November 01, 2005
by Chris Bick
Staff Writer
Scranton Times-Tribune
Reproduced with permission.

Court Upholds Landfill Approval Test

The same controversial test that quelled Alliance Sanitary Landfill's last expansion attempt will remain on the books for the latest landfill battle.

The state Supreme Court has upheld the controversial harms/benefits analysis, a five-year-old regulation that requires landfill operators to show social and economic benefits will clearly outweigh the potential environmental harms of construction or expansion.

The state Department of Environmental Protection has used the balancing test as the first of a two-pronged application process, where any operator who tips the scales toward benefits moves on to a technical review.

Those with overwhelming harm get a thumbs-down and the application fizzles. Three landfills, including Alliance, unsuccessfully challenged the validity of the regulation before the state Environmental Hearing Board and a panel of Commonwealth Court judges. The Supreme Court on Thursday affirmed the panel's 3-2 decision from February 2003, declaring the harms/benefits test constitutional on its face.

"It's a victory for the public and a victory for all Pennsylvania," said David J. Gromelski, an environmental attorney who has represented a handful of defendants in lawsuits against Alliance. "It's refreshing to have the court confirm that (regulation) was designed to protect the public health, safety and welfare of all citizens, and it's not just a simplistic avenue for the permitting of landfills."

Attorneys for two Pennsylvania landfills--Eagle Environmental II and Tri-County Industries--argued the test was beyond the DEP's regulatory authority and the state's police powers and unconstitutionally vague. Alliance Landfill, whose initial, 147-acre application denied in May 2001 marked the state's inaugural harms/benefits test, withdrew its appeal in March 2003 and was not a plaintiff in the appeal heard by the high court.

Pittsburgh attorney Alan Miller, who represented Tri-County, said the test is a "fundamental policy choice" that elected officials, not administrative agencies, should enact. The state's Environmental Quality Board adopted the regulation in December 2000.

"What this regulation said was, in order for the landfill to conduct business, even if it has complied with the literally thousands of objective standards... that even then it cannot do business unless it proves that its operation will have social and economic benefits to the public that outweigh any remaining alleged environmental harms," said Mr. Miller. "From a practical standpoint, it places in the lap of an agency official the obligation to balance social and economic issues, which are inherently incapable of being weighed and balanced.

"Our view is that the protection of the public health, safety and welfare is accomplished by the thousands of regulations that the agency passes."

Both Eagle and Tri-County ran afoul of the harms/benefits test. Eagle's Royal Oak Landfill in Clearfield County passed the analysis in August 2001, but took issue with a conditional caveat placed on its permit. Tri-County's landfill in Mercer County flatly failed the test in October 2001 after failing to address an increased risk of aircraft striking birds attracted to food waste. The landfill is near the Grove City Airport.

The two landfills, along with Alliance, appealed their respective decisions to the state hearing board, which rebuffed them all. Commonwealth Court granted an appeal--to include all three facilities--in June 2002. Eight months later, the panel of judges backed the hearing board's decision affirming the test's validity.

"We are very disappointed in the decision," Mr. Miller said Monday afternoon.

The state environmental department, meanwhile, lauded the decision. So did David W. Scarnato, president of Old Forge Borough Council, which has lobbied against Alliance Landfill's desire to expand.

"The harms and benefits test gives us a voice," said Mr. Scarnato. "It's a very important test they're going to be forced to do. It's something we can hang our hat on, in making sure they have to abide by it."

While Alliance eventually dropped its appeal, the landfill applied this summer for an 87.6-acre expansion. The proposed expansion, about 40 percent smaller than its earlier plan, would handle about 4,000 tons of waste per day, doubling the site's current daily intake. Landfill officials have said the new plan addresses concerns raised by landfill neighbors and the state during the last application process.

"We designed (the new expansion area) with what we think is the heart of the harms/benefits measure in mind, and that is being a good neighbor," said landfill spokesman John Hambrose. "We think that this is what this regulation seeks to do: Make businesses more responsive to their neighbors."

The state environmental department is currently reviewing the application. There is no timetable for the review.

Mr. Hambrose directed questions about the Supreme Court ruling to the Pennsylvania Waste Industries Association. Efforts to reach spokeswoman Mary Webber were unsuccessful Monday.

Contact the writer: cbirk@timesshamrock.com

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