Tri-County Industries, Inc. v. Com.

• Court: Commonwealth Court of Pennsylvania
• Citation: 818 A.2d 574
• Parties: TRI-COUNTY INDUSTRIES, INC. and Tri-County Landfill, Inc., Petitioners, v. COMMONWEALTH of Pennsylvania, Department of Environmental Protection, Respondent. Eagle Environmental II, L.P., Petitioner, v. Commonwealth of Pennsylvania, Department of Environmental Protection and Chest Township, Respondents. Alliance Sanitary Landfill, Inc., Petitioner, v. Department of Environmental Protection; Old Forge Borough; Moosic Borough; Lackawanna County and Alliance Against Alliance, Respondents.
• Decision Date: 10 February 2003

818 A.2d 574

TRI-COUNTY INDUSTRIES, INC. and Tri-County Landfill, Inc., Petitioners,
v.
COMMONWEALTH of Pennsylvania, Department of Environmental Protection, Respondent.
Eagle Environmental II, L.P., Petitioner,
v.
Commonwealth of Pennsylvania, Department of Environmental Protection and Chest Township, Respondents.
Alliance Sanitary Landfill, Inc., Petitioner,
v.
Department of Environmental Protection; Old Forge Borough; Moosic Borough; Lackawanna County and Alliance Against Alliance, Respondents

Commonwealth Court of Pennsylvania.

Argued November 6, 2002.

Decided February 10, 2003.

As Amended February 12, 2003.

818 A.2d 576

Alan S. Miller, Pittsburgh, for petitioners, Tri-County Industries and Tri-County Landfill

Jason E. Oyler, Harrisburg, for petitioner, Eagle Environmental II.

Robert D. Fox, Bala Cynwyd, for petitioner, Alliance Sanitary Landfill.

Dennis W. Strain, Harrisburg, for respondent.

David J. Gromelski, Scranton, for respondents, Borough of Old Forge, Borough of Moosic, Lackawanna County and Alliance Against Alliance.

BEFORE: COLINS, President Judge, McGINLEY, Judge, SMITH-RIBNER, Judge, FRIEDMAN, Judge, and LEADBETTER, Judge.

818 A.2d 575

OPINION BY Judge SMITH-RIBNER

The Court granted permission to appeal in these consolidated cases to consider whether the "harms/benefits test" adopted by the Environmental Quality Board in the regulations at 25 Pa.Code §§ 271.127 and 287.127 is constitutional and is a proper exercise of authority conferred upon the Department of Environmental Protection (DEP) and the Environmental Quality Board by the Solid Waste Management Act (SWMA), Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§ 6018.101-6018.1003, and the Municipal Waste Planning, Recycling and Waste Reduction Act (Act 101), Act of July 28, 1988, P.L. 556, as amended, 53 P.S. §§ 4000.101-4000.1904.¹ In general the regulations require applicants for permits to construct and to operate solid waste disposal facilities for residual or municipal waste to identify potential and real environmental harms from the proposed activity and to identify social and economic benefits. DEP shall approve projects only if it determines that the benefits clearly outweigh the harms.

Petitioners present the following questions for review: (1) whether the harms/benefits test is authorized by clear and unmistakable language contained in

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the SWMA or Act 101; (2) whether the reference to implementation of Article I, Section 27 of the Pennsylvania Constitution as among the purposes of the SWMA and Act 101 authorizes the Environmental Quality Board to promulgate the test; (3) whether authorization to the Board to promulgate the test constitutes delegation of authority to make basic policy choices in violation of the non-delegation doctrine of Article II, Section 1 of the Constitution; (4) whether the harms/benefits test is void for vagueness on its face for failure to provide discernible standards; and (5) whether the test falls outside the Commonwealth's police power

I

Tri-County Industries, Inc. (Tri-County) owns and operates the Tri-County Landfill in Mercer County, which is located within 6,600 feet of the Grove City Airport. In July 2000 Tri-County submitted to DEP a Substitute Repermitting Application pursuant to an agreement that resolved an earlier denial of a repermit. In December 2000 the Environmental Quality Board promulgated revisions to the environmental assessment criteria governing permits for municipal waste landfills. In 25 Pa.Code § 271.127(a) the applicant was required to identify in an environmental assessment the impacts of the proposed facility on the environment and on public health and safety, considering features including airports. Pursuant to Section 271.127(b) the applicant must describe known and potential environmental harms of the proposed project and how they would be mitigated. Under Section 271.127(c) the applicant "shall demonstrate that the benefits of the project to the public clearly outweigh the known and potential environmental harms." The applicant shall describe the benefits in detail, and they 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." Id. This requirement is frequently referred to as the "harms/benefits test."

DEP denied Tri-County's application on the basis that, although benefits outweighed other known and potential environmental harms, after review by experts DEP was not convinced that Tri-County's proposal for mitigation of the hazard of birds striking aircraft in the area of the airport was adequate. Tri-County appealed, and before the Environmental Hearing Board (EHB), Tri-County moved for summary judgment challenging the validity of the harms/benefits test.

Eagle Environmental II, L.P. (Eagle) operates the Royal Oak Landfill in Chest Township, Clearfield County, which is a municipal waste disposal facility subject to the provisions of 25 Pa.Code § 287.127. That regulation was revised in January 2001, and it includes provisions essentially identical to those in Section 271.127 relating to residual waste facilities. In the application for its permit Eagle identified potential benefits including providing disposal of debris in a disaster, fees paid for training courses for operators at the landfill and the production of some coal as part of the excavation for the landfill construction. Real long-term benefits included a net gain in wetland acreage, reclaiming of a strip mine, improvement of roads leading to the landfill and benefits to wetlands and reduction of erosion from runoff. Real short-term benefits included providing jobs for local residents, payment of additional taxes, payment of a $2 per ton host fee to the township and provision of a recycling dropoff center. DEP approved Eagle's application on August 3, 2001, with a Condition 22, which required it to provide

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all of the benefits that it described in its application or be in violation of its permit. Eagle appealed, challenging the validity of the harms/benefits test and the imposition of Condition 22.

Alliance Sanitary Landfill, Inc. (Alliance) submitted an application for a 147-acre expansion to a municipal waste landfill that it operates in Taylor Borough, Ransom Township and the Borough of Old Forge, Lackawanna County. In May 2001 DEP denied the application, stating that Alliance failed to demonstrate that the benefits of the project would clearly outweigh harms, which included encroachment on wetlands, the effect of noise from heavy equipment on neighbors, negative impact on property values in the vicinity and the fact that it would be an unsightly feature in a prominent location. Alliance appealed as well.

On April 4, 2002, the EHB issued its decision denying Eagle's motion for summary judgment. It stated that the harms/benefits test was a reasonable means of implementing the purposes of the SWMA and Act 101 and concluded that the legislature had authorized the Environmental Quality Board to take into account economic and social considerations when implementing an effective solid waste program. The EHB concluded that the harms/benefits test in Section 287.127(c) comported with Article I, Section 27 of the Pennsylvania Constitution, noting that the SWMA and Act 101 expressly provide for implementation of this constitutional provision as a stated purpose and that the provision has been held to require balancing economic and social effects with environmental harms. The EHB questioned the relevance of Eagle's police power argument and rejected it, noting the breadth of the scope of the police power. Finally, the EHB rejected the contention that the harms/benefits test is unconstitutionally vague, stating that the speculative danger of arbitrary enforcement did not render the provision void and that it would be impractical to write the regulation with further specificity.

On April 8, 2002, the EHB issued an order denying Alliance's motion for summary judgment and granting DEP's partial motion for summary judgment, considering that its holding in the Eagle case applied with equal force to 25 Pa.Code § 271.127(c). On April 11, 2002, the EHB issued a similar order denying Tri-County's motion for summary judgment. The EHB later modified its orders to certify the cases for interlocutory appeal, and this Court consolidated the cases.²

II

All three Petitioners first argue that the harms/benefits test is not authorized by clear, unambiguous language in the SWMA or in Act 101. They note that Article II, Section 1 of the Pennsylvania Constitution vests the General Assembly with the legislative power of the Commonwealth. Tri-County cites Sullivan v. Department of Transportation, Bureau of Driver Licensing, 550 Pa. 639, 708 A.2d 481 (1998), where the court stated that the power of "substantive enactment" is reserved to the legislature, which must make "basic policy choices" when it delegates policy-making authority to an agency. In Green v. Milk Control Commission, 340 Pa. 1, 3, 16 A.2d 9, 9 (1940), the court stated: "The power and authority to be exercised by administrative commissions must be conferred by legislative language

818 A.2d 579

clear and unmistakable. A doubtful power does not exist."

The EHB noted that the Supreme Court has long recognized a distinction between the authority of a rule adopted pursuant to an agency's legislative rulemaking power and its interpretive rulemaking power. The former results from a grant of legislative power by the legislative body, and it is "valid and as binding upon a court as a statute if it: (a) is within the granted power, (b) is issued pursuant to proper procedure, and (c) is reasonable." Housing Authority of the County of Chester v. Pennsylvania State Civil Service Commission, 556 Pa. 621, 634-635, 730 A.2d 935, 942 (1999). Petitioners...