EAGLE ENVIRONMENTAL v. DEPT. OF ENV. PROT.

• Decision Date: 09 October 2003
• Citation: 833 A.2d 805
• Parties: EAGLE ENVIRONMENTAL, L.P., Petitioner, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION and Jefferson County, Respondents. Jefferson County Commissioners, Jefferson County Solid Waste Authority, Clearfield-Jefferson Counties Regional Airport Authority, Petitioners, v. Commonwealth of Pennsylvania, Department of Environmental Protection, Eagle Environmental, L.P., John Nordberg, Respondents.
• Court: Pennsylvania Commonwealth Court

833 A.2d 805

EAGLE ENVIRONMENTAL, L.P., Petitioner, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION and Jefferson County, Respondents.

Jefferson County Commissioners, Jefferson County Solid Waste Authority, Clearfield-Jefferson Counties Regional Airport Authority, Petitioners, v. Commonwealth of Pennsylvania, Department of Environmental Protection, Eagle Environmental, L.P., John Nordberg, Respondents.

Commonwealth Court of Pennsylvania.

Argued September 9, 2003.

Decided October 9, 2003.

William F. Fox, Jr., Harleysville, for petitioner, Eagle Environmental.

Robert P. Ging, Jr., Confluence, for petitioners, Jefferson Cnty. Solid Waste Auth., et al.

Michael D. Buchwach, Harrisburg, for respondent.

BEFORE: SMITH-RIBNER, Judge, SIMPSON, Judge and FLAHERTY, Senior Judge.

OPINION BY Judge SIMPSON.

In these consolidated appeals from orders of the Environmental Hearing Board (EHB), Eagle Environmental, L.P., (Eagle) questions whether the EHB erred in upholding a decision voiding its suspended solid waste permit. Jefferson County, Jefferson County Solid Waste Authority, and Clearfield-Jefferson Counties Regional Airport Authority (Local Government Officials) ask whether the EHB erred in dismissing as moot their appeal from the initial grant of the permit in 1996. Agreeing the permit is void because Eagle did not process or dispose of waste within five years of issuance of the permit and Eagle did not seek permit modification within the five-year period, we affirm. Because of our disposition of Eagle's appeal, we dismiss Local Government Officials' appeal as moot.

The parties stipulated to the following facts. In February 1996, the Department of Environmental Protection (DEP) issued a waste management permit (Permit) to Eagle for a new municipal waste landfill in Jefferson County known as the Happy Landing Landfill (Landfill).¹ Notably, Paragraph 34 of the Permit stated:

The approval of the plans and authority granted in this permit, if not specifically extended by [DEP] in writing, shall terminate and be thereafter void if no municipal waste is disposed at the facility within five (5) years of the date of issuance of this permit pursuant to the requirements of 25 PA Code § 271.211(e).

Reproduced Record (R.R.) at 35a. Following issuance of the Permit, the Pennsylvania Fish and Boat Commission designated three streams near the Landfill as wild trout streams. Based on this designation, DEP determined the Landfill site contained wetlands of "exceptional value." Thus, in September 1996, DEP issued an order suspending the Permit (suspension order). The suspension order provides, in relevant part:

[The Permit] is suspended. Eagle may seek reinstatement and modification of [the Permit] only if no portion of the municipal waste landfill which Eagle seeks to construct and operate is located in or within 300 feet of the wetland areas for which [DEP] has revoked its authorization to fill....

Supplemental Reproduced Record (S.R.R.) at 26b. Eagle appealed the suspension order to the EHB. The EHB denied Eagle's appeal, and this Court affirmed.² In June 2002, the suspension order became final when our Supreme Court denied Eagle's petition for allowance of appeal.³

While its appeals of the suspension order were pending, Eagle neither constructed the Landfill nor sought modification of the Permit. Eagle did not seek a supersedeas or stay of the suspension order. In addition, Eagle did not request an extension of the Permit.

Eagle neither accepted nor disposed of municipal waste under the Permit. In February 2001, five years after issuance of the Permit, DEP sent Eagle a letter which stated, in pertinent part:

This letter is written in light of 25 Pa.Code § 271.211(e) and condition No. 34 of your [Permit] issued February 9, 1996.

Because no municipal waste has been disposed of at this facility within 5 years of permit issuance, the [Permit] for the [Landfill] is void.

R.R. at 13a.

Eagle appealed to the EHB, asserting: § 271.211(e) (sunset regulation) was inapplicable because, as a result of the suspension order, Eagle was not "under a permit"; DEP's interpretation created an absurd, impossible and unreasonable result; and voiding the Permit conflicted with Eagle's right to apply for a permit modification pursuant to the suspension order.

The EHB rejected these arguments and dismissed the appeal, concluding: (i) regulatory interpretation was not required because the sunset regulation is unambiguous and contains no exceptions; (ii) the five-year regulatory deadline is reasonable because it allows a permittee adequate time to resolve any potential problems; (iii) in addition to litigating the propriety of the suspension order, Eagle could have sought to modify its Permit, but did not to do so; and (iv) the suspension order, which gave Eagle an opportunity to seek modification, did not supersede the sunset regulation.

Eagle appeals to this Court,⁴ contending: (i) the sunset regulation cannot operate to void a permit that is under suspension; (ii) DEP's interpretation of the sunset regulation produced an absurd, impossible and unreasonable result; and (iii) the suspension order, which allowed Eagle an opportunity to seek modification, supersedes the sunset regulation.

I.

A.

Eagle first argues the sunset regulation is inapplicable because it was not "under a permit" as a result of the suspension order. We disagree.

The sunset regulation provides:

If no municipal waste is processed or disposed under a permit within 5 years of the date of issuance by [DEP] of a permit for the facility, the permit is void.

25 Pa.Code § 271.211(e).

Where the words of a regulation are clear and free from ambiguity, the letter of the regulation is not to be disregarded under the pretext of pursuing its spirit.⁵ 1 Pa.C.S. § 1921(b); Highway News, Inc. v. Dep't of Transp., 789 A.2d 802 (Pa. Cmwlth.2002). The sunset regulation is clear and free from all ambiguity. It explicitly states that a permit becomes void where a permittee does not process or dispose of waste at a landfill facility within five years of issuance of the permit. The regulation contains no exceptions. As a result, we need not apply the rules of statutory construction to obtain either the meaning of its words or the Environmental Quality Board's intent in promulgating it. 1 Pa.C.S. § 1921(c).

In Tri-State Transfer Co., Inc., v. Dep't of Envtl. Prot. Tinicum Township, 722 A.2d 1129 (Pa.Cmwlth.1999), we were asked whether the sunset regulation could be applied retroactively to a permit issued to Tri-State Transfer (TST) before the regulation and renewed by DEP after the regulation was promulgated. The EHB concluded the sunset regulation applied to the permit because the plain language of the regulation did not allow for exemptions. We affirmed. Explaining the sunset regulation was unambiguous, we stated:

Initially, we observe that, assuming that the regulation does apply to these circumstances, TST's permit is clearly voided by [the sunset regulation]. The record shows that approximately nineteen years passed between 1976, when the permit was first issued, and 1995, when [DEP] renewed the permit. And, approximately seven years passed from the date that the 1988 regulations were promulgated to the date the permit was renewed. The EHB found as fact that TST never constructed the waste transfer facility on the site, and it is undisputed that TST has never processed or disposed of any waste at the site. Therefore, because no municipal waste was processed or disposed of at the facility within five years of the date the [DEP] first issued the permit for the facility, TST's permit is void under [the sunset regulation].

Tri-State Transfer Co., Inc., 722 A.2d at 1132 (emphasis added). In addition, we agreed with the EHB that:

There is no language in the regulations which provides [DEP] with any explicit authority to exempt facilities with pre-1988 permits from application of [the sunset regulation] subsection (e). In promulgating the 1988 solid waste regulations, it was the purpose of the Environmental Quality Board (EQB) to require more comprehensive and stringent regulations of solid waste management facilities. 18 Pa. Bull. 1601 (April 9, 1988). Where the EQB intended to exempt facilities which had been permitted prior to 1988 from the new requirements, it explicitly did so....

Id. at 1133.

Eagle attempts to distinguish Tri-State Transfer. It asserts, unlike TST, which voluntarily chose not to operate under its permit, Eagle was barred from operating under its Permit. This argument fails. As noted by the EHB:

Eagle's argument misses what we believe to be the point of the decision; namely that [the sunset regulation] is not ambiguous and its plain language does not allow for exemptions. Since there are no exceptions, the particular reason why a permittee does not take advantage of its permit is simply not relevant in a proceeding at law.

EHB Adj. at 6. The EHB properly relied on Tri-State Transfer for the proposition that the sunset regulation is unambiguous and contains no exceptions; therefore, the factual distinction is irrelevant.

Applying the unambiguous language of the five-year regulatory deadline to the stipulated facts, Eagle's Permit is void. The parties stipulated the Permit was issued on February 9, 1996, R.R. at 17a, and, over the next five years, Eagle accepted no waste for disposal under the Permit. R.R. at 19a. In addition, Eagle did not construct the Landfill while its appeals of the suspension order were pending. R.R. at 15a. The sunset regulation does not authorize DEP to grant extensions as a result of litigation. Because no waste was processed or disposed of at the Landfill within five years of the issuance, the Permit is void by operation of law. Tri-State Transfer.

Eagle also focuses on the phrase "under a permit." It contends, because it did not have an operative permit, the five-year period did not begin to run. Again, we disagree. Although the Permit...