Khodara Environmental, Inc. v. Burch
| Decision Date | 01 October 2002 |
| Docket Number | No. CIV.A. 97-93.,CIV.A. 97-93. |
| Citation | 245 F.Supp.2d 695 |
| Parties | KHODARA ENVIRONMENTAL, INC., general partner, on Behalf of Eagle Environmental, L.P., Plaintiffs, v. Kelly BURCH,<SMALL><SUP>1</SUP></SMALL> Jane F. Garvey, Federal Aviation Administration, Defendants. Leatherwood, Inc., Plaintiff, v. Pennsylvania Department of Environmental Protection, et al., Defendants. |
| Court | U.S. District Court — Western District of Pennsylvania |
John P. Krill, David R. Overstreet, Carleston 0. Strouss, Kirkpatrick & Lockhart, Harrisburg, PA, William F. Fox, Jr., Albert F. Fox, Jr., Albert A. DeGennaro, J.P. Mascaro & Sons, Harleysville, PA, James V. Corbelli, Joseph K. Reinhart, Timothy C. Wolfson, Babst, Calland, Clements & Zomnir, Pittsburgh, PA, for Plaintiffs.
Thaddeus A. Weber, Meadville, PA, Michael D. Buchwach, Pittsburgh, PA, Marsha S. Edney, Sandra M. Schraibman, Department of Justice Civil Division, Isaac R. Campbell, Department of Justice Civil Division, Federal Programs Branch, Washington, DC, Thomas L. Wenger, Steven R. Williams, Wix, Wenger & Weidner, Harrisburg, PA, Robert P. Ging, Jr., Confluence, PA, for Defendants.
Presently pending before the Court in these consolidated cases are various crossmotions for summary judgment. For the reasons that follow, the motions filed by the Commonwealth and Federal Defendants will be granted. The motions filed by the Plaintiffs will be denied. The motion filed on behalf of the Intervenors Jefferson County and Pinecreek Township will likewise be denied.
Plaintiff Khodara Environmental, Inc., general partner acting on behalf of Eagle Environmental, L.P. (collectively referred to as "Eagle") owns and/or has an interest in several hundreds of acres of land in Washington Township, Jefferson County, Pennsylvania. It has been Eagle's intention for many years to develop a solid waste disposal facility on the property, known as the "Happy Landing Landfill," which would be located approximately 5.25 miles from the Dubois-Jefferson County Airport and which would accept municipal waste from various locales having a scarcity of landfill space.
In or around 1990, Eagle began to apply for a series of permits from the Pennsylvania Department of Environmental Protection ("DEP"). On February 9, 1996, the DEP issued certain permits necessary for construction and operation of the landfill, to wit: a Water Obstruction and Encroachment Permit allowing for the filling of certain wetlands, a National Pollutant Discharge Elimination System (NPDES) Permit, a Solid Waste Permit, and an Air Quality Permit. Upon becoming initially permitted, Eagle undertook certain steps relative to the development of the landfill, including obtaining various engineering studies and installing twelve groundwater monitoring wells in June of 1996.
In September 1996, the Pennsylvania Fish and Boat Commission designated three tributaries near the landfill site as wild trout streams. Based on these designations, the DEP determined that certain wetlands in and around the landfill area were of "exceptional value" and should not be filled. Consequently, the DEP concluded that Eagle's plan to develop and operate the landfill should not have been permitted as proposed in that the plan had included inaccurate information about the streams.
On September 25, 1996, Defendant Steven Beckman, then Regional Director of the DEP, issued an administrative order modifying the Water Obstruction and Encroachment Permit by revoking authorization to fill in any wetlands. The order also suspended the Solid Waste Permit, the Air Quality Permit, the NPDES Permit, and the unmodified portion of the Encroachment Permit. This suspension order became the subject of an appeal before the Environmental Hearing Board styled Eagle Environmental L.P. v. Commonwealth of Pennsylvania Department of Environmental Protection, EHB Docket No. 96-215-MG.
On February 7, 1997, Eagle entered into a Consent Order and Agreement ("CO & A") with the DEP which permitted the release of bonds that Eagle had submitted in the process of obtaining its Solid Waste Permit. Under the CO & A, Eagle agreed that it "shall not construct or operate the Happy Landing Landfill until and unless the [Solid Waste] Permit is reinstated and the bonding requirements of the [Pennsylvania Solid Waste Management Act] are met." All of the permits issued by the DEP to Eagle relative to the Happy Landing Landfill remained suspended pending Eagle's pursuit of administrative relief in the state courts.
On September 3, 1998, the Environmental Hearing Board issued an administrative order affirming the DEP's suspension order. The Pennsylvania Commonwealth Court likewise affirmed and, on June 12, 2002, the DEP's September 25, 1996 suspension order became final when the Pennsylvania Supreme Court denied further review.
In the meantime, on October 9, 1996, Congress enacted the Federal Aviation Reauthorization Act of 1996, Pub.L. No. 104-264 ("FARA"), formerly codified at 49 U.S.C. § 44718(d). Section 1220 of FARA provided, in relevant part:
For the purpose of enhancing aviation safety, in a case in which 2 landfills have been proposed to be constructed or established within 6 miles of a commercial service airport with fewer than 50,000 enplanements per year, no person shall construct or establish either landfill if an official of the Federal Aviation Administration has stated in writing within the 3-year period ending on the date of enactment of this subsection that 1 of the landfills would be incompatible with aircraft operations at the airport, unless the landfill is already active on such date of enactment or the airport operator agrees to the construction or establishment of the landfill.
Eagle originally commenced this action seeking, primarily, a declaration that Section 1220 was unconstitutional and/or that it did not apply to the Happy Landing Landfill. On March 31, 1999, this Court granted partial summary judgment in favor of Eagle by ruling that the statute violated Eagle's equal protection rights. See Khodara Environmental, Inc. v. Beckman (hereinafter, Khodara I), 91 F.Supp.2d 827, 850-57 (W.D.Pa.1999), aff'd in part, vacated in part and , 237 F.3d 186 (3d Cir.2001). Cross-appeals were taken by various parties to the United States Court of Appeals for the Third Circuit.
While this Court's March 31, 1999 ruling was on appeal, Congress enacted the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR-21"), which repealed the 1996 Act and added new statutory language codified at 49 U.S.C. § 44718(d). Section 503(d) of AIR21, which was signed into law on April 5, 2000, provides, in relevant part:
(1) In general.—No person shall construct or establish a municipal waste solid waste landfill ... that receives putrescible waste ... within 6 miles of a public airport that ... is primarily served by general aviation aircraft and regularly scheduled flights of aircraft designed for 60 passengers or less unless the State aviation agency of the State in which the airport is located requests that the Administrator of the [FAA] exempt the landfill from the application of this subsection and the Administrator determines that such exemption would have no adverse impact on aviation safety.
(2) Limitation on applicability.—Paragraph (1) shall not apply in the State of Alaska and shall not apply to construction, establishment, expansion, or modification of, or to any other activity undertaken with respect to, a municipal solid waste landfill if the construction or establishment of the landfill was commenced on or before the date of the enactment of this subsection.
49 U.S.C. § 44718(d).
In light of the critical amendment to § 44718(d) effected by AIR-21, the Third Circuit vacated that portion of this Court's March 31, 1999 opinion which had ruled that the 1996 Act was facially unconstitutional. See Khodara Environmental, Inc. v. Beckman, 237 F.3d 186 (3d Cir.2001). The case was remanded in order for Eagle to file an amended complaint addressing any claims it might have relative to AIR21.
On April 6, 2001, Eagle filed an Amended Complaint seeking relief under the Declaratory Judgments Act, 28 U.S.C. §§ 2201 et seq. as against Steven Beckman, the FAA, and its Administrator, Jane Garvey.2 Count I of the Amended Complaint seeks a declaration that AIR-21 does not apply to the Happy Landing Landfill under the theory that "construction" and "establishment" of the landfill was "commenced" prior to the enactment date of April 5, 2000. Count II seeks an alternative declaration that Eagle is exempted from the statute's prohibition pursuant to 49 U.S.C. § 44718(d)(1) in that operation of the Landfill will not have an adverse impact on aviation safety. Counts III through VI of the Amended Complaint seek declarations that AIR-21 is unconstitutional in various respects, to wit: the statute constitutes an unlawful delegation of legislative power to state aviation authorities, compels state agencies to participate in the administration of a federal regulatory program, impairs Eagle's First Amendment right to petition the government for redress, and deprives Eagle of its equal protection and due process rights. As to all counts, Eagle seeks injunctive relief permanently enjoining Defendants Beckman and Garvey from applying AIR21's prohibitions to the Happy Landing Landfill.
The parties are once again before the Court having filed various cross-motions for summary judgment relative to Count I of Eagle's Amended Complaint. In essence, we are asked to determine whether AIR-21 facially applies to the Happy Landing Landfill, which in turn requires this Court to interpret critical language in § 44718(d)(2). In addition, certain of the parties have raised threshold jurisdictional challenges to...
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