chief Judge Thomas W. Renwand, who previously handled the appeal. In advance of the hearing on the merits, the Appellants and Tri-County filed numerous pre-trial motions, including eight motions in limine filed by Tri-County. Those motions were addressed in Orders and Opinions and Orders issued between March 22, 2023 and April 3, 2023. The parties have not preserved any challenges to our pre-trial rulings in their post-hearing briefs. On March 31, 2023, the Appellants also filed a petition for supersedeas and an application for temporary supersedeas, which we later denied. The hearing on the merits occurred over the course of 12 days between April 5, 2023 and April 28, 2023. The Appellants filed their post-hearing brief on July 6, 2023, and the Department and Tri-County, after requesting an unopposed extension, filed their post-hearing briefs on September 15, 2023. The Appellants filed their reply brief on October 16, 2023.
See Order Denying Tri-County's Motion in Limine to Preclude Issues Not Raised in the Amended Notice of Appeal (Issued Mar. 22, 2023); Order Denying Tri-County's Motion in Limine to Preclude Issues Relating to its Wetlands Permit (Issued Mar. 22, 2023); Opinion and Order on Motion in Limine to Preclude Issues Resolved on Summary Judgment (Issued Mar. 27, 2023); Opinion and Order on Motion in Limine to Preclude Testimony and Evidence Regarding Violations Pre-Dating those Addressed by 25 Pa. Code § 271.125 (Issued Mar. 28, 2023); Order Granting Appellants' Motion to Strike (Issued Mar. 28, 2023); Opinion and Order on Motions to Recuse/Disqualify/Reassign Board Member (Issued Mar. 30, 2023); Opinion and Order on Motion in Limine to Preclude Evidence and Argument on Potential Discharges of Leachate (Issued Mar. 30, 2023); Opinion and Order on Appellants' Joint Motion in Limine Directed at Tri-County Landfill (Issued Mar. 30, 2023); Opinion and Order on Motion in Limine to Strike and Preclude Testimony on Portion of Appellants' Exhibit 60 and Expert Opinion Testimony of Stephen Shields (Issued Mar. 30, 2023); Opinion and Order on Motion in Limine to Preclude Evidence and Arguments that Require Expert Testimony (Issued Mar. 31, 2023); Order on Appellants' Motion in Limine Regarding Department Expert Witness (Issued Mar. 31, 2023); Opinion and Order on Tri-County Landfill's Motion in Limine to Preclude Appellants from Calling Tri-County's Experts as Witnesses and/or Introducing Their Expert Reports in Their Case-in-Chief (Issued Apr. 3, 2023).
See Order Denying Application for Temporary Supersedeas (Issued Apr. 12, 2023); Opinion in Support of Order on Application for Temporary Supersedeas (Issued Apr. 17, 2023); Opinion and Order on Petition for Supersedeas (Issued Jun. 20, 2023). The parties agreed that the Department and Tri-County would file their responses to the petition for supersedeas by May 24, 2023, after the conclusion of the merits hearing.
Since we issued our Order on May 8, 2023 establishing the post-hearing briefing schedule in this appeal, there have been numerous other filings from the parties. On May 23, the Appellants filed a motion for the Board and parties to conduct a site view, which we denied in an Opinion and Order issued on June 28 because there had already been extensive visual evidence presented at the merits hearing. On August 10, Tri-County filed an unopposed motion to extend the deadline for the filing of its post-hearing brief, which we granted. On August 15, Tri-County filed a "corrected" unopposed motion to extend the post-hearing brief deadline for the Department as well, which we also granted. On September 26, the Appellants filed a petition to reopen the record to include evidence of a bird strike that they alleged happened at the Grove City Airport, which we denied in an Opinion and Order issued on October 13 because the Appellants made no effort to authenticate the documents for which they sought to reopen the record, and because the documents constituted inadmissible hearsay and contained unattributed expert opinion statements. On October 12, Grove City Aviation, LLC filed a motion for leave to file an amicus brief. We denied the motion in an Opinion and Order issued on October 18 because the motion was filed so late in the proceedings and Grove City Aviation indicated that it would address largely factual issues instead of purely legal argument. On November 7, the Department filed a motion to strike portions of the Appellants' post-hearing reply brief. We denied the motion in an Order issued on November 22. On November 27, the Appellants filed another petition to reopen the record to include what they said was evidence of additional compliance violations by Seneca Landfill that were not included on the compliance history exhibit introduced by Tri-County at the merits hearing. We deny that motion for the reasons explained infra.
FINDINGS OF FACT
I. The Parties
1. Citizens Environmental Association of Slippery Rock Area, Inc. ("CEASRA") is a Pennsylvania non-profit corporation with approximately 80 members whose mission is to protect the environment, air, land, water, and the habitat of the community. (Parties' Stipulation of Facts No. ("Stip.") 1; Transcript of Hearing Testimony Page No. ("T.") 17-18.)
2. Liberty Township is a township in Mercer County, Pennsylvania and together with CEASRA, the "Appellants" in this matter. (Stip. 2.)
3. The Department of Environmental Protection (the "Department") is the agency of the Commonwealth with the duty and responsibility to administer and enforce the Solid Waste Management Act, Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§ 6018.101 - 6018.1003; The Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P. S. §§ 691.1 - 691.1001; Section 1917-A of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 510- 17; and the rules and regulations promulgated thereunder, including Title 25, Chapters 271 and 273 of the Pennsylvania Code. (Stip. 7.)
4. Tri-County Landfill, Inc. ("Tri-County") is a Pennsylvania corporation that is a subsidiary of Tri-County Industries, Inc., which is a subsidiary of Vogel Holding, Inc. (Stip. 4, 5.)
5. Tri-County Industries, Inc. collects waste from individuals, municipalities, and commercial and institutional generators principally in Northwestern Pennsylvania. Vogel Disposal Service, Inc., a related company, collects waste from individuals, municipalities, and commercial and institutional generators in Western and Southwestern Pennsylvania. (Stip. 6.)
II. Permitting Background
6. Tri-County owns a site in Pine and Liberty Townships where a landfill previously operated and was permitted and where a waste transfer station has operated since 1990 by Tri-County Industries, Inc. (Stip. 11, 13, 17.)
7. A landfill was established at the Tri-County site around 1950. (Stip. 10.)
8. The landfill was purchased by Segaty Incorporated from Robert B. Marshall on September 13, 1950. (Stip. 9.)
9. Edward and Margaret Vogel purchased the Landfill in 1975 from Segaty Incorporated. (Stip. 11.)
10. Edward Vogel is the vice president of Tri-County Landfill, Inc. (T. 1498; Parties' Joint Exhibit No. ("Jt. Ex.") 2, Vol. 1 (at DEP000220).)
11. On September 3, 1985, the Department issued to Tri-County Industries, Inc. Permit No. 101295 under the provisions of the Solid Waste Management Act for the development and operation of the Tri-County Landfill located in Pine, Liberty, and Springfield Townships, Mercer County ("Permit No. 101295"). (Stip. 13; T. 1822; Tri-County Landfill Exhibit No. ("TC Ex.") 3.)
12. Permit No. 101295 did not identify the precise boundaries of the permitted area because permits issued before the promulgation of comprehensive municipal waste regulations in 1988 only identified the areas where waste would be disposed, and not ancillary areas, such as borrow areas, sedimentation control ponds, erosion controls, haul and access roads, office structures, and groundwater monitoring wells. (T. 1778-79, 1897, 1904-07, 1910; TC Ex. 3.) However, the application for the 1985 permit identified 49.2 acres for the proposed permit area and 212.6 acres for the total acreage of the property. (TC Ex. 3.)
13. Permit No. 101295 did not identify a date on which the permit would expire. (T. 1823, 1967-68; Appellants' Exhibit No. ("App. Ex.") 16; TC Ex. 3.)
14. On August 26, 1988, the Department issued a modification to Permit No. 101295, approving a lateral expansion to dispose of waste in certain areas and providing that the authorization to dispose of waste would expire on April 9, 1990, or with the completion of fill, whichever occurred first. (Stip. 15; T. 1969; TC Ex. 4.)
15. On November 14, 1988, the Department issued a modification to Permit No. 101295 for another lateral expansion for where waste could be disposed. (TC Ex. 5.)
16. On April 9, 1988, the Environmental Quality Board ("EQB") amended the Department's regulations governing solid waste at 25 Pa. Code Chapter 75 by promulgating municipal waste regulations at 25 Pa. Code Chapters 271, 272 and 273. 18 Pa.B. 1681 (Apr. 9, 1988). (Stip. 14.)
17. One of the new regulations required entities possessing permits issued prior to April 9, 1988 to submit either a closure plan or a preliminary application for permit modification describing the differences between their existing permit and the new requirements in the regulations, followed by a complete application to correct any differences between the two. 18 Pa.B. 1709 (Apr. 9, 1988). (TC Ex. 7.) The regulations provided that entities would not be allowed to process or dispose of any waste as of April 9, 1990 unless they had submitted a complete application for permit modification. Id.
18. Tri-County submitted a preliminary application for permit modification on June 21, 1988, and it then submitted a complete Phase I and Phase II application to repermit the landfill under the new regulations in August 1989. (T. 1805; TC Ex. 8.)
19. On November 20, 1989, the Department denied the repermitting application because the Department determined it was administratively incomplete, and Tri-County Industries then appealed that denial, EHB Docket No. 1989-607-E. (TC Ex. 9, 9a.)
20. That appeal was resolved in a Consent Order and Adjudication entered into among the parties on April 3, 1990 and issued by the Board on April 17, 1990. (TC Ex. 9a.) The Consent Order and Adjudication provided that Tri-County Industries would submit a new permit application to the Department and the Department would render a decision by July 1, 1990. If the Department denied the application, Tri-County Industries would implement a closure plan and stop accepting new waste by September 1, 1990. (TC Ex. 9a.)
21. On May 1, 1990, the Department approved Tri-County Industries' closure plan with modifications, which Tri-County Industries then appealed, EHB Docket No. 90-215-E. (TC Ex. 10.)
22. On June 29, 1990, the Department denied the repermitting application that had been submitted under the April 1990 Consent Order and Adjudication. (App. Ex. 19.)
23. On November 21, 1990, Tri-County Industries and the Department entered into a settlement agreement and Consent Order and Adjudication to resolve Tri-County's appeal of the closure plan. (TC Ex. 10.) The settlement provided that Tri-County would submit a repermitting application by February 1, 1991 to reopen and operate the landfill. (Id. at ¶ G.) The settlement also provided that Tri-County would begin implementing the closure plan if the Department denied the repermitting application but that the closure order would terminate if the Department issued a permit to reopen and operate the landfill. (TC Ex. 10 at ¶¶ 3a, 8.)
24. On February 1, 1991, Tri-County Landfill, Inc. submitted a revised repermitting application for both Phases I and II with a proposed permit area of 218 acres of land. (TC Ex. 11, 12.)
25. Through the repermitting application, Tri-County Landfill, Inc. notified the Department that it was changing the name of the facility and that it would be the entity responsible for the permit, as opposed to Tri-County Industries. (TC Ex. 11.)
26. On January 25, 1997, the EQB promulgated amendments to the regulations governing sewage sludge, municipal waste and residual waste, 27 Pa.B. 521 (Jan. 25, 1997), which included a new prohibitory setback provision at 25 Pa. Code § 273.202(c) that provided that, except for areas that were permitted prior to January 25, 1997, a municipal waste landfill could not be operated within 10,000 feet of an airport runway that is or will be used by turbine-powered aircraft, 27 Pa.B. 558-59. The setback regulation that existed at 25 Pa. Code § 273.202(c) is now located at 25 Pa. Code § 273.202(a)(15).
27. On August 6, 1997, the Department denied Tri-County's 1991 repermitting application based upon the newly promulgated setback regulation because the 218-acre proposed permit area was within 10,000 feet of the runway at the Grove City Airport and only some, but not all, of the proposed 218-acre permit area had been permitted by the Department before January 25, 1997. (Stip. 19, 20; TC Ex. 12.)
28. Tri-County appealed the denial, EHB Docket No. 1997-189-R, and on March 30, 2000, the Department, Tri-County Industries, and Tri-County Landfill entered into a settlement agreement, which included a provision that identified 99 acres of the proposed landfill as being permitted prior to January 25, 1997 and therefore excepted from the airport setback regulation. (Stip. 20, 21; TC Ex. 12.) In other words, the Department determined nearly 24 years ago that the airport setback provision in 25 Pa. Code § 273.202 did not apply to 99 of the acres at the landfill site. (Id.)
29. The 99-acre area included the areas where disposal activities had occurred as authorized under the 1985 permit and permit modifications thereto, and other areas where the land was disturbed as a result of or incidental to operation of the landfill such as support facilities, borrow areas, offices, equipment sheds, monitoring wells, access roads, water pollution control systems, survey control monuments, permitted closure and postclosure care and maintenance activities, and other areas where the land surface had been disturbed before January 25, 1997 as a result of or incidental to operation of the landfill. (T. 1778-80, 1904-07; TC Ex. 12.)
30. The Department withdrew its August 6, 1997 letter denying Tri-County's repermitting application and Tri-County agreed to submit a complete substitute application for permit modification that would request a permit for no greater than the approximately 99 acres previously permitted as a municipal waste landfill, and which the Department would consider to be an amendment to the earlier repermitting application. (TC Ex. 12.)
31. In July 2000, Tri-County submitted a substitute repermitting application under Permit No. 101295 seeking a permit for the 99 acres that was determined to have been previously permitted and not subject to the airport setback in 25 Pa. Code § 273.202. (Stip. 22.)
32. On October 4, 2001, the Department denied the application on the basis that the potential harms posed by the landfill did not outweigh the benefits under the newly promulgated harms-benefits regulation at 25 Pa. Code § 271.127 because Tri-County had not sufficiently proposed a method for mitigating the potential for the landfill to attract an increased amount of birds and thus the hazard to air navigation for planes traveling to and from the nearby Grove City Airport. (Stip. 24; T. 1751-53, 1789-90; App. Ex. 25; Department Exhibit No. ("DEP Ex.") 11.)
33. The Department concluded that, "if it were not for the airport safety issue, the benefits would clearly outweigh the remaining known or potential environmental harms provided under this project." (T. 1789-90; DEP Ex. 11 (at 18).)
34. Tri-County appealed the Department's October 4, 2001 denial to the Board, EHB Docket No. 2001-252-R. (Stip. 25; T. 1753.)
35. While appellate proceedings were playing out over the Board's denial of a motion for summary judgment filed by Tri-County, in July 2004 Tri-County submitted a modified permit application, which included a bird control plan to address the Department's reason for the Department's October 4, 2001 denial. (Stip. 25, 26, 27; T. 1790-91; TC Ex. 18.)
36. The 2004 application was yet another in a series of applications to reopen the existing landfill. (T. 1894, 1897-99, 1901-02.)
37. Given the proliferation of application materials between 1988 and 2004, the Department decided to assign a new permit number to the 2004 application (Permit No. 101678) for administrative purposes to avoid confusion over the different applications to repermit the landfill submitted in the past. (T. 1894-95; DEP Ex. 12.)
38. On November 1, 2006, the Department denied the 2004 application because the Department could not conclude, based on the information that it had received as of that date, that the potential harm of an increase in bird/aircraft strike hazard would be sufficiently mitigated; therefore, the Department determined that Tri-County had not demonstrated that the benefits of the project clearly outweighed the known and potential environmental harms. (Stip. 28; T. 1754, 1793-94; DEP Ex. 12.)
39. The Department also determined that, even if it concluded that there was no likelihood of an increased risk in bird/aircraft strike, Tri-County Landfill could not demonstrate it would comply with the revised bird control plan based upon the history of compliance violations at two of Tri-County's related companies, Seneca Landfill, Inc. and Vogel Disposal Service, Inc. (DEP Ex. 12.)
40. Tri-County filed an appeal of the Department's November 1, 2006 denial of its application, EHB Docket No. 2006-267-R. (T. 1754; DEP Ex. 13.)
41. During the course of that appeal, Tri-County provided additional information regarding Tri-County's proposed mitigation measures to control any birds that would be on site. Based on those materials, the Department concluded in September 2008 that Tri-County had mitigated the risk of bird strikes and that the benefits of the landfill would outweigh the known and potential harms. (DEP Ex. 13; T. 1755-56.) The Department said it would proceed to its Phase II technical review of the permit application. (DEP Ex. 13; T. 1758, 1796.)
42. The September 9, 2008 settlement between the Department and Tri-County replaced the Department's November 1, 2006 denial letter and modified the Department's October 31, 2006 Environmental Assessment Review/Harms-Benefits Analysis to incorporate the Department's updated conclusions. (T. 1795-96; DEP Ex. 13.)
43. On September 19, 2013, the Department denied the 2004 application because the height of the proposed landfill did not comply with local zoning restrictions imposing a 40-foot height limit on structures in Pine and Liberty Townships, and because the Department concluded that Tri-County and other related waste companies under the same corporate ownership had a documented history of non-compliance with Department-administered laws and regulations. (Stip. 29; T. 1758-59; App. Ex. 26.)
44. The Department's 2013 denial was not based on any potential hazard to aircraft from birds. (T. 1759; App. Ex. 26.)
45. Tri-County appealed the Department's September 19, 2013 denial of the 2004 application to the Board, EHB Docket No. 2013-185-L. (Stip. 30; DEP Ex. 15.)
46. Tri-County and the Department entered into a settlement of the appeal at EHB Docket No. 2013-185-L on January 26, 2016, which provided that Tri-County could submit another permit application, that would replace the permit application denied by the Department on September 19, 2013, with a modified design of the landfill that conformed to the local zoning requirement of 40 feet in height. (Stip. 37; DEP Ex. 15.)
47. The Tri-County landfill area was permitted prior to January 25, 1997. (Stip. 10, 13, 20, 21; T. 1778-80, 1822, 1902, 1904-07; TC Ex. 3, 12.)
48. Since 1988, Tri-County has continuously had an application pending for review by the Department or has been engaged in litigation with the Department in an attempt to obtain a permit modification that would allow Tri-County to repermit the site and accept additional waste. (Stip. 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, 37; T. 1753, 1754, 1755-56, 1758-59, 1790-91, 1795-96, 1805, 1809, 1894-95, 1897-99; App. Ex. 7.1, 19, 25, 26; DEP Ex. 11, 12, 13, 15; TC Ex. 8, 9, 9a, 10, 11, 12, 18.)
49. During this time, Tri-County has never abandoned the landfill site. (T. 1605-06, 1964-65, 1967-68.)
50. The landfill site has never closed. (T. 1605-06, 1964-65.)
51. Tri-County has continued performing maintenance at the site and has conducted groundwater monitoring, submitting quarterly groundwater monitoring reports to the Department. (T. 1605-06, 1964, 1970-71; TCL Ex. 79.)
52. Tri-County Industries, Inc. has operated a municipal waste transfer station at the location of the landfill since 1990 under Solid Waste Disposal and/or Processing Facility Permit 101592. Waste collected by Tri-County Industries, Inc. is brought to the transfer station and then trucked to Seneca Landfill. (Stip. 17.)
III. 2020 Major Permit Modification
53. On December 17, 2018, Tri-County Landfill submitted to the Department a Major Permit Modification to a Municipal Waste Landfill Permit or a Residual Waste Landfill or Impoundment Permit using Permit No. 101678. (Stip. 39, 40; Jt. Ex. 2.)
54. The 2018 application proposed to operate a municipal waste landfill within the confines of the approximately 99-acre permit boundary located in Pine and Liberty Townships encompassing the area permitted as a municipal waste landfill prior to January 25, 1997. (Jt. Ex. 2, Vol. 1 (at DEP000137).)
55. The 99-acre area that is the subject of the 2018 permit application is in Pine Township and Liberty Township and no portion of the permitted area is in Springfield Township. (Jt. Ex. 2, Vol. 2 (at DEP001698-99), Jt. Ex. 2, Vol. 8.1 (at 094D001A, 094D001B, 094D001C, 094D001D).)
56. Notice of Tri-County's permit application was published in The Herald, a newspaper of general circulation in Mercer County, on December 22, 24, and 31, 2018. (Jt. Ex. 2, Vol. 1 (DEP000187-90).)
57. On August 28, 2019, the Department notified Tri-County that the Department had completed its environmental assessment and harms-benefits analysis and determined that the benefits of the proposed facility to the public clearly outweighed the known and potential environmental harms that would remain after the proposed mitigation measures and that the Department would proceed with the technical review of the application. (Stip. 53; Jt. Ex. 1, Environmental Assessment ("Envtl. Assess.").)
58. The Department published its harms-benefits analysis in a document dated August 2019. (Stip. 54; Jt. Ex. 1, Envtl. Assess.)
59. The Department held a public meeting on the permit application on October 16, 2019 and received comments, either at the hearing, via mail, or via email. (Stip. 55; T. 1772; App. Ex. 15.)
60. The public comments centered around airport concerns, traffic concerns, health concerns, compliance history, location objections, property values, height/zoning, the type of waste accepted, fracking wastes, daily cover, relocation of old waste, outdated information in the application, groundwater, general nuisances, the Eastern Massasauga Rattlesnake, landfill duration, financial responsibility, leachate treatment, waste to energy plant, quarterly drinking water testing, rainfall runoff, economic issues, livability, public input, and out of state waste. (Stip. 56; T. 1772-75; App. Ex. 15.)
61. The Department accepted written comments on the permit application up until the time that a decision was made on the permit. (T. 1772-73.)
62. The Department sent a technical deficiency letter to Tri-County on December 11, 2019. (Stip. 57; App. Ex. 27.)
63. Tri-County submitted a response to the technical deficiency letter to the Department on February 10, 2020. (Stip. 58.)
64. The Department issued a Comment and Response Document on March 6, 2020 addressing the comments received from the public, both at the public hearing and in writing. (Stip. 60; T. 1772-75; Jt. Ex. 2, Vol. 1 (at DEP000082-100); App. Ex. 15; DEP Ex. 18.)
65. The Department concluded that the 2018 permit application met all regulatory, statutory, and constitutional requirements. (T. 1741-42, 1962-63, 1981, 2000-01; Jt. Ex. 1, Envtl. Assess; DEP Ex. 18.)
66. On December 28, 2020, the Department approved the application and issued Permit No. 101678. (Stip. 72; Jt. Ex. 1, Permit.) This is the Department action that is the subject of this appeal.
67. The permit was issued to Tri-County Landfill for 99 acres with a facility boundary and a waste disposal boundary as delineated on Sheets 094D010 of the design plans dated August 17, 2018. (Stip. 73; T. 1777; Jt. Ex. 1, Permit.)
68. The permit has a term of ten years through December 28, 2030. (Stip. 74; T. 1932, 1934, 1936; Jt. Ex. 1, Permit.)
69. The permit sets the maximum final elevation of the landfill at 1,353.4 feet in Liberty Township and 1,360 feet in Pine Township. (Stip. 76; Jt. Ex. 1, Permit (at 2).)
70. The permit allows Tri-County to accept new waste with a maximum and average daily volume of 4,000 tons/day. (Stip. 77; T. 2003; Jt. Ex. 1, Permit (at 5).)
71. The total waste capacity of the landfill is 7,276,000 cubic yards. (Stip. 78; Jt. Ex. 1, Envtl. Assess. (at 2-3).)
72. The permit authorizes the landfill to receive waste 24 hours a day, 6 days per week. (Stip. 79; Jt. Ex. 1, Permit (at 6).)
IV. The Harms-Benefits Analysis
73. The harms-benefits analysis is required for municipal waste landfills under 25 Pa. Code §§ 271.126 and 271.127. Section 271.127(c) requires the applicant "to demonstrate that the benefits of the project to the public clearly outweigh the known and potential environmental harms." 25 Pa. Code § 271.127(c). (T. 1743-44.)
74. The Department when conducting its environmental assessment determines whether a harm or adverse impact will be fully mitigated as a result of mitigation plans submitted by the applicant. 25 Pa. Code § 271.127. (T. 1743-44, 1770, 1982; DEP Ex. 20.)
75. A harm or impact that will be fully mitigated does not need to be balanced against the benefits of the project as part of the Department's environmental assessment. 25 Pa. Code § 271.127. (T. 1743-44, 1770, 1982; DEP Ex. 20.)
76. For social and economic harms, the Department evaluated Tri-County Landfill's visual and aesthetic impacts and its impact on property values and determined that some harm would remain. (T. 1746-47; Jt. Ex. 1, Envtl. Assess. (at 5-6).)
77. The Department considered the social and economic benefits of local employment, tax revenue, various state and municipal fees, and Tri-County's purchase of goods and services from local businesses. (T. 1769-70; Jt. Ex. 1, Envtl. Assess. (at 13-15).)
78. The Department rejected disposal capacity as a benefit. (T. 1885, 1891-92.)
79. The Department evaluated the following environmental harms: odors, dust, and air quality impacts; noise; litter; vectors (e.g. rodents, wild animals, and mosquitos); truck traffic; loss of wetlands; stormwater runoff; and aircraft safety due to the propensity of landfills to attract birds. (T. 1747-52; Jt. Ex. 1, Envtl. Assess. (at 7-13).)
80. The Department found the following environmental benefits of the landfill: relocation of the waste disposed of at the landfill between 1950 and 1990 onto a lined area; creation of additional acres of wetlands; and a free disposal and spring cleanup program for the local community. (T. 1768-69, 1771, 1934-35; Jt. Ex. 1, Envtl. Assess. (at 13).)
81. The Department found that there are harms remaining that have not been fully mitigated, such as odors, litter, noise, vectors, traffic, and impact on property values, but the Department determined that those harms are never fully mitigated and would be minimal and potentially occur only on an infrequent basis. (T. 1770, 1811-12, 1958-62.)
82. The Department determined that the harms from the Tri-County landfill were typical of the harms that would result from any landfill, and that Tri-County's mitigation measures for noise, litter, and vectors are standard in the industry. (T. 1811, 1983.)
83. Nevertheless, in balancing the harms remaining after mitigation against the benefits of the project, the Department concluded that the benefits of the proposed project clearly outweighed the known and potential harms. (T. 1770, 1958-62, 1984; Jt. Ex. 1, Envtl. Assess.)
84. The mitigation measures proposed by Tri-County and the benefits provided by Tri-County are an enforceable condition of the permit. (Jt. Ex. 1, Permit (at 28).)
A. Birds
85. Municipal waste landfills such as the Tri-County landfill have a tendency to attract some species of birds at numbers that are higher than background, which is the number and type of birds that would be present at the site in the absence of the landfill. (T. 803-04, 812-13, 821, 984-85, 1049-50.)
86. The primary species of concern are gulls, turkey vultures, starlings, and crows. (T. 733-35, 885, 893-94, 923.)
87. The birds are attracted to putrescible waste (i.e. waste containing organic matter that is liable to decay) disposed at the landfill because that type of waste serves as a source of food for them. (Stip. 44; Jt. Ex. 2, Vol. 6 (at DEP006703).)
88. The old waste being relocated onto a lined area at the Tri-County landfill has been decomposing for decades and is not likely to attract birds. (T. 838, 1003-04, 1443-44, 1847-48.)
89. The primary bird species of concern do not tend to feed at night. (T. 792, 885, 960.)
90. The tendency of a municipal waste landfill to attract a greater number of some species of birds than background levels is considered a known or potential environmental harm and/or adverse impact on the public health and safety when the Department conducts its environmental assessment as part of the permit application review process. (Stip. 24, 28, 53, 54; T. 1751-54, 1789-90; Jt. Ex. 1, Envtl. Assess. (at 11-13); DEP Ex. 11, 12.)
91. The potential harm and adverse impact is accentuated if the landfill is near an airport because the presence of more birds in the area equates to a greater likelihood of collisions between birds and aircraft using the airport, also known as bird strikes. (T. 705-10, 749-50; Jt. Ex. 1, Envtl. Assess. (at 11-13).)
92. Tri-County prepared a mitigation plan, known as the bird control plan, to address the known propensity of birds to be attracted to the landfill. (Jt. Ex. 2, Vol 6 (at DEP006876-6900).)
93. The Department, after extensive, years-long review, determined that Tri-County's mitigation plan will be sufficient to fully mitigate the tendency of the landfill to attract some bird species to the area at greater numbers than background and the greater potential for bird strikes that can occur as a result. It concluded that the public safety will be adequately protected. (T. 1755-57, 1771-72, 1794-95, 1798-1805, 1844.)
94. Because the adverse impact/harm was fully mitigated, the Department did not need to weigh the potential for bird strikes against the benefits of the project. 25 Pa. Code § 271.127. (Jt. Ex. 1, Envtl. Assess. (at 16-18).)
95. The Department included several conditions in Tri-County's permit that require Tri-County to implement its bird control plan. (Jt. Ex. 1, Permit (at 14-15, Operating Conditions 28-31).)
96. The Grove City Airport is owned by Grove City Borough and managed by Grove City Aviation. (T. 414-16.)
97. The airport was constructed around 50 years ago. (T. 444.)
98. The Grove City Airport has one runway, which is 4,500 feet long. Pilots consider it two runways depending upon which direction they are coming from. (T. 424-26, 450, 538-39.)
99. The runway at the airport is about 6,200 feet (1.3 miles) from the Tri-County landfill permit boundary. (T. 677, 683-84, 771; Jt. Ex. 2, Vol. 2 (at DEP001441, DEP001459).)
100. The airport does not have a tower or an air traffic controller. It is a small general aviation airport as defined by the Federal Aviation Administration (FAA). (T. 427, 558, 697, 786, 1856; TC Ex. 75 (at 15), 76 (at 14).)
101. The Grove City Airport does not have regularly scheduled flights of aircraft designed for 60 passengers or less. (T. 453-54.)
102. The record does not support a finding that the Grove City Airport has received any federal grants under the Airport and Airway Improvement Act, 49 U.S.C. §§ 47101 - 47131. (See T. 417-18, 703-04.)
103. The approach path to the runway, when coming from one direction, travels over the landfill. (T. 425, 433, 450, 550-51, 560-61, 677; App. Ex. 60.)
104. Aircraft are about 360 to 410 feet above ground level (AGL) when they are over the landfill. (T. 431, 433, 552-55, 565, 586-87, 778-79; App. Ex. 60.)
105. Most bird strikes occur during descent and landing, followed by takeoff and climb out. (T. 708-09, 716, 747-48, 1049.)
106. Even without landfilling, there are wildlife attractants in the area of the airport and at the airport itself that bring in birds and mammals. (T. 462-64, 474-75, 572, 776-77, 794, 895, 929.)
107. If it were not for Tri-County's bird control plan, the landfill would create an unacceptable risk to public safety due to potential bird strikes because of its proximity to the Grove City Airport, made worse by the landfill's location on one of the airport's flight paths. (T. 949-51, 968-69.)
108. The goal of the bird control plan is primarily to prevent birds from coming to the landfill in the first place, and secondarily to chase them away immediately if they do visit, with the ultimate goal being to ensure there is no increase in the bird hazard risk. (T. 952, 1050.)
109. A bird control plan must be based on sufficient studies that identify, analyze, and quantify the bird hazard. Jefferson Cnty. Comm'rs v. DEP, 2002 EHB 132, 184, 192-94.
110. Rolph Davis, Ph.D., a highly qualified expert on bird strikes, performed the bird studies for Tri-County and prepared its bird control plan. (T. 763, 825-872; TC Ex. 128.) The Board credits Dr. Davis's expert opinions in this case.
111. Dr. Davis and his firm have exhaustively studied the birds over several years in the area of the landfill, such that the potential bird hazard posed by the reopening of the landfill has been sufficiently identified, analyzed, and quantified. Enough study has been completed to fully support the evaluation of the hazard, and to allow for the reasoned development of the mitigation and monitoring plans submitted in support of the permit application. (T. 895-901, 903, 929, 932-33, 940-53, 1019, 1757-58, 1844; Jt. Ex. 2, Vol. 2 (at DEP001412-1639); DEP Ex. 24, 25; TC Ex. 68, 69, 70.)
112. The background level of birds in the area (the existing risk) has been sufficiently identified, analyzed, and quantified. (T. 895-97, 922-23, 952; Jt. Ex. 2, Vol. 2 (at DEP001412, DEP001488-1543).)
113. Importantly, the bird studies included nearby active landfills. (T. 903-04, 910-11, 921-22, 934, 940-43, 951; Jt. Ex. 2, Vol. 2 (at DEP001462-1506).)
114. After conducting a 12-month study of birds, Dr. Davis conducted follow-up surveys in 2004, 2005, 2006, 2021, and 2022, all of which confirmed the results of the previous studies. (T. 898-903, 941-49; DEP Ex. 24, 25; TC Ex. 68, 69, 70.)
115. Tri-County's bird control plan has expanded over the years partly due to comments and questions posed by the Department's and the FAA's reviews. (T. 1754-57, 1797-1805; Jt. Ex. 2, Vol. 2 (at DEP001601-05, DEP001628-30); DEP Ex. 13.)
116. Tri-County's bird control plan is a comprehensive and advanced bird control plan for landfill bird hazard mitigation. (T. 1005-06; Jt. Ex. 2, Vol. 2 (at DEP001632-33).)
117. The bird control plan includes the following elements: (1) putrescible waste, including mixed loads of putrescible and non-putrescible waste, will only be disposed of between one hour after sunset and one hour prior to sunrise; (2) putrescible waste will be completely covered every day; (3) the landfill will operate 24 hours a day, 6 days a week excluding holidays; (4) the site will be designed to reduce its attractiveness to gulls; (5) pyrotechnics will be used as required; (6) Tri-County will employ, train, and have bird controllers at the site including a well-qualified chief bird controller with primary responsibility for implementing the bird control plan, as well as an assistant bird controller; (7) there will be multiple daily surveys of birds (including one survey on Sundays); (8) there will be a long-term monitoring program to ensure the bird control plan is working; (9) there will be extensive record keeping and reporting, including comprehensive quarterly reports to be distributed to the regulatory agencies and the airport; (10) there will be oversight by Dr. Davis and his firm; and (11) an oversight committee will be formed which will include airport representatives to review quarterly reports. (Stip. 45, 46; T. 883-87, 939, 953-57, 965-98, 1800-04; Jt. Ex. 1, Permit (at 14-15), Jt. Ex. 2, Vol. 2 (at DEP001413-14, DEP001468-73, DEP001481-86, DEP001545-58, DEP001625-30), Jt. Ex 2, Vol. 6 (at DEP006702-05, DEP006876-006900).)
118. The four key elements of the bird control plan are: (1) putrescible waste will only be disposed at night (when the birds of concern do not tend to feed) and covered before dawn; (2) continuous daytime operations; (3) pyrotechnics; and (4) a monitoring and reporting program (e.g. five daily surveys Monday - Friday, one on Sunday). (T. 885-86, 953-57, 965-66, 968-69, 972-74, 979-81, 989-90, 992-93; Jt. Ex. 2, Vol. 2 (at DEP001413-14, DEP001468-73, DEP 001481-86), Jt. Ex. 2, Vol. 6 (at DEP006876-6900).)
119. The bird control plan contains levels of redundancy such that, if one control fails, others are in place and will prevent bird infestation. (T. 887, 954-55, 1000-02.)
120. The bird control plan will deter birds from landing at the landfill and chase them away quickly in the event that they do land. (T. 885-86, 965-70, 992-93.)
121. Third-party hauling vehicles (those not owned by Vogel Holding, Inc.) containing putrescible waste will not be allowed to enter the facility prior to nighttime operation hours unless using the transfer station. (Jt. Ex. 2, Vol. 2 (at DEP006703).)
122. Tri-County Industries trucks and other trucks owned by Vogel Holdings may utilize the existing parking area associated with the hauling company. No more than 20 Vogel/Tri-County trucks will be staged in the parking area during the day until nighttime disposal can occur. If any waste is unloaded at the transfer station, it will be loaded into trailers and tarped rather than stockpiled within the transfer station. Two hundred tons or less of putrescible waste may be accumulated in the transfer station without restriction. (Jt. Ex. 2, Vol. 2 (at DEP006703).)
123. Tri-County's bird control plan is patterned after the plan developed by Dr. Davis for the Atlantic County Utilities Authority (ACUA) municipal waste landfill located in Atlantic City, New Jersey, which is located less than 10,000 feet from the Atlantic City International Airport, and that plan has been successful in preventing birds from lingering at the landfill. (T. 843-46, 888, 958-64, 1006-10; Jt. Ex. Vol. 2 (at DEP001468-69, DEP001628-30); TC Ex. 94, 95.)
124. There is no record evidence that the ACUA landfill has attracted birds that have contributed to any bird strikes at the Atlantic City International Airport. (T. 960-64, 1006-10; Jt. Ex., Vol. 2 (at DEP001628-30), Jt. Ex. 2, Vol. 6 (at DEP006884); TC Ex. 94, 95.)
125. Dr. Davis credibly testified that, due to its bird control plan, the ACUA landfill has not caused an increase in the risk of bird strikes. (T. 1006-10.)
126. A key feature of the ACUA landfill bird control plan is, like the Tri-County plan, putrescible waste may only be landfilled at night. (T. 960; Jt. Ex. 2, Vol. 2 (at DEP001468-69).)
127. The average number of gulls at the ACUA landfill has remained within background levels. (T. 1007-09; TC Ex. 94, 95.) Bird strikes have actually decreased since ACUA has been disposing of putrescible waste only at night. (T. 1008-10.)
128. Operating Condition 29 of the permit requires Tri-County to submit a plan to the Department and the FAA before disposal operations begin for review and approval "describing the maximum number of each species of concern that shall be permitted to be within the landfill permit boundary." (T. 994-996; Jt. Ex. 1, Permit (at 14).)
129. Operating Condition 30 of the permit requires Tri-County to submit to the Department and the FAA for approval the criteria to be used to determine the success of the bird control plan with recommendations regarding whether modifications are needed. (T. 996; Jt. Ex. 1, Permit (at 15).)
130. Operating Condition 31 of the permit requires Tri-County to establish an oversight committee to determine whether the bird control plan is operating effectively, and to invite members of the Grove City Airport, the Department, and the FAA to join Tri-County and an independent professional biologist. (T. 996-97; Jt. Ex. 1, Permit (at 15), Jt. Ex. 2, Vol. 6 (at DEP006888).)
131. The oversight committee requirement in the bird control plan is structured after a similar committee that has been used successfully at the Atlantic City International Airport. (T. 997-98.)
132. PennDOT's Bureau of Aviation advised early on that it had no objection to reopening the landfill. (TC Ex. 116 (at PDF pg. 17).) PennDOT did not respond to Tri-County or the Department regarding updated bird control/aviation information supplied to it in 2019. (T. 1654-55.)
133. The Department conferred with the FAA and relied in part on the FAA's communications, including its no-hazard determinations, but reached its own independent conclusion that the bird strike risk had been sufficiently mitigated. (T. 1771-72, 1782-85, 1786-88, 1803-05, 1813, 1838-39, 1841, 1844, 1853, 1858.)
134. In letters in 2004 and 2005, the FAA listed certain conditions it suggested be followed, and it said, so long as those conditions were met, the landfill and the airport "can safely co-exist and operate." It stated, "FAA does not object to the modification to the Operating Permit for Tri-County Landfill." It acknowledged that its suggestion that there be an independent one-year wildlife study had already been met. (T. 1782-84; Jt. Ex. 2, Vol. 2 (at DEP001442-47); TC Ex. 116.)
135. After a series of communications between Tri-County, the Department, and FAA National Wildlife Biologist Amy L. Anderson and FAA employees, Brian Gearhart and Guillermo Felix in 2019 and 2020, which included the submission of an updated FAA Form 7460-1 (relating to proposed construction), the FAA issued multiple Determinations of No Hazard to Air Navigation. Mr. Felix said, "I have no objection to the construction of the landfill." No one at the FAA at any time has ever objected to the landfill reopening. (Stip. 61; T. 1011, 1015-17, 1060-61, 1645-68, 1671-80, 1759-64, 1784-88; Jt. Ex. 2, Vol 1 (at DEP000053-80, DEP000118); TC Ex. 60, 61, 63, 65, 66, 116.)
136. On November 5, 2021, Tri-County requested and the FAA agreed to an extension of the no-hazard determination. (T. 1579; TCL 67.)
137. On July 1, 2022, about one and one half years after the permit had been issued, Ricky Harner, an FAA employee not previously involved in the review of the landfill, and who did not testify, sent a letter to the Department asking for an update. The letter did not withdraw the FAA's earlier determinations or object to the landfill. It included certain "recommendations" regarding Tri-County's operations going forward. (T. 1681; App. Ex. 55.)
138. The Department responded by letter on July 14, 2022. It reminded Mr. Harner of the FAA's extensive prior involvement, provided all updated information (including new bird surveys) and forms, and noted that, based on FAA's prior involvement, the Department had added several conditions to the permit (e.g. Operating Conditions 23, 24, 28, 29, 30, 31.) The Department invited Mr. Harner to reach out with any questions, but Mr. Harner never did so. (T. 1764-66; DEP Ex. 28.)
139. Tri-County's bird control plan if fully implemented will adequately protect the public safety. It will allow the landfill to operate without increasing the risk of bird strikes above background conditions. The known and potential harm and adverse impact associated with increased bird strikes above background has been fully mitigated. (T. 882-84, 954-57, 959-60, 966-70, 993, 1000-02, 1760-64, 1771-72, 1794, 1798-1805, 1844, 1846-47; Jt. Ex. 1, Envtl. Assess. (at 11-13).)
B. Relocation of Existing Waste
140. The permit requires Tri-County to excavate approximately 1,551,000 cubic yards of historic waste that was disposed of at the Tri-County landfill site between 1950 and 1990 on an unlined area and to relocate that waste onto the newly constructed lined area of the landfill within the 10-year term of its permit. (Stip. 80; T. 1932, 1934, 1936, 2005; Jt. Ex. 1, Permit (at 12), Envtl. Assess. (at 13).)
141. Relocation of the existing waste can be conducted 24 hours a day, 7 days per week, but it will be limited in inclement weather. (Stip. 81; T. 1847, 1993-94; Jt. Ex. 1, Permit (at 6).)
142. The existing waste at the landfill sits above a groundwater aquifer and it is assumed that the waste might be in contact with groundwater or that water in contact with the waste might seep into groundwater as leachate. (T. 1127, 1129-30, 1152, 1164, 1891, 2017; Jt. Ex. 2, Vol. 2 (at DEP001653), Jt. Ex. 2, Vol. 5 (at DEP006435-36).)
143. The landfill has a network of monitoring wells that monitor groundwater both upgradient and downgradient of the existing waste, and these wells have been sampled quarterly since 1988, with the results submitted to and reviewed by the Department. (T. 1157-58, 1161-63; TC Ex. 79.)
144. Over the years, some of the monitoring wells have shown detections of various organic compounds, including phenols; however, some of these detections have occurred in monitoring wells that are upgradient of the existing waste. (T. 1131-32, 1134-38, 1158-59, 1864-65, 1868-69, 1871, 1954; Jt. Ex. 2, Vol. 5 (at DEP005265-66); App. Ex. 158.)
145. None of the concentrations of those regulated substances detected in any monitoring well at Tri-County exceeded any applicable standard for groundwater, except for one exceedance of a statewide drinking water standard for arsenic in an upgradient well. (T. 1146, 1160-61.)
146. There is no evidence that the existing waste is contaminating any public or private water supplies. (T. 1143, 1158, 1858-59, 1900, 1933.)
147. Tri-County developed a waste relocation plan that proposes to excavate the existing waste, segregate any suspicious or special handling waste, remove and sample any leachate-impacted soils, and deposit the waste onto the same newly-constructed, double-lined landfill cells that will be used for the new waste to be accepted at the landfill. (T. 1694-96, 1705, 1885, 2006, 2012; J. Ex. 2, Vol. 6 (at DEP006770-83); DEP Ex. 18 (at DEP012596).)
148. Tri-County's waste relocation plan involves "source removal" of the source of potential contamination-excavating the existing waste unprotected by a liner and relocating that waste into lined cells-which is the "gold standard" for the remediation of an unlined landfill. (T. 1692, 1697.)
149. Excavation and relocation of the existing waste as proposed by Tri-County will greatly reduce if not eliminate the risk of pollution of groundwater from the existing waste. (T. 1164, 1691-92, 1696-98, 1707-08, 1709, 1710-11, 1712-13, 1768-69, 1983; Jt. Ex. 1, Envtl. Assess. (at 13, 17).)
150. The liner that will be used at Tri-County will be comprised of two composite liners with a leachate detection system. (T. 1699; Jt. Ex. 2, Vol. 6 (at DEP006710).)
151. The primary liner will consist of an aggregate leachate collection layer underlain by a geotextile, a 60-mil geomembrane, and a geosynthetic bentonite clay liner that swells when it becomes wet to plug any leaks. (T. 1699-1700.)
152. Below the primary liner is a leachate detection zone with a drainage net of geocomposite with a geotextile. (T. 1700.)
153. The secondary liner that is below the leachate detection zone also consists of a 60-mil geomembrane and a geosynthetic clay liner. (T. 1700.)
154. The landfill subgrade will be placed at least eight feet above the regional groundwater table. 25 Pa. Code § 273.252(b). (T. 1156, 1159-60; Jt. Ex. 2, Vol. 2 (at DEP001854); DEP Ex. 18 (at DEP0012617).)
155. The double composite liner system that Tri-County will install is more stringent than Pennsylvania's municipal waste landfill regulations, which require that only one of those liners be a geosynthetic composite liner, and is equal to what is required in Pennsylvania for a hazardous waste landfill. (T. 1698-99, 1710-11.)
156. Before Tri-County is allowed to place waste in a new landfill cell, Tri-County is required to perform various tests on every layer of the liner system and have a third party engineer inspect the liner and send a report to the Department, which must then send an acceptance letter allowing waste to be deposited into the cell. (T. 1998-99, 2020-21.)
157. The materials selected for the liner have undergone extensive testing for compatibility with leachate generated by the waste disposed of at landfills. (T. 1701-03.)
158. The compatibility testing for the liner system is not outdated. (T. 1701-03.)
159. The chemical compatibility for the liners to be used by Tri-County are the same as the liners that are used for hazardous waste facilities. (T. 1710-11.)
160. The Department concluded that the relocation of the existing waste was an environmental benefit of moderate degree and long term in duration because the relocation of the waste could eliminate the future potential of groundwater contamination from the existing waste in unlined areas. (T. 1768-69, 1771, 1934-35; Jt. Ex. 1, Envtl. Assess. (at 13, 17).)
161. Tri-County will construct a new landfill cell over the area from which the old waste is removed, which will essentially cap the area by way of the liner system and reduce infiltration into groundwater. (T. 1707-08, 1709.)
162. Relocating the 1.5 million cubic yards of waste in the manner proposed by Tri-County is a clear benefit to the environment, and a benefit that will persist even after waste disposal operations have concluded. (T. 1164, 1696-97, 1768-69, 1771, 1934-35, 1983, 2003-04; Jt. Ex. 1, Envtl. Assess. (at 13, 17).)
C. Wetlands
163. As part of the landfill operation, Tri-County will fill in 5.94 acres of wetlands at the site to make way for waste disposal cells and it will then create 9.49 acres of replacement wetlands on the site. (Stip. 68.)
164. Several smaller wetlands will be filled in and one larger wetland will be created to replace those wetlands. (T. 1750-51, 1915-16; Jt. Ex 1, Envtl. Assess. (at 10-11).)
165. This work is authorized by a Chapter 105 permit that was separately issued to Tri-County and not appealed by the Appellants. (Stip. 68, 69.)
166. The Department accepted the wetland replacement as appropriate mitigation for the environmental harm and correctly found that the additional wetland acreage created under the project would enhance existing wetland benefits and functions, create an additional habitat that does not currently exist in the area, and would be a minor environmental benefit. (T. 1750-51, 1915-16; Jt. Ex. 1, Envtl. Assess. (at 10-11, 13, 17).)
167. There is no evidence that the wetlands to be replaced by Tri-County are exceptional value wetlands, 25 Pa. Code § 105.17(1). (See T. 392, 1916-17, 1960, 1965-66; Jt. Ex. 2, Vol. 2 (at DEP001727).)
168. There is no credible evidence that the wetlands to be replaced by Tri-County are a habitat for the Massasauga rattlesnake or are hydrologically connected to or within ½ mile of any wetlands that do serve as a Massasauga rattlesnake habitat. (See T. 344-45, 385-86, 392-93; Jt. Ex. 2, Vol. 2 (at DEP001842-46).).
169. The Pennsylvania Natural Diversity Index (PNDI) search conducted by Tri-County concluded that no impact is anticipated to threatened and endangered species and/or special concern species and resources as a result of the wetlands replacement project. (Jt. Ex. 2, Vol. 2 (at DEP001842-46).).
D. Noise
170. The Department's harms-benefits analysis concluded that the landfill's operations will create additional noise in the area that would not exist but for the operation of the landfill, even though Tri-County had mitigated the noise to the largest extent possible. (T. 1990; Jt. Ex. 1, Envtl. Assess. (at 7-8).)
171. Tri-County proposes to mitigate the noise from the landfill by properly maintaining the engines on its mechanical equipment, encasing those engines, ensuring that the machinery operates at 85 decibels or less using handheld meters, and using lights instead of backup beepers on trucks and equipment at night. (T. 1747-48, 1959, 1990; Jt. Ex. 1, Envtl. Assess. (at 7-8), Jt. Ex. 2, Vol. 6 (at DEP006725).)
172. Tri-County conducted two noise studies that were included in its permit application, one from February 1991 containing measurements of noise at numerous locations at the landfill and in the area, and one from April 2001 monitoring noise at several locations at Tri-County's facility and in the surrounding area during the day and at night, as well as studying the noise levels at two other active landfills, Seneca Landfill and Valley Landfill. (Jt. Ex. 2, Vol. 6 (at DEP006738-68).)
173. The noise studies concluded that the intensity of the noise generated by the landfill will diminish sufficiently before it reaches the surrounding community and that noise levels at the monitoring points will be similar to the existing ambient background noise levels. (Jt. Ex. 1, Envtl. Assess. (at 7-8), Jt. Ex. 2, Vol. 6 (at DEP006738-68).)
174. The permit requires Tri-County to perform another background noise study prior to operating the site and to submit that study to the Department. (T. 2022; Jt. Ex. 1, Permit (at 14).)
175. Residents living within ½ mile of the landfill currently hear noise from Tri-County's transfer station as well as from the airplanes and helicopters using the Grove City Airport. (T. 262-63, 267, 270-71, 368-69, 380.)
E. Traffic
176. In June 2019, Tri-County conducted an updated traffic impact study to assess the additional traffic that would be generated from the landfill. (T. 1749-50; Jt. Ex. 1, Envtl. Assess. (at 9-10), Jt. Ex. 2, Vol. 3 (at DEP002751-2857); App. Ex. 15.)
177. The traffic study analyzed the impact of the truck trips generated from the landfill and/or the transfer station accepting, in combination, a maximum volume of 4,000 tons of waste per day. (Jt. Ex. 1, Envtl. Assess. (at 9-10).)
178. The study estimated that 332 truck trips will be generated from accepting 4,000 tons of waste per day, which represents an increase of 218 trips over what the transfer station currently generates. (Jt. Ex. 1, Envtl. Assess. (at 9-10).)
179. Tri-County proposes to mitigate the harm from the trucks by tarping and sweeping the trucks, performing routine inspections and maintenance, and distributing the truck volume over the course of the day to alleviate congestion during typical rush hours. (Jt. Ex. 1, Envtl. Assess. (at 9-10).)
180. The Department concluded that there would be some inevitable environmental harm from the traffic that could not be completely mitigated all the time. (Jt. Ex. 1, Envtl. Assess. (at 9-10).)
181. The study was submitted to PennDOT for review and PennDOT concluded that the added traffic volume would not have an impact on the intersection of SR 0208 and TCI Park Drive. (T. 1749-50; Jt. Ex. 2, Vol. 3 (at DEP002751).)
182. The Department agreed with PennDOT's conclusion that the increased traffic from the landfill would not impact levels of service on the roadways. (T. 1750, 1773-74.)
V. Series 800 Wastes
183. The permit authorizes Tri-County Landfill to accept Residual Waste Code 800 (Series 800) waste resulting from oil and gas operations. (T. 1081, 1249; Jt. Ex. 1, Vol. 1 (at DEP000021).)
184. Series 800 waste is classified by the Department as residual waste, not hazardous waste. (T. 1121-22.)
185. Tri-County will not accept liquids for direct disposal. (T. 1573.) Waste accepted for disposal may not exceed a certain moisture content. (T. 1573.)
186. The shales in which oil and gas are found contain naturally occurring radioactive material or "NORM." (T. 1253.)
187. When a process is performed to remove the oil and gas from the rock, the result is technically enhanced NORM or "TENORM." (T. 1253, 1333-34.)
188. TENORM is NORM that is extracted or concentrated. (T. 1333.)
189. Oil and gas operations are one source of TENORM in Pennsylvania. (T. 1334.)
190. Although landfills are not required to obtain a license from the Department's Bureau of Radiation Protection, the Department monitors and regulates the handling of radioactive materials at landfills. (T. 1335-36.)
191. TENORM waste is regulated by the Department's waste program, but the Bureau of Radiation is often consulted in the analysis of radiological components and their impact on the environment and public. (T. 1335.)
192. The radiation levels at landfills "have not gotten close to" and are "nowhere approaching" the levels detected at facilities licensed by the Bureau of Radiation. (T. 1336, 1348, 1350.)
193. Tri-County was required to complete a Waste Analysis and Classification Plan, known as Form R, for the screening, acceptance and management of non-hazardous residual and special handling waste for disposal at the landfill. (T. 1085, 1939-40; Jt. Ex. 2, Vol. 1 (at DEP001150-1210).)
194. Form R was reviewed by the Department, which determined that the initial form submitted by Tri-County was out of date. (T. 1080.)
195. The Department recommended that Tri-County update and resubmit its Form R and use Seneca Landfill's more updated Form R as a model. Tri-County resubmitted an updated form and it was approved. (T. 1084-85, 1118.)
196. Before Tri-County can accept any Series 800 waste, it is required to submit a Form U and obtain approval from the Department. (T. 1401, 1570-71.) This allows the Department to analyze the waste stream and determine whether the waste is appropriate for disposal at the landfill. (T. 1089-90, 1337.)
197. Tri-County's permit contains a Radiation Protection Plan. (T. 1521; Jt. Ex. 2, Vol. 1 (at DEP001211-001302).)
198. Even though Tri-County's Radiation Protection Plan was 15 years old at the time of submission, it was reviewed and evaluated against the Department's current guidance and standards. (T. 1369-70.)
199. When waste enters the site, it will be screened for radioactive material. (T. 1452-53.) 200. When radioactive material is part of a load entering the site, an alarm is triggered. (T. 1521)
201. When the alarm is triggered, there is a corresponding printout with a graph showing where on the vehicle the alarm was triggered. (T. 1522.)
202. The printout is reviewed by one of the landfill's environmental and health safety specialists to determine if it is an actual alarm. (T. 1522.)
203. The load is examined with a handheld radiation detector that identifies the isotope and dose of radiation. (T. 1524.)
204. Once the isotope is identified, the person inspecting the load refers to a radiation detection action plan to determine if the item can be accepted under the landfill's plan. (T. 1524.)
205. The information is entered into a Department spreadsheet that tracks TENORM loads, and the calculations indicate whether there is enough allocation left for the load to be accepted. (T. 1525-26, 1621.)
206. When there is no allocation left, the landfill must notify the Department, which will then determine whether the landfill can be given a permit for the item to be shipped offsite or whether the item must be returned to the generator. (T. 1526-27.)
207. The Department's May 2016 TENORM study analyzed the leachate at 51 landfills across Pennsylvania. (T. 1342; App. Ex. 77.)
208. Additional sampling was done at nine of the landfills in the study that were determined by the Department to have received the most TENORM for disposal in the year prior to the study. (T. 1342.)
209. The TENORM study showed that none of the leachate from any of the landfills exceeded 600 picocuries per liter, which is the limit for radium going to a wastewater treatment facility. (T. 1346-47.)
210. The TENORM study did not show a statistical difference in the radium detected in the leachate of landfills that received oil and gas waste and those that did not. (T. 1349, 1351.)
211. The TENORM study does not suggest a risk to human health or the environment due to radiation from landfills. (T. 1351.)
VI. Compliance History
212. On September 19, 2013, the Department denied Tri-County's 2004 permit application because the height of the proposed landfill did not comply with local zoning restrictions, and because it concluded that Tri-County and other related waste companies under the same corporate ownership had a documented history of non-compliance with Department-administered laws and regulations. (Stip. 29.)
213. Tri-County appealed the Department's September 19, 2013 denial of the 2004 permit application to the Board. (Stip. 30.)
214. A 2016 settlement agreement between the Department and Tri-County provided that Tri-County could submit a "complete application for a municipal landfill permit that replaces the permit application that was denied by the Department on September 19, 2013 [the 2004 permit application]." (Stip. 37; DEP Ex. 15.) Tri-County submitted a new application on December 17, 2018. (Stip. 39, 40.)
215. The 2016 Settlement Agreement noted that, by three separate consent orders and agreements executed the same date, the Department was resolving civil penalty assessments against three Vogel Holding, Inc. direct and indirect subsidiaries: Seneca Landfill, Inc., a subsidiary of Vogel Disposal Service, Inc.; Vogel Disposal Service, Inc.; and Tri-County Industries, Inc. (DEP Ex. 15.)
216. Each of the consent orders required the company to engage a third-party consultant to conduct comprehensive site environmental systems reviews and audits of the companies' facilities, which were referred to as "environmental audits." (T. 1527-28, 1530-31, 1775-76; TC Ex. 35, 36, 38.)
217. For Seneca Landfill, the environmental audits were to be performed annually for the first five years, and biennially thereafter for two additional audits. For Tri-County Industries and Vogel Disposal Service, the environmental audits were to be performed biennially for six years. (T. 1532-33; TC Ex. 35, 36, 38.)
218. The third-party consultant was required to submit a report for each of the environmental audits to the companies and the Department, which identified conditions that did not comply with environmental laws and regulations and a plan on how the company would come into compliance. (T. 1535-37; TC Ex. 35, 36, 38.)
219. The companies retained independent consultants and the consultants conducted the comprehensive audits and submitted their reports. They did not uncover significant compliance issues that were not already being addressed. (T. 1528-39; TC Ex. 39-46.)
220. The companies prepared a compliance tracker form for submission to the Department in accordance with the consent orders listing each item identified by the auditor, stating the recommended action, the resolution of the issue, and the date the corrective action was due and when completed. (T. 1535-37, 1543-46; TC Ex. 39-46.) The Department never disapproved. (T. 1538.)
221. The staff at the Vogel Holding companies began holding biweekly calls with the Department's solid waste permitting and compliance staff. Issues were discussed with the Department during these regularly scheduled calls, which initially occurred every two weeks and then occurred monthly. (T. 1546-47.)
222. The 2018 permit application contained Compliance History Form MRW-C, Identification of Interests & Compliance History for Tri-County. (Stip. 49; Jt. Ex. 2, Vol. 1 (at DEP000332-367).)
223. Exhibit E-1 of Form MRW-C listed permits issued to various subsidiaries of Vogel Holding, Inc., including but not limited to Seneca Landfill, Inc., Tri-County Industries, Inc., Tri-County (Transfer Station), and Vogel Disposal Services, Inc. (Stip. 50.)
224. Seneca Landfill, Inc. operates a municipal waste landfill known as Seneca Landfill located in Lancaster and Jackson Townships, Butler County, PA, and a municipal waste transfer station located in Jackson Township, Butler County, PA. (Stip. 51.)
225. The compliance history form is updated as required and is submitted to the Department annually as part of the annual operations report or whenever a permit application is submitted. (T. 1558.)
226. The compliance history form for Vogel Holding Companies as of December 31, 2022, the most recent such form as of the date of the hearing, addressed the previous ten year period and showed no enforcement actions at Seneca Landfill or the Seneca Landfill Transfer Station since 2016, one violation since 2018 at Tri-County Industries involving the lack of a waste transportation sticker on the driver's side of the truck, and only two violations for Vogel Disposal Service since 2018, one involving a leaking load and the other due to a missing Act 90 cab card required to be in the vehicle. (T. 1559-1561; TC Ex. 47.)
227. Vogel also hired additional compliance personnel after the 2013 permit denial, including Elizabeth Bertha, the Environmental Health and Safety Director of the Vogel Holding entities, including Seneca Landfill and Tri-County Landfill. Ms. Bertha oversees all of the environmental permitting, reporting, recordkeeping, and compliance for the six transfer stations, six hauling companies, one municipal waste landfill (Seneca Landfill), one recycling facility, one materials recycling facility, and one wood waste processing facility operated by the Vogel Holding companies, as well as the safety program for those entities' 700 employees. (T. 1488-90, 1508, 1775-76.)
228. Ms. Bertha supervises five environmental health and safety specialists that perform much of the day-to-day environmental and safety related compliance issues. (T. 1489.)
229. Ms. Bertha overhauled and operates the companies' environmental management system, a customized software program that Vogel acquired from a consultant to track compliance tasks. (T. 1499-1507.)
230. Prior to the hearing, the Department ran an updated compliance history audit for Tri-County and its related companies. The compliance status of Tri-County and its related companies had not changed since the positive compliance history was run as part of the permit review. (T. 1999-2000.)
231. Tri-County and its related companies have a compliance history over the past decade that is equal to or better than other landfills in the Commonwealth. (T. 1550-62, 1759, 1774-76, 1957-58, 1999-2000; Jt. Ex. 2, Vol. 1 (at DEP000085).)
232. Tri-County and related companies have the personnel, systems, and corporate policy in place to secure future environmental compliance. (T. 1495-1504, 1516-18, 1533-62, 1775-76, 1999-2000; TC Ex. 35, 36, 38-47.)
VII. Bonding
233. The initial bond calculated for the entire 35 acres of disposal area for the life of the landfill was approximately $9.59 million assuming the full 35 acres and all ten disposal cells would be open at any one time. (T. 1176-80, 1832-34.)
234. Tri-County submitted a revised bond estimate on May 22, 2020 that reduced the bond to approximately $4.32 million to reflect the cost to close the acreage that would be open for the first two cells to be constructed, amounting to 14.3 acres. (Stip. 62; T. 1176-80, 1832-34, 1998; Jt. Ex. 2, Vol. 6 (at DEP007440).)
235. The Department approved Tri-County's reduced bond amount because Tri-County would not be building ten cells at once. (T. 1176-80, 1833; App. Ex. 191.)
236. The amount of Tri-County's bond will be reviewed each year to ensure that Tri-County has proper bond amounts to cover the cost to clean up the site. (T. 1178-79, 1833; App. Ex. 191.)
237. Tri-County must obtain the Department's approval to open additional cells at the landfill, which requires the submission of additional bonding to cover the added acreage to be affected before the Department authorizes construction of a new cell. (T. 1832-34, 1998-99.)
238. The bond conformed to all regulatory requirements. (T. 1832-34.)
DISCUSSION
As third parties appealing the Department's issuance of the major permit modification to Tri-County, the Appellants bear the burden of proof for their claims. 25 Pa. Code § 1021.122(c)(2); Joshi v. DEP, 2019 EHB 356, 364; Jake v. DEP, 2014 EHB 38, 47. They must show that the Department's action was not lawful, reasonable, or supported by our de novo review of the facts. Logan v. DEP, 2018 EHB 71, 90; Friends of Lackawanna v. DEP, 2017 EHB 1123, 1156. In order to be lawful, the Department must have acted in accordance with all applicable statutes, regulations, and case law, and acted in accordance with its duties and responsibilities under Article I, Section 27 of the Pennsylvania Constitution, Pa. Const. art. 1, § 27. Stocker v. DEP, 2022 EHB 351, 363 (citing Ctr. for Coalfield Justice v. DEP, 2017 EHB 799, 822; Brockway Borough Mun. Auth. v. DEP, 2015 EHB 221, aff'd, 131 A.3d 578 (Pa. Cmwlth. 2016)).
To carry their burden of proof, the Appellants must prove their case by a preponderance of the evidence, meaning the Appellants must show that the evidence in favor of their proposition is greater than that opposed to it. Telegraphis v. DEP, 2021 EHB 279, 288; United Refining Co. v. DEP, 2016 EHB 442, 448-49, aff'd, 163 A.3d 1125 (Pa. Cmwlth. 2017); Shuey v. DEP, 2005 EHB 657, 691 (citing Zlomsowitch v. DEP, 2004 EHB 756, 780). In other words, the Appellants' evidence challenging the Department's approval of Tri-County's permit modification must be greater than the evidence supporting the Department's determination that the permit modification was reasonable, appropriate, and in accordance with applicable law. Stocker, 2022 EHB at 364; Morrison v. DEP, 2021 EHB 211, 218; Del. Riverkeeper Network v. DEP, 2018 EHB 447, 473.
A third-party appellant who wishes to succeed may not simply come forward with a laundry list of potential problems and then rest its case. Benner Twp. Water Auth. v. DEP, 2019 EHB 594, 633. As we have held before, an appellant may not simply raise an issue and then speculate that all types of calamities may occur. Del. Riverkeeper Network, 2018 EHB at 473; United Ref. Co., 2016 EHB at 449; Ritter v. DEP, 2017 EHB 729, 741; Shuey, 2005 EHB at 711. Instead, an appellant must prove by a preponderance of the evidence that the problems the appellant alleges are likely to occur. Benner Twp., 2019 EHB at 633. When a party raises technical issues, it must come forward with technical evidence to support its challenge, which many times will require competent and appropriate expert witness testimony. Liddick v. DEP, 2018 EHB 207, 216; Prizm Asset Mgmt. Co. v. DEP, 2005 EHB 819, 844.
The Airport Setback Regulation
The Appellants argue that the landfill cannot be reopened because it is within 10,000 feet of the Grove City Airport. They rely on 25 Pa. Code § 273.202(a)(15), which provides as follows:
Except as provided in subsections (b) and (c), a municipal waste landfill may not be operated as follows:
….
(15) Airport. Except for areas that were permitted prior to January 25, 1997, a municipal waste landfill may not be operated as follows:
(i) Within 10,000 feet-or 3,048 meters-of an airport runway that is or will be used by turbine-powered aircraft during the life of disposal operations under the permit.
(ii) Within 5,000 feet-or 1,524 meters-of an airport runway that is or will be used by piston-type aircraft during the life of disposal operations under the permit.25 Pa. Code § 273.202(a)(15) (emphasis added). The Appellants say that the Tri-County landfill is not in an area that was permitted prior to January 25, 1997, so the exception to the setback does not apply.
The Department determined 24 years ago that the exception applies. A March 30, 2000 settlement agreement between the Department and Tri-County provided:
Based on the Department's review and analysis of the materials referred to in the preceding paragraph, the Department has concluded, and Tri-County agrees, that the phrase "areas that were permitted prior to January 25, 1997" encompasses, with respect to the Landfill, a number of specific areas, the size of which is approximately 99 acres, where the following occurred or were used by Tri-County: Department-permitted disposal activities; support facilities; borrow areas; offices; equipment sheds; monitoring wells; water pollution control systems; access roads; survey control monuments; Department-permitted closure and postclosure care and maintenance activities; and other areas in which the land surface had been disturbed before January 25, 1997 as a result of or incidental to operation of the Landfill.(TC Ex. 12 at ¶ N; Stip. 21.) A map depicting the 99-acre area was attached to the settlement as Exhibit A. The parties to the settlement agreed that "[t]he approximate 99 acre area depicted on Exhibit A is a municipal waste landfill authorized by the Department pursuant to (a) Solid Waste Management Permit No. 101295 issued in 1985 and (b) the municipal waste regulations promulgated in April, 1988 set forth in Chapters 271 and 273 of 25 Pa. Code." (TC Ex. 12 at ¶ 1.) No one appealed this Department determination. That settlement authorized Tri-County to submit a "complete substitute application for permit modification" seeking a permit for a landfill no greater than the 99-acre area, which the Department would "consider…to be an amendment of the old re-permitting application." (Id. at ¶¶ 4, 5.) Similarly, 13 years later in a 2013 review memorandum, the Department stated, "The old disposal area at the Landfill was permitted prior to 1997…. The permit application seeks a permit for that formerly permitted area. Therefore, the proposed municipal waste landfill is not prohibited by 25 Pa. Code 271.202(15)." (App. Ex. 26 (at DEP0012656).) Joel Fair, the Department's permitting chief for the waste management program from 2006 until his retirement in 2022, testified repeatedly that the 99-acre area was the area that had been permitted prior to January 25, 1997. (T. 1779-80, 1897-98, 1902, 1910.)
The Appellants would have us upend these determinations from decades ago as well as all of the permitting activity that has occurred since, but we see no basis for doing so. Indeed, we do not understand how one could argue that the landfill is not in an area that was permitted prior to January 25, 1997. The landfill has actually been permitted since 1985. (Stip. 13; TC Ex. 3.) The permit was modified twice in 1988. (Stip. 15; TC Ex. 4, 5.) There may have been some question about the exact boundaries of the permitted area (T. 1907), but that issue was resolved in 2000 and the Appellants have not shown that 99 acres was not the correct number of acres.
The Appellants say the permit may have expired somewhere along the way, which is incorrect, but even if it were true, it would not change the simple fact that the area was permitted before January 25, 1997. The regulation does not say that the permit must remain in place continuously until the present day. It does not say there must have been an active permit or an active application for a permit in place on January 25, 1997 for the exception to apply. It does not say that an application must be continuously in the works for some period of time before and/or after 1997 for the exception to apply. The regulation is not that complicated. There is nothing in the language of the regulation to support the notion that the right to develop a landfill in an area that was permitted before 1997 can be abandoned through inactivity or for some other reason. Joseph J. Brunner, Inc. v. Dep't of Envtl. Prot., 869 A.2d 1172, 1174 (Pa. Cmwlth. 2005) (courts may not supply words omitted by the legislature in interpreting provisions of a statute); Presock v. Dep't of Military & Veterans Affairs, 855 A.2d 928, 931 (Pa. Cmwlth. 2004) (same, applying that precept to a regulation); Matthews Int'l Corp. v. DEP, 2011 EHB 402, 409 (words cannot be added by the Board under the guise of interpreting a statute, same rules apply to interpreting regulations); Tri County Waste Water Mgmt., Inc. v. DEP, 2011 EHB 256, 262 (Board may not add words to a clear and unambiguous statute that are not there).
Assuming for purposes of discussion only that it matters whether Tri-County's permit "expired" somewhere along the way, Tri-County's permit has never in fact expired. Landfill permits do not really expire. (T. 1967-68.) Although the right to dispose of waste may end (i.e. the permit term for disposal), the permit itself effectively continues in place indefinitely:
No municipal waste may be disposed, processed or beneficially used under a permit after the expiration of the permit term for disposal, processing or beneficial use. Expiration of the permit term does not limit the operator's responsibility for complying with closure and postclosure requirements and all other requirements under the act, the environmental protection acts, regulations thereunder or the terms or conditions of its permit. 25 Pa. Code § 271.211(c). Tri-County has in fact continuously maintained the site in accordance with its extant permit to the present day.
The Appellants say Tri-County has not complied with its closure requirements. However, Tri-County's closure obligations have been repeatedly stayed by the Department pending review of its applications. (TC Ex. 10, 12, 17.) Now that the permit modification has been issued, the closure obligations for the existing waste have been superseded by the waste relocation plan.
Although this case presents what must undoubtedly be the most protracted, convoluted permit application process in the history of the Commonwealth, (see Finding of Fact No. ("FOF") 18-46, 53-66), the bottom line is that Tri-County has with the Department's acquiescence been continuously and without any material interruption pursuing the permit needed to reopen the landfill. It has never taken its finger off of the chess piece. Regardless of whether the parties have assigned different identification numbers to the applications along the way, or referred to them as repermitting, renewal, amendment, new, or modification applications, or charged new permitting fees, or how the Department has characterized the permit in previous filings in other Board appeals that are in no way binding on us, we see no error in the Department's issuance of the permit modification based on anything that occurred in the administrative processing of Tri-County's applications. When we focus on substance instead of semantics and form, we see no grounds for rescinding or remanding the permit due to any supposed administrative process decisions allegedly made over the last 35 years. The important point is that the Department's decision to issue the modification of a permit for an area clearly permitted before January 25, 1997 was lawful, reasonable, and supported by the facts.
Relatedly, the Appellants next question whether Tri-County Landfill, Inc. has the right to operate the landfill under the permit as opposed to Tri-County Industries, Inc., the entity that received the original permit for the landfill in 1985. The Appellants argue that Tri-County was required to apply for a permit reissuance under 25 Pa. Code § 271.221, which provides that a "transfer, assignment or sale of rights granted under a permit may not be made without obtaining permit reissuance." 25 Pa. Code § 271.221(a).
Tri-County argues in response that the permit reissuance regulations are limited to situations where there has been a change to the entity that will be in control of the facility under the existing permit terms and conditions. Tri-County says that, on the other hand, when there are any changes to permit terms or conditions or facility operations, a permit modification is required under 25 Pa. Code § 271.222, which is what it always has been seeking. Tri-County also points out that a permit modification was required under the 1988 regulatory changes. Tri-County adds that nothing in the regulations precludes a permit modification from being issued to a new entity that otherwise meets the requirements for a permit modification.
In its 1991 application for a permit modification, Tri-County notified the Department that it had changed its name:
As the facility was formerly permitted as Tri-County Industries, Inc. (I.D. #101295) this application reflects a change in the name of the site to Tri-County Landfill, Inc. All pertinent documents reflect the name change. These include Forms A, C, E, contracts, waivers, rights-of-way, and agreements. In addition, an attempt has been made to change the name in the text of all supporting narratives. In the event a reference to Tri-County Industries, Inc. may remain, it can be assumed to mean Tri-County Landfill, Inc.(TC Ex. 11.) The Appellants say this was not good enough.
We find nothing improper about Tri-County Landfill, Inc. being the entity identified in the 1991 permit application and all subsequent permit applications submitted to the Department. The Appellants do not provide any support for the notion that a permit reissuance must be made before an entity can seek a permit modification, or that an entity cannot obtain a change in the name of the operator by means of a permit modification, especially if changes to other aspects of the permit are also sought. Joel Fair testified that, although a change to the name of a permittee would be typically accomplished through a permit reissuance, in this instance it was done through the application process. (T. 1944-45.) By submitting several applications for a permit modification that clearly identify the owner and operator of the site as Tri-County Landfill, Tri-County has effectively satisfied the pertinent requirements of the reissuance regulation at 25 Pa. Code § 271.221(b). Indeed, one of the ways a person can satisfy the permit reissuance documentation requirements is to submit an entirely new application. 25 Pa. Code § 271.221(b)(3)(i). Tri-County has submitted several applications. There is no question that Tri-County Landfill, Inc., having finally received the permit modification, assumes liability for operation, maintenance, pollution, closure, postclosure maintenance, final cover, and responsibility for all terms and conditions in the permit, which the permit reissuance regulation appears designed to ensure. This strikes us as a form over substance argument that does not justify rescinding the permit modification.
Further, this is not an instance where the permit has been issued to the wrong entity, an entity that is not responsible for the operation and management of the landfill, or an entity that is not a legally recognized person. See Borough of St. Clair v. DEP, 2014 EHB 76, 113 (Department issued landfill permit to a non-legal entity under 25 Pa. Code § 271.201 instead of the permit applicant). This is also not a situation where a permit is being transferred to a completely unassociated entity. Tri-County Landfill, Inc. is a subsidiary of Tri-County Industries, Inc., which in turn is a subsidiary of Vogel Holding, Inc. (Stip. 5.) The Appellants have provided no reason why the name of the permittee cannot be altered by way of a major permit modification, as was done here.
Harms-Benefits Analysis
Many of the Appellants' substantive arguments challenge the conclusions of the Department's harms-benefits analysis. Under 25 Pa. Code §§ 271.126 and 271.127, an applicant for a municipal waste landfill must demonstrate that the benefits of a proposed project to the public clearly outweigh the known and potential harms. A permit applicant must prepare an environmental assessment with a detailed analysis of the potential impact of the proposed facility on the public health and safety, as well as a description of the known and potential environmental harms of the facility. 25 Pa. Code § 271.127(a) and (b). The assessment must then include a written mitigation plan that explains how the applicant plans to mitigate each known and potential environmental harm. 25 Pa. Code § 271.127(b). The Department must review the mitigation plans to see if the known and potential environmental harms have been fully mitigated. That is to say, it must ensure that the mitigation measures, individually and collectively, will "adequately protect the environment and the public health, safety and welfare." Id. The Department's review is known as the harms-benefits analysis. The harms-benefits analysis also takes into account any social and economic benefits that remain after accounting for the known and potential social and economic harms. 25 Pa. Code § 271.127(c). If a harm has been fully mitigated, it does not factor into the harms-benefits balancing.
The harms-benefits regulation at 25 Pa. Code § 271.127 provides in pertinent part:
(a) Impacts. Each environmental assessment in a permit application shall include at a minimum a detailed analysis of the potential impact of the proposed facility
on the environment, public health and public safety, including traffic, aesthetics, air quality, water quality, stream flow, fish and wildlife, plants, aquatic habitat, threatened or endangered species, water uses, land use and municipal waste plans. The applicant shall consider features such as scenic rivers, recreational river corridors, local parks, State and Federal forests and parks, the Appalachian Trail, historic and archaeological sites, National wildlife refuges, State natural areas, National landmarks, farmland, wetland, special protection watersheds designated under Chapter 93 (relating to water quality standards), airports, public water supplies and other features deemed appropriate by the Department or the applicant. The permit application shall also include all correspondence received by the applicant from any State or Federal agency contacted as part of the environmental assessment.
(b) Harms. The environmental assessment shall describe the known and potential environmental harms of the proposed project. The applicant shall provide the Department with a written mitigation plan which explains how the applicant plans to mitigate each known or potential environmental harm identified and which describes any known and potential environmental harms not mitigated. The Department will review the assessment and mitigation plans to determine whether there are additional harms and whether all known and potential environmental harms will be mitigated. In conducting its review, the Department will evaluate each mitigation measure and will collectively review mitigation measures to ensure that individually and collectively they adequately protect the environment and the public health, safety and welfare.
(c) Municipal waste landfills, construction/demolition waste landfills and resource recovery facilities. If the application is for the proposed operation of a municipal waste landfill, construction/demolition waste landfill or resource recovery facility, the applicant shall demonstrate that the benefits of the project to the public clearly outweigh the known and potential environmental harms. In making this demonstration, the applicant shall consider harms and mitigation measures described in subsection (b). The applicant shall describe in detail the benefits relied upon. The benefits of the project shall consist of social and economic benefits that remain after taking into consideration the known and potential social and economic harms of the project and shall also consist of the environmental benefits of the project, if any.25 Pa. Code § 271.127(a)-(c).
We have held that, when a party challenges the Department's conclusion regarding the harms-benefits balancing test, it is not sufficient to simply have a different opinion about how the balancing could have been done; rather, the party must show that the Department acted unreasonably or violated the law in deciding the result of the harms-benefits balance. Borough of St. Clair, 2014 EHB at 96 (citing Exeter Citizens Action Comm., Inc. v. DEP, 2005 EHB 306, 328). We have also noted that 25 Pa. Code § 271.127(c) does not require that a landfill cause no harm. Id.
For social and economic harms, the Department evaluated the Tri-County landfill's visual and aesthetic impacts and its impact on property values. (Jt. Ex. 1, Envtl. Assess.) The Department considered the social and economic benefits of local employment, tax revenue, various state and municipal fees, and Tri-County's purchase of goods and services from local businesses. The Department evaluated the following environmental harms: odors, dust, and air quality impacts; noise; litter; vectors (e.g. rodents, wild animals, and mosquitos); truck traffic; loss of wetlands; stormwater runoff; and aircraft safety due to the propensity of landfills to attract birds. The Department found the following environmental benefits of the landfill: relocation of the waste disposed of at the landfill between 1950 and 1990 onto a lined area; creation of additional acres of wetlands; and a free disposal and spring cleanup program for the local community. The Department concluded that the benefits of the proposed project clearly outweighed the known and potential harms. Although the Department found that some harms would remain after mitigation, such as noise, litter, and traffic, it determined that they would be minimal and potentially occur only on an infrequent basis. (T. 1961.) The Department determined that the harms from the Tri-County landfill were pretty typical of the harms that would result from any landfill, with the relocation of the historic waste being a more novel benefit. (T. 1983.)
The Appellants contend that the Department erred in its harms-benefits analysis. They primarily focus on aircraft safety, which is unquestionably the most significant substantive issue in this appeal, arguing that the landfill should not be reopened when it is in such close proximity to the Grove City Airport because the risk of a bird strike is too great. They also contest the relocation of the existing waste on the site as an environmental benefit and instead claim it is really a harm because they say it will exacerbate existing groundwater contamination at the site. The Appellants have not shown by a preponderance of the evidence that the Department acted unreasonably or violated the law with respect to any of the harms or benefits associated with the Tri-County landfill.
The Appellants do not provide any meaningful argument in their briefs with respect to visual impacts, property values, odors, dust, air quality, litter, vectors, or stormwater runoff. Nor did these topics receive much attention during the 12-day merits hearing. To the extent the Appellants have preserved any arguments with respect to these issues in the harms-benefits analysis, the Appellants have not produced evidence necessary to meet their burden of proof that the Department acted unreasonably or violated the law in deciding the result of the harms-benefits analysis or that the permit modification issuance was unreasonable or unlawful because of these harms. We find that the Department properly accounted for these harms in its analysis.
A. Birds
The Appellants contend that the Department erred by permitting the landfill modification within 10,000 feet of the Grove City Airport. They say the landfill will present a significant hazard to public safety because it will attract birds. They believe the large number of birds in the vicinity of the airport will create an unacceptable risk of collisions between aircraft using the airport and those birds, i.e. bird strikes. In their view, given the landfill's proximity to the airport, there is nothing Tri-County could possibly do to mitigate this risk. Therefore, the permit must be rescinded according to the Appellants.
As with every aspect of the case, we review the Department's decision to issue the permit modification in spite of the bird issue to assess whether the decision was consistent with the law, supported by the facts, and constituted an otherwise reasonable exercise of the Department's discretion.
The Department's issuance of the permit modification was consistent with the law. The Appellants' primary argument that the permit issuance was not consistent with the law is that the landfill violates the exclusionary criterion set forth in the regulations at 25 Pa. Code § 273.202(a)(15) prohibiting a landfill within 10,000 feet of an airport runway. As discussed in detail above, the currently permitted area of the landfill is "an area that was permitted prior to January 25, 1997." Therefore, the exclusionary criterion related to airports set forth in 25 Pa. Code § 273.202(a)(15) does not apply. The Department was not precluded from permitting the modification of the Tri-County landfill by Section 273.202(a)(15).
The Appellants also briefly argue that the landfill is prohibited under the exclusionary criteria for residual waste landfills. See e.g., 25 Pa. Code §§ 288.422, 288.522, 288.622. However, the Tri-County landfill is a municipal waste landfill, not a residual waste landfill. 25 Pa. Code §§ 287.1, 288.1. Therefore, 25 Pa. Code §§ 288.422, 288.522, and 288.622 do not apply.
Aside from the regulation at 25 Pa Code § 273.202, the regulation at 25 Pa. Code § 273.136 requires a permit applicant to submit a nuisance minimization and control plan, but that regulation does not mention bird control. Tri-County's submission of its bird control plan certainly satisfied the requirement that a nuisance control plan be submitted with respect to birds, to the extent the regulation may be said to deal with bird control. The Appellants have not suggested otherwise. The regulation at 25 Pa. Code § 273.121 requires the permit applicant for any landfill within six miles of an airport runway to give notice of its application to PennDOT's Bureau of Aviation, the Federal Aviation Administration, and the airport, which Tri-County did.
The Department and Tri-County have at times referenced the federal regulation set forth at 40 CFR 258.10(a) relating to the permitting of landfills near airports. That regulation reads as follows:
Owners or operators of new MSWLF [municipal solid waste landfill] units, existing MSWLF units, and lateral expansions that are located within 10,000 feet (3,048 meters) of any airport runway end used by turbojet aircraft or within 5,000 feet (1,524 meters) of any airport runway end used by only piston-type aircraft must demonstrate that the units are designed and operated so that the MSWLF unit does not pose a bird hazard to aircraft.40 CFR 258.10(a). However, that regulation does not apply here because Pennsylvania has obtained primacy over the regulation of municipal waste landfills. See 35 P.S. §§ 6018.101 - 6018.1003. See also Novak v. DER, 1987 EHB 680, 705.
In the absence of any other regulation on point, the Department was left to evaluate the bird-strike issue in the context of the environmental assessment required under 25 Pa. Code §§ 271.126 and 271.127. If a harm is not fully mitigated, the Department must weigh the harm against the benefits of the project. 25 Pa. Code § 271.127(c). However, balancing never came into play with respect to the bird issue in this case because the Department determined that the bird-strike hazard had been fully mitigated.
Of course, the Department must also ensure that its action comports with Article I Section 27 of the Pennsylvania Constitution, Pa. Const. art. 1, § 27. That issue is discussed infra.
There is no dispute that the increased potential for bird/aircraft collisions around a landfill is a known and potential adverse impact and environmental harm of the facility. Jefferson Cnty. Comm'rs v. DEP and Leatherwood, Inc. ("Leatherwood"), 2002 EHB 132, 183. As a result, Tri-County was required to submit a plan on how it would mitigate those effects. The bird control plan is the mitigation plan in this context. Thus, the key issue in this case is whether Tri-County's bird control plan will "adequately protect the environment and the public health, safety and welfare." 25 Pa. Code § 271.127(b). We must decide whether Tri-County's implementation of its mitigation plan may be counted on to prevent an increase in the likelihood of bird strikes that would have otherwise obtained if Tri-County did not have its plan.
To the extent the Department referred to the federal standard set forth in 40 CFR 258.10(a) as nonbinding guidance, we detect no material differences between saying the public safety has been "adequately protected" under 25 Pa. Code § 271.127(b) and the standard in 40 CFR 258.10(a), which says that a municipal solid waste facility may be permitted in proximity to certain airports if the facility "does not pose a bird hazard to aircraft." Id. A "bird hazard" is "an increase in the likelihood of bird/aircraft collisions that may cause damage to the aircraft or injury to occupants." 40 CFR 258.10(d)(2).
Birds are, of course, everywhere. Birds are present at and near the airport now and will continue to be around after the landfill begins operations. (T. 421-25, 440, 463-66, 468, 474-79, 510, 989-90.) There is a pre-existing, i.e. baseline, risk of bird/aircraft collisions. Unfortunately, there will always be a risk of bird/aircraft collisions. A landfill cannot be expected to eliminate all risk of bird strikes. However, it can and must be expected not to elevate that risk above the point where the public safety is no longer adequately protected as a result of the presence of the landfill. The Department has reasonably interpreted this to mean that the number and character of birds present must not be materially increased or changed above background or baseline levels, i.e. the number and character of birds present before landfill operations. These are the standards and principles that the Department applied, and it committed no error of law in doing so. The key criterion for assessing risk is not whether there are any birds around, but whether the landfill has increased the risk beyond that which is adequately protective of public safety by drawing more and/or different birds into the area. The Department correctly evaluated Tri-County's bird control plan with this standard in mind.
The Appellants have raised a few other concerns regarding the Department's legal analysis. The Appellants maintained earlier in the proceeding that the Department committed an error of law by permitting the landfill modification due to Section 503 of the Wendell H. Ford Aviation Investment and Reform Act, 49 U.S.C. § 44718(d). It is not clear that they have maintained this argument in their post-hearing brief. (See App. Brief at 117.) All issues previously raised in an appeal but not included in the post-hearing brief are waived. 25 Pa. Code § 1021.131(c); Morrison, 2021 EHB at 221 (citing Benner Twp., 2019 EHB at 635; New Hope Crushed Stone & Lime Co. v. DEP, 2017 EHB 1005, 1021). To the extent the issue has not been waived, the Department committed no error in this regard. The Ford Act limits the construction of landfills within six miles of airports that, among other things, have "regularly scheduled flights of aircraft designed for 60 passengers or less." 49 U.S.C. § 44718(d)(1). The Grove City Airport does not have regularly scheduled flights. (T. 452-53.) The Ford Act also does not apply unless the airport is the recipient of certain federal grants. 49 U.S.C. § 44718(d)(1). The record does not support a finding that the Grove City Airport has received any such grants. Finally, the Act only applies to landfills established after 2000. 49 U.S.C. § 44718(d)(1) and (d)(2). The Tri-County landfill was established well before then.
In maintaining that the Department committed errors of law, the Appellants have drawn our attention to the participation of the Federal Aviation Administration (FAA) in the review of Tri-County's permit application. The Appellants argue that the permit modification is not consistent with various requirements and communications originating from the FAA throughout its lengthy involvement. Tri-County and the Department respond that they have worked hand in hand with the FAA throughout the entire process, and in the final analysis, FAA approved of the reopening of the landfill.
The FAA has indeed been extensively involved in the review of Tri-County's permit application for roughly the last twenty years, starting in at least 2004. A few general observations are in order before we turn to the details. First, no one from the FAA testified. Virtually everything that we have in the record regarding the FAA is hearsay. Some of it was admissible, but it was still hearsay, entered into the record without the benefit of declarant testimony. We weigh the evidence accordingly. We largely discount any testimony regarding what FAA employees may have said orally, except to note that there is no evidence that any FAA employee has ever objected to reopening the landfill. Second, we are here focused on the FAA's input regarding bird control. There can be no dispute that the FAA's earlier concerns regarding the height of the landfill have been satisfactorily resolved. (Jt. Ex. 2, Vol. 2 (at DEP001442-44).) Third, the FAA's limited role must be kept in perspective. The FAA's Advisory Circulars, for example, relied upon so heavily by the Appellants, are nonbinding guidance documents that seek voluntary compliance with the recommendations contained therein. (T. 783, 788, 1020, 1857; App. Ex. 66.) The circulars in large part do not by their own terms apply to landfills. (T. 698-700, 816.) Similarly, the FAA's various letters in this case merely contained recommendations, not requirements. Although it might have been unreasonable or ill-advised not to follow the FAA's recommendations, the Department was not legally required to defer to that federal agency with respect to the bird-strike concern. To the contrary, it was required to conduct its own analysis and reach its own independent conclusions. Having said that, the Department is to be commended for consulting closely with the FAA throughout the permit review process. It is difficult to imagine that either the Department or this Board would have issued or upheld the permit had the FAA objected to it, even though those objections would have been nonbinding. As it happens, it has not. No FAA witness testified against the landfill. Although the FAA's letters and emails are something less than a model of perfect clarity and consistency, in the final analysis, they contain no objection to the landfill reopening. They contain various recommendations, but critically, no objections to reopening.
PennDOT's Bureau of Aviation has been informed of the landfill reopening and it has offered no comments or objections. (T. 1654-55; TC Ex. 116 (at PDF pg. 17).)
In letters in 2004 and 2005, the FAA asked that certain conditions be followed, noted that one had already been followed, and concluded, subject to those conditions, that the FAA had no objection to the landfill reopening. In a lengthy series of communications in 2019 and 2020, the FAA again determined that no hazard existed and expressed no objection to the landfill reopening. Our review shows that all of the FAA's conditions expressed in its various letters have been addressed satisfactorily and/or must be addressed going forward pursuant to the conditions of the permit.
The Appellants say the 2004 and 2005 communications are stale and should not be relied upon. This criticism is not well taken given all of the subsequent communications from the FAA through 2021 expressing no objection to the project.
The Appellants point to a letter dated July 1, 2022, (App. Ex. 55), which was sent about one and one-half years after the permit was issued, by an FAA employee not previously involved in the project. The Appellants argue that the FAA's 2022 letter throws the previously issued permit into question. The Appellants' argument is not exactly clear from an administrative law perspective. They seem to argue that the Department erred by not unilaterally rescinding the permit when it received the letter, but it is not clear that the Board in this appeal could review the Department's nonaction regarding the status of the permit modification in response to the letter. Glahn v. Dep't of Envtl. Prot., 298 A.3d 455 (Pa. Cmwlth. 2023) (Board has no jurisdiction over Departmental inaction). If the Appellants are arguing that this Board should exercise its de novo review and either modify the permit or remand the permit on our own based on the letter, the argument has no merit.
The letter in question inquired as to the status of landfill construction. The letter at its heart merely seeks an update given that the permit has been issued and the FAA had not heard anything. It makes no attempt to withdraw the FAA's prior determinations. There is nothing to suggest the FAA's earlier positive communications are no longer valid. The letter does not express any objection to the landfill reopening. Its recommendations either have been followed or will be followed in short order. There are no material inconsistencies between the letter's recommendations and the permit.
The letter did not object to the landfill's construction but it included certain recommendations going forward. For example, the Appellants point to a recommendation in the letter that a "qualified airport wildlife biologist" should prepare a 12-month wildlife assessment. This recommendation, aside from being nonbinding, evinces no understanding of all of the previous work at the site. It actually contradicts the FAA's earlier letters finding that such studies by qualified persons had already been performed and were acceptable. (Jt. Ex. 2, Vol. 2 (at DEP001442-44).) The Appellants' bird strike expert acknowledged that what is important is that the work be performed by a biologist with experience and training on bird strikes, (T. 918-20), and there can be no question that Tri-County's bird strike expert, Rolph Davis, Ph.D., qualifies as such a biologist. As it happens, birds in the area have already been studied ad nauseum by highly trained experts. Another study would add no value. Birds will be studied again extensively once landfilling begins to ensure compliance.
The Department responded to the ex post facto letter with an explanation of prior activity, including the fact that the Department had already added permit conditions to address the FAA's comments. (DEP Ex. 28.) The Department invited the FAA employee to respond with any additional questions, which he never did. To repeat, the bottom line is that the FAA has never expressed any objection to reopening the landfill.
Having concluded that the Department committed no errors of law, we now must decide whether the Department's issuance of the permit notification in light of the bird issue was supported by the facts and was otherwise reasonable. The Department determined that implementation of Tri-County's mitigation plan (i.e. bird control plan) would fully mitigate the risk of increased bird strikes, such that the public safety would be adequately protected, because there would in fact be no increase in the risk of bird strikes as a result of the landfill. This determination is fully supported by the facts and was otherwise reasonable.
Somewhat remarkably, the Appellants did not present any testimony on the critical point of the effectiveness of Tri-County's bird control plan. They first presented the testimony of pilots who have flown into and out of the airport, including Michael Baun, who owns and operates Grove City Aviation, which manages the airport. The pilots understandably have a generalized concern regarding bird strikes, but they do not have any particular knowledge or expertise regarding the association between landfills and bird strikes. The pilots did not and indeed could not opine as experts regarding the effectiveness of Tri-County's bird control plan. They could not contribute in a meaningful way to our assessment of whether Tri-County's bird control measures will be adequately protective of the public safety. Indeed, they may not even have been aware of its existence. (T. 470-72.)
The Appellants presented the testimony of Russell DeFusco, Ph.D., a well-qualified, (T. 632-71; App. Ex. 46), expert on bird strikes. However, Dr. DeFusco did not take any position on Tri-County's bird control plan. In fact, he did not bother to review it, or most of the studies that led up to its preparation. (T. 745, 774, 801.) He simply did not care what the bird control plan said because, in his view, it does not matter what it says: the fact that the landfill is as close as it is to the airport and directly on one of the flight paths to the airport, in and of itself, creates too great of a risk to public safety to allow the landfill to be permitted. The risk cannot under any circumstances be adequately mitigated in his view. His opinion is the Tri-County landfill should not be permitted regardless of any mitigation plans, for the sole reason that it is too close to the airport, full stop.
To the extent Dr. DeFusco is attempting to offer a legal opinion, we, of course, do not recognize such opinions. It would be error to do so. Rhodes v. DEP, 2009 EHB 237. See also Nat'l Fuel Gas Midstream Corp. v. DEP, 2015 EHB 276. For example, Dr. DeFusco's opinions impermissibly extended into such matters as the legal interpretation of whether the exclusionary criterion in 25 Pa. Code § 273.202(a)(15) applied to the landfill. (T. 800.) Aside from being an impermissible legal opinion, we have no indication that Dr. DeFusco has any understanding whatsoever regarding the complex history of the landfill's permitting process.
As to Dr. DeFusco's opinion that the bird strike risk posed by the landfill cannot possibly or under any imaginable circumstances be adequately mitigated regardless of the specifics of the plan, we do not credit his opinion for several reasons. First, the fact that the regulations on their face allow for the possibility of permitting a landfill within 10,000 feet of an airport cannot be ignored. Dr. DeFusco is essentially trying to rewrite the regulation by eliminating the exception for landfills permitted before the regulation was promulgated (January 25, 1997). This he may not do.
Second, Dr. DeFusco's absolute position on direct did not hold up well upon cross-examination. Indeed, he at one point conceded that it is at least possible to permit a landfill with the bird strike risk at an acceptable level within 10,000 feet of an airport. (T. 766.)
Dr. DeFusco has taken a less than absolute position in the past. Although each situation is unique, he did author a paper entitled "The Successful Case Study Bird Control Program of Waste Management Outer Loop Recycling and Disposal Facility, Louisville KY." (T. 769-70.) He stated in that report:
By implementing a comprehensive state-of-the-art bird control program with a detailed program of measuring, WMK, Waste Management of Kentucky, has demonstrated that the two land uses are not necessarily incompatible. The results of the first two years of the program show that by employing various passive and
active bird management and control techniques, OLDRF, Outer Loop Disposal and Recycling Facility, bird activity is being maintained at or below background levels.(T. 770-71.) Third, Dr. DeFusco relied heavily on FAA letters and guidance documents, yet he conceded that the FAA has no authority to restrict the landfill based on bird-strike related issues, and in any event, the FAA has repeatedly stated that it has no objection to the reopening of the landfill if its conditions are followed, which they have been.
Finally, we credit the contrary opinion of Tri-County's well qualified expert on bird strikes, Dr. Davis. Dr. Davis credibly opined that the bird strike hazard can be successfully mitigated to the point that the public safety is adequately protected; full mitigation can be achieved with implementation of the bird control plan. As proof, Dr. Davis described the bird control plan that is being implemented successfully at the Atlantic County Utilities Authority (ACUA) landfill, which is less than 10,000 feet from the Atlantic City International Airport. Extensive monitoring conducted over many years has shown that the bird control plan has kept the average number of birds at the landfill to background levels. There is no record support for the proposition that the landfill has contributed to bird strikes at the airport. The ACUA bird control plan is essentially identical to the plan approved by the Department for use at the Tri-County landfill. The most salient feature of both plans is the limitation on the disposal of putrescible waste during daylight hours. We credit Dr. Davis's opinion that the success of ACUA plan shows that Tri-County's substantially similar plan will be successful as well.
Dr. DeFusco testified that the ACUA landfill is a "very different situation" than the Tri-County landfill, but that testimony was based in part on his mistaken belief that the ACUA landfill was more than four miles away from the airport. He conceded his mistake on cross-examination. (T. 751, 771, 806.) Dr. DeFusco did not otherwise convince us that ACUA's experience is not probative here. He testified that the ACUA landfill is not under the main flight path to the airport, which is true, but that relates to the danger posed by birds already loitering at the landfill and has nothing to do with how many birds will be attracted to and remain at the landfill in the first place. He testified that the ACUA needs to deal with many more birds and different gull species than Tri-County, but that actually strengthens Tri-County's case that, if it works at Atlantic City, it will work at Tri-County where there are lower resident bird populations and less aggressive gulls. (T. 958.) The Grove City Airport is much less active than the Atlantic City Airport, but again, this fact weighs in favor of Tri-County's position, not against it when it comes to minimizing the threat of bird strikes. Where Dr. Davis relied on empirical studies, Dr. DeFusco conjectured without any support that there is "no doubt" that "some" of the strikes that have occurred at the Atlantic City airport were with birds that were directed to the landfill. Notwithstanding Dr. DeFusco's testimony, we accept the ACUA experience as persuasive evidence that the implementation of Tri-County's bird control plan in full accordance with its terms will keep the birds at bay.
Given Dr. DeFusco's categorical opinion that Tri-County's bird control plan is irrelevant, and because he believes that no plan could possibly be acceptable, an opinion which we do not credit, we are left with the uncontradicted, credible opinion of Dr. Davis that the bird control plan that he designed for Tri-County will result in a landfill that will not pose a bird hazard to aircraft. As described in the Findings of Fact, the bird control plan contains numerous components to ensure that the landfill will not result in an increase in the bird hazard above background. The most important component is limiting landfilling of putrescible waste to nighttime hours. The birds of concern in the area of the Tri-County landfill do not tend to feed at night, a fact upon which Dr. DeFusco agreed. (T. 792, 885, 960.) Other components include having trained bird controllers on site, multiple daily surveys and long-term monitoring to ensure compliance, continuous daytime operations, and pyrotechnics as necessary. To repeat, none of the Appellants' witnesses offered any criticisms of the details of this plan or offered suggestions on how it could be improved or exactly why it could not be counted on to work.
If Tri-County's bird control plan were deemed to be insufficient, then it is unlikely that any bird control plan could ever be deemed to be sufficient at any landfill anywhere because Tri-County's bird control plan appears to include virtually everything that possibly can be done at the landfill to mitigate the bird hazard to aircraft. (T. 987-91.) It is fairly characterized as state of the art.
Despite the lack of expert support for their positions, the Appellants have lodged several criticisms of Tri-County's plan and the Department's review thereof in their post-hearing brief. Although the Appellants' lack of expert testimony on this key point is fatal to their position, see Snyder Twp. Residents for Adequate Water Supplies v. DER, 1988 EHB 1202, 1216 (where mitigation is approved, "expert testimony is required to show that it is inadequate"), we will nevertheless address these criticisms. First, they attempted to impeach Dr. Davis by pointing out that he was previously retained by the Department in connection with an earlier version of Tri-County's permit application. (Stip. 43.) Dr. Davis was apparently critical of an earlier bird control plan prepared by another firm, although his report on that earlier plan was not admitted into evidence. (T. 889.) Importantly, Dr. Davis did not opine at that time that it was impossible to mitigate the hazard potential. He instead was dissatisfied with the proposed plan, and the studies that led up to the plan. Based on his concerns, the Department denied Tri-County's application, citing the lack of an adequate bird control plan. (Stip. 24; T. 1751-53, 1789.) Much litigation ensued. Tri-County then hired Dr. Davis to prepare an adequate bird control plan. (T. 891.) In 2004, Tri-County submitted a revised application based on a lot more study with a better bird control plan with the key feature being nighttime disposal of putrescible waste. (T. 937-39, 1790-91.) The Department was still not satisfied that the plan was good enough and again denied the application in 2006. (T. 1754.) The Department added that it did not think Tri-County could be trusted to implement the plan given the compliance history of the two related companies, Seneca Landfill, Inc. and Vogel Disposal Service, Inc. (Stip. 28.) More litigation ensued. During the time that litigation was progressing, Tri-County provided still further information to the Department in support of its plan. (T. 1755.) The Department was at last satisfied and concluded that the plan was adequate. (T. 1756.) More permit review and litigation followed, and the Department again denied the application in 2013, however, this time not because of the bird strike issue. (Stip. 29; T. 1759.)
The about-faces of Dr. Davis and the Department would have been enough to give us pause if it were not for the extensive additional study and multiple improvements in the bird control plan over time. Agreeing to dispose of putrescible waste only at night, especially in the summer when there is such a limited window of darkness, was obviously an important improvement. In addition, Tri-County corrected earlier shortcomings, such as only surveying a 15-mile area, not surveying large nearby lakes, and relying too heavily on pyrotechnics. This is not a case where the same plan was suddenly and inexplicably deemed to be acceptable. It is also not a case where multiple problems with the application suddenly disappeared at the same time. The bird control issue was actually resolved back in 2008, while other concerns remained. (T. 1755-59.) The change in position of the Department and Dr. Davis has been sufficiently explained. Dr. Davis's opinion from the start that the bird control plan will require constant vigilance and close attention to detail is undisputed and has never changed. Indeed, Tri-County's ability to continue operations in the future depends on it.
The Appellants next charge that the bird control plan is based on inadequate study. This criticism lacks merit. To the extent Dr. DeFusco made this charge, it did not help his credibility because he conceded he did not read most of Dr. Davis's studies. (T. 745, 772-74, 801.) In truth, no amount of study could have satisfied him. He also did no study of his own beyond a brief site view. (T. 780.) Again, this is not surprising given his position that no mitigation is possible. Given his view, studies were, therefore, essentially useless. This does not strike us as a particularly viable scientific opinion.
In truth, birds in the area have been studied ad nauseum. Dr. Davis visited the area 78 times. (T. 903.) The studies went out a considerable distance and included active nearby landfills, which seems particularly important because studying the currently empty fields at the Tri-County site can only provide so much value in predicting events after active waste disposal begins. The studies showed that the data and conclusions were repeatable. We credit Dr. Davis's opinion that no further study preliminary to the landfill opening is necessary or warranted. As just stated, the bird control plan is state of the art, so further study could not possibly add anything for the simple reason that there is nothing else of any substance that could be added.
Tri-County does not plan to have a full-time bird controller on the site on Sundays, when it is closed and the waste is covered. This may need to change but we have no basis for imposing such a condition now.
The Appellants direct our attention to the Carbon Limestone Landfill in Poland, Ohio, which was one of the landfills included in Dr. Davis's studies. The studies showed that the landfill attracted large numbers of birds. However, putting aside that Dr. Davis conducted studies much closer to Tri-County Landfill, the Carbon Limestone Landfill findings merely stand for the proposition that, absent controls, birds are likely to be attracted to a landfill. This point has not been disputed. We accept that the landfill would present a material risk absent mitigation. Pinpointing the number of birds that hypothetically would be attracted to the landfill after operations begin in the absence of a bird control plan strikes us as an academic exercise that serves no purpose. It does not help establish background bird conditions at the Tri-County site. As we have already said, the issue in this case is not whether birds would be attracted absent control, it is whether that known and potential nuisance/harm has been fully mitigated. If we had evidence that the Carbon Landfill had large numbers of birds on site despite implementing a bird control plan like Tri-County's, that would have been of interest, but the Carbon Landfill had no bird controls such as nighttime disposal, (T. 949-50), so it really tells us little about the key issue in this case.
Along the same lines, the Appellants criticize Dr. Davis's studies for using smaller landfills than the Tri-County landfill as a basis for comparison. However, the only other landfill brought to our attention that utilizes nighttime disposal is the Atlantic City Landfill. To repeat, there is no dispute that landfills, regardless of their size, tend to attract birds. Any number of birds above background is worthy of concern. The Appellants' contention that this landfill or that landfill attracts more or less birds given all the possible variables between landfills and airports is not particularly helpful. For example, without further explanation, we see little value in comparing one of the world's busiest airports, the Atlanta International Airport, with the Grove City Airport, as the Appellants do.
The Appellants, yet again without expert support, accuse Dr. Davis generally of skewing his studies of other landfills if the data did not fit Tri-County's narrative regarding the risk posed by the Tri-County landfill. We are not sure how many times one needs to study a landfill to know it attracts a lot of birds, but in any event, we hardly have the impression that Tri-County or the Department discounted the risk posed by the landfill during the permitting process. To the contrary, Tri-County and the Department have devoted a rather enormous level of work and attention to addressing this serious risk. Neither Tri-County nor the Department has maintained that this work and attention was not necessary because of a lack of risk or potential harm. Tri-County has acknowledged the risk and worked, admittedly at the Department's insistence, to do everything possible to fully mitigate it. To the extent Tri-County has attempted to minimize the risk in its arguments before the Board (e.g. Grove City Airport is a small airport, bird strikes are very rare, bird strikes causing fatalities are more rare still, etc.), we have paid those attempts no heed. Indeed, like the Department, we have taken the risk of bird strikes very seriously in adjudicating this appeal. This landfill, given its location, would have posed too great a risk absent the bird control plan. Implicit in the permit conditions is a determination that the landfill will be unable to continue operating if the bird control plan proves to be unsuccessful. (See, e.g. Operating Condition 30.) The Department was well advised to include such conditions in the permit.
The Appellants complain that there has been insufficient study of the landfill site itself under active operating conditions. In other words, the landfill should not be permitted to operate without a bird study under active landfilling conditions, but such a study cannot be conducted unless a permit is issued. Obviously, the Department's actions cannot be based on such a Catch 22. Dr. DeFusco conceded that complying with such a requirement would be impossible. (T. 803.) Most environmental permits are necessarily based upon predictions of what will occur before the project starts. Here, Tri-County did the next best thing by studying bird behavior at nearby active landfills using similar bird control plans, and other landfills as well.
The Appellants complain that daytime relocation of the old trash will attract birds, but the only expert opinion we have on the record is that it will not. Dr. Davis's opinion is supported by the testimony that such old waste does not serve as a good food source for birds. (T. 838, 1003-04, 1443-44, 1847-48.)
The Appellants say Tri-County has not adequately accounted for other wildlife besides birds, but we have no indication on the record that the landfill will increase the presence of any such wildlife or elevate any hypothetical dangers associated with any such wildlife above background. The Appellants do not explain why the presence of, e.g., deer, beavers, or other animals more than a mile away from the airport deserve further study. Even Dr. DeFusco testified that he is not concerned about wildlife on the ground, only wildlife in the air. (T. 715-16.)
The Appellants say features of the landfill other than the disposal of waste will attract birds, the point presumably being that even the measures Tri-County is taking with respect to actual waste disposal (e.g. nighttime disposal, daily cover, etc.) are not enough to mitigate the risk. For example, they point to stormwater controls on the site that may have standing water, which they say will attract waterfowl. (Tri-County makes a similar point when it argues that the airport itself is also a bird attractant.)
Many thousands of sites throughout the Commonwealth have stormwater controls or other features that might attract birds. We are not aware of any regulatory requirement regarding bird controls for such features on projects near airports. Putting aside the fact that it is the actual waste disposal at a landfill that justifies the demanding harms-benefits analysis mandated in 25 Pa. Code §§ 271.126 and 271.127, not the risk that birds might be attracted to standing water in a sedimentation basin, we conclude based on the expert testimony that Tri-County's bird control plan is designed to and will, if fully implemented, adequately mitigate any incremental risk associated with the features on the site that may attract birds other than the actual disposal areas. (Jt. Ex. 2, Vol. 6 (at DEP006883).)
The Appellants say that Tri-County cannot be trusted to implement the bird control plan. For the reasons discussed in connection with the Appellant's criticism of Tri-County's compliance history infra, the record does not support this concern. Aside from its general improvement in compliance, after twenty years of trying to obtain a permit modification, much of which was spent addressing the bird issue, Tri-County must surely understand just how high the stakes are for ensuring that the bird control plan is fully implemented. Constant monitoring, reporting, and oversight by the regulators as well as a specially formed oversight committee, which includes representatives of the airport, will help ensure full compliance.
The Appellants criticize the Department for deferring the requirement to pick an actual number of individuals of a bird species that are to be allowed within the permit boundary, presumably before Tri-County brings pyrotechnics to bear, and to serve as a basis for deciding whether background has been exceeded and to help assess whether the bird control plan is being implemented successfully. As with most of their other criticisms, the Appellants offer no expert support for the criticism.
This requirement originated with the FAA, which suggested 40. Although neither Tri-County nor the Department questioned the value of some trigger levels, Dr. Davis cautioned against an overly simplistic approach of picking arbitrary numbers as the sole measure of success. For example, we credit Dr. Davis's statement that the FAA's suggestion of 40 birds would not be appropriately protective if it applied to turkey vultures. (T. 491.) More generally, having up to 40 birds on site is not consistent with Dr. Davis's assurances that no birds will be allowed to linger. We see some merit in not having included some arbitrary number of birds in the permit.
Nevertheless, the Appellants argue based on Leatherwood, supra, that the permit should be rescinded, remanded, or modified by us because actual numbers were not assigned for, e.g., the number of vultures allowed on site, before permit issuance and incorporated into the permit. However, in Leatherwood, an entire bird control plan supported by adequate studies was missing. Unlike Leatherwood, Tri-County performed an intensive and complete site-specific assessment of the landfill, the Grove City Airport, three other operating landfills including Seneca Landfill, and other uses in a 35-40 mile radius of Tri-County to quantify the bird hazard and address whether operating the landfill would "increase the risk of occurrence of a bird/aircraft strike over existing conditions." Leatherwood, 2002 EHB at 184. Unlike the situation in Leatherwood, the Tri-County environmental assessment identified and assessed the bird hazard, including a review of the landfill site, the airport, and a 30-mile radius of birds and gull roosts. Unlike Leatherwood, where the FAA and PennDOT Bureau of Aviation opposed permitting the landfill, here, the FAA reviewed the operation and the bird control plan repeatedly and stated no objection to Tri-County operating as long as the bird control plan is implemented, and PennDOT has also expressed no objection. Unlike Leatherwood, here, the parties were able to point to another landfill (Atlantic City) as support for the finding that the bird control plan would work. Here, the relatively minor detail of picking actual bird numbers is all that is missing. The overall validity of the bird studies and the bird control plan are not materially impacted by the absence of trigger levels and evaluation criteria.
To the extent we assume arguendo the Department erred by not including actual bird numbers, the error is harmless. Trigger levels will be established in short order anyway, so a remand would serve no practical purpose. Transparency will be maintained given the active role to be played by the oversight committee provided for in the permit, together with Permit Operating Condition 30, which requires constant reassessment of whether the bird control plan is working the way it is supposed to be working. The plan describing the maximum number of birds allowed at the landfill must be approved before disposal operations begin. (T. 994-96.)
In conclusion, to say that the Department has insisted on rigorous study and strict mitigation of the bird strike hazard would be an understatement. The extreme care it has taken was entirely justified given the public safety concerns involved. We reject Dr. DeFusco's view that none of this matters. The Department's decision to issue the permit because the bird hazard will be fully mitigated is consistent with the law, supported by the facts, and otherwise reasonable.
B. Relocation of the Existing Waste
Waste was disposed at the landfill on an unlined area between 1950 and 1990. (Jt. Ex. 2, Vol. 6 (at DEP006773).) There was some testimony that waste was deposited into old strip mine cuts, (T. 321-23, 1130; see also Jt. Ex. 2, Vol. 1 (at DEP000240)), and the application for Tri-County's 1985 permit identifies that the facility is located in a coal mine, (TC Ex. 3 (at DEP012481)). Although no hydrogeologist testified in this case, and we have no expert opinions on which to rely as a result, the parties seem to agree that the existing waste may be in communication with the groundwater underneath it, and that leachate may seep into the groundwater from that waste. The permit requires Tri-County to relocate the existing waste, consisting of approximately 1.5 million cubic yards, to newly constructed lined cells within the 10-year permit term in accordance with the waste relocation plan contained in Tri-County's permit application. (Jt. Ex. 1, Permit (at 12), Jt. Ex. 2, Vol. 6 (at DEP006773-83).) Generally, Tri-County's waste relocation plan proposes to excavate the existing waste, segregate any suspicious or special handling waste, remove and sample any leachate-impacted soils, and then deposit the waste onto the same newly constructed, double-lined landfill cells that will be used for the new waste to be accepted at the landfill. (Jt. Ex. 2, Vol. 6 (at DEP006770-83).) Unlike the night-landfilling of new waste, the existing waste can be relocated at any time of the day or night. (T. 1847.)
The Department considered the relocation of the existing waste to be a benefit of the project in its harms-benefits analysis. The Department believes that the existing waste will continue to generate leachate as long as the waste remains in its current location. (T. 2017.) The Department reasoned that removing the existing waste and relocating it to lined cells would eliminate the potential for any groundwater contamination from the existing waste. (T. 1768-69, 1771, 1934-35; Jt. Ex. 1, Envtl. Assess. (at 13).) The Department viewed the waste relocation as a long-term benefit in the sense that the relocation of the waste will be a positive impact even after operations at the landfill have ended. (T. 1983, 2003-04.)
The Appellants argue that the relocation of the existing waste is not a benefit, but rather it is a potential environmental harm. The Appellants speculate that the existing waste is polluting the groundwater in the area and it poses a risk to human health and the environment and that relocating the waste might worsen any existing groundwater contamination. They assert that the permit allows Tri-County to relocate the waste without fully testing it to see what is really in it. The Appellants say that, without knowing what is in the waste, no one can determine whether the waste is appropriate to remove and whether it is compatible with the landfill liner system. The Appellants also contend that Tri-County's soil testing protocol is too limited because Tri-County will only test the soils underneath the existing waste for five parameters.
The Appellants did not have any expert witness testify in support of these allegations. They had no expert in hydrogeology or landfill design and engineering testify on their behalf. The Appellants have not put forth any credible evidence that it would be better to leave the waste in place or that some other, undefined remediation effort would be better for the environment than removing the waste. "Parties who do not put on expert testimony usually have a difficult time meeting their burden of proof in an appeal such as this one involving technical issues. Cases before the Board often involve complex, technical, and scientific issues that hinge on expert evidence." Brockway Borough Mun. Auth., 2015 EHB at 238. See also Brockway Borough Mun. Auth. v. Dep't of Envtl. Prot., 131 A.3d 578, 587 (Pa. Cmwlth. 2016) ("Expert testimony is required where the issues require scientific or specialized knowledge or experience to understand." (citing Dep't of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 828-29 (Pa. Cmwlth. 2010))). Although an appellant proceeding without expert testimony can make out its case through cross-examination, assertions of untoward harm in highly technical areas without appropriate expert support often amount to little more than conjecture. Brockway Borough Mun. Auth., 2015 EHB at 239. See also Marshall, 2020 EHB at 83 ("Although expert testimony is not a necessary requirement to prosecute an appeal before the Board, it is often an uphill battle to proceed without one." (citing Morrison v. DEP, 2016 EHB 717, 722-23; Casey v. DEP, 2014 EHB 439, 453)).
Although no hydrogeologist testified for any party in this case, even if we assume that the existing waste is in communication with groundwater, all of the credible evidence adduced at the hearing suggests that excavating the existing waste and transferring it to a new, lined disposal area is the best way to ensure that the waste does not present a problem in terms of any potential groundwater contamination, which is precisely what Tri-County proposes to do. Rick Buffalini, P.E., is an expert who designs landfills and landfill liner systems. He reviewed Tri-County's proposed plans for relocating the waste and testified on behalf of Tri-County. He has worked on several projects involving relocating waste from an unlined area to a lined area. (T. 1704-05.) Buffalini credibly testified that excavation and relocation of the existing waste to a lined area is the "gold standard" for remediation of an unlined landfill because it removes the source of any contamination. (T. 1692, 1697.) He testified that there are other possible ways of remediating a site like this, such as with slurry walls or groundwater collection trenches, but those methods do not remove the source of any contamination like waste relocation does. (T. 1697.) In other words, at the risk of oversimplification, the best way to ensure that the waste is no longer in communication with groundwater is to remove the waste that is in communication with groundwater.
The liner that will be used at Tri-County will all but guarantee the relocated waste and any leachate will have no effect on groundwater. The liner will be comprised of two composite liners with a leachate detection system. The primary liner will consist of an aggregate leachate collection layer underlain by a geotextile, a 60-mil geomembrane, and a geosynthetic bentonite clay liner that swells when it becomes wet to plug any leaks. (T. 1699-1700.) Below the primary liner is a leachate detection zone with a drainage net of geocomposite with a geotextile. (T. 1700.) The secondary liner that is below the leachate detection zone also consists of a 60-mil geomembrane and a geosynthetic clay liner. (T. 1700.) All of this is over a compacted subbase that is required to be separated from the regional groundwater aquifer by eight feet, 25 Pa. Code § 273.252(b). (T. 1156, 1159-60, 1700-01.) This liner system exceeds what is required in Pennsylvania for municipal waste landfills. (T. 1698, 1701.) In fact, a double composite liner system like Tri-County will implement is actually what is required in Pennsylvania for hazardous waste landfills. (T. 1695-99.)
Buffalini testified that new, lined landfill cells will eventually be built on top of the area where the existing waste will have been excavated, effectively serving as a cap on that area and preventing any further infiltration through soil and into groundwater. (T. 1707-08, 1709.) He credibly testified that excavating the 1.5 million cubic yards of existing waste and relocating it to a double lined area of the landfill will eliminate any future groundwater impacts. (T. 1694-96, 1697-98.)
We have no reason to doubt or question Buffalini's opinions that relocating the waste in the manner proposed by Tri-County will be a benefit to the environment. Buffalini is highly qualified in landfill design and engineering, with more than 40 years of experience in the field. (TC Ex. 130.) He has worked on many waste relocation projects in the past and has designed landfill liner systems. (T. 1704-05.) We also credit the fact that Buffalini was not involved in the permit application or in developing Tri-County's waste relocation plan or liner system. Rather, Buffalini was brought in by Tri-County after the fact to offer his opinion on the proposed liner system and waste relocation plan and concurred in Tri-County's approach, calling it a detailed and thorough plan. (T. 1695.)
Buffalini's testimony was entirely unrebutted. The Appellants did not present any expert witness qualified in landfill design or engineering or landfill liner systems or the remediation of sites with historic waste on unlined areas. Nor did the Appellants elicit any concessions from Buffalini on cross-examination or otherwise make us call into question his opinions or credibility. There is simply nothing in the record that would support the Appellants' claims that the relocation of waste will be a harm and not a net benefit to the environment.
The Appellants argue that no one has done testing to see whether the existing waste is compatible with the liner. Although not fully explained in their briefs, the Appellants seem to fear that something in the existing waste will react with the liner or perhaps degrade the liner and compromise its integrity. There is absolutely no evidence to support that claim. Buffalini credibly testified that the proposed liner system was adequate to handle whatever was in the existing waste. He credibly testified that the materials selected for the liner have undergone testing for compatibility with landfill leachate. (T. 1701-03.) The Appellants say that the liner compatibility tests in the application are old, from 1996, but Buffalini explained that manufacturers met EPA's testing standards when those standards were established and manufacturers have only continued to improve their liner materials since then. (T. 1701-03.) The materials that make up a liner are the same for a hazardous waste landfill as for a municipal waste landfill. (T. 1710-11.) Buffalini further credibly opined that the liner system is also perfectly capable of protecting the groundwater from the new waste the landfill proposes to accept, even if that waste contains some oil and gas waste. (T. 1710-11, 1712-13.)
The Appellants contend that relocating the existing waste could worsen any existing groundwater contamination, but the Appellants never offer a credible explanation of how that is likely to occur. To repeat, the Appellants did not have an expert opine that Tri-County's plan would likely worsen the situation. The Appellants merely point to a statement in the permit application that says the relocation of the existing waste may increase the potential for leachate breakouts and the monitoring wells that are installed around the area of the existing waste may be too distant to allow for early detection and rapid response. (T. 1145; Jt. Ex. 2, Vol. 5 (at DEP005287).) However, that same part of the application says that temporary monitoring wells will be installed to monitor the waste relocation for this purpose. (Jt. Ex. 2, Vol. 5 (at DEP005287-88).) The Appellants have not shown that, even if a leachate breakout does occur, that it cannot be adequately addressed by the monitoring measures put forth in Tri-County's waste relocation plan. The Appellants have not shown that the monitoring wells are insufficient to address any leachate issues that arise during the waste relocation process. The Appellants also note the proximity of private drinking water supplies identified in the application. However, there is no testimony on behalf of the Appellants establishing any risk of impact on private water supplies from the relocation of the waste. With respect to the parameters that will be tested in the existing waste, the Appellants have not established with any evidence that these parameter are unreasonable, not stringent enough, or that different or additional substances should be tested.
Related to the Appellants' argument that the relocation of the waste is not a benefit is their argument that the existing waste is causing pollution to groundwater, and that, on its own, should have prevented the permit from being issued. The Appellants point to 25 Pa. Code § 271.201, which requires a permit applicant to affirmatively demonstrate that it will comply with the environmental protection statutes and that municipal waste management operations will not cause surface or groundwater pollution. 25 Pa. Code § 271.201(3), (5). The Appellants contend that, since Tri-County is already causing groundwater pollution, Tri-County could not have made the required demonstration to obtain a permit. The Appellants also point to 25 Pa. Code § 273.241, which requires that a landfill be operated so that it does not cause surface or groundwater pollution within or outside of the site.
The Appellants also criticize Tri-County for not preparing groundwater assessment and abatement plans. A groundwater assessment plan must generally describe the measures that an operator will take to characterize the existence, location, and extent of any groundwater degradation, the rate and direction of any contaminant migration, and the sampling and analysis protocols. 25 Pa. Code § 273.286(c). An operator must prepare an abatement plan when the assessment plan shows groundwater degradation and that an abatement standard will not be met, or when monitoring by the Department or operator shows the presence of an abatement standard exceedance from one or more compliance points. 25 Pa. Code § 273.287(a).
Under the regulations, an operator of a municipal waste landfill must prepare a groundwater assessment plan within 60 days of one of the following:
(1) Data obtained from monitoring by the Department or the operator indicates groundwater degradation at any monitoring point for parameters other than chemical oxygen demand, pH, specific conductance, total organic carbon, turbidity, total alkalinity, calcium, magnesium and iron.
(2) Laboratory analysis of one or more public or private water supplies shows the presence of degradation that could reasonably be attributed to the facility.25 Pa. Code § 273.286(a)(1)-(2).
As we have now repeatedly stated, the record, devoid of helpful expert opinion, does not support a finding on our part that the old waste is in fact causing groundwater degradation. The Appellants point to Monitoring Well 15, which the Department split sampled in May 2019 and had a sample showing Total Phenols at 5.45 micrograms per liter (ug/L). (App. Ex. 158.) The Appellants also point out that some of the monitoring wells at the site have occasionally shown elevated parameters for organic compounds. (T. 1133-38; App. Ex. 158.) The application shows detections of various organic compounds in monitoring wells in the 1980s and 1990s. (J. Ex. 2, Vol. 5 (at DEP 005265-67).) However, we have no real context for these sample results. No one even testified what phenols are. (See T. 168.) Some of the results seem to be from wells that are upgradient of the previously disposed waste, (T. 1146, 1868-69, 1871; App. Ex. 158), but we are operating in the dark here given the Appellants' lack of any proof of a connection.
More importantly, there is nothing in the record to support a finding that operations at the landfill going forward will cause any groundwater pollution. On the contrary, as explained in detail above, the permit requires Tri-County to relocate the existing waste, which the unrebutted testimony establishes will eliminate any potential groundwater pollution from the existing waste. The waste will be on a lined area isolated from the groundwater. Any leachate that is generated will be collected and trucked offsite for treatment or treated onsite if Tri-County constructs a leachate treatment plant. (T. 2017-18; Jt. Ex. 1, Permit (at 14).)
The same regulation cited by the Appellants barring a facility from causing groundwater pollution provides an exception that "the Department may approve an application for permit modification to control or abate groundwater pollution under a new or modified groundwater collection or treatment facility." 25 Pa. Code § 271.201(5). As discussed above, the Department's approval of Tri-County's permit modification essentially effectuates the abatement of that pollution through the relocation of the existing waste.
The Appellants raise some additional water-related issues in their briefs, but they have not met their burden of proof on any of them. For instance, although not addressed in the argument section of their briefs, the Appellants contend in proposed findings of fact that the information contained in the application regarding private water supplies is outdated. However, the Appellants do not explain how the information is outdated or identify any private water supplies that should have been included in Tri-County's application. The Appellants also assert that there are "documented seeps" that Tri-County has never addressed, but they provide no evidence of that or explain why that means the permit modification should have been denied.
The Appellants criticize the Department for not determining the cause of impairment for the unnamed tributary to Black Run that runs near the site. The Appellants seem to suggest that Tri-County must be the cause of the impairment, but they do not establish that with any evidence. The Appellants did not present any credible evidence that the landfill is impairing an unnamed tributary to Black Run or any other surface waters.
C. Wetlands
As part of the landfill operation, Tri-County will fill in 5.94 acres of wetlands at the site to make way for waste disposal cells and it will then create 9.49 acres of replacement wetlands on the site. (Stip. 68.) Several smaller wetlands will be filled in and one larger wetland will be created to replace those wetlands. (T. 1915-16.) This work is authorized by a Chapter 105 permit that was separately issued to Tri-County and not appealed by the Appellants. (Stip. 68, 69.) However, the Department still considered the wetlands as part of its harms-benefits analysis for the landfill permit, where it concluded that there would be a minor environmental benefit from the replacement wetlands.
The Appellants say that the additional acreage of wetlands that is created is an environmental harm because the wetlands will attract birds and wildlife, which could pose a threat to the safety of aircraft. The Appellants point to a statement by Dr. Davis that the wetlands will be included in Tri-County's five daily surveys of the site in accordance with the bird control plan. Like with the Appellants' arguments with respect to birds more generally, and as discussed above, they have not established that, even if the wetlands do attract birds, the bird control plan will be insufficient to control those birds or deter them from landing on site.
The Appellants also say that other wetlands near the landfill site are a habitat for the threatened species of the Massasauga rattlesnake and they assert the Department did not properly consider this in their review of the permit application. The Appellants rely on the testimony of Eric Rydbom, who owns a property of about 50 acres approximately ¼ mile away from the landfill site. He testified that, when he was seeking to build structures on his own property for his equestrian business, an employee from the Department told him that there was a Massasauga rattlesnake nesting area to the south of Rydbom's property. (T. 344-45.) Although an opposing party's statement is not explicitly hearsay, Pa.R.E. 803(25), the Appellants did not otherwise substantiate this claim with any evidence. More importantly, the Appellants did not present any expert evidence that any of the wetlands that will be removed as part of Tri-County's operation serve as a habitat for the Massasauga rattlesnake, or that they are hydrologically connected to any wetlands that do serve as a habitat for that species, or that they are within ½ mile of any wetlands that serve as a Massasauga rattlesnake habitat. See 25 Pa. Code § 105.17(1)(i) and (ii). Tri-County's August 2018 search of the Pennsylvania Natural Diversity Inventory (PNDI), which included the areas associated with the wetland mitigation, supports the finding that there would be no known impacts to threatened, endangered, or special concern species and resources within the project area. (Jt. Ex. 2, Vol. 2 (at DEP001842).)
The Appellants speculate without record support that the wetlands may actually be exceptional value wetlands due to their proximity to private water supplies. See 25 Pa. Code § 105.17(1)(iv). They have simply not established that the wetlands on the landfill site qualify as exceptional value wetlands under any of the relevant criteria. See 25 Pa. Code § 105.17(1). The Appellants did not present any testimony from anyone who has done a field assessment of the wetlands or have anyone testify who would be qualified to perform such an assessment. The Appellants have not met their burden of showing that the Department erred in its harms-benefits balancing due to any issue related to wetlands on the site.
D. Noise
Noise was considered in the Department's harms-benefits analysis to be a harm that could not be fully mitigated. Tri-County proposes to mitigate the noise from the landfill by properly maintaining the engines on its mechanical equipment, encasing those engines, and using lights instead of backup beepers on trucks and equipment at night. (T. 1747-48, 1959, 1990; Jt. Ex. 1, Envtl. Assess. (at 7-8), Jt. Ex. 2, Vol. 6 (at DEP006725).) The Department concluded that, although Tri-County had mitigated the noise to the largest extent possible, the landfill's operations will create additional noise in the area that would not exist but for the operation of the landfill. (T. 1990; Jt. Ex. 1, Envtl. Assess. (at 7-8, 17).)
Some residents who live within a half-mile of the landfill testified about the noise they currently experience from Tri-County's waste transfer station. They testified that they hear beeping from the trucks backing up on site, as well as alarms, and the banging of metal. (T. 262, 271, 368-69, 380.) One resident who lives particularly close testified that she could even hear people at the transfer station talking if the conditions were right. (T. 271.) These residents also generally testified about hearing planes, helicopters, and other aircraft depart and land at the Grove City Airport. (T. 263, 267, 270.) The Appellants have not shown that any noise generated by the landfill operations will be an unreasonable increase over the background conditions that these residents currently experience.
The Appellants criticize Tri-County's noise studies as being dated, having been performed in 1991 and 2001. However, the Appellants never explain why either of the noise studies is inappropriate, inadequate, or no longer valid. The Appellants do not offer any specific critiques of either of these studies or the information contained therein, just an insinuation that because they are older they must be illegitimate. Obviously this is insufficient to sustain one's burden of proof. It is worth noting that, although the 2001 noise study was performed when the landfill was inactive and assessed noise at Tri-County's waste transfer station, it also studied the noise at two other landfills, the Seneca and Valley Landfills, which were active. (Jt. Ex. 2, Vol. 6 (at DEP006743-64).)
Although the Appellants are not satisfied with Tri-County's older noise studies, they also criticize Operating Condition 25 of the permit, which requires Tri-County to complete a new background noise study prior to opening and operating the site and to submit that study to the Department. (T. 2022; Jt. Ex. 1, Permit (at 14).) The Appellants say that an updated noise study should have been conducted and submitted with the permit application. We typically frown upon the Department allowing permittees to submit required plans after a facility is in operation. See Borough of St. Clair, 2014 EHB at 108-13 (Board remanded permit because Department allowed permittee to submit required mine subsidence plan later for review and approval). However, Tri-County included a nuisance minimization and control plan within its operations plan in the permit application that addresses noise as required by the regulations, and which the Department approved as part of its review of the application. 25 Pa. Code §§ 273.136 and 273.218. (J. Ex. 2, Vol. 6 (at DEP006721-25).) Tri-County has already performed two noise studies. Although we think it is reasonable for the Department to require Tri-County to do an updated study, we are not sure what additional value there is to another study of background conditions before the landfill is operating, or how that might change what noise mitigation measures Tri-County will implement.
The Appellants cite Findings of Fact made in the Board's Adjudication in Chimel v. DEP, 2014 EHB 957, concerning the operation of a surface mine that stated the Department considers a continuous volume reading of over 68 decibels during the day and over 65 decibels at night at the property line to be a public nuisance. Id. at 971. The Appellants say that Tri-County proposes to keep noise at 85 decibels and only at night. This is simply not accurate. Tri-County proposes to monitor all equipment with a hand-held decibel meter and maintain that equipment at a level of 85 decibels or less at all times. The noise levels at issue in Chimel were made with monitors at the fence line for the site, not at the equipment itself as is the case here. The Appellants have not produced their own noise study or any evidence at all indicating that the noise level at the Tri-County property line or at any other point beyond the property line would be unreasonable. They have not shown that equipment running at 85 decibels would amount to a nuisance to nearby residents. The Appellants do not provide any evidence to suggest Tri-County's mitigation measures will not reduce the noise to tolerable levels or identify any mitigation measures they think would be more appropriate.
We conclude that the Department properly weighed the harm of noise from the landfill that will remain after mitigation. The Appellants have not shown that any remaining noise harm rises to the level to alter the balancing of the harms-benefits analysis or otherwise require denial of the permit or any modifications to the permit.
E. Traffic
Tri-County developed a traffic impact study that assesses the trucks that would be associated with handling 4,000 tons per day of waste. (Jt. Ex. 1, Envtl. Assess. (at 10).) That volume of waste represents the combined total between the landfill and Tri-County's transfer station, meaning any increase in volume at the transfer station results in a reduction in volume at the landfill, and vice versa. The 4,000 ton per day volume equates to a total of 332 truck trips, or an addition of 218 trips considering the trips already being generated by the transfer station. The study was submitted to PennDOT for review and PennDOT concluded that the added traffic volume would not have an impact on the intersection of SR 0208 and TCI Park Drive. Joel Fair testified that the Department agreed with PennDOT's conclusion that the increased traffic from the landfill would not impact levels of service on the roadways. (T. 1750; Jt. Ex. 2, Vol. 3 (at DEP002751).) Tri-County proposes to mitigate the harm from the trucks by tarping and sweeping the trucks, performing routine inspections and maintenance, and distributing the truck volume over the course of the day to alleviate congestion during typical rush hours. The Department concluded that there would be some inevitable environmental harm from the traffic that could not be completely mitigated all the time.
There was very little substantive focus on vehicular traffic during testimony at the merits hearing. (See T. 307, 1749-50, 1773-74, 1960.) The Appellants' briefs contain proposed findings of fact that describe aspects of Tri-County's traffic impact study, but there is little to no argument about the traffic harm, other than noting that the Department determined it to be a harm that cannot be completely mitigated, and therefore some environmental harm remains. The Appellants include a proposed finding of fact that criticizes Tri-County's traffic studies as being "stale and inaccurate," (App. Proposed FOF 780), but the Appellants have not substantiated that claim with any argument in their briefs. Tri-County submitted an updated traffic impact study in 2019 that accounted for the trucks associated with both the landfill and the transfer station accepting a combined 4,000 tons of waste per day. The Department agreed that the amount of vehicular traffic would not have a significant impact on traffic. The Appellants presented no evidence of their own to contest the conclusions of Tri-County's traffic impact study, or the Department's evaluation of that study in its harms-benefits analysis. They did not substantiate any claim of material harm or show why any harm from truck traffic should change the conclusion of the harms-benefits analysis or the decision to issue the permit modification.
Series 800 Wastes
The Appellants next argue that disposal of waste from oil and gas operations known as Series 800 residual waste at the landfill will harm the environment and pose a risk to human health. Series 800 waste includes such things as flowback resulting from hydraulic fracturing, produced fluids resulting from wells in production, drilling fluids and mud, sludge and solids produced during the processing of oil and gas related wastewater, synthetic liners used in storage structures or impoundments, drill cuttings, lubricant waste, and soil contaminated by oil and gas spills. (T. 1249-60.) Although Series 800 includes various types of liquid waste, according to the testimony of Tri-County's Environmental Health and Safety Director, Elizabeth Bertha, the landfill will not accept liquids for direct disposal. The Appellants' concern stems from the fact that the oil and gas waste, in addition to other unspecified "chemicals," can contain technologically enhanced naturally occurring radioactive material (TENORM). Although they are not entirely clear on the routes of exposure that give rise to their concern, they appear to be worried that the radioactivity will make its way into treated leachate discharged from the landfill, and/or into the groundwater, and perhaps otherwise result in untoward exposure to the public or the environment through unspecified pathways.
The initial difficulty we are having with the Appellants' case on this issue is they never really explain what they would have this Board do in light of their concerns. At the end of a lengthy discussion regarding the dangers of radiation, they conclude that "[t]he Landfill should not be reopened to accept disposal of any TENORM waste…." (App. Brief at 134.) If the Appellants are suggesting that the permit should be overturned in its entirety because it authorizes the disposal of TENORM waste, they have not justified such an extreme remedy. Nor could they. Only two percent of the landfill's total waste can be composed of TENORM waste. (T. 1358-59.) Even if all the Appellants' arguments were valid, it would only justify prohibiting the disposal of that two percent. It would certainly not justify a rescission of the permit in its entirety. Although they have not asked us to modify the permit, it would seem that would be the most they could logically hope for as a remedy to address their radiation issue.
However, they have not made a case for such a permit modification limiting the disposal of TENORM waste from oil and gas operations. The Appellants first say, without any expert or other support, that there will not be enough controls at the landfill to regulate incoming levels of radioactive materials. This is simply not true. As part of its permit application, Tri-County was required to prepare a Waste Analysis and Classification Plan, known as Form R. This form sets forth criteria for the screening, acceptance, and management of residual and special handling waste, including oil and gas waste. The Department's Deborah Morvay, an environmental chemist, reviewed Tri-County's initial Form R submission and determined that it was outdated. She recommended that Tri-County update the form, using as a model the Form R approved for Seneca Landfill, which, like Tri-County, is a subsidiary of Vogel Holdings. Tri-County submitted an updated Form R and it was approved.
Tri-County is required to have a Radiation Protection Plan setting forth the process it will follow to ensure that it does not accept radioactive waste beyond the limit set by its permit. The landfill is required to monitor each incoming load of waste for radiation. This process was described in detail by Elizabeth Bertha, who is also the Environmental Health and Safety Director for Vogel Holdings and Seneca Landfill. The process that is currently in place at Seneca Landfill will be implemented at Tri-County Landfill and consists of the following steps: Each incoming load of waste is monitored for radiation. If an alarm indicates potential radiation, an employee uses a handheld radiation detector to further test the load. If radiation is identified, it is recorded in the Department's TENORM allocation spreadsheet which confirms whether the load may be accepted based on the limits in place. If the landfill cannot accept the load because it is over the radiation limit, the load will be isolated and the Department will be notified in order to determine what further steps must be taken.
The Department's Bryan Werner explained that, although landfills are not required to obtain a license from the Department's Bureau of Radiation Protection, they are still monitored by the Department for the handling of radioactive materials through the implementation of the landfill's Radiation Protection Plan. The Department monitors landfills to ensure that they do not expose the public to a greater dose of radiation than that permitted by licensed facilities.
At a fundamental level, the Appellants have failed to carry their burden of proving that disposal of Series 800 waste at the landfill will harm the environment or pose a risk to public health and safety. In support of their claim, the Appellants presented the expert testimony of Dr. John Stolz, Professor of Biological Sciences and Director of the Center for Environmental Research and Education at Duquesne University, who was recognized by the Board as an expert in microbiology and the radioactivity of oil and gas waste. Unfortunately, Dr. Stolz's testimony was not particularly helpful. Distilled to its essence, Dr. Stolz believes that no oil and gas waste should ever under any circumstances be disposed at any municipal waste landfill. It is his opinion that oil and gas waste should be disposed at a hazardous waste landfill or, in the case of liquids, in a Class 2 injection well. Reminiscent of Dr. DeFusco on the bird issue, Dr. Stolz would have us throw out the entire regulatory program regarding the disposal of oil and gas wastes at municipal waste landfills. Aside from the fact that we have no such authority, Dr. Stolz offered very little to support what amounts to not much more than a personal opinion. Dr. Stolz has done some limited work comparing leachate from two other landfills. He asserted that leachate from the landfill accepting oil and gas waste was higher in radioactivity compared to a landfill not accepting such wastes. We were not given enough information to credit this work as a basis for expert opinion. We also find it damaging to Dr. Stolz's credibility in general that he would rely on such work as apparently the primary basis for opining a causative connection between the disposal of oil and gas waste at one landfill and radioactivity seen in the leachate, notwithstanding the myriad of other variables that would seem to need to be considered.
In contrast to Dr. Stolz's work, Bryan Werner, the Department's well qualified expert on radiological issues, presented findings of the Department's larger, more comprehensive May 2016 TENORM study. In the TENORM study, pretreatment leachate was sampled at all 51 landfills across Pennsylvania; additional sampling was conducted at nine of the landfills determined to have received the most TENORM for disposal in the year prior to the study. The study found "no statistical difference" in radium levels between the landfills that accepted oil and gas waste and those that did not. (T. 1349, 1351.) The study further found that radium levels of the leachate tested at all the landfills were within limits acceptable to the Department's Bureau of Radiation. Mr. Werner explained that the radium limit for liquid waste going to a wastewater treatment facility is 600 picocuries per liter. The TENORM study showed that none of the leachate from the 51 landfills, including those that accepted the most oil and gas waste, exceeded or even approached 600 picocuries per liter. Finally, the study also showed that workers' exposure to radiation at landfills was "very, very low." (T. 1350.) This comprehensive TENORM study is more persuasive than the comparison of two landfills made by Dr. Stolz. According to Mr. Werner, the values seen at landfills are far lower than the limits set for facilities licensed by the Bureau of Radiation. For example, a licensed facility may not exceed a radiation dose of 100 millirem per year to a member of the public, and Mr. Werner testified that landfills "have not gotten close" to exceeding that limit. (T. 1336.) Moreover, Dr. Stolz did not challenge the results of the TENORM study; he simply disagreed with its conclusion that the disposal of TENORM waste did not present a risk to the public or environment.
While Dr. Stolz explained in general terms the radioactive properties of oil and gas waste, his testimony did not extend to identifying specific risks to the environment or human health posed by Tri-County Landfill. For example, he did not express an opinion on the impact of oil and gas waste to be disposed at the landfill on area groundwater or drinking water. (T. 1291.) He readily admitted that he is not familiar with the operation of landfills. He did not know, for example, that the Tri-County landfill will have a double liner. (T. 1303-04.) Although he believes that oil and gas waste should go to what he referred to as a hazardous waste landfill, he is not aware of the differences between a modern municipal waste landfill and a hazardous waste landfill. He did not identify a pathway from the landfill to any body of water. (T. 1228.) Nor did he express an opinion about any interaction between discharged treated wastewater and groundwater. (T. 1290.) He acknowledged that he did not know how the landfill will treat leachate and, therefore, he did not express an opinion as to the resulting properties of wastewater treated at the site. (T. 1288, 1290.)
In short, Dr. Stolz's testimony offered nothing to credibly support the Appellants' claim that TENORM waste disposed at the landfill will result in any harm to the environment or the public health and safety. There is nothing else in the record that supports modification of the permit to prohibit the disposal of such wastes.
No one in this matter has disputed that oil and gas waste must be properly handled, stored, and disposed of. The evidence demonstrates that the permit contains adequate safeguards for the proper disposal of oil and gas waste and that the disposal of such waste does not present a risk of harm to the public and the environment. We find that the Appellants have not met their burden of demonstrating that the Department erred in authorizing the acceptance of Series 800 oil and gas waste at Tri-County Landfill.
Before Tri-County may begin the actual disposal of Series 800 waste, it will also be required to provide a Form U which contains information from the generator of the waste. The Appellants are generally critical of the Form U process, saying it is chock full of holes and cannot provide any comfort regarding TENORM waste. Once again, the criticisms are based on the argument of counsel rather than the well-supported testimony of any knowledgeable witness. For example, the Appellants claim in their brief that the Form U does not require adequate testing, but there is nothing in the record to adequately support that claim. The criticisms are general in nature and offered with nothing in the record to provide adequate support for the claims. Further, the Appellants do not explain how those criticisms, even if valid, could lead to any action on our part regarding the permit. We cannot find that the Form U process is flawed, and therefore, the permit under review must be rescinded. It does not follow. The Appellants' criticisms of the Form U process provide no basis for modifying the permit to prohibit the disposal of TENORM waste. The Appellants' argument is perhaps better directed to the Environmental Quality Board.
The Appellants cite Liberty Township's Hazardous Waste Facility Ordinance as support for their argument that Tri-County Landfill should not be permitted to accept oil and gas waste. Township Supervisor Bob Pebbles testified that the purpose of the ordinance is to protect the community with regard to the disposal of hazardous waste. (T. 301.) The ordinance incorporates the definitions of waste set forth in the Solid Waste Management Act, Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§ 6018.101 - 6018.108 (SWMA), and the underlying regulations. (App. Ex. 172.) Although the Appellants argue that oil and gas waste should be treated as hazardous waste, the waste regulations provide that such waste is not hazardous waste, and therefore, the ordinance has no applicability here. 25 Pa. Code § 261a.1 (incorporating by reference 40 CFR Part 261); 40 CFR 261.4(b)(5) (drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil and natural gas are not hazardous waste). (T. 1121-22.)
Moreover, it is well settled that the SWMA preempts a local ordinance that attempts to regulate the disposal of waste. See Southeastern Chester Cnty. Refuse Auth. v. Zoning Hearing Bd. of London Grove Twp., 898 A.2d 680, 686 (Pa. Cmwlth. 2006) ("[T]he SWMA preempts a local ordinance regulating the operation of a landfill") (citing Municipality of Monroeville v. Chambers Development Corp., 491 A.2d 307 (Pa. Cmwlth. 1985)); Pa. Independent Waste Haulers Ass'n v. County of Northumberland, 885 A.2d 1106, 1109 (Pa. Cmwlth. 2005), appeal denied, 917 A.2d 316 (Pa. 2006) ("The Pennsylvania legislature preempted municipal power and responsibility to regulate the transportation, processing, treatment and disposal of solid waste through the Solid Waste Management Act…."). Nor have the Appellants demonstrated that the Environmental Rights Amendment, Article I, Section 27 of the Pennsylvania Constitution, Pa. Const. art. 1, § 27, imbues Liberty Township with any special power to preempt the SWMA. In Frederick v. Allegheny Township Zoning Hearing Board, 196 A.3d 677, 697 (Pa. Cmwlth. 2018), the Commonwealth Court considered the question of a township's authority and duties under Article I, Section 27 following the Pennsylvania Supreme Court's holdings in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013) (Robinson Township II), and Pennsylvania Environmental Defense Foundation v. Commonwealth, 161 A.3d 911 (Pa. 2017) (PEDF II). The Court stated:
Moreover, Robinson Township II did not give municipalities the power to act beyond the bounds of their enabling legislation. Municipalities lack the power to replicate the environmental oversight that the General Assembly has conferred upon DEP and other state agencies. Neither [PEDF II] nor Robinson Township II has altered these fundamental principles of Pennsylvania's system of state and local governance.Frederick, 196 A.3d at 697 (footnote omitted) (cited in Delaware Riverkeeper Network v. Middlesex Twp. Zoning Hearing Bd., No. 2609 C.D. 2015, 2019 Pa.Commw. Unpub. LEXIS 356 at *38-39 (Pa. Cmwlth. June 26, 2019)), appeal denied, 208 A.3d 462 (Pa. 2019). Therefore, Liberty Township's ordinance cannot override the Department's authority to regulate the disposal of Series 800 waste under the SWMA.
Compliance History
The Appellants argue that Tri-County's permit should be rescinded because of what they refer to as its egregious compliance history. Section 503(c) of the Solid Waste Management Act, 35 P.S. § 6018.503(c), provides the Department with the authority to deny a permit to any applicant if the Department finds that the applicant has failed or continues to fail to comply with the Solid Waste Management Act or any other environmental statutes or regulations, or the applicant has shown a lack of ability or intention to comply with the environmental statutes, regulations, or orders of the Department, as evidenced by past or continuing violations. Section 503(d) requires the Department to deny any permit or license required under the Act where the person or related entities have engaged in unlawful conduct "unless the permit or license application demonstrates to the satisfaction of the department that the unlawful conduct has been corrected." 35 P.S. § 6018.503(d). The regulation at 25 Pa. Code § 271.125 lists the compliance information to be contained in the permit application.
A third-party appellant who would have us overturn a permit based on the compliance history and status of the permittee has a heavy burden. This is an area where the Department has a considerable amount of discretion. Concerned Citizens of Yough, Inc. v. Dep't of Envtl. Prot., 639 A.2d 1265, 1271 (Pa. Cmwlth. 1994). A generalized claim of noncompliance without a showing of specific, concrete problems typically will not suffice. Friends of Lackawanna, 2017 EHB at 1178. We consider the totality of the permittee's compliance history to assess whether the party's conduct shows that it cannot be trusted with the permit. O'Reilly v. DEP, 2001 EHB 19, 44-45. We consider such factors as the number, duration, and severity of the violations, harm to the environment caused by the violations, and the applicant's efforts to correct the violations. Id., 2001 EHB at 44-46; Belitskus v. DEP, 1998 EHB 846, 868-70. The purpose of the compliance review is to ensure the applicant is likely to be responsible enough to be informed of what the law and regulations require and motivated to make an effort to comply with those regulations; an applicant's past is certainly an indicator of future behavior. See Perano v. DEP, 2011 EHB 453, 494-97; Colbert v. DEP, 2006 EHB 90, 109-10. Section 503 vests the Department with the vital power to screen out bad actors. Concerned Citizens of Earl Twp. v. DER, 1994 EHB 1525, 1619.
Where we have remanded a permit for further consideration of compliance history, it has generally been because the Department did not conduct a thorough review. See, e.g. Colbert, supra. The Department certainly cannot be said to have conducted anything less than a thorough review of Tri-County and its related parties. To the contrary, the Department appears to have maintained a laser focus on this issue, going so far as to deny an earlier version of the permit application in 2013. That focus has continued up to the present, with such measures as regular conference calls between Vogel and the Department to discuss any current issues. (T. 2000.)
The Appellants have failed to meet the burden of proving that Tri-County cannot be trusted with the permit. With respect to Section 503(c), the Appellants have not shown that Tri-County has a lack of ability or intention to comply with the law going forward as evidenced by past or continuing violations. All of the evidence leads to the opposite conclusion. The Vogel companies are having environmental audits performed by independent consultants. Those audits have not uncovered any major violations or uncorrected minor violations. The last audit is scheduled to be completed by June 2024. (T. 1533.) The Department has never disagreed with any corrective actions listed in the audits. (T. 1538.) The companies have an in-house environmental compliance staff and they implement a stringent environmental management system. These measures have been shown to be working over the last several years and we have not been given any reason to doubt that they will continue to work in the future. In addition, they have all the extra measures listed in the bird control plan (e.g. chief bird controller, daily monitoring, regular reporting, oversight committees) to secure compliance in that area.
We credit Department employees Joel Fair and Clem Delattre's observation that the Vogel companies' compliance record over the last decade is equal to or better than that of other waste companies in the state. For example, the last compliance form update done before the hearing showed that there had been no violations from 2017 through 2022 at the Seneca Landfill and the Seneca Landfill Transfer Station; no violations for Tri-County Landfill and Tri-County Landfill transfer station since May 1, 2013, a span of nine years; one violation since 2018 at Tri-County Industries involving the lack of a waste transportation sticker on a driver's side of the truck; and two violations for Vogel Disposal Service for the four years between 2018 through 2022, one involving a leaking load and the other due to a missing Act 90 cab card required to be in the vehicle. (TC Ex. 47.)
The Appellants point to Vogel's poor compliance history before 2013. That point has not been disputed in this case. (See e.g. TC Brief at 317.) However, it would seem to have dawned on the companies that they would not get a permit to reopen the Tri-County landfill unless they cleaned up their act, and this is exactly what they have done. The key question now is whether this new respect for environmental compliance will continue now that the permit is in hand. With the public safety at stake due to the bird strike concern, it is all the more important that this question be answered in the affirmative. The Department reasonably concluded based on the related companies' compliance over the last decade that Tri-County can be trusted with the permit. In short, they have the people, the systems, and the corporate policy in place to secure future environmental compliance.
The Board had the benefit of videos depicting operations at the Seneca Landfill. (TC Ex. 108, 109.) There will be a substantial overlap between the personnel managing the Seneca and Tri-County landfills. The videos depicted a modern municipal waste disposal facility that appeared to be operating in accordance with best management practices and the law.
The Appellants have lodged other accusations regarding Tri-County's compliance history that do not support overturning the permit. For example, they point to the violations uncovered in the audits. However, perfect compliance is not the standard for deciding whether a permit should be blocked for noncompliance. The Appellants presented no evidence regarding the specifics of any violations, leaving us to rely instead on written reports. The violations in those reports, however, appear to have been relatively minor, and the important point is that they were quickly corrected. Rather than show that Tri-County will not comply with the law, they actually show the opposite. The same could be said about the violations that did not make their way into Notices of Violation (NOVs). The Vogel companies have consistently demonstrated a commitment to quickly correct any and all regulatory excursions. We detect no resistance to doing so.
The Appellants say there have probably been other violations that were not reported or uncovered. (E.g. App. Brief at 63, 137.) There is nothing in the record to support this speculative allegation. We cannot imagine a scenario where we would overturn a permit based on compliance history because there probably have been other violations that were not memorialized in NOVs or orders, with no independent proof that such violations occurred. Indeed, the record here shows that the Department has been quite diligent in policing Tri-County's compliance with the law. Compare Friends of Lackawanna, 2017 EHB at 1183 ("The record does not demonstrate that it [the Department] has consistently exercised vigorous oversight of the landfill consistent with its regulatory and constitutional responsibilities with just as much concern about the rights of the landfill's neighbors as the rights of the landfill.").
The Appellants cite a number of violations that have been recorded since 2013, but counting up entries without further elucidation is not particularly helpful. We see no resistance to correcting violations with all appropriate speed and attention as they are uncovered. We see no pattern of repeated, uncorrected problems. There is no showing of significant environmental harm. Years have gone by at the various entities with no violations at all, which is noteworthy in a group of companies with 700 employees. There is simply nothing to suggest that the related companies lack the ability or intention to comply with the law going forward.
Turning to Section 503(d), the permit block for ongoing unlawful conduct, there are various allegations scattered throughout the Appellants' briefs, but the primary allegation appears to be that Tri-County is in violation because the landfill is polluting the groundwater in violation of the laws and regulations prohibiting such pollution, such as 25 Pa. Code §§ 273.241(b) (landfill to be operated to prevent and control surface and groundwater pollution) and 273.241(c) (operator may not cause or allow water pollution within or outside the site from operation of the facility). However, as addressed above, the Appellants failed to present any expert testimony on this issue or otherwise prove that the landfill is in fact causing pollution. The Appellants have not supported their allegation that Tri-County's compliance with its groundwater monitoring has been "spotty, deficient, and willfully ignorant of the existing and ongoing pollution." (App. Brief at 104.) To the contrary, Tri-County has continued monitoring of its groundwater monitoring wells in accordance with its permit. (T. 1605-06.) Furthermore, the Department interprets Section 503(d) to allow it to lift a permit bar if the permittee/applicant is making satisfactory progress toward compliance. See Lower Windsor Twp. v. DER, 1993 EHB 1305, 1361-63 (groundwater contamination). Even if we assume that the landfill is polluting the groundwater, the permit under appeal requires the relocation of the old waste at the site, which is the gold standard for correcting the problem, if it does exist. (FOF 148.)
Finally, to the extent the Appellants assert that there is an ongoing violation of the duty regarding closure of the landfill pending the repermitting/reopening process, the record does not support the assertion. A settlement agreement approved by the Board on December 18, 1990 essentially stayed the pertinent closure requirement pending the repermitting process. (TC Ex. 10.) It would be wasteful for Tri-County to apply a final cap and vegetation to 6.7 acres if the waste in that area would be excavated and relocated into new modern cells. In sum, there is no support for the Appellants' claim that ongoing unlawful conduct should result in a ban of Tri-County's permit.
On November 27, 2023, the Appellants filed a second petition to reopen the record to introduce what they assert is evidence of additional violations from a company related to Tri-County Landfill. The violations allegedly were two "self-reported discharge" violations, one from December 2022 and one from February 2023. The Appellants say they discovered this evidence during a file review more than two months earlier on September 19, 2023, and they then took a month to "review and discuss" what they found during the file review. The Department and Tri-County filed responses in opposition to the petition on December 12, 2023.
Our Rule on reopening the record prior to adjudication for "recently discovered evidence" provides:
(b) The record may be reopened upon the basis of recently discovered evidence when all of the following circumstances are present:
(1) Evidence has been discovered which would conclusively establish a material fact of the case or would contradict a material fact which had been assumed or stipulated by the parties to be true.
(2) The evidence is discovered after the close of the record and could not have been discovered earlier with the exercise of due diligence.
(3) The evidence is not cumulative.25 Pa. Code § 1021.133(b). A petition to reopen the record must (1) identify the evidence the petitioner seeks to add to the record, (2) describe the efforts the petitioner made to discover the evidence prior to the close of the record, and (3) explain how the evidence was discovered after the close of the record. 25 Pa. Code § 1021.133(d). The petition must also be verified. 25 Pa. Code § 1021.133(d)(3).
The Appellants do not explain how the evidence for which they seek to reopen the record is not cumulative of the voluminous evidence on the compliance history of Tri-County and its related companies that was adduced at the hearing. The proffered evidence does not establish any material fact or contradict a material fact assumed or stipulated by the parties to be true. 25 Pa. Code § 1021.133(b)(1). It is undisputed that Tri-County and its related companies have had violations over the years. Even if we were to reopen the record to consider these "new" violations, there is nothing in those violations that would prompt us to conclude that Tri-County has an inability or lacks intent on complying with the law. The alleged violations appear to have been corrected. The violations do not show a pattern of noncompliance or otherwise dramatically alter the wealth of compliance evidence already admitted into the record in this matter. Although the Appellants make much of the fact that the violations occurred before the merits hearing, they do not explain why any party had any duty to disclose the violations to the Appellants. The violations were not included on Tri-County's compliance history form it submitted with its application because they occurred after the form was submitted.
Reopening the record is a decision within the discretion of the presiding judge. Friends of Lackawanna v. DEP, 2017 EHB 664, 666 (citing Wheeling-Pittsburgh Steel Corp. v. Dep't of Envtl. Prot., 979 A.2d 931, 943 (Pa. Cmwlth. 2009); Al Hamilton Contractor Co. v. Dep't of Envtl. Res., 659 A.2d 31, 35 (Pa. Cmwlth. 1995)). We find that the Appellants have not appropriately justified their request to reopen the record.
Bonding
In their post-hearing brief, the Appellants make reference to the fact that the Department reduced the bond amount for the landfill. The bond was reduced from approximately $9.59 million to $4.32 million, following a request from Tri-County and the submission of a revised bond calculation worksheet in May 2020. (Stip. 62.) The Department testified at the hearing that the bond amount was reduced to account only for the initial, active cells of the landfill that would be constructed, as opposed to the entire 35-acre disposal area. (T. 1833-34, 1998.) Tri-County reduced the open acreage to 14.3 acres, which accounts for the first two cells of the landfill that will be developed. The Department reasoned that Tri-County was only permitted to operate two cells so that, if closure and capping were required for those cells, the bond would adequately cover the cost. (T. 1998.) The bond was reduced because Tri-County will not build out all ten cells of the landfill at one time. (T. 1177-79, 1180; App. Ex. 191.) The Department testified that Tri-County needs to seek approval from the Department before waste can be deposited into any newly constructed cells. (T. 1998-99.) If Tri-County seeks to open up additional cells at the landfill, the bond amount will need to be increased by Tri-County. (T. 1833-34, 1999.) This is also a condition of Tri-County's permit. (Jt. Ex. 1, Permit (at 14, Operating Condition 27).) The bond will be recalculated every year as operations change at the site. (T. 1833.)
The Appellants have not provided an argument in their brief as to why the bond reduction was inappropriate or unlawful. They have not explained why the bond was otherwise improperly calculated. The Appellants have not shown why the bond is not consistent with the regulations, which require the bond amount to cover areas where waste disposal or processing activities are conducted. 25 Pa. Code § 271.331(d) ("The bond and trust corpus amount shall cover areas where municipal waste disposal or processing activities are to be conducted.").
The Appellants criticize the Department and Tri-County for not including bonding money for monitoring and sampling of private water wells beyond the permit boundary. (See Jt. Ex. 2, Vol. 6 (at DEP007416-17).) However, the Appellants have not established that it is necessary. Their position seems to be linked to their claim that the landfill is polluting the groundwater. But as laid out above, the Appellants have not established that there is any groundwater pollution being caused by the landfill that would necessitate any offsite groundwater monitoring to be covered by the bond.
The Appellants also say that the public should have been informed of the reduced bond amount. The Appellants do not cite any provisions of law that require a change in bond amount during the permit application review process to be re-noticed. Indeed, it does not appear that the bond amount needs to be included at all in the public notice of the permit application. See 25 Pa. Code §§ 271.141, 271.142. Requests for bond releases are subject to public notice, but that is not at issue here. See 25 Pa. Code § 271.341(e). Of course, the permit application and any revisions during the review process remain available for public inspection at the Department's offices at any time. 25 Pa. Code § 271.5(a). To the extent the Appellants contend that the Department abused its discretion in not requiring public notice of the change in bond amount, 25 Pa. Code § 271.144(c), they have simply not provided sufficient evidence or argument to support that claim. In short, the Appellants have not met their burden of proof with respect to any showing that the bond is inadequate or improperly calculated.
Need for the Landfill
The Appellants say there is no real need for the landfill. They point to 25 Pa. Code § 271.127(f), which says that an environmental assessment may include an explanation for the need for a facility, although adding new capacity does not establish need. However, the Commonwealth Court has emphasized that any discussion of need for a landfill is optional. Dep't of Envtl. Prot. v. Clearfield Cnty., 283 A.3d 1275, 1286 (Pa. Cmwlth. 2022). Indeed, the Department rejected disposal capacity as a purported benefit of the Tri-County landfill. (T. 1885, 1891-92.) While the Department may still in its discretion consider the need for a facility, need is not a regulatory requirement. The Appellants have not shown that any alleged lack of need for this facility would justify denial of the permit modification.
Whether the Permit Application is Outdated
The Appellants spent a significant amount of time at the beginning of the hearing identifying portions of the application that they believed to be outdated. (See T. 38-102; App. Ex. 3.) The Appellants make much of the dates of certain information contained within the permit application, saying that the application is stale and needs to be updated. However, the Appellants have not taken the necessary step further to show how any of that information is outdated, or why, even if it is old, it is no longer accurate or otherwise makes a difference one way or the other in terms of the Department's decision to issue the permit modification.
For instance, the Appellants criticize the survey of public and private water supplies as being outdated, but they never identify a public or private water supply that should have been identified but was omitted from the survey in the permit application. The Appellants similarly say the list of property owners adjacent to the landfill site is old, but they again do not identify any adjacent property owner that is different than what is listed in the application.
The Appellants also say a 2016 settlement required Tri-County to update certain information in its application as part of the design change for the landfill to comply with Pine and Liberty Townships' 40-foot height limitation, and that Tri-County failed to do this. (See DEP Ex. 15 (at 4).) But the testimony from Joel Fair indicates that Tri-County did update all of the forms and information required by the 2016 settlement agreement. (T. 1776-77.) It is simply not true that all of the information in the permit application is outdated. Tri-County updated several forms in the application. (T. 1777; DEP Ex. 15.) As a few examples, Tri-County conducted an updated traffic study in 2019. It conducted updated bird surveys in 2021 and 2022. The environmental assessment was updated in June 2020. (T. 189-90.)
We have held that critiques of information in a permit application need to be tied into a showing of why any errors in the application have continuing relevance and warrant action regarding the final permit. O'Reilly, 2001 EHB at 51. In Stedge v. DEP, 2015 EHB 577, we faulted the appellants' approach, which is similar to the one the Appellants here have taken, of claiming that information in an application did not satisfy certain requirements but not actually showing how those requirements were not satisfied:
The Appellants argue that Chesapeake's application did not adequately demonstrate that all of the setbacks were satisfied. This argument is emblematic of the Appellants' approach to this case in general: they criticize the application for not showing setbacks but then fail to show that any setbacks have in fact been violated. This is just the sort of criticism directed toward the permit application as opposed to the permit itself that we have repeatedly said will rarely justify correction of the Department's action on our part, O'Reilly v. DEP, 2001 EHB at 51, and part of the laundry list of potential but unsubstantiated problems that also will not support a correction on our part, Shuey v. DEP, 2005 EHB at 712. The Appellants never presented any evidence demonstrating that any of these setbacks were not in fact met with respect to the Lamb's Farm facility. The Appellants never demonstrated that, even if all setback requirements were met, it is still unreasonable to permit the Lamb's Farm facility at this location in Smithfield Township.Id. at 612. The Appellants have not shown that any of the information they claim is outdated has a material impact on the permit modification that was ultimately issued. They have not shown that any allegedly outdated information requires any action on our part or any correction by Tri-County or the Department.
Article I, Section 27
The Appellants argue that the issuance of the permit violates Article I, Section 27 of the Pennsylvania Constitution, which provides:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all people.Pa. Const. art I, § 27. The Board has articulated its standard for assessing Article I, Section 27 challenges as follows:
We first must determine whether the Department has considered the environmental effects of its action and whether the Department correctly determined that its action will not result in the unreasonable degradation, diminution, depletion or deterioration of the environment. Next, we must determine whether the Department has satisfied its trustee duties by acting with prudence, loyalty and impartiality with respect to the beneficiaries of the natural resources impacted by the Department decision.Stocker, 2022 EHB at 371 (quoting Del. Riverkeeper Network, 2018 EHB at 493 (citing Ctr. for Coalfield Justice, 2017 EHB at 858-59, 862; Friends of Lackawanna, 2017 EHB at 1163)). "The burden of showing that the Department acted unconstitutionally rests with the third-party appellant." Logan, 2018 EHB at 115 (citing Stedge, 2015 EHB at 617; Brockway Borough Mun. Auth., 2015 EHB at 250).
The Appellants first assert that the Department did not specifically evaluate Tri-County's permit application in terms of the rights, values, and duties set forth in Article I, Section 27. They point to an excerpt of testimony from Joel Fair on cross-examination in which he stated that the Department's review pursuant to Article I, Section 27 is encompassed by its environmental assessment review, as well as the implementation of the Solid Waste Management Act and corresponding regulations. (T. 1924-25.) The Appellants believe that this alone requires the Department's decision to issue the permit modification to be rescinded.
The Appellants say that the Department had an obligation to do a "constitutional harms/benefit analysis." (App. Brief at 141.) The Appellants do not explain what a constitutional harms-benefits analysis is or what it should have included that the regulatory harms-benefits analysis did not. Many of the Appellants' Article I, Section 27 arguments are simply restyled versions of their merits arguments. The Appellants say that the Department's waste management program should have involved the oil and gas program to assess TENORM waste, but as noted above, the Appellants have failed to establish that there is anything improper about the permit with respect to TENORM waste. They say the Department should have requested a groundwater assessment plan and order abatement and remediation for what the Appellants say is ongoing pollution of the groundwater, but again, the Appellants have not produced any evidence of what constitutes "groundwater degradation" within the meaning of the regulations, and in any event, the permit's waste relocation requirement will achieve remediation of the site.
As part of their Article I, Section 27 argument, the Appellants have paraphrased language from our decision in New Hanover Township v. DEP, 2020 EHB 124, 195, (App. Brief at 142), that the Department cannot permit a "source that would worsen active groundwater migration without a full understanding of the consequences of that migration," but none of that evidence is in the record in this case. The Appellants put on no hydrogeologic evidence regarding any migration of any groundwater contamination, or the effect of the landfill on any contamination. Indeed, as explained above, the only testimony in the record is that the relocation of existing waste to a lined area will have a benefit on the groundwater.
The Appellants also say the Department's regulatory harms-benefits analysis was improper, and presumably unconstitutional in their view, but the burden remains on the Appellants to establish that the Department's ultimate decision is contrary to Article I, Section 27, as with any other claim that they raise. It is true that compliance with statutes and regulations is not necessarily coextensive with the fulfillment of the duties laid out in Article I, Section 27. Friends of Lackawanna, 2017 EHB at 1161; Center for Coalfield Justice, 2017 EHB at 860. However, the Department's harms-benefits analysis allows it to consider environmental issues that are not explicitly set forth in the Solid Waste Management Act or the regulations. The relocation of the existing waste is a primary example of an issue that falls outside of the discrete confines of the regulatory provisions but was nevertheless evaluated to determine its effect on the Commonwealth's natural resources. The Appellants must show that the Department did not consider the environmental effects of the action under appeal, that the action will result in an unreasonable degradation, diminution, depletion or deterioration of the environment, or that the Department did not satisfy its trustee duties. The Appellants have not done that.
The Appellants argue that Appellant Liberty Township is also a trustee under Article I, Section 27 and that Liberty Township deserves to be afforded, but was not afforded, a certain amount of respect in the Department's permitting decision. There is absolutely no evidence of any disrespect-whatever that means-by the Department toward the Township, including the Township's pursuit of this appeal over the last two years. We do not think respect means the Township has unilateral veto authority over the Department's permitting decision. While Liberty Township and the Department both have roles to play in upholding their trustee duties under Article I, Section 27, there is no support for the notion that the Township's role supersedes the Department's. The Appellants cite no law that allows one trustee to override another trustee's decisions. See Frederick, supra, 196 A.3d at 697 ("Municipalities lack the power to replicate the environmental oversight that the General Assembly has conferred upon DEP and other state agencies. Neither [PEDF II, 161 A.3d 911 (Pa. 2017)] nor Robinson Township II [83 A.3d 901 (Pa. 2013)] has altered these fundamental principles of Pennsylvania's system of state and local governance." (footnote omitted)).
The caselaw in Pennsylvania recognizes that Article I, Section 27 "imposes fiduciary duties on the Commonwealth and all state, county and local agencies…." Peifer v. Colerain Twp. Zoning Hearing Bd., 302 A.3d 811, 816 (Pa. Cmwlth. 2023). But while many trustees may exist, they have discrete roles to play consistent with the balance between state and local government. Id. at 819 ("While it is true that a municipality in passing a zoning ordinance is bound by the ERA [Environmental Rights Amendment (Article I, Section 27)] and must consider all of the attendant protected rights, [Chester Water Authority]'s primary purpose is to ensure the quality of the water in the Octoraro Reservoir and provide adequate and safe drinking water. Consequently, even though all three entities must abide by the ERA, their respective decisions as to how to do so may take different forms and not manifest in the same way." (footnote omitted)). Nothing that the Department has done in this case has interfered with the Township's independent trustee obligations.
To the extent the Appellants have raised arguments that we have not addressed in this Adjudication, we have fully considered those arguments and have not found them to be persuasive. Marshall v. DEP, 2020 EHB 60, 72 ("Although we do not specifically address each and every point raised in Marshall's papers, we have given all of them due consideration and we find that she has not met her burden of proof with respect to the issues she has raised." (citing Big B Mining Co. v. DER, 1987 EHB 815, 867, aff'd, 554 A.2d 1002 (Pa. Cmwlth. 1989); Lower Providence Twp. v. DER, 1986 EHB 802, 821; Del-Aware Unlimited, Inc. v. DER, 1984 EHB 178, 328, aff'd, 508 A.2d 348 (Pa. Cmwlth. 1986))).
CONCLUSIONS OF LAW
1. The Environmental Hearing Board has jurisdiction over this matter. 35 P.S. § 6018.108; 35 P.S. § 7514.
2. The Board reviews Department actions de novo, meaning we decide the case anew on the record developed before us. Solebury School v. DEP, 2014 EHB 482, 519; O'Reilly v. DEP, 2001 EHB 19, 32; Warren Sand & Gravel Co. v. Dep't Envtl Res., 341 A.2d 556 (Pa. Cmwlth. 1975).
3. In third-party appeals, the appellants bear the burden of proof. 25 Pa. Code § 1021.122(c)(2); Joshi v. DEP, 2019 EHB 356, 364; Jake v. DEP, 2014 EHB 38, 47.
4. The appellants must show by a preponderance of the evidence that the Department's action was not lawful, reasonable, or supported by our de novo review of the facts. Logan v. DEP, 2018 EHB 71, 90; Friends of Lackawanna v. DEP, 2017 EHB 1123, 1156.
5. In order to be lawful, the Department must have acted in accordance with all applicable statutes, regulations, and case law, and acted in accordance with its duties and responsibilities under Article I, Section 27 of the Pennsylvania Constitution, Pa. Const. art. 1, § 27. Stocker v. DEP, 2022 EHB 351, 363 (citing Ctr. for Coalfield Justice v. DEP, 2017 EHB 799, 822; Brockway Borough Mun. Auth. v. DEP, 2015 EHB 221, aff'd, 131 A.3d 578 (Pa. Cmwlth. 2016)).
6. Issues previously raised in an appeal but not included in a party's post-hearing brief are waived. 25 Pa. Code § 1021.131(c); Morrison v. DEP, 2021 EHB 211, 221; Benner Twp. Water Auth. v. DEP, 2019 EHB 594, 635; New Hope Crushed Stone & Lime Co. v. DEP, 2017 EHB 1005, 1021.
7. The resolution of evidentiary conflict, witness credibility, and evidentiary weight are matters committed to the discretion of the Board. EQT Prod. Co. v. Dep't of Envtl. Prot., 193 A.3d 1137, 1149 (Pa. Cmwlth. 2018); Kiskadden v. Dep't of Envtl. Prot., 149 A.3d 380, 387 (Pa. Cmwlth. 2016).
8. "Expert testimony is required where the issues require scientific or specialized knowledge or experience to understand." Brockway Borough Mun. Auth. v. Dep't of Envtl. Prot., 131 A.3d 578, 587 (Pa. Cmwlth. 2016) (citing Dep't of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 828-29 (Pa. Cmwlth. 2010)).
9. An applicant for a municipal waste landfill must demonstrate that the benefits of a proposed project to the public clearly outweigh the known and potential harms. 25 Pa. Code §§ 271.126 and 271.127.
10. The Appellants have not shown that the Department acted unreasonably or violated the law in deciding the result of the harms-benefits balance. Borough of St. Clair, 2014 EHB 76, 96 (citing Exeter Citizens Action Comm., Inc. v. DEP, 2005 EHB 306, 328).
11. The Department properly concluded that the benefits of the Tri-County landfill clearly outweigh the known and potential harms. 25 Pa. Code §§ 271.126 and 271.127.
12. The 99-acre Tri-County Landfill site is an area that was permitted prior to January 25, 1997. 25 Pa. Code § 271.202(a)(15).
13. The permit modification was properly issued to Tri-County Landfill, Inc. without a prior permit reissuance. 25 Pa. Code §§ 271.221, 271.222.
14. The operations at Tri-County Landfill, through the implementation of its bird control plan, will not increase the occurrence of bird/aircraft strikes over existing conditions. Jefferson Cnty. Comm'rs v. DEP and Leatherwood, Inc., 2002 EHB 132.
15. The Department properly evaluated the compliance history of Tri-County Landfill and its related companies. 35 P.S. § 6018.503(c) and (d); 25 Pa. Code § 271.125.
16. The Appellants have not shown that Tri-County cannot be trusted with its permit, that Tri-County lacks the ability or intent to comply with the law, or that it has any ongoing unlawful conduct. 35 P.S. § 6018.503(c) and (d); O'Reilly v. DEP, 2001 EHB 19, 44-45; Belitskus v. DEP, 1998 EHB 846, 868-70.
17. The Appellants have not shown that the bond amount established for the Tri-County landfill is unreasonable or contrary to the law. 25 Pa. Code § 271.331.
18. The Appellants have not shown that any errors or information contained in the permit application have any continuing relevance that would require action with respect to the permit modification issued by the Department. See Stedge v. DEP, 2015 EHB 577, 612; O'Reilly v. DEP, 2001 EHB 19, 51.
19. The Appellants have not justified their request to reopen the record in this matter. 25 Pa. Code § 1021.133; Friends of Lackawanna v. DEP, 2017 EHB 664, 666 (citing Wheeling-Pittsburgh Steel Corp. v. Dep't of Envtl. Prot., 979 A.2d 931, 943 (Pa. Cmwlth. 2009); Al Hamilton Contractor Co. v. Dep't of Envtl. Res., 659 A.2d 31, 35 (Pa. Cmwlth. 1995)).
20. The Appellants have not shown that the Department acted contrary to its duties and obligations under Article I, Section 27 of the Pennsylvania Constitution in issuing the permit modification. Pa. Const. art. 1, § 27; Stocker, 2022 EHB 351, 371; Del. Riverkeeper Network v. DEP, 2018 EHB 447, 493; Logan v. DEP, 2018 EHB 71, 115; Ctr. for Coalfield Justice v. DEP, 2017 EHB 799, 858-59, 862; Brockway Borough Mun. Auth. v. DEP, 2015 EHB 221, 250, aff'd, 131 A.3d 578 (Pa. Cmwlth. 2016).
21. The Appellants have not met their burden of proof on their claims in this appeal. 25 Pa. Code § 1021.122(c)(2).
ORDER
AND NOW, this 8th day of January, 2024, it is hereby ordered that the Appellants' appeal is dismissed. The Appellants' petition to reopen the record is denied.
BERNARD A. LABUSKES, JR. Board Member and Judge, SARAH L. CLARK Board Member and Judge, MARYANNE WESDOCK Board Member and Judge, PAUL J. BRUDER, JR. Board Member and Judge.
[*] Chief Judge and Chairperson Steven C. Beckman is recused in this matter and did not participate in the decision.