Com. of PA, DEP v. Clearfield County & PA Waste, LLC (EHB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Department of Environmental :
Protection, :
Petitioner :
:
v. : No. 762 C.D. 2021
:
Clearfield County and PA Waste, LLC :
(Environmental Hearing Board), :
Respondents :
PA Waste, LLC, :
Petitioner :
:
v. : No. 771 C.D. 2021
: Argued: May 17, 2022
Commonwealth of Pennsylvania, :
Department of Environmental :
Protection and Clearfield County :
(Environmental Hearing Board), :
Respondents :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION
BY JUDGE DUMAS FILED: October 4, 2022
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
1
Pennsylvania environmental administration is complex. The structure consists of “three
independent, yet inter-related branches:” the Environmental Quality Board (EQB), the DEP, and
the Board. Tire Jockey Serv., Inc. v. Dep’t of Env’t Prot., 915 A.2d 1165, 1185 (Pa. 2007) (Tire
Jockey). The EQB is the “administrative legislative branch” responsible for drafting, “adopting
and promulgating rules and regulations for” DEP. Id. (cleaned up). The EQB may promulgate
(Footnote continued on next page…)
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.
I. BACKGROUND
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
regulations, i.e., legislative rules such as the Pennsylvania Code, and issue guidance documents,
i.e., non-legislative documents defined as “interpretative rules” if those documents explain a
particular statute or regulation. Nw. Youth Servs., Inc. v. Dep’t of Pub. Welfare, 66 A.3d 301, 310-
311 (Pa. 2013). DEP is the “executive branch, assigned various duties to implement and enforce
environmental statutes and regulations,” and the Board is the “administrative judicial branch[.]”
Tire Jockey, 915 A.2d at 1185 (cleaned up).
The Board “has the power and duty to hold hearings and issue adjudications . . . on orders,
permits, licenses or decisions of” DEP. Section 4(a) of the Act of July 13, 1988, P.L. 530, as
amended, 35 P.S. § 7514(a). The Board’s “duty is to determine if DEP’s action can be sustained
or supported by the evidence taken by the” Board. Pa. Trout v. Dep’t of Env’t Prot., 863 A.2d 93,
106 (Pa. Cmwlth. 2004) (citation omitted). The Board, however, is not “empowered to
authoritatively interpret environmental regulations,” as that “power is a necessary adjunct of
[DEP’s] authority to enforce environmental regulations.” Dep’t of Env’t Prot. v. N. Am.
Refractories Co., 791 A.2d 461, 466 (Pa. Cmwlth. 2002) (Refractories).
2
We discuss additional facts as needed, infra.
2
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.
II. DISCUSSION3
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
3
Generally, our review of “a decision by the [Board] is limited to determining whether the
[Board] committed an error of law [or] violated constitutional rights, or whether substantial
evidence supports its findings of fact. A grant of summary judgment by the [Board] is proper
where the pleadings, depositions, answers to interrogatories and admissions on file, together with
affidavits, if any, show that there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law.” Global Eco-Logical Servs., Inc. v. Dep’t of Env’t Prot.,
789 A.2d 789, 793 n.9 (Pa. Cmwlth. 2001) (Global) (cleaned up). We may affirm an
administrative agency on any basis. White v. Workmen’s Compensation Appeal Board (Good
Shepherd Rehab. Hosp.), 666 A.2d 1128, 1131 n.6 (Pa. Cmwlth. 1995).
4
DEP raises four issues and PA Waste raises three issues, which we combined together.
3
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.
A. Exercising Appellate Jurisdiction of an Interlocutory Order
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.
5
Section 507 of the Municipal Waste Planning, Recycling and Waste Reduction Act, Act
of July 28, 1988, P.L. 556, as amended, 35 P.S. § 4000.507.
6
Section 504 of the Solid Waste Management Act, Act of July 7, 1980, P.L. 380, as
amended, 35 P.S. § 6018.504.
7
Pennsylvania Rule of Appellate Procedure 311(f)(2) provides that an “appeal may be
taken as of right from . . . an order of a . . . government unit remanding a matter to an administrative
agency or hearing officer that decides an issue that would ultimately evade appellate review if an
immediate appeal is not allowed.” Pa.R.A.P. 311(f)(2).
4
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).
B. Whether PA Waste’s Application Complied with DEP Regulations
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
8
In Schultheis, the township denied the applicant’s residential plan as deficient. Schultheis,
727 A.2d at 147. The applicant appealed to the trial court, reasoning that he should have been
given an opportunity to correct the deficiencies. Id. The trial court agreed with the applicant,
reversed the township’s decision, and remanded to permit the applicant to address the deficiencies.
Id. The township appealed, arguing that if the applicant was permitted to revise his plan, and the
township reviewed that plan on remand, then the only appealable issues would be from the
applicant’s revised plan. Id. The Schultheis Court agreed that the township could appeal as of
right from the interlocutory remand order. Id.
Similarly, in Vanvoorhis, the township conditionally approved the applicants’ residential
development plan. Vanvoorhis, 176 A.3d at 431. The applicants rejected one of the conditions,
the township rejected the plan, and the applicants appealed to the trial court. Id. The trial court
reversed the township and remanded for further proceedings. Id. at 432. The township appealed
to this Court, arguing that the order was an appealable interlocutory order. Id. at 433. The
Vanvoorhis Court agreed, reasoning that if the township again rejected the plan after remand, then
on appeal, “the trial court would only review the new reasons for denial, and none from the prior
litigation.” Id. The Court therefore agreed that the trial court’s order would escape appellate
review. Id.
In Reeves, the trial court reversed the decision by the Board of Supervisors of Schuylkill
Township (Schuylkill Board), which had rejected an application for a residential development
plan. Reeves, 273 A.3d at 1279. The trial court’s order explicitly approved the application and
instructed the Schuylkill Board “to adopt reasonable conditions” on remand for the proposed
development plan. Id. at 1285. Because the facts in Reeves were similar to the facts in Vanvoorhis
and Schultheis, the Reeves Court held the order was an appealable interlocutory order under
Pa.R.A.P. 311(f). Id.
5
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 § 273.112.129
Act of July 7, 1980, P.L. 380, as amended, 35 P.S. § 6018.101-6018.1003; Act of July
28, 1988, P.L. 556, No. 101, as amended, 53 P.S. §§ 4000.101-4000.1904. By statute, we must
liberally construe both acts and also construe them together. Section 901 of the Solid Waste
Management Act, 35 P.S. § 6018.901; Section 104(a)-(b) of the Municipal Waste Act, 53 P.S. §
4000.104(a)-(b).
10
Each Act has at least ten statutory purposes. 35 P.S. § 6018.102; 53 P.S. § 4000.102;
see also Tire Jockey, 915 A.2d at 1188 (noting that the Solid Waste Management Act was
promulgated because the “General Assembly found that improper and inadequate solid waste
practices create public health hazards, environmental pollution, and economic loss, and cause
irreparable harm to the public health, safety and welfare.” (cleaned up)).
11
The EQB has adopted regulations addressing the general application requirements for a
landfill permit and for a municipal waste landfill. See 25 Pa. Code §§ 271.121-271.129; id. §§
273.1-273.521; see generally 25 Pa. Code § 271.121 (explaining that a permit application must
comply with Chapter 271, and if the application is for a municipal waste landfill, the application
must comply with Chapter 273).
12
The Origin Regulation states as follows:
(Footnote continued on next page…)
6
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
An application to operate a municipal waste landfill shall contain a narrative
describing the following:
(1) 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, the type of liner system, the proposed capacity of the
facility, the expected life of the facility and the size, sequence and timing of
solid waste disposal operations at the facility.
25 Pa. Code § 273.112(1).
13
The Need Regulation provides:
(c) Municipal waste landfills, construction/demolition waste landfills and resource
recovery facilities. If the application is for the proposed operation of a municipal
waste landfill, construction/demolition waste landfill or resource recovery facility,
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.
* * *
(f) Need. The description required by subsections (c) and (d) may include an
explanation of the need for the facility, if any. Simply adding new capacity does
not establish need for a facility.
25 Pa. Code § 271.127(c), (f).
7
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, 210 A.3d 1028,
1038 (Pa. 2019); In re Doe, 33 A.3d 615, 623-24 (Pa. 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, 266 A.3d 452, 485 (Pa. 2021);15 Woodford v. Pa. Ins. Dep’t, 201 A.3d 899,
14
Specifically: “The origin, weight, and composition of the (projected) solid waste
quantities to be disposed at the proposed Camp Hope Run Landfill facility are not known at the
time of this application. In general, waste will be delivered from surrounding jurisdictions, as well
as from sources outside of Pennsylvania and will include municipal solid waste,
construction/demolition waste, and other approved residual and special wastes[.]” Appl. at 2.
15
In harmonizing judicial deference with the de novo standard of review applicable to
questions of law, our Supreme Court explained that while “courts traditionally accord the
interpretation of the agency charged with administration of the act some deference, the meaning
of a statute is essentially a question of law for the court, and, when convinced that the interpretative
regulation adopted by an administrative agency is unwise or violative of legislative intent, courts
disregard the regulation.” Commonwealth v. Gilmour Mfg. Corp., 822 A.2d 676, 679 (Pa. 2003)
(Gilmour) (cleaned up); Commonwealth ex rel. Fisher v. Jash Int’l, Inc., 847 A.2d 125, 133 (Pa.
(Footnote continued on next page…)
8
902 n.3 (Pa. Cmwlth. 2019) (noting, “in a case involving a complex statutory
scheme, courts exercise greater caution in substituting their discretion for the
expertise of the [agency]”), aff’d, 243 A.3d 60 (Pa. 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
Cmwlth. 2004) (noting, “[o]nly where the language of a statute is ambiguous should we defer to
an administrative agency’s interpretation of a statute the agency is charged to enforce.” (footnote
omitted)).
16
There are three categories of an agency’s interpretation: (1) an agency’s interpretation
of its regulation interpreting an ambiguous statute, i.e., Chevron deference; (2) an agency’s
interpretation of its own regulation, i.e., Auer deference; and (3) an agency’s interpretation of its
non-legislative interpretive rules (guidance documents), i.e., Skidmore deference. See Corman,
266 A.3d at 485 (discussing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837(1984), and Auer v. Robbins, 519 U.S. 452 (1997)); Nw. Youth Servs., 66 A.3d at 311-12
(discussing Skidmore v. Swift & Co., 323 U.S. 134 (1944)).
17
These two factors address an agency’s interpretation of a regulation. The Tire Jockey
Court also identified three factors in resolving a challenge to an agency’s promulgation of the
regulation itself. See Tire Jockey, 915 A.2d at 1186 (stating that the regulation is valid if it is “(a)
adopted within the agency’s granted power, (b) issued pursuant to proper procedure, and (c)
reasonable.”); see generally Bucks Cnty. Servs., Inc. v. Phila. Parking Auth., 195 A.3d 218, 227
(Pa. 2018). In this case, there is no challenge to DEP’s promulgation of the Origin Regulation.
18
For example, in Tire Jockey, a case also involving Auer deference, our Supreme Court
interpreted a DEP regulation under the Solid Waste Management Act. See Tire Jockey, 915 A.2d
at 1186 (citing cases relying on Bowles v. Seminole Rock Co., 325 U.S. 410 (1945), which is
synonymous with Auer), 1188. At issue was whether this Court improperly “substituted its own
independent reading of the regulation, which was at odds with the DEP’s and [the Board’s]
(Footnote continued on next page…)
9
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.
1. The Definition of “Origin” in the Origin Regulation
a. Arguments
First, DEP argues that PA Waste’s application “did in general terms
identify” the origin of the waste as required by the Origin Regulation. DEP’s Br. at
25. DEP claims that its regulations did not require a more detailed response by PA
Waste. Id. at 25, 31; accord PA Waste’s Br. at 21. PA Waste similarly argues that
the Board failed to defer properly to DEP’s reasonable interpretation of the
undefined term “origin” in the Origin Regulation. PA Waste’s Br. at 17. PA Waste
reasons that because “origin” was undefined, the term is ambiguous, and the Board
erred by supplying a dictionary definition. Id. at 20.19
interpretation” of that regulation. Id. at 1188-89. The Tire Jockey Court held that there “was no
evidence that the DEP’s interpretation was made in bad faith, was arbitrarily executed or
constituted a manifest abuse of discretion,” and reversed this Court. Id. at 1190.
19
PA Waste also raises a somewhat complex rhetorical argument. Very simply, PA Waste
quotes a particular regulation that also references the term “origin,” summarizes County’s alleged
interpretation of that regulation, and contrasts County’s alleged interpretation with the Board’s
interpretation of the term “origin” in the Origin Regulation. PA Waste’s Br. at 28-30.
More specifically, PA Waste describes 25 Pa. Code § 272.223 as requiring a county to
submit a waste management plan that describes the “origin” of the waste. Id. at 29-30. PA Waste
claims that County’s own waste management plan did not include detailed information about the
“origin” of the waste. Id. at 30. PA Waste then contrasts that interpretation with the Board’s
interpretation of “origin” as used in the Origin Regulation. Id. (stating, “County’s complaint that
it now needs to know the ‘origin’ of the waste at PA Waste’s facility is inconsistent with how it
developed its own county [waste management] plan.”). Because of our disposition herein, we need
not address this argument. Regardless, any interpretation of Section 272.223 is simply not at issue.
10
DEP relatedly asserts that the purpose of the Origin Regulation is to
ensure that DEP has sufficient information to determine whether the Landfill would
comply with County’s preexisting waste management plan. DEP’s Br. at 31-32.
Given the Board’s differing interpretation of the Origin Regulation, DEP asserts
genuine issues of material fact exist as to the role of the Origin Regulation in the
permit process and whether PA Waste’s application complied with that Section. Id.
at 33.
b. Discussion
The plain meaning of the Origin Regulation requires PA Waste to
describe the “general operational concept” for the Landfill, “including the origin” of
the waste that would be disposed in the Landfill. 25 Pa. Code § 273.112. Because
“origin” was not defined, we rely on a dictionary definition. See Marcellus Shale
Coal., 193 A.3d at 473. The dictionary definition of “origin” is “rise, beginning, or
derivation from a source” and “the point at which something begins or rises or from
which it derives.” Origin, Webster’s Ninth New Collegiate Dictionary (1990)
(Webster’s).20 Therefore, the Origin Regulation requires PA Waste to describe
where the waste begins, from which it derives, or its source. See Marcellus Shale
Coal., 193 A.3d at 473.21
PA Waste’s application narrative, however, did not describe the source
of the waste. Rather, PA Waste declared that it did not know the origin of waste that
would be disposed of at the Landfill. See Appl. at 2 (“The origin . . . of the . . . waste
20
See Kunreuther & Merfeld, Inc. v. United States, 5 Cust. Ct. 104, 105 (Cust. Ct. 1940)
(defining “origin”); see also Joe v. State, ___ S.W.3d ___, ___ (Tex. Crim. App., No. PD-0268-
21, filed June 22, 2022), 2022 WL 2233775, *4 (defining “point of origin” as “the place where
something comes from or originates.” (citation omitted)).
21
Contrary to PA Waste’s argument, see PA Waste’s Br. at 20, just because a statutory
term is undefined, does not mean the term must be ambiguous. See Marcellus Shale Coal, 193
A.3d at 471, 473 (explaining undefined terms may be given a dictionary definition).
11
quantities to be disposed at [the Landfill] are not known[.]”). PA Waste then
arguably contradicted itself by noting that in “general, waste will be delivered from
surrounding jurisdictions, as well as from sources outside of Pennsylvania[.]” Id.
In sum, PA Waste’s response stated that it did not know the source of waste but then
described potential sources in rather oblique terms. Id.
DEP’s interpretation of the Origin Regulation, under which it accepted
PA Waste’s narrative because it permitted DEP to conclude that the Landfill would
comply with County’s waste management plan, is inconsistent with the plain terms
of the regulation. See S&H Transp., 210 A.3d at 1038; Tire Jockey, 915 A.2d at
1189. It is inconsistent because the Origin Regulation requires PA Waste to describe
the source of the waste that would be disposed at the Landfill, but PA Waste’s
application narrative was contradictory at best. See S&H Transp., 210 A.3d at 1038;
Tire Jockey, 915 A.2d at 1189. We add that the Origin Regulation does not state
that the information is required to determine whether a waste landfill would comply
with a waste management plan. See Tire Jockey, 915 A.2d at 1186.22
DEP’s interpretation is also inconsistent with one of the purposes of the
Acts. See Tire Jockey, 915 A.2d at 1187-88. If DEP is unaware of the origin of
waste to be transported to and disposed of at the Landfill, then it is not clear how
DEP can protect the public from the dangers associated with the transportation and
disposal of municipal waste, i.e., one of the purposes of the Acts. See 35 P.S. §
6018.102(3)-(4); 53 P.S. § 4000.102(b)(3); Tire Jockey, 915 A.2d at 1187-88.
In sum, because DEP’s interpretation is inconsistent with the plain
terms of the Origin Regulation and the purposes of the Acts, we agree with the Board
to the extent it held that PA Waste’s Origin Regulation narrative was insufficiently
22
Moreover, DEP waived its argument by not citing any supporting legal authorities. See
Sobat v. Borough of Midlan, 141 A.3d 618, 627 (Pa. Cmwlth. 2016).
12
detailed. See Tire Jockey, 915 A.2d at 1186; Eagle, 833 A.2d at 809. For these
reasons, DEP is also due no relief on its claim that material issues of fact exist
regarding its Origin Regulation interpretation. No material issues of fact exist,
because, as a matter of law, PA Waste’s Origin Regulation application narrative is
both insufficient and contradictory. See Global, 789 A.2d at 793 n.9; White, 666
A.2d at 1131 n.6.
2. Construing the Origin and Need Regulations
a. Arguments
Second, Petitioners argue that the Board erred by essentially linking the
application narrative required by the Origin Regulation with the environmental
assessment required by the Need Regulation. DEP’s Br. at 25-29; PA Waste’s Br.
at 25-26. According to Petitioners, the Board reasoned that because the Need
Regulation requires a discussion of the “need” for a landfill, that discussion
necessarily requires more detailed information about the “origin” of the waste under
the Origin Regulation. DEP’s Br. at 28; PA Waste’s Br. at 25.23
Petitioners reject this reasoning, asserting that the Need Regulation
merely suggests an explanation of need but does not require it. DEP’s Br. at 28; PA
Waste’s Br. at 26. It is, according to Petitioners, an optional element of the Need
Regulation’s environmental assessment. DEP’s Br. at 28; PA Waste’s Br. at 26.
Thus, Petitioners conclude, the Board erred by relying upon that optional element to
compel an applicant to provide greater specificity about the origin of waste in the
application.
23
In other words, although the Origin Regulation’s use of “origin” standing alone may or
may not require a particular level of detail, because the Need Regulation requires a discussion of
“need,” a meaningful discussion of “need” requires greater detail about the “origin” of the waste
in the Origin Regulation’s application narrative. See DEP’s Br. at 28.
13
b. Discussion
We agree with Petitioners that the Board erred as a matter of law by
misconstruing the plain language of the Need Regulation, which states that a
discussion of need is optional. See 25 Pa. Code § 271.127 (stating that the
application “may include an explanation of the need” for the Landfill) (emphasis
added); S&H Transp., 210 A.3d at 1038; Global, 789 A.2d at 793 n.9; see also
Refractories, 791 A.2d at 466. The Board similarly erred when, absent any
regulatory basis, it superimposed the optional “need” discussion upon the mandatory
“origin” narrative, thus increasing the required level of detail in PA Waste’s
application narrative. See Refractories, 791 A.2d at 466.
Although the Board’s reasoning was flawed in this regard, the plain
language of the Origin Regulation required PA Waste to describe where the waste
begins, from which it derives, or its source. See Origin, Webster’s. Thus, Petitioners
are not entitled to relief. See White, 666 A.2d at 1131 n.6; In re A.J.R.-H., 188 A.3d
1157, 1176 (Pa. 2018) (noting, “[i]t would be wasteful to send a case back to a lower
court to reinstate a decision which it had already made but which the appellate court
concluded should properly be based on another ground within the power of the
appellate court to formulate” (cleaned up)).
3. Whether the Regulations Require Contracts
a. Arguments
Third, Petitioners challenge the Board’s requirement that PA Waste
include contracts for the disposal of waste as part of its permit application. PA
Waste’s Br. at 23; DEP’s Br. at 18, 24. Petitioners stress that no DEP regulation
requires PA Waste to attach such contracts. PA Waste’s Br. at 24; DEP’s Br. at 18.
14
b. Discussion
Instantly, we agree with Petitioners that no regulation requires the
submission of waste contracts as part of PA Waste’s permit application.24 Therefore,
to the extent the Board required PA Waste to submit contracts as part of its Origin
Regulation application narrative, the Board erred. See Refractories, 791 A.2d at
466; Global, 789 A.2d at 793 n.9. Because we affirm the Board on other grounds,
however, Petitioners are due no relief. See White, 666 A.2d at 1131 n.6; In re A.J.R.-
H., 188 A.3d at 1176.
C. Whether the Application Complied with the Alternative Locations Statute
We need not summarize Petitioners’ arguments in great detail. Briefly,
DEP acknowledges that it reviewed the “environmental and economic impact of
existing landfills” and “compared the known impact” of those landfills to the
anticipated impact of the Landfill. DEP’s Br. at 34. DEP challenges the Board’s
interpretation of the Alternative Locations Statute, maintaining that its analysis was
compliant. Id. PA Waste raises similar arguments. See PA Waste’s Br. at 31-34.
The Alternative Locations Statute requires that “the applicant
demonstrates to [DEP’s] satisfaction that the proposed facility . . . is at least as
suitable as alternative locations,” after considering environmental and economic
factors. 53 P.S. § 4000.507(a)(2)(iii) (emphasis added).25 The Municipal Waste Act
24
Other regulations require a copy of a signed contract, if, for example, there is offsite
leachate treatment. See, e.g., 25 Pa. Code § 273.162.
25
Section 507 follows:
(a) Limitation on permit issuance.—[DEP] shall not issue any permit . . . for a
municipal waste landfill . . . in the county unless the applicant demonstrates to
[DEP’s] satisfaction that the proposed facility:
* * *
(Footnote continued on next page…)
15
does not define “applicant,” nor has DEP cited any regulations or guidance
documents construing the Alternative Locations Statute.26 However, undefined
words in a statute must be “construed according to their common and approved
usage.” 1 Pa.C.S. § 1903(a). Webster’s defines “applicant” as “one who applies.”
Applicant, Webster’s; see also Donnelly v. Bauer, 720 A.2d 447, 452 (Pa. 1998)
(defining applicant in the context of an insurance coverage statute to be “a person
asking for something”). Finally, we give effect to the legislature’s intent and all of
a statute’s provisions based on the plain language. Crown Castle NG E. v. Pa. Pub.
Util. Comm’n, 234 A.3d 665, 674 (Pa. 2020).27
Instantly, under the common and approved usage of the term
“applicant,” the Alternative Locations Statute requires that a “person asking for” or
“one who applies” for a landfill permit demonstrate to DEP’s satisfaction that the
Landfill fulfills various requirements. See 53 P.S. § 4000.507; Donnelly, 720 A.2d
at 452.
However, PA Waste, as the applicant, did not prepare this “alternative
locations” analysis. Rather, DEP concedes that it (not PA Waste) conducted the
(2) meets all of the following requirements:
* * *
(iii) The proposed location of the facility is at least as suitable as alternative
locations giving consideration to environmental and economic factors. . . .”
53 P.S. § 4000.507.
26
Agencies may construe a particular statute by promulgating regulations that “are
accorded the force of law” or issuing guidance documents, i.e., interpretative rules. Nw. Youth
Servs., 66 A.3d at 310-11.
27
See Const. Drive Partners, L.P. v. Dep’t of Env’t Prot., 247 A.3d 1198, 1207 (Pa.
Cmwlth. 2021) (“It is a well-settled maxim that where the words of a statute are clear and free
from ambiguity, the legislative intent is to be gleaned from those very words, and the plain
language is not to be disregarded under the pretext of pursuing its spirit.” (citations omitted)).
16
analysis regarding the proposed location of Landfill. See, e.g., DEP’s Br. at 33;
DEP’s Resp. to Cnty.’s Statement of Undisputed Facts, ¶13.28 Therefore, DEP acted
as both the applicant, recipient, and reviewer of its own analysis. The unambiguous
language of the Alternative Locations Statute, however, requires PA Waste, as the
“applicant,” to make the required demonstration. See 53 P.S. § 4000.507. Nothing
in the Alternative Locations Statute permits an applicant to delegate its statutory
obligation to an agency like DEP. See id. We therefore affirm the Board, albeit on
different grounds. See White, 666 A.2d at 1131 n.6; In re A.J.R.-H., 188 A.3d at
1176.29
D. Pennsylvania Bulletin Notice Requirement
Finally, Petitioners contend that DEP’s notice published in the
Pennsylvania Bulletin was sufficient to provide the County with an opportunity to
28
Specifically, DEP pleaded:
[DEP] performed the alternative analysis required by Section 507(a)(2). [DEP] had
not previously processed a landfill permit application under Section 507(a) and no
guidance had been developed on how permit applicants should conduct the
analysis. [DEP] wanted the analysis to be based on uniform criteria and objective
data as much as possible. [DEP] used the criteria for an environmental assessment
to perform the alternative analysis, and it used data from existing landfills to
represent comparable impacts from possible alternate locations for the landfill.
Finally, [DEP] wanted to minimize the potential that the applicant would
predetermine the outcome of the evaluation by choosing poorly situated
comparable locations. [DEP] formalized its analysis in a memorandum and made
it a part of the permit file that was available for public review. [DEP] concluded
that the location of the proposed landfill was at least as suitable as possible alternate
locations.
DEP’s Resp. to Cnty.’s Statement of Undisputed Facts, ¶13.
29
The Board had addressed the substantive merits of DEP’s “alternative locations”
analysis. Because it is undisputed that DEP is not the applicant under the Alternative Locations
Statute, we need not address Petitioners’ arguments regarding the analysis. We add that permitting
DEP to both support and review a permit application is an apparent conflict of interest. See Tire
Jockey, 915 A.2d at 1185.
17
review and comment on PA Waste’s permit application. DEP’s Br. at 40. Petitioners
therefore challenge the Board’s reasoning that DEP’s notice should have further
specified that DEP was responding to and overriding the County’s
recommendations. Id. at 41-42; PA Waste’s Br. at 45-46. Regardless, Petitioners
maintain that County failed to establish any actual prejudice from this purportedly
defective notice. DEP’s Br. at 41-42; PA Waste’s Br. at 47.
The Solid Waste Management Act addresses the form of notice that
must be published in the Pennsylvania Bulletin. Specifically, the Notice Statute
provides that if a county has made recommendations to DEP about a landfill permit
application, DEP is “required to publish in the Pennsylvania Bulletin its justification
for overriding the county’s recommendations[.]” 35 P.S. § 6018.504. Similarly, 25
Pa. Code § 271.142 (Notice Regulation) requires DEP to “publish a notice in the
Pennsylvania Bulletin” of DEP’s “[j]ustification for overriding county or host
municipality recommendations regarding an application for a new permit, permit
reissuance, permit renewal or major permit modification under” the Notice Statute.
25 Pa. Code § 271.142. Therefore, the Notice Statute and Regulation requires DEP
to publish a notice that includes a justification of its decision to override a county’s
recommendation.
The instant record contains no statutory or regulatory definition of
“justification.” Because DEP has issued no guidance documents clarifying the
Notice Statute and Regulation, we examine the common and accepted usage of
“justification.” See S&H Transp., 210 A.3d at 1038. One common and approved
usage of the term “justification” is “the act or an instance of justifying” and
“something that justifies.” Justification, Webster’s.30 “Justify” is defined as “to
30
See also Justification, Black’s Law Dictionary (11th ed. 2019) (defining the term as a
(Footnote continued on next page…)
18
prove or show to be just, right, or reasonable.” Justify, Webster’s. Therefore, the
plain language of the Notice Statute and Regulation requires that DEP publish
something that justifies or shows why its decision to override County’s
recommendations was just, right, or reasonable. See id.
Here, the County reviewed and responded to PA Waste’s application.
DEP held a public hearing and posted the following notice in the Pennsylvania
Bulletin:
Permit No. 101719. PA Waste, LLC . . . . This permit is for the
construction and operation of the 845-acre Camp Hope Run municipal
waste landfill . . . . The permit was issued by the Northcentral Regional
Office on January 28, 2020.
The Department held a public hearing . . . . The comment and response
document developed from that meeting can be found on the
Department’s website . . . .
50 Pa. B. 857 (2020).31 DEP’s comment and response document was 86 pages long
and purportedly responded to County’s comments. See Cnty.’s Mot. for Summ. J.,
Ex. 16.
In our view, DEP’s Pennsylvania Bulletin notice did not publish
“something that justifies” or a “show” of DEP’s reasons for overriding County’s
recommendation. See Justification, Webster’s; Justify, Webster’s. Even assuming
an agency is permitted to incorporate a document by reference, DEP’s use of the
phrase “comment and response document” did not definitively signal to the public
that the document would contain DEP’s “justification.” See id. For these reasons,
“lawful or sufficient reason for one’s acts or omissions; any fact that prevents an act from being
wrongful”).
31
We observe that the Pennsylvania Bulletin notice directed readers to a particular website
page, but subsequently, DEP’s website was revised, which invalidated the notice’s directions.
19
we agree with the Board that DEP’s notice is deficient.32
III. CONCLUSION
In sum, we hold as follows. Petitioners may file an interlocutory appeal
of right from the Board’s order. Otherwise, Petitioners would lose their opportunity
to challenge the Board’s decision.
Further, we hold that DEP’s interpretation of the Origin Regulation is
inconsistent with that regulation’s plain terms and hinders DEP’s ability to further
the Acts’ statutory purpose of protecting the public from the dangers of transporting
and disposing of municipal waste. For these reasons, we conclude that PA Waste’s
failure to identify the origin of waste destined for the Landfill rendered its
application deficient. Nevertheless, we reject the Board’s linkage of the Need
Regulation to the Origin Regulation, as the plain language of the Need Regulation
indicates that any discussion of need is optional. Moreover, nothing in our decision
requires PA Waste to provide contracts as part of its application under the present
regulatory scheme.
We also conclude that PA Waste failed to submit the analysis required
by the Alternative Locations Statute. DEP may not perform and submit this analysis
on behalf of an applicant. Finally, DEP’s Pennsylvania Bulletin notice was deficient
because it did not provide notice of its reasons for overriding the County’s
32
We acknowledge Petitioners’ argument that because County failed to allege or otherwise
demonstrate actual prejudice from any flawed notice, County is not entitled to any remedy. We
need not address that argument because we agree with the Board that PA Waste must supplement
its application. Assuming DEP approves PA Waste’s application, County will decide whether to
make any recommendations regarding any new permit, which may require a new Pennsylvania
Bulletin notice. We only resolve that under the plain language of the Notice Statute and
Regulation, DEP’s Pennsylvania Bulletin notice did not notify the public that its notice contained
“[j]ustification for overriding county or host municipality recommendations regarding an
application for a new [landfill] permit[.]” See 25 Pa. Code § 271.142; accord 35 P.S. § 6018.504.
20
recommendations.
For these reasons, we affirm the Board’s decision to grant County’s
motion for summary judgment adverse to Petitioners, vacate the permit, and remand
to DEP for further proceedings after PA Waste supplements its application with,
inter alia, additional detail about the origin of waste to be transported to and disposed
at the Landfill.
LORI A. DUMAS, Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Department of Environmental :
Protection, :
Petitioner :
:
v. : No. 762 C.D. 2021
:
Clearfield County and PA Waste, LLC :
(Environmental Hearing Board), :
Respondents :
PA Waste, LLC, :
Petitioner :
:
v. : No. 771 C.D. 2021
:
Commonwealth of Pennsylvania, :
Department of Environmental :
Protection and Clearfield County :
(Environmental Hearing Board), :
Respondents :
ORDER
AND NOW, this 4th day of October, 2022, we affirm the June 10, 2021
order by the Environmental Hearing Board, which granted Clearfield County’s
motion for summary judgment, vacated the permit, and remanded to the Department
of Environmental Protection for further proceedings. As set forth in our decision,
PA Waste, LLC, must supplement its application with, among other things,
information about the origin of waste and its analysis under Section 507(a)(2)(iii) of
the Municipal Waste Planning, Recycling and Waste Reduction Act, Act of July 28,
1988, P.L. 556, as amended, 53 P.S. § 4000.507(a)(2)(iii).
LORI A. DUMAS, Judge