Commonwealth v. Clearfield Cnty.
| Decision Date | 04 October 2022 |
| Docket Number | 762 C.D. 2021, No. 771 C.D. 2021 |
| Citation | 283 A.3d 1275 |
| Parties | Commonwealth of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Petitioner v. CLEARFIELD COUNTY and PA Waste, LLC (Environmental Hearing Board), Respondents PA Waste, LLC, Petitioner v. Commonwealth of Pennsylvania, Department of Environmental Protection and Clearfield County (Environmental Hearing Board), Respondents |
| Court | Pennsylvania Commonwealth Court |
George Jugovic, Jr., Assistant Counsel, Pittsburgh, for Designated Petitioner Commonwealth of Pennsylvania, Department of Environmental Protection.
Philip L. Hinerman, Philadelphia, for Designated Petitioner PA Waste, LLC.
Paul J. Bruder, Jr., Harrisburg, for Designated Respondent Clearfield County.
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE LORI A. DUMAS, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY JUDGE DUMAS
The Pennsylvania Department of Environmental Protection (DEP) and PA Waste, LLC (PA Waste) (collectively, Petitioners) petition for review of the June 10, 2021 opinion and order of the Environmental Hearing Board (Board)1 granting the motion for summary judgment filed by Clearfield County (County). The Board's order vacated a permit issued by DEP to PA Waste for building the Camp Hope Run Landfill (Landfill) in County and remanded to DEP for further proceedings. We affirm, but partially on other grounds.
We briefly summarize the facts in the light most favorable to Petitioners as the non-moving party.2 In 2006, PA Waste applied for a permit to build and operate the Landfill, which DEP eventually denied in 2015. In 2017, PA Waste again applied for a permit, which required PA Waste to demonstrate to DEP's satisfaction that the Landfill would comply with certain regulatory requirements discussed below. DEP approved the application and, in February 2020, published a notice in the Pennsylvania Bulletin that it had issued the permit.
Before the Board, County challenged the issuance of the permit and moved for summary judgment requesting rescission of the permit. The Board granted summary judgment in favor of County, vacated the permit, and remanded to DEP for further consideration of PA Waste's application after submission of additional facts about the origin of waste and alternative locations for the landfill.
Briefly, in the Board's view, PA Waste's application insufficiently described the origin of waste to be disposed of at the Landfill. Bd.’s Op., 6/10/21, at 13-15. The Board also reasoned that a detailed description of the origin of waste would justify a need for the Landfill and suggested that contracts for waste disposal should be attached to PA Waste's application. Id. at 15-17. The Board critiqued as inadequate Petitioners’ analysis that the site for the Landfill "is at least as suitable" as other alternative locations. Id. at 18. Finally, the Board concluded that DEP's Pennsylvania Bulletin notice, which publicized approval of PA Waste's application, failed to provide reasons for overriding County's objections to the Landfill. Id. at 22-23.
PA Waste and DEP each timely filed a petition for review of the Board's order in this Court. Petitioners stipulated to the consolidation of their appeals.
Petitioners raise four issues.4 First, Petitioners argue this Court may exercise jurisdiction over the Board's interlocutory order under Pa.R.A.P. 311(f)(2). DEP's Br. at 2; PA Waste's Br. at 5-8. Second, Petitioners claim that under 25 Pa. Code § 273.112 (Origin Regulation), an applicant is not required to describe and provide documentation about the origin of waste intended for the Landfill. DEP's Br. at 2; PA Waste's Br. at 9. Third, Petitioners contend that under 53 P.S. § 4000.5075 (Alternative Locations Statute), the proposed location for the Landfill "was at least as suitable as alternate locations." DEP's Br. at 2-3, 33; PA Waste's Br. at 9, 41. Fourth, Petitioners argue that DEP's Pennsylvania Bulletin notice complied with 35 P.S. § 6018.5046 (Notice Statute). DEP's Br. at 3; PA Waste's Br. at 10.
Petitioners argue that under Pa.R.A.P. 311(f)(2),7 this Court may exercise jurisdiction over the instant order. DEP's Br. at 13; PA Waste's Br. at 5. Petitioners reason that if PA Waste was to provide the requested information, then the issue of whether the Board erred in requiring such information would evade appellate review. DEP's Br. at 6; PA Waste's Br. at 12.
Here, we agree with Petitioners that if the case proceeded on remand and the Board reviewed PA Waste's revised application, then the only appealable issues would be from PA Waste's revised application. See Reeves Fam. Real Est., L.P. v. Bd. of Supervisors of Schuylkill Twp. , 273 A.3d 1277, 1285 (Pa. Cmwlth. 2022) ( Reeves ); Vanvoorhis v. Shrewsbury Twp. , 176 A.3d 429, 433 (Pa. Cmwlth. 2017) ; Schultheis v. Bd. of Supervisors of Upper Bern Twp. , 727 A.2d 145, 147 (Pa. Cmwlth. 1999).8 If an immediate appeal was not allowed, then Petitioners would lose their opportunity to appeal the Board's instant decision and argue that PA Waste's original application and DEP's approval were proper. See Reeves , 273 A.3d at 1285 ; Vanvoorhis , 176 A.3d at 433 ; Schultheis , 727 A.2d at 147. Therefore, we agree that the Board's order is appealable under Pa.R.A.P. 311(f)(2).
To address this issue, further background will provide useful context. The instant case involves two complex statutory schemes: the Solid Waste Management Act and the Municipal Waste Planning, Recycling and Waste Reduction Act (Municipal Waste Act).9 In relevant part, it is a purpose of these Acts to regulate the operation of municipal waste disposal systems in order to protect the public from the dangers of transporting and disposing of municipal waste. Section 102(3)-(4) of the Solid Waste Management Act, 35 P.S. § 6018.102(3) - (4) ; Section 102(b)(3) of the Municipal Waste Act, 53 P.S. § 4000.102(b)(3).10 The EQB may promulgate regulations that permit DEP to accomplish this purpose. Section 105(a) of the Solid Waste Management Act, 35 P.S. § 6018.105(a) ; Section 302 of the Municipal Waste Act, 53 P.S. § 4000.302 ; see generally Section 1920-A of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, added by the Act of December 3, 1970, P.L. 834, as amended , 71 P.S. § 510-20(b).11
DEP's interpretation of two EQB regulations is specifically at issue. First, the Origin Regulation requires a permit application for a municipal waste landfill to contain a narrative describing the "general operational concept for the proposed facility, including the origin, composition and weight or volume of solid waste that is proposed to be disposed of at the facility[.]" 25 Pa. Code § 273.112.12 Second, Section 271.127 (Need Regulation) requires an applicant to demonstrate that the public benefits of the proposed municipal waste landfill "clearly outweigh the known and potential environmental harms." Id. § 271.127(c). In complying with Subsection (c), the applicant "may include an explanation of the need" for the landfill, if any. Id. § 271.127(f).13
Here, the Origin Regulation required PA Waste's application to describe the "general operational concept" for the Landfill, including "the origin ... of solid waste" that would be disposed in the Landfill. See id. § 273.112(a). PA Waste's application stated that PA Waste did not know the origin of the solid waste that would be disposed at the Landfill. See Cnty.’s Mot. For Summ. J., 3/12/21, Ex. 21 (Application), at 2.14 However, PA Waste also noted generally that waste would be delivered from "surrounding jurisdictions" and "sources outside of Pennsylvania." See id. Although DEP accepted PA Waste's general statements, the Board disagreed, holding that PA Waste's application did not sufficiently specify the origin of waste. Bd.’s Op. at 13-15.
Regulatory interpretation is a question of law, and therefore, the standard of review is de novo , i.e. , a reviewing court is not bound by or required to defer to a prior legal conclusion. S&H Transp., Inc. v. City of York , 653 Pa. 467, 210 A.3d 1028, 1038 (2019) ; In re Doe , 613 Pa. 339, 33 A.3d 615, 623-24 (2011).
Although the standard of review is de novo , an agency's interpretation is entitled to deference by the courts, and the level of such deference depends on how we categorize that interpretation. Corman v. Acting Sec'y of Pa. Dep't of Health , ––– Pa. ––––, 266 A.3d 452, 485 (2021) ;15 Woodford v. Pa. Ins. Dep't , 201 A.3d 899, 902 n.3 (Pa. Cmwlth. 2019) (, "in a case involving a complex statutory scheme, courts exercise greater caution in substituting their discretion for the expertise of the [agency]"), aff'd , ––– Pa. ––––, 243 A.3d 60 (2020). Where an agency's interpretation of its own regulations is at issue, as in this case, its interpretation "should not be disregarded unless shown to be clearly erroneous." Eagle Env't, L.P. v. Dep't of Env't Prot. , 833 A.2d 805, 809 (Pa. Cmwlth. 2003) ( Eagle ) (cleaned up).16
In determining whether an interpretation is "clearly erroneous," courts examine: "(1) whether [DEP's] interpretation of the regulation is erroneous or inconsistent with the regulation, and (2) whether the regulation [as interpreted by DEP] is consistent with the statute under which it was promulgated."17 Tire Jockey , 915 A.2d at 1186 (citations omitted).18 In resolving whether the agency's regulatory interpretation is consistent with the statute, we must consider the purpose of the statute. Id. at 1188. Further, if a regulation contains an undefined term, then courts may resort to a dictionary to define that term. Marcellus Shale Coal. v. Dep't of Env't Prot. , 193 A.3d 447, 473 (Pa. Cmwlth. 2018). With this additional context, and having summarized the generally applicable law as background, we address each of Petitioners’ three arguments.
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