PA DEP v. Green 'N Grow Composting, LLC and S.R. Lehman

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, :

Department of Environmental :

Protection :

: No. 367 C.D. 2018

v. :

: Argued: December 11, 2018

Green ‘N Grow Composting, LLC :

and Stephen R. Lehman, :

Appellants :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY

JUDGE McCULLOUGH FILED: December 31, 2018

Green ‘N Grow Composting, LLC and Stephen R. Lehman (collectively

Appellants) appeal from the February 20, 2018 Order of the Lancaster County Court

of Common Pleas (trial court), which granted the Pennsylvania Department of

Environmental Protection’s (Department) petition to enforce and, in doing so, held that

Appellants violated a consent agreement and subsequent court order directing them to

remove solid waste from the property located at 266 Douts Hill Road, Martic

Township, Lancaster County, Pennsylvania (the Property).

Facts and Procedural History

Green ‘N Grow Composting, LLC, through its sole owner, Mr. Lehman,

operated a composting facility on the Property under a research and development

(R&D) permit that was issued by the Department in March of 2014 and expired on

December 31, 2015. Appellants also obtained a general permit for the composting

facility that expired in March 2017. (Trial Ct. Op. at 1-2.)

In May 2014, the Department conducted an inspection and found that

Appellants committed numerous violations of the Solid Waste Management Act

(SWMA), Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§6018.101-6018.1003.

As a result, the Department issued an administrative order rescinding Appellants’

permits until they could demonstrate their ability to comply with the SWMA.

Appellants apparently did so and the Department reinstated the permit in July 2014.

The Department also granted Appellants’ request to extend their R&D permit until

December 2015, although it appears that Appellants continued to conduct their R&D

operation at the composting facility even after the extended permit expired. (Trial Ct.

Op. at 2.)

After receiving numerous odor complaints, the Department conducted

further inspections of Appellants’ operation in September 2016 and issued a notice of

violations. Following additional complaints by neighbors, the Department conducted

another inspection in October 2016 and subsequently issued a compliance order, noting

more violations. Appellants filed an appeal of that order with the Environmental

Hearing Board but, prior to the conclusion of those proceedings, the Department and

Appellants executed a consent agreement in January 2017 (January Consent

Agreement), which permitted Appellants to continue composting until March 1, 2017,

provided they comply with certain conditions. Id.; see also S.R.R. 502b-22b.

In April 2017, the Department again inspected Appellants’ composting

operation and, having found multiple violations of the January Consent Agreement,

filed a petition to enforce its terms. On April 28, 2017, the trial court entered a rule to

2

show cause as to why the Department’s petition should not be granted. Appellants

filed preliminary objections to the enforcement petition and the Department responded

with a motion to strike. Just prior to the hearing scheduled by the trial court for August

28, 2017, the Department and Appellants reached another agreement, which was read

into the record at the hearing and made an order of the Court (August 28, 2017 Order).

The August 28, 2017 Order did not, however, supersede the January Consent

Agreement pursuant to a stipulation of the parties.1 Instead, it established additional

conditions and time for Appellants to terminate composting operations and included a

provision that “all solid waste and compost is to be removed from 266 Douts Hill Road

by December 31st, 2017.” (Trial Ct. Op. at 2-3) (quoting S.R.R. at 202b).

On November 28, 2017, Appellants’ counsel withdrew their appearance

believing that the issue was resolved; however, when additional complaints were made

to the Department, it filed a new petition to enforce. The trial court scheduled a hearing

for February 5, 2018, to determine whether the August 28, 2017 Order had been

violated. Appellants, proceeding pro se, filed an untimely answer to the petition to

enforce on January 10, 2018.2 The Department requested an expedited hearing

“because of the inundation of daily complaints from neighbors of Appellant[s’]

property regarding malodors,” which the court denied. (Trial Ct. Op. at 3.) Mr.

Lehman then issued subpoenas to eight employees of the Department and four of his

neighbors, seeking their medical and veterinary records, and demanding their

attendance at depositions. The Department moved to quash the subpoenas and the trial

court granted the motion. Id. at 3-4.

1

See Supplemental Reproduced Record (S.R.R.) at 203b.

2

In its opinion, the trial court notes that Appellants filed an amended answer despite not

having filed an original answer. (Trial Ct. Op. at 3.)

3

The trial court held a two-day hearing on February 5, and February 15,

2018, regarding Appellants’ compliance with the court’s January Consent Agreement

and August 18, 2017 order. Appellants attended and were represented by new counsel.

At the hearing, Anthony Rathfon, Waste Program Manager for the Southcentral

Regional Office of the Department, testified that he observed numerous plastic bottles,

metal cans, and food packaging items interspersed with the soil throughout the Property

when he inspected it on January 8, 2018. Mr. Lehman did not dispute this finding,

acknowledging that he failed to remove all solid waste from the Property by December

31, 2017. Id. at 4.

The following exchange took place during the hearing on February 5,

2018, between Mr. Lehman and counsel for the Department:

Q. Mr. Lehman, just because you stopped the composting

process doesn’t mean that whatever metals or plastics were

in the materials suddenly vanished, correct?

A. Correct.

Q. In fact, on walking around [the Property] there’s visible

pieces of plastic and metal in the ground, correct?

A. I’m not sure about metal.

Q. Plastic, you’ll agree with me on plastic?

A. There’s plastic, but there’s plastic in many fields along

the roadways.

Q. We’re talking about [the Property] though, correct?

A. Correct.

(S.R.R. at 344b.) Further, Megan Kreider, the Site Manager for Green ‘N Grow and

Mr. Lehman’s daughter, also testified at the hearing and acknowledged that plastic and

metal were intermixed in the soil on the Property after the date of compliance. (Trial

Ct. Op. at 5.)

Additionally, Mr. Lehman admitted during the hearing that he had

dumped large quantities of the adulterated material from the Property into a hole on his

own adjoining private property at 300 Douts Hill Road (Personal Property), instead of

4

in a permitted landfill.3 Mr. Rathfon testified that he discovered the material that Mr.

Lehman relocated to the Personal Property and observed a fresh layer of dirt covering

a pile of packaging material, including “plastics sticking up through the soil.” Id.

(quoting S.R.R. at 371b).

On February 20, 2018, the trial court issued an order finding that

Appellants had violated the January Consent Agreement and the August 28, 2017 Order

and granted the Department’s petition to enforce the January Consent Agreement. The

trial court authorized the Department to access the Property as needed “to remove all

solid waste located within three hoop structures appearing in the [Department]’s

Exhibits 8G-8I and 8M-8V, the berm containing solid waste appearing in the

[Department]’s Exhibit 8L and all solid waste appearing in the [Department]’s Exhibits

8K, 8V, 8Y, and 8Z.” (Trial Ct. Feb. 20, 2018 Order at ¶1.) The order also directed

Appellants not to modify the condition of the Property without further order of the

court; ordered Appellants not to hinder the Department during its performance of duties

under the order; and ordered the costs of abatement incurred by the Department to be

paid by Appellants within 30 days of a written request for payment with a penalty of

$100.00 per day for failure to pay the amount in the written request. Id. at ¶¶3-6.

Appellants filed an appeal on March 20, 2018. The trial court directed

Appellants to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Appellant complied, and the trial court issued an opinion in support

of its order, pursuant to Pa.R.A.P. 1925(a).

In its opinion, the trial court stated that the testimony of Mr. Lehman and

Ms. Kreider “indicated that either Appellants were not familiar with their duty to

remove the solid waste from [the] [P]roperty or that they did not make any reasonable

3

Mr. Lehman testified that he was “not aware of any restriction [on] removing that material.”

(S.R.R. at 360b.)

5

good faith efforts to comply with the Order[] of this Court.” (Trial Ct. Op. at 5.) The

court continued, “The latter possibility is bolstered by [] Appellants[’] attempts to avoid

their obligations and obscure their non-compliance with the January 18, 2017 Consent

[Agreement] and August 28, 2017 Order by dumping large quantities of the affected

material into a hole on Mr. Lehman’s adjoining private property at 300 Douts Hill Road

instead of in a permitted landfill.” Id.

On appeal,4 Appellants argue that the trial court abused its discretion by

failing to dismiss the Department’s enforcement action “when [the Department]’s main

witness testified that the allegations in the [e]nforcement petition were false”; by

“changing the matter from an [e]nforcement [h]earing to a comprehensive hearing at

the last minute”; and by “entering a vague order that was devoid of means for

determining what constitutes ‘solid waste.’” (Appellants’ Br. at 7.)

Discussion

In Appellants’ first issue, they assert that the trial court erred in refusing

to dismiss the enforcement petition where, at the hearing, Mr. Rathfon5 was repeatedly

questioned about the violations giving rise to the enforcement petition during cross-

examination and responded that there were no such violations when the enforcement

petition was filed or thereafter, up to and including at the time of the hearing.

Appellants, however, have failed to develop this argument in any substantive fashion

as they have provided no citations to the record in support of their argument that Mr.

4

“Our review on this appeal is limited to determining whether the trial court’s findings are

supported by competent evidence and whether an error of law was committed.” Department of

Environmental Protection v. Blue Chip Transportation Co., 61 A.3d 296, 299 (Pa. Cmwlth. 2012).

5

In their brief, Appellants refer to a “Tony Rathbone,” but presumably are referring to Mr.

Anthony Rathfon, Waste Program Manager for the Southcentral Regional Office of the Department.

6

Rathfon made these alleged statements, nor do they cite to any legal authority in

support of their argument. As the Court is unable to conduct any meaningful review

of this argument, it is waived for lack of development.6 See Pa.R.A.P. 2101 (“[I]f the

defects are in the brief or reproduced record of the appellant and are substantial, the

appeal or other matter may be quashed or dismissed.”); Pa.R.A.P. 2119(a) (“The

argument shall be divided into as many parts as there are questions to be argued; and

shall have at the head of each part--in distinctive type or in type distinctively displayed-

-the particular point treated therein, followed by such discussion and citation of

authorities as are deemed pertinent.” (emphasis added)); (b) (“If reference is made to

the pleadings, evidence, charge, opinion or order, or any other matter appearing in the

record, the argument must set forth, in immediate connection therewith, or in a footnote

thereto, a reference to the place in the record where the matter referred to appears.”

(emphasis added)). See also Commonwealth v. Perez, 93 A.3d 829, 838 (Pa. 2014)

(“[T]o the extent [an] appellant’s claims fail to contain developed argument or citation

to supporting authorities and the record, they are waived . . . .”).

We nonetheless note the following. The January Consent Agreement

specifically stated that solid waste was to be deposited in a “permitted landfill.” (S.R.R.

at 53b-55b.) The subsequent August 28, 2017 Order, which Appellants stipulated did

not supersede the January Consent Agreement, S.R.R. at 203b, required Appellants to

remove “all solid waste and compost . . . from 266 Douts Hill Road by December 31st,

2017.” (S.R.R. at 202b). Thus, at a minimum, Appellants had until December 31,

2017, to dispose of the solid waste in a permitted landfill. The Department alleged,

6

While Appellants attach to their brief various pages of what appear to be transcribed

testimony from the hearing, Appellants have not explained why these pages are relevant or how the

testimony supports their argument. Appellants’ arguments are not self-proving and, without any legal

or factual development or citation to the record, are waived.

7

and Mr. Lehman acknowledged, that instead of disposing of the solid waste in a landfill

Appellants simply relocated it to the adjacent Personal Property. (S.R.R. 345b-348b,

351b, 360b-61b.) Further, Mr. Lehman acknowledged that solid waste remained

visible on the Property after December 31, 2017. (S.R.R. at 344b.) Thus, Appellants

violated both the January Consent Agreement and the August 28, 2017 Order by, at a

minimum, allowing solid waste to remain on the Property after December 31, 2017,

and by failing to dispose of the solid waste in a permitted landfill. As such, we cannot

agree with Appellants that the trial court erred in refusing to dismiss the petition to

enforce where there is substantial evidence supporting the trial court’s finding that

Appellants violated the January Consent Agreement and the August 28, 2017 Order.

In their second issue, Appellants argue that the court erred in refusing to

grant a continuance. Appellants contend that, during the pre-trial conference, the trial

court, after being advised that the alleged violations were not true, changed the hearing

to a “comprehensive [h]earing and proceeded with the [h]earing.” (Appellants’ Br. at

8.) While acknowledging that the pre-trial conference scheduled for February 5, 2018,

was not transcribed, Appellants assert that they did object to converting the pre-trial

conference into a hearing, but the trial court “made it clear that no continuances would

be given and that the [h]earing would proceed as scheduled.” Id.

In its 1925(a) opinion, the trial court addresses this argument, stating that

“Appellants did not object at the time of the hearing and I consider the issue waived.”

(Trial Ct. Op. at 9.) As Appellants are unable to show that they raised an argument as

to the type of hearing at any point below, the issue is waived. See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for the first time

on appeal.”).

8

Even if the issue were not waived, Appellants’ argument is unpersuasive.

In their brief, Appellants do not distinguish what they term a “hearing” from a

“comprehensive hearing,” nor do they make an effort to explain how they were

prejudiced by this alleged change in the type of hearing or describe why they were

unprepared to proceed. Further, the trial court noted that it stated on the record

numerous times that the issue before it was whether Appellants had complied with the

the January Consent Agreement and the court’s August 28, 2017 Order. There is

support for this in the record. At the beginning of the hearing, the court stated, “This

is the date and time scheduled for a hearing relating to compliance or noncompliance

with the [January] Consent [Agreement] and subsequent modifications previously held

by this Court.” (S.R.R. at 329b). The court subsequently stated, “I’m going to be

making the ruling if there’s a violation of this agreement, and it’s going to be dealt

with. If there’s no violation of the agreement, then it’s going to come to an end today

as well.” Id. at 358b. Finally, at the end of the hearing, the trial court reiterated,

“[W]hat I have before me is all the original agreements, the consent [agreement] of

January 18th, 2017, and the stipulated order of 8/28/17.” Id. at 471b.

“It is well settled that the grant or refusal of a continuance rests in the

discretion of the court or administrative agency to which the application is made, and

its exercise of this discretion will not be reviewed except in clear cases of abuse.”

Blackledge v. Pennsylvania State Police, 435 A.2d 309, 311 (Pa. Cmwlth. 1981). Here,

we are satisfied that, even if Appellants could demonstrate that they raised the issue

below, the trial court did not abuse its discretion in denying the request for a

continuance where Appellants have not explained how they were prejudiced by the

court’s decision to proceed with the February 2, 2018 hearing and where the court

9

repeatedly stated throughout the hearing the issue before it without objection from

Appellants.7

In their final issue, Appellants state that, “throughout the pre-litigation

period” they requested clarification on “various terms, including but not limited to

‘solid waste,’” but the Department “continually provided inconsistent definitions” and

“mostly referred Appellants to various websites and/or sections of the Pennsylvania

Code that had nothing to do with definitions or examples of the requested definitions

of terms.” (Appellants’ Br. at 9.) Appellants assert, “For the most part, [they] were

left to guess at definitions or try to come up with them on their own.” Id.

Appellants state that this vague use of terms also occurred in the trial

court’s order, as it “lacked any substantive guidance regarding ‘solid waste.’”

(Appellants’ Br. at 9.) They assert that the term was defined by the court for the first

time in its 1925(a) opinion and, even there, the opinion cites to various definitions for

“solid waste” in contexts other than the composting. Although they do not provide any

citation for the case, Appellants direct this Court to Association of Battery Recyclers,

Inc. v. United States Environmental Protection, 208 F.3d 1047 (D.C. Cir. 2000), which

they argue addressed a similar issue regarding a vague definition of solid waste.

In Association of Battery Recyclers, the District of Columbia Circuit held,

inter alia, that the United States Environmental Protection Agency did not properly

define “solid waste” in the regulations it promulgated dealing with residual materials

7

Additionally, even if we were to agree with Appellants that the hearing was solely for the

purpose of addressing the Department’s petition to enforce, Appellants were nonetheless on notice

that the issue of their failure to remediate the Property would be addressed since, as the trial court

observed, the petition to enforce specifically alleged that Appellants failed “to remove all pieces of

food packaging waste from the grounds of Green ‘N Grow, which is a violation of [35 P.S.

§6018.301], and 25 Pa. Code § 299.11(4).” (S.R.R. at 9b.) As such, we find no merit in Appellants’

argument that the trial court erred in failing to grant a continuance.

10

generated in mining and mineral processing operations because it based the definition

on an improper interpretation of the term “discarded” and the court’s precedent. Id. at

1056. As the Department notes, Association of Battery Recyclers, is not relevant here

as it concerned challenges to a federal statute, mining and mineral processing, and a

federal agency’s regulation defining solid waste in terms of residual materials

generated, reclaimed, and stored. As such, we do not find the case persuasive.

Upon review, we hold there is substantial evidence in the record that the

term solid waste was sufficiently defined, such that both Appellants and the

Department were aware of what specifically the court was referring to when it used the

term “solid waste” in the February 20, 2018 order.

The trial court, in its 1925(a) opinion, stated that “the term ‘solid waste’

is defined in the SWMA and refers to ‘municipal, residential, or hazardous waste’ and

as was stated ad nauseum during the two-day hearing, ‘solid waste’ includes garbage,

refuse, and pre-consumer packaged food.” (Trial Ct. Op. at 6) (quoting Section 103 of

the SWMA, 35 P.S. §6018.103). Section 103 of the SWMA defines “Solid waste” as

“[a]ny waste, including but not limited to, municipal, residual or hazardous wastes,

including solid, liquid, semisolid or contained gaseous materials. The term does not

include coal ash or drill cuttings.” 35 P.S. §6018.103. During the hearing, the trial

court specifically reiterated this definition while handing down its ruling that

Appellants violated the court’s prior orders by failing to remove the refuse on the

Property. See S.R.R. at 472b.

Furthermore, in the order, the trial court specifically described where the

solid waste was located on the Property, stating that the Department was authorized “to

remove all solid waste located within three hoop structures appearing in the

[Department]’s Exhibits 8G-8I and 8M-8V, the berm containing solid waste appearing

11

in the [Department]’s Exhibit 8L and all solid waste appearing in the [Department]’s

Exhibits 8K, 8V, 8Y, and 8Z.” (Trial Ct. Feb. 20, 2018 Order at ¶1.) Upon review of

these exhibits in the supplemental reproduced record, (S.R.R. at 644b-46b, 650b-60b,

662b-63b), we agree that “[i]t takes only a cursory glance at the referenced exhibits to

see that solid waste is present in these areas and are subject to removal pursuant to the

[January Consent Agreement] and the [August 28, 2017 Order].” (Trial Ct. Op. at 6.)

Clearly, the various plastic bottles, metal cans, furniture, and food packaging material

observed in these exhibits qualify as “solid waste” under the SWMA definition.

Finally, throughout the proceedings, the Department made clear to

Appellants that it considered the plastic water bottles, aluminum cans, glass containers,

construction debris, furniture materials, plastic pales and tarping, and food packaging

waste that it observed and documented on the Property to be “solid waste,” which was

to be removed to a permitted landfill. See S.R.R. at 5b-11b, 34b, 52b, 84b-85b, 125b-

27b. As we stated in Starr v. Department of Environmental Resources, “the

construction given a statute by those charged with its execution and application is

entitled to great weight and should not be disregarded unless it is clear that the agency’s

interpretation is incorrect.” 607 A.3d 321, 323 (Pa. Cmwlth. 1992). Here, we find no

error in the Department’s interpretation of the term “solid waste” to include the garbage

and refuse depicted in the Department’s exhibits. As such, we find no merit in

Appellants’ contention that they were left without any “substantive guidance” from the

Department or the trial court regarding the term solid waste. (Appellants’ Br. at 9.)

Accordingly, for all of these reasons, the February 20, 2018 order of the

trial court is affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge

12

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, :

Department of Environmental :

Protection :

: No. 367 C.D. 2018

v. :

:

Green ‘N Grow Composting, LLC :

and Stephen R. Lehman, :

Appellants :

ORDER

AND NOW, this 31st day of December, 2018, the February 20, 2018

Order of the Lancaster County Court of Common Pleas is hereby affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge