Liberty Twp. & Citizens' Env. Assoc. of the Slippery Rock Area v. DEP & Tri-County Landfill, Inc. (EHB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Liberty Township and Citizens’ :

Environmental Association of the :

Slippery Rock Area, :

Petitioners :

:

v. : No. 107 C.D. 2024

:

Department of Environmental : Argued: May 6, 2025

Protection and Tri-County Landfill, Inc. :

(Environmental Hearing Board), :

Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McCULLOUGH FILED: August 7, 2025

Liberty Township (Township) and Citizens’ Environmental Association

of the Slippery Rock Area (CEASRA) (together, Petitioners) petition for review of the

January 8, 2024 order of the Pennsylvania Environmental Hearing Board (Board). The

Board dismissed Petitioners’ appeal from the Department of Environmental

Protection’s (Department) issuance of a major permit modification sought by Tri-

County Landfill, Inc. (TCL) (with the Department, Respondents) to operate a

municipal waste landfill (Landfill)1 on 99 acres in Liberty and Pine Townships, Mercer

County, Pennsylvania (Property).2

1

We utilize the term “Landfill” throughout this opinion to refer to the proposed landfill facility

for which TCL seeks a permit modification.

2

Although there appears to have been a dispute below as to whether the Property also extends

into Springfield Township, Mercer County, we do not address the question because it is not necessary

(Footnote continued on next page…)

In this Court, Petitioners argue that the Board erred as a matter of law,

made findings not supported by substantial evidence in the record, and violated article

I, section 27 of the Pennsylvania Constitution, commonly known as the Environmental

Rights Amendment (ERA).3 After careful review, we reverse.

I. FACTS AND PROCEDURAL HISTORY

The tortured history of these permitting proceedings span more than 35

years.4 We summarize as follows only the facts pertinent to the instant appeal, which

we review in the light most favorable to Respondents as the prevailing parties below.

They are taken from the Board’s findings and largely are undisputed.

TCL owns the Property, where a landfill facility was permitted and

operated beginning around 1950. TCL is a subsidiary of Tri-County Industries, Inc.

(TCI), which is a subsidiary of Vogel Holdings, Inc. In 1985, the Department, pursuant

to the provisions of the Solid Waste Management Act (SWMA),5 issued to TCI a permit

to operate a landfill on a site in Pine, Liberty, and Springfield Townships, Mercer

County (Permit 101295). Permit 101295 did not describe the precise boundaries of the

permitted area or include an expiration date. It nevertheless identified the permitted

area as containing 49.2 acres and the entire site as containing 212.6 acres.

In April 1988, the Environmental Quality Board (EQB) promulgated new

regulations governing solid waste disposal. One of the new regulations required that

to our disposition. We also note that the disputed permit identifies only Pine and Liberty Townships.

(Reproduced Record (R.R.) 00557a.)

3

Pa. Const. art. I, § 27.

4

The Board aptly described the proceedings as “what must undoubtedly be the most

protracted, convoluted permit application process in the history of the Commonwealth[.]” (Board

Adjudication (Adjudication), 1/08/2024, at 45.)

5

Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§ 6018.101 – 6018.1003.

2

waste disposal facilities permitted prior to April 1988 submit either a closure plan or

an application to modify their permits to bring the facilities into compliance with the

new regulations. Facilities that did not file the required permit modification application

would not be allowed to process or dispose of waste after April 1990.

TCI submitted a preliminary application for permit modification on June

21, 1988, which the Department denied as administratively incomplete. After TCI’s

appeal to the Board, the parties entered a consent order and adjudication that permitted

TCI to submit a new permit application. TCI submitted the application, which the

Department again denied.6 On appeal to the Board, TCI and the Department executed

a settlement agreement pursuant to which TCI would, by February 1991, submit a

repermitting application to reopen and operate the Landfill. TCI submitted the

repermitting application, after which it advised the Department that the name of the

facility would change and TCL would be the new operating entity. Review and

processing of this repermitting application continued for several years.

In 1997, the EQB again promulgated new regulations governing, among

other things, municipal waste disposal. The new regulations included a new setback

requirement prohibiting the location of a landfill within 10,000 feet of an airport

runway used by turbine-powered aircraft (Setback Requirement). The Setback

Requirement, now codified at 25 Pa. Code § 273.202(a)(15), exempts “areas that were

permitted prior to January 25, 1997” (Setback Exemption or Exemption). Id.

On August 6, 1997, the Department denied TCL’s repermitting

application. The Department concluded that the proposed 218-acre permit area

6

TCI simultaneously submitted a closure plan, which the Department approved in May 1990.

The facility ceased receiving waste in or about September 1990. Since that time, TCL continuously

has operated a waste transfer facility on the Property.

3

violated the Setback Requirement because it was within 10,000 feet of the Grove City

Airport runway. The Department further concluded that less than all of the permit area

was permitted prior to 1997, rendering the Setback Exemption inapplicable. TCL

appealed to the Board, and, on March 30, 2000, the parties executed another settlement

agreement (2000 Settlement Agreement). The 2000 Settlement Agreement included a

stipulated term identifying 99 acres7 of proposed landfill area that was permitted prior

to January 25, 1997, and, accordingly, was covered by the Setback Exemption.

Specifically, the 2000 Settlement Agreement provides:

Based on the Department’s review and analysis of the

materials referred to in the preceding paragraph, the

Department has concluded, and [TCL] agrees, that the phrase

“areas that were permitted prior to January 25, 1997”

encompasses, with respect to the Landfill, a number of

specific areas, the size of which is approximately 99 acres,

where the following occurred or were used by [TCL]:

Department-permitted disposal activities; support facilities;

borrow areas; offices; equipment sheds; monitoring wells;

water pollution control systems; access roads; survey control

monuments; Department-permitted closure and postclosure

care and maintenance activities; and other areas in which the

land surface had been disturbed before January 25, 1997[,]

as a result of or incidental to operation of the Landfill.

(Adjudication, at 43; TCL Ex. 12 at 4, ¶ N.) The parties further stipulated that “[t]he

approximate 99[-]acre area depicted on Exhibit A[8] is a municipal waste landfill

authorized by the Department pursuant to (a) [Permit 101295] issued in 1985 and (b)

the municipal waste regulations promulgated in April[] 1988 set forth in Chapters 271

7

In August and November 1988, the Department issued permit modifications that approved

lateral expansions of the original 49.2-acre disposal area. The 99-acre area included the areas where

disposal activities had occurred under Permit 101295 and ancillary areas where operations incidental

to waste removal were located.

8

Exhibit A to the 2000 Settlement Agreement is a map depicting the 99-acre permitted area.

(TCL Ex. 12, Ex. A.)

4

and 273 of 25 Pa. Code.” TCL Ex. 12 at 5, ¶ 1. See also Id. at 9, ¶ 14 (“The statements

in Paragraphs A through P are true and correct. In any judicial or administrative

proceeding involving the Department and [TCI or TCL], no party to this Agreement

may challenge the accuracy or validity of these statements.”)

The Department subsequently withdrew its denial of TCL’s repermitting

application and agreed that TCL could submit a new repermitting application limited

to the 99-acre area identified in the 2000 Settlement Agreement. TCL submitted the

repermitting application in July 2000. The Department denied it in October 2001,

concluding that the potential harms of “bird strikes” at the Grove City Airport

outweighed the benefits of reopening the Landfill.9 TCL appealed to the Board, during

which it submitted a modified repermitting application to the Department that included

a proposed bird control plan to address the bird strike problems.10

The Department denied the application, concluding that TCL’s proposed

bird control plan would not sufficiently mitigate the potential bird strike problems at

the Grove City Airport. The Department also cited the history of compliance violations

by two of TCL’s related companies, Seneca Landfill, Inc. and Vogel Disposal Service,

Inc. TCL again appealed to the Board, after which it submitted additional proposed

mitigation measures to address bird strikes. The Department thereafter concluded that

the amended bird control plan would sufficiently mitigate the potential harms caused

by bird strikes and that, with the new mitigation measures, the Landfill’s benefits would

outweigh its harms. The Department nevertheless denied TCL’s repermitting

application in September 2013 because it concluded that TCL did not comply with the

9

Pursuant to a newly-promulgated regulation at 25 Pa. Code § 271.127, the Department is

required to balance the potential harms of a landfill with its benefits in making permitting decisions.

10

Given the serial repermitting applications filed since 1988, the Department issued this

application a new permit number, No. 101678.

5

40-foot height limitations in the Pine Township and Liberty Township zoning

ordinances and, again, because of the compliance issues with TCL’s related companies.

TCL appealed the denial to the Board, after which it again entered into a

settlement agreement with the Department. Pursuant to this settlement agreement, TCL

would submit a revised repermitting application with plans to comply with local height

restrictions. On December 17, 2018, TCL filed the revised application, which is the

subject of this appeal (2018 Application). In the 2018 Application, TCL proposed to

operate the Landfill on the 99-acre area identified in the 2000 Settlement Agreement.

The Department ultimately concluded that the Landfill’s benefits outweighed its

potential harms and that TCL’s repermitting application met all regulatory, statutory,

and constitutional requirements. Accordingly, on December 28, 2020, the Department

issued Permit 101678 (the Permit), which authorizes operation of the Landfill on the

Property for a 10-year term through December 28, 2030. The Permit allows TCL to

accept up to 4,000 tons of new waste per day, 24 hours a day, six days a week.

Petitioners appealed to the Board, lodging over 40 objections to the

Department’s issuance of the Permit. After receiving and disposing of multiple pre-

hearing filings, none of which is at issue in the instant appeal, the Board conducted a

12-day hearing in April 2023. Thereafter, the parties submitted multiple post-hearing

motions. Pertinent here, Petitioners filed (1) a motion requesting that the Board

conduct a site view, (2) a motion to re-open the record to add evidence of a bird strike

at the Grove City Airport, and (3) a motion to re-open the record to introduce additional

evidence of regulatory noncompliance from TCL’s related companies. The Board

denied all of the motions and received extensive post-hearing briefs from the parties.

After de novo review, the Board filed its 112-page Adjudication and order dismissing

Petitioners’ appeal and denying their requests to re-open the record. The Board

6

concluded that Petitioners, as the challenging parties, had not carried their burden of

proof to establish by a preponderance of the evidence that the Department’s issuance

of the Permit was unlawful, unreasonable, or not supported by the evidence of record.

Petitioners now petition for review in this Court.

II. ISSUES

Petitioners present the following questions for our review: (1) whether the

Board’s determination that the Landfill may be permitted within 10,000 feet of an

airport is supported by substantial evidence in the record and complies with

Pennsylvania law; (2) whether the Board’s finding that TCL’s compliance history was

satisfactory is supported by substantial evidence in the record and complies with

Pennsylvania law; (3) whether the Board’s application of the harms/benefit test is

supported by substantial evidence and complies with Pennsylvania law; (4) whether

the Board erred in failing to conclude that TCL and the Department waived certain

issues by not addressing them in their post-hearing briefs; and (5) whether the Board

violated the ERA.

III. DISCUSSION

A. This Court’s Review

We review the Board’s Adjudication to determine whether the Board

committed legal error, violated constitutional rights, or made necessary findings

unsupported by substantial evidence in the record. United Refining Company v.

Department of Environmental Protection, 163 A.3d 1125, 1130 n.2 (Pa. Cmwlth.

2017). Substantial evidence is evidence upon which a reasonable mind could base a

conclusion. Kiskadden v. Pennsylvania Department of Environmental Protection, 149

A.3d 380, 387 (Pa. Cmwlth. 2016) (en banc). We review the Board’s Adjudication

and not the action of the Department that the Board reviewed. United Refining

7

Company, 163 A.3d at 1136. On issues of law, our standard of review is de novo and

our scope of review is plenary. Department of Environmental Protection v.

Cumberland Coal Resources, LP, 102 A.3d 962, 970 (Pa. 2014).

In determining whether substantial evidence of record supports a material

finding of fact, we view the record in the light most favorable to the party that prevailed

before the Board. Kiskadden, 149 A.3d at 387. “It is irrelevant whether the record

contains evidence that would support contrary findings. Our inquiry is whether the

findings are supported by substantial evidence.” Id. We accordingly will not reweigh

evidence, make our own credibility determinations, or substitute our discretion in place

of that of the Board. United Refining Company, 163 A.3d at 1136; Gibraltar Rock,

Inc. v. Pennsylvania Department of Environmental Protection, 316 A.3d 668, 678 (Pa.

Cmwlth. 2024) (“This Court may not substitute judicial discretion for administrative

discretion in matters such as these, which involve technical expertise[] and which are

within the special knowledge and competence of the members of the Board.”);

Brockway Borough Municipal Authority v. Department of Environmental Protection,

131 A.3d 578, 586-87 (Pa. Cmwlth. 2016) (the Board “is the sole finder of fact and has

discretion regarding witness credibility, weight of the evidence, and resolution of

conflicts of evidence”).

B. Petitioners’ Burden of Proof Before the Board

Because they are pertinent to resolving Petitioners’ issues in this Court,

we first review the evidentiary principles that apply to proceedings before the Board.

In appeals from Department actions, the Board must conduct a de novo hearing, and it

may admit and consider evidence that was not introduced before the Department,

including evidence developed after the filing of the appeal. United Refining Company,

163 A.3d at 1136. Where the issues before the Board cannot be understood without

8

specialized or scientific knowledge or experience, expert testimony is required.

Brockway Borough Municipal Authority, 131 A.3d at 587.

The party challenging the Department’s action has the burden of proving,

by a preponderance of the evidence, that the Department either acted arbitrarily or

abused its discretion. United Refining Company, 163 A.3d at 1134; Pennsylvania Trout

v. Department of Environmental Protection, 863 A.2d 93, 105 (Pa. Cmwlth. 2004); 25

Pa. Code § 1021.122(c)(2). Pertinent here, the Board summarized as follows

Petitioners’ burden of proof:

As third parties appealing the Department’s issuance of the

major permit modification to [TCL], [Petitioners] bear the

burden of proof . . . . They must show that the Department’s

action was not lawful, reasonable, or supported by our de

novo review of the facts.

To carry their burden of proof, [Petitioners] must prove their

case by a preponderance of the evidence, meaning

[Petitioners] must show that the evidence in favor of their

proposition is greater than that opposed to it. In other words,

[Petitioners’] evidence challenging the Department’s

approval of [TCL’s] permit modification must be greater

than the evidence supporting the Department’s

determination that the permit modification was reasonable,

appropriate, and in accordance with applicable law.

A third-party appellant who wishes to succeed may not

simply come forward with a laundry list of potential

problems and then rest its case. . . . [A]n appellant may not

simply raise an issue and then speculate that all types of

calamities may occur. Instead, an appellant must prove by a

preponderance of the evidence that the problems the

appellant alleges are likely to occur. When a party raises

technical issues, it must come forward with technical

evidence to support its challenge, which many times will

require competent and appropriate expert testimony.

9

(Adjudication, at 41-42.) This burden does not require a challenging party to prove

every factual detail by a preponderance of the evidence or that harm more likely than

not will occur because of the issuance of the permit. Rather, under this standard, an

appellant must prove before the Board that the Department acted unreasonably or

arbitrarily. United Refining Company, 163 A.3d at 1133-34.

C. The Setback Requirement

We begin with Petitioners’ argument concerning the Setback

Requirement because we find it to be dispositive. Petitioners argue that the Board erred

in determining that the Landfill is exempt from the Setback Requirement. More

specifically, Petitioners argue that (1) the terms of the 2000 Settlement Agreement

were not and could not be binding on the Board or the parties in this litigation regarding

whether the Property previously was permitted; (2) the Department is judicially

estopped from changing its position in this litigation from that taken previously,

namely, that the Setback Exemption does not apply; and (3) the Setback Exemption

does not apply because the permitting application granted by the Department was for

a new permit, and the Exemption requires continuous permitting. (Petitioners’ Br. at

18-25.)

Both the Department and TCL argue in response that the Board correctly

determined that the Property was permitted in its entirety prior to January 25, 1997,

and it therefore is exempted from the Setback Requirement. They contend that the

Board did not consider the 2000 Settlement Agreement to be binding but, rather, relied

on it along with many other facts of record to conclude that the Landfill site was

previously permitted. They also argue that the prior permit did not expire and, even if

it did, the Setback Exemption does not require continuous permitting, but rather only

that the “area” was, at some point, permitted prior to January 25, 1997.

10

1. Interpretation Principles

Because this issue requires us to interpret an agency regulation, we begin

with the following interpretive principles that apply in this context. With regard to our

standard of review,

[r]egulatory 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.

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. 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.

In determining whether an interpretation is “clearly

erroneous,” courts examine: (1) whether [the Department’s]

interpretation of the regulation is erroneous or inconsistent

with the regulation, and (2) whether the regulation [as

interpreted by the Department] is consistent with the statute

under which it was promulgated. In resolving whether the

agency’s regulatory interpretation is consistent with the

statute, we must consider the purpose of the statute. Further,

if a regulation contains an undefined term, then courts may

resort to a dictionary to define that term.

Pennsylvania Department of Environmental Protection v. Clearfield County, 283 A.3d

1275, 1283-84 (Pa. Cmwlth. 2022) (internal citations, quotations, footnotes, and

editing omitted). Regarding how we may go about ascertaining the meaning of a

particular regulation,

statutory construction rules apply equally to the

interpretation of administrative regulations. The object of

statutory construction is to ascertain and effectuate the

legislative intent. 1 Pa.C.S. § 1921(a). In pursuing that end,

we are mindful a statute’s plain language generally provides

the best indication of legislative intent. In reading the plain

11

language of a statute, words and phrases shall be construed

according to rules of grammar and according to their

common and approved usage. 1 Pa.C.S. § 1903(a).

Moreover, every statute shall be construed, if possible, to

give effect to all of its provisions so that no provision is mere

surplusage. [ ]1 Pa.C.S. § 1921(a)[.] Although a court must

listen attentively to what a statute says, we must also listen

attentively to what it does not say. As a general rule courts

do not have the power to ignore clear and unambiguous

statutory language in pursuit of a statute's alleged or

perceived purpose. An ambiguity exists when language is

subject to two or more reasonable interpretations and not

merely because two conflicting interpretations may be

suggested. Finally, regardless of whether a statute is deemed

ambiguous or not, our rules of construction forbid a court

from adopting an interpretation that will produce a result that

is absurd, impossible of execution, or unreasonable. [ ] 1

Pa.C.S. § 1922(1)[.]

Dietrich v. Department of Agriculture, 329 A.3d 735 (Pa. Cmwlth. 2024) (most internal

citations, quotations, and editing omitted).

2. Analysis

a. The Meaning of “Permitted Prior to January 25, 1997”

We begin, of course, with the language of the Setback Requirement, which

is codified at 25 Pa. Code § 273.202(a)(15):

§ 273.202. Areas where municipal waste landfills are

prohibited.

(a) Except as provided in subsections (b) and (c),[11] a

municipal waste landfill may not be operated as follows:

11

Subsection 273.202(b) excepts from certain landfill isolation distance requirements (not the

Setback Requirement) areas that were permitted prior to April 9, 1988, and were included in a landfill

permit that (1) was issued between April 9, 1988 and December 23, 2000, and (2) has not been

rendered void by the failure to process or dispose of municipal waste within five years of the permit’s

issuance. 25 Pa. Code §§ 273.202(b), 271.211(e). Subsection 273.202(c) excepts from all landfill

(Footnote continued on next page…)

12

....

....

(15) Airport. Except for areas that were permitted

prior to January 25, 1997, a municipal waste landfill

may not be operated as follows:

(i) Within 10,000 feet--or 3,048 meters--of an airport

runway that is or will be used by turbine-powered

aircraft during the life of disposal operations under the

permit.

....

25 Pa. Code § 273.202(a)(15)(i) (emphasis provided). The Setback Requirement

therefore is part of a regulation that governs areas, or locations, where municipal waste

landfills may not be located. The Setback Requirement was added to the Department’s

regulations together with several other new provisions and took effect on January 25,

1997. The parties do not dispute the primary objective or purpose of this regulation:

to prohibit, for safety reasons, the location of landfills within 10,000 feet of airport

runways, where the risk of bird strikes is heightened. The parties further do not dispute

that at least portions of the 99-acre Permit “area” is located within 10,000 feet of the

Grove City Airport and facially violates the Setback Requirement unless exempted.

The question before us, then, is two-fold: (1) what does it mean for an “area” to be

“permitted” prior to January 25, 1997; and (2) given that meaning, is the Landfill

exempt from the Setback Requirement.

First, and most plainly, the Setback Requirement distinguishes between

municipal waste landfills and permitted areas, which do not refer to the same thing.

“Municipal waste landfill” is defined in the Department’s regulations as “[a] facility

using land for disposing of municipal waste” and includes “land affected during the

isolation distance requirements postclosure activities conducted in areas permitted prior to December

23, 2000. 25 Pa. Code § 273.202(c).

13

lifetime of operations . . . .” 25 Pa. Code § 271.1. Although “area” is not defined in

the Department’s regulations, “permit area” is defined as the “area of land and water

within the boundaries of the permit, which is designated on the permit application maps

as approved by the Department. The area includes the areas which are or will be

affected by the municipal waste processing or disposal facility.” Id. In turn, “permit”

is defined as “[a] permit issued by the Department to operate a municipal waste

disposal or processing facility, or to beneficially use municipal waste. The term

includes a general permit, permit-by-rule, permit modification, permit reissuance and

permit renewal.” Id. Thus, as pertinent here, the Setback Requirement’s plain

language provides that landfill facilities and their necessary accoutrements may not be

located in any areas that lie within 10,000 feet of a qualifying airport unless those areas,

“prior to January 25, 1997,” were subject to a permit, as defined above, issued by the

Department for the disposal of municipal waste. Such areas are exempt from the

Setback Requirement.

The parties’ disagreement centers on the phrase “permitted prior to

January 25, 1997.”12 Respondents argue, and the Board concluded, that this phrase

does not require continuous, uninterrupted permitting prior to and including January

25, 1997, but, rather, requires only that the subject area be permitted at some point

prior to that date. They therefore contend that whether Permit 101295 expired prior to

January 25, 1997, is immaterial and, even if it did expire, the ongoing and continuous

repermitting proceedings of the previously permitted area suffices to exempt the

Landfill from the Setback Requirement.

12

Although Petitioners also appear to have disputed whether the entire proposed 99-acre area

was in fact permitted at any point prior to January 25, 1997, given our disposition herein, we need

not resolve that question.

14

Petitioners counter that, for an area to be exempted from the Setback

Requirement, it must have been permitted continuously prior to and including January

25, 1997. Petitioners insist that because (1) Permit 101205 expired by operation of law

in April 1993, (2) actual landfill operations pursuant to that permit (i.e., the reception

of solid municipal waste) ceased in 1990, and (3) TCL did not obtain a new, modified,

reissued, or renewed permit prior to January 25, 1997, the area or portions of the area

where the Landfill is to be located is not exempt from the Setback Requirement. We

must agree with Petitioners.

First, although the parties offer different interpretations of the phrase

“permitted prior to January 25, 1997,” we do not find both interpretations to be

“reasonable” and, accordingly, the phrase is not ambiguous. Respondents’

interpretation necessarily would mean that the Setback Requirement does not apply to

any area permitted at any point prior to January 25, 1997, regardless of whether a

municipal waste landfill is or was ever operational in that area, has been dormant or

deserted for years, or has been closed for any number of reasons for any number of

years. We do not find this interpretation to be reasonable chiefly because, in

contravention of basic interpretive principles, it would lead to an absurd and irrational

result, which we must conclude was not intended by the General Assembly. Instead,

we think the clear and plain language of this regulation requires that, for any municipal

waste landfill seeking to be exempt from the Setback Requirement, such a facility has

to establish that it was permitted, i.e., that permitting proceedings had concluded and a

permit had been granted, prior to January 25, 1997.

We also think it plain that the Setback Requirement’s exemption language

was intended to “grandfather” landfill areas that were permitted prior to January 25,

1997, and continued to be permitted as of that date. Our reason for this conclusion is

15

simple—those are the only landfill areas that need an exemption from the Setback

Requirement. In other words, the exemption language was intended to apply to

permitted and operational municipal waste landfill facilities in existence when the new

regulations were enacted so that those facilities could continue in operation. It clearly

was not intended to apply to areas that, at some point in the past, housed municipal

waste landfill facilities that, as of January 25, 1997, were defunct, closed, had years-

since-expired permits, or were conducting closure activities. Interpreting the Setback

Exemption in this latter fashion, as Respondents insist we do, renders the Exemption

language hypothetical, meaningless surplusage, which we must conclude was not

intended. The Department’s interpretation below therefore was clearly erroneous, and

we do not defer to it.

b. Whether the Landfill Area Violates the Setback Requirement

Given this interpretation, it is clear that the Landfill violates and is not

exempt from the Setback Requirement. First, pursuant to 25 Pa. Code § 271.211(f),

the term of Permit 101295 expired by operation of law on April 9, 1993, while

repermitting or permit modification proceedings were ongoing with the Department.

That regulation provides, in pertinent part, that “[a] municipal waste management

facility without a permit term that was permitted by the Department prior to April 9,

1988, shall have a permit term that expires April 9, 1993. The operator of the facility

may apply for permit renewal under § 271.223.” Id. In turn, the expiration of a permit

term precludes the continued disposal, processing, or beneficial use of municipal waste,

but does not vitiate an operator’s ongoing responsibilities to complete mandated

closure procedures and otherwise comply with the SWMA, other environmental laws

and regulations, and any other terms and conditions of a permit. 25 Pa. Code §

16

271.211(c). Because Permit 101295 did not have an express term, it was deemed to

have a term that expired as a matter of law on April 9, 1993.

Second, none of the operations that TCL continued to perform on the

Property either prevented or delayed the Permit’s expiration. Although some

provisions of Permit 101295 remained in effect to allow landfill closure activities,

which had begun in 1990, to continue, all other landfill operations and any receipt,

disposal, processing, or beneficial use of municipal waste thereafter ceased and, indeed,

was precluded unless and until a permit “renewal” was obtained, not merely sought.

Id.; 25 Pa. Code §§ 271.211(f), 273.223. Further, although certain waste transfer

operations also continued on the Property, such operations do not require or accomplish

Permit 101295’s continuation past April 9, 1993. After that date, an actual permit

renewal and/or modification was required for TCL to commence receipt of municipal

waste, which renewal or modification was not obtained until almost 28 years later when

the Department issued the Permit.

Third, neither TCL’s engagement in repermitting or permit renewal

proceedings as of January 25, 1997, nor the terms of the 2000 Settlement Agreement,

require a different conclusion. Quite simply, the Setback Exemption does not provide

that landfill areas with owners “engaged in permitting or repermitting proceedings prior

to January 25, 1997” need not comply with the Setback Requirement. As we’ve

discussed, actual permitting for the operation of a municipal waste landfill, and not

repermitting litigation, is required.13 Further, the terms of the 2000 Settlement

Agreement, in which the Department and TCL agreed that the Landfill area is exempt

13

Of course, municipal waste landfills might well have been engaged in repermitting

proceedings as of January 25, 1997. However, to be exempt from the Setback Requirement, such

landfills simultaneously would need to have an active, valid permit pursuant to which they were

operating as of that date.

17

from the Setback Requirement, does not bind the Board, this Court, or any third parties

that might challenge the Department’s final issuance of the Permit. The 2000

Settlement Agreement is a private agreement between TCL and the Department that,

even according to its own terms, is only binding on those parties and does not control

or inform the correct interpretation of the Setback Requirement, which is a legal

question for this Court’s determination.

In sum, we conclude that the Board erred as a matter of law in denying

Petitioners’ appeal of the Department’s issuance of the Permit because the Board, with

the Department, erroneously concluded that the proposed Landfill area was permitted

prior to January 25, 1997.14 The Board also erred in concluding that the Landfill area

is exempt from the Setback Requirement. Because it is undisputed that portions of the

Landfill area are within 10,000 feet of the Grove City Airport, the Permit should not

have been issued. On that ground, we reverse the Board’s January 8, 2024 order.15

__________________

PATRICIA A. McCULLOUGH, Judge

14

We acknowledge that the Pennsylvania Supreme Court, in dicta, has suggested that the

ongoing litigation of repermitting proceedings could exempt the Landfill area from the Setback

Requirement. See Eagle Environmental II, L.P. v. Pennsylvania Department of Environmental

Protection, 884 A.2d 867, 875 n.9 (Pa. 2005) (“Had [TCL] submitted its application as a new

application rather than a repermitting application, the location of the landfill would have been barred

by regulations prohibiting landfills within 10,000 feet of an airport runway.”). Nevertheless, the issue

of whether the Setback Requirement precluded the issuance of the Permit was not before the Supreme

Court in Eagle Environmental II, and, after considering a fully developed record and the

comprehensive briefing of the parties on the question, we do not believe that our determination herein

is inconsistent with any binding directives of our Supreme Court.

15

Because we reverse the Board on this ground, we need not address Petitioners’ remaining

issues.

18

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Liberty Township and Citizens’ :

Environmental Association of the :

Slippery Rock Area, :

Petitioners :

:

v. : No. 107 C.D. 2024

:

Department of Environmental :

Protection and Tri-County Landfill, Inc. :

(Environmental Hearing Board), :

Respondents :

ORDER

AND NOW, this 7th day of August, 2025, the January 8, 2024 order of

the Pennsylvania Environmental Hearing Board (Board) is REVERSED. We remand

this matter to the Board for further remand to the Pennsylvania Department of

Environmental Protection with instructions to vacate Permit 101678.

Jurisdiction relinquished.

______________________

PATRICIA A. McCULLOUGH, Judge