Monday, December 26, 2022

Judicial Update: Limits To Environmental Hearing Board Authority To 'Cure' DEP Permit Actions

By Paul Bruder, Jr.,
Mette, Evans & Woodside

In a 2021 Opinion and Order on a Motion for Summary Judgment, the Environmental Hearing Board (EHB or Board) clarified the limits of its de novo review powers in light of an argument that a deficiency in a permit application could be cured at trial under the Board’s de novo review powers.

Upon appeal of discretionary Departmental actions, the Board has the power to substitute its own discretion for that of the Department and make its own conclusions, rather than relying on the facts which were before the Department.[1] 

The Board’s de novo authority allows it to admit and consider evidence that was not before the Department when it made its initial decision, including evidence developed since the filing of the appeal.[2]

The Board however, is not required to substitute its discretion, and the de novo review power is not limitless.

In Clearfield County v. DEP and PA Waste LLC,[3] PA Waste submitted an application to the Department of Environmental Protection (DEP or Department) for a new solid waste landfill, to be located in Boggs Township, Clearfield County.  

After public comment, a public hearing, and extensive objections by the host county, DEP approved the application and issued the permit.  

Clearfield County appealed to the Board, raising a variety of procedural and technical issues with the application and the review process.

Of relevance here are two of the deficiencies identified by the County: One, that the origin of the waste was not identified by the applicant, as required by Department regulation, and two, that an alternative location analysis was not performed by the applicant, as required by the Municipal Waste Planning, Recycling and Waste Reduction Act.

After discovery was complete, the County moved for summary judgment on these and one other issue, claiming that the record was clear that the waste origin had not been identified in any of the application materials, and that the alternatives analysis did not meet the requirements of the statute.

DEP and PA Waste countered, claiming that, at a minimum, there was a factual dispute with regard to these issues, and that the County’s motion should be denied and the matter moved to trial. 

However, it was argued alternatively that, even if there were deficiencies in the application, the Board’s de novo review power allows for any deficiencies to be cured at trial, where PA Waste could then provide the waste origin information and provide an alternatives analysis, and that Board could decide whether the information submitted justifies the Department’s permit approval decision.

Clearfield responded that the Board’s de novo review powers are not that broad, especially considering that the missing information is necessary for the Department to perform the all-important harms/benefits balancing test. 

The County argued – without knowing where the waste is coming from, the distance that the trucks will travel, the roads that will be used, and the current disposal facility of the waste that is paying the state required fees – the Department cannot do an adequate harms/benefits analysis, because all of those pieces of information are vital to the analysis.

The County argued that supporting DEP’s argument would essentially make the discovery and summary judgment process moot in these types of third party appeals. 

If any permit application flaw can be corrected at trial, why even bother taking discovery or moving for summary judgment, if the Board allows any deficiencies to be cured at trial?  

The County also pointed out the severe due process problems this would raise, by not allowing a third party appellant to have any such information prior to trial.

The County’s request was that the permit be rescinded, and the applicant made to resubmit the application with this and other missing information, so that the Department could then perform its application review with the benefit of all statutorily and regulatorily required information.

DEP countered that the Board could simply do the harm/benefits analysis, and alternative location analysis, on its own, after that information was provided at trial through testimony or documentary evidence that was not available or provided during discovery.

The Board ultimately agreed with the County that the Board’s de novo review powers simply do not stretch that far.  

In its opinion granting summary judgment to Clearfield County,[4] the Board summarized the counter arguments being offered as: “none of the [DEP’s] errors matter, even if they occurred, because the Board can fix them all itself after the merits hearing.”[5] 

The Board reasoned that adopting this approach would essentially do away with the summary judgment process in third party appeals challenging a permit issuance on the ground that the application was deficient.

Instead, the Board held, while there may be circumstances where the Board can substitute its discretion for that of the Department’s, “there are obviously limits to what can be remedied by the Board” and “instances where a crucial, required analysis is absent and the applicant and/or the Department must perform that analysis in the first instance.”[6] 

Where application deficiencies exist, “the onus should be placed on the Department, not the Board, to conduct the proper analysis to correct those deficiencies in most cases.”

The Board’s decision was affirmed by the Commonwealth Court in October 2022, however the Commonwealth Court did not address the de novo review issue.

The Board’s Opinion can be found here, and the Commonwealth Court Opinion here.

Paul J. Bruder was counsel to Clearfield County throughout the application and appeals process. Paul can be reached at 717-232-5000, or  for any questions or comments.

(Reprinted with permission from Mette, Evans & Woodside.)

[1] Pequea Twp. v. Herr, 716 A.2d 678 (Pa. Cmwlth. 1998); Envtl. & Recycling Servs., Inc. v. DEP, 2002 EHB 461;        Smedley v. DEP, 2001 EHB 131, 155-60; Conners v. DEP, 1999 EHB 669

[2] Kiskadden v. DEP, 2015 EHB 377; Chimel v. DEP, 2014 EHB 957

[3] EHB Docket No. 2020-016-L

[4]  2021 EHB 144

[5]  2021 EHB at 169.

[6]  2021 EHB at 171.

[Posted: December 26, 2022]  PA Environment Digest

No comments :

Post a Comment

Subscribe To Receive Updates:

Enter your email address:

Delivered by FeedBurner