EAGLE ENVIRONMENTAL II, LP v. COM., DEP

• Decision Date: 27 October 2005
• Citation: 884 A.2d 867,584 Pa. 494
• Parties: EAGLE ENVIRONMENTAL II, L.P., Appellant v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL PROTECTION and Chest Township, Appellees. Tri-County Industries, Inc. and Tri-County Landfill, Inc., Appellants v. Commonwealth of Pennsylvania, Department of Environmental Protection, Appellee.
• Court: Pennsylvania Supreme Court

884 A.2d 867

584 Pa. 494

EAGLE ENVIRONMENTAL II, L.P., Appellant v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL PROTECTION and Chest Township, Appellees.

Tri-County Industries, Inc. and Tri-County Landfill, Inc., Appellants v. Commonwealth of Pennsylvania, Department of Environmental Protection, Appellee.

Supreme Court of Pennsylvania.

Argued May 11, 2004.

Decided October 27, 2005.

John J. Brazil, Jr., for Borough of Moosic.

Doreen M. Graziano, Old Forge, for Alliance Against Alliance. David Joseph Gromelski, Scranton, for Borough of old Forge and County of Lackawanna.

David R. Overstreet, John P. Krill, for Eagle Environmental II, L.P.

David J. Brooman, Berwyn, for PA Chapter of the Solid Waste Ass'n of North America.

Maura Tobin Donley, for PA Chamber of Business and Industry.

Nels Jahn Taber, Williamsport, Dennis Ward Strain, Harrisburg, Amy F. Ershler, Williamsport, Douglas Glenn Moorhead, Thaddeus Adam Weber, for Dept. of Environmental Protection.

Robert P. Ging, Confluence, for Chest Tp.

Tybe Ann Brett, Alan Stuart Miller, Pittsburgh, for Tri-County Industries, Inc. and Tri-County Landfill, Inc.

Kenneth Lawson Joel, for County of Berks.

BEFORE: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice BAER.

We granted review of this case to determine whether the en banc panel of the Commonwealth Court correctly concluded that the Environmental Quality Board's (EQB) regulations adopting a "Harms/Benefits Test" as part of the permitting process for waste disposal facilities are constitutional and authorized by the Solid Waste Management Act (SWMA), 35 P.S. §§ 6018.101-6018.1003, and the Municipal Waste Management Planning, Recycling and Waste Reduction Act (Act 101), 53 P.S. §§ 4000.101-4000.1904 (collectively "the Acts"). For the foregoing reasons, we conclude that the regulations are within the authority granted by the General Assembly to the EQB and further withstand the other facial challenges to their constitutionality brought by Appellants Eagle Environmental II, L.P. ("Eagle") and Tri-County Industries, Inc. and Tri-County Landfill, Inc. ("Tri-County") (collectively "Appellants"). Therefore, we affirm the decision of the Commonwealth Court.

Facts and Procedural History

The EQB published the regulations entitled "Environmental assessment" as final rules. 25 Pa.Code §§ 271.127 (pertaining to the municipal waste and effective December 23, 2000), 287.127 (pertaining to residual waste and effective January 13, 2001).¹ The regulations at issue relate to a portion of the first phase of a two-phase application process by which landfill operators obtain permits from the Department of Environmental Protection (DEP). 25 Pa.Code §§ 273.101, 288.101. The two regulations contain nearly identical language and differ only as to the type of facility regulated.² In Subsection (a), the regulation requires that a permit application include "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 and land use." 25 Pa.Code 271.127(a), 287.127(a).³ Furthermore, it requires consideration of environmental 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 . . ., airports, public water supplies and other features deemed appropriate by the Department or the applicant." Id.

After satisfying the investigatory aspects of subsection (a), the applicant under subsection (b) must describe any known and potential environmental harms, provide mitigation plans, and identify any known or potential unmitigated environmental harms. The DEP then "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." 25 Pa.Code §§ 271.127(b), 287.127(b). The DEP finally reviews the mitigation measures "to ensure that individually and collectively they adequately protect the environment and the public health, safety and welfare." Id.

Once the DEP determines that the mitigation measures for the known and potential environmental harms are adequate, the next step in the assessment is the Harms/Benefits Test set forth in subsection (c), which is the subject of the challenges in this case:

(c) ... 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(c), 287.127(c) (omitting only the portion of the subsection describing the applicable type of waste facility). The DEP then performs the second phase of the review which includes a technical review of the project.

Eagle's challenge to the Harms/Benefits Test arises as a result of a permit issued for its Royal Oak Landfill, a residual waste landfill in Chest Township, Clearfield County. Eagle filed submissions to obtain the permit between November 2000 and January 2001, which apparently complied with the requirements of the regulation which became effective January 13, 2001.

Eagle's documents identified a number of benefits flowing from the project. Eagle cited the following potential short term benefits: disposal of debris in the event of a disaster; payments for health and safety training courses for landfill operators; and use of coal excavated from the site. Eagle identified additional real short term economic benefits: jobs for local residents at the landfill; increased employment at businesses associated with or located near the landfill; increased local, state and federal income taxes as a result of increased employment; higher real estate taxes; a $2 dollar per ton host fee to the township (as specifically authorized by 53 P.S. § 4000.102(b)(7)); and provision of a recycling drop-off center. Eagle further noted real long term benefits of the project: replacement of wetland acreage (although the project would disturb .17 acres of wetlands, the disturbed wetland would be replaced with .42 acres of wetlands); improvement of the roads leading to the landfill; benefit to wetlands in the form of landfill runoff and reduced erosion; reclamation of a strip mine, and the resulting visual enhancement and increased soil fertility.

In contrast, Eagle identified harms resulting from the landfill and described how those harms could or could not be mitigated. The potential harm of a malfunction of the leachate treatment plant could be mitigated by proper operation of the plant and utilization of a leachate storage tank.⁴ Eagle recognized the potential negative impact on the residents of the area but concluded that any impact would largely be anticipatory and could be alleviated by working with the residents. Eagle acknowledged sediment-laden runoff as a harm but asserted that it could be mitigated by erosion and sedimentation control features, and various measures relating to sediment required by other regulations. Furthermore, the resulting sedimentary ponds would be beneficial to aquatic life and migratory birds. Eagle observed that an increased risk of fires, emergencies, and accidents that could result from the project would burden the local emergency services, but could be mitigated by contingency planning, fire protection measures, and payments to the local fire departments to cover the increased burden. Eagle further noted the short term harms caused by waste hauling trucks which include fumes, visual impact, noise, spills, and odors. Eagle offered to mitigate these harms by insuring that the trucks are well maintained and that other measures would be employed to reduce the dust, noise, and odors resulting from the site.

Eagle acknowledged the long term harms of the project. After closure of the landfill, the land, which is currently woodland, would be converted to grassland. Eagle argued that, although the conversion could be viewed as a harm, it could also be seen as a benefit because it would increase species diversity in the area. Another long term harm is the negative aesthetic aspect of the landfill, however, Eagle planned to mitigate this by planting vegetation around the perimeter of the landfill.

The DEP found that the benefits outweighed the harms in part because the harms were only potentialities, whereas the benefits were actual. Therefore, after further review of the technical aspects, the DEP granted, in essence, a conditional permit on August 3, 2001. The permit included Condition 22, which stated, "Failure to provide for all benefits described in these submissions would invalidate the Harms/Benefits analysis and will be a violation of this permit."

Eagle appealed to the Environmental Hearing Board (EHB), objecting to Condition 22 and challenging the facial validity of the Harms/Benefits Test. Eagle asserted that, pursuant to Condition 22, it could be subject to penalties resulting from the failure to supply the benefits even if such failure were related to economic events outside of its control. Chest Township also appealed the decision to grant the permit and requested that the permit be revoked, asserting that the benefits did not clearly outweigh the harms. Eagle filed for summary judgment of Chest Township's claims,...