Pa.'s Test Anxiety Crams Courts

Lynn Schenkman

THE COMMERCE CLAUSE MAY prevent state and local officials from keeping trash from other states out of Pennsylvania landfills, but state agencies and the courts are developing controversial permit standards that could hinder landfill capacity.

The most recent legal jousting in Pennsylvania originates with a “harms-benefits” test the Pennsylvania Department of Environmental Protection (DEP) adopted in December 2000. The rule requires every landfill permit applicant to prove that the social and economic benefits of a new landfill, or a major expansion to an existing landfill, outweigh the potential environmental harms.

Since issuing this rule, the Harrisburg-based DEP has met resistance from the waste industry and other Pennsylvania business groups. Currently, two requests for review are before the Pennsylvania Supreme Court.

The waste industry's primary criticism is that the harms-benefits test is not authorized by state law. The industry also is concerned that determining whether benefits are stronger than harms is too subjective and vague, according to the National Solid Wastes Management Association (NSWMA). Each permit is evaluated on a case-by-case basis.

The legal history of the harms-benefits test could be characterized as a continuous volley between government and industry. It began when Eagle Environmental II, Chest Township, Pa., Tri-County Industries, Grove City, Pa., and Alliance Sanitary Landfill, Taylor, Pa., each filed separate appeals to the DEP. All were existing landfills filing for expansions. Tri-County and Alliance both were denied permit expansion. Together, they currently are requesting a review from the Pennsylvania Supreme Court.

The initial appeals of the DEP decisions to the Pennsylvania Environmental Hearing Board (EHB) argued that the harms-benefits test was not lawful. The landfills were supported in their claim against the legality of the test by several organizations, including the Pennsylvania Waste Industries Association (PWIA); the Solid Waste Association of North America (SWANA); and the Pennsylvania Chamber of Business and Industry.

But by a narrow 3-2 margin, the Commonwealth Court rejected the argument, saying the harms-benefits test is authorized under the state Solid Waste Management Act. In a separate case, a temporary harms-benefits victory was won in March when the state court found the EHB had committed an error and reversed a decision that granted a permit to BFI/Allied-owned Conestoga Landfill in Morgantown, Pa. The reissued permit allowed the facility to add an additional 2,000 tons to its average daily volume. But this breakthrough was hardly a fast or direct victory.

In BFI/Allied's case, the DEP first said the additional tonnage would provide more benefit than harm and granted the permit based primarily on increased host fees the landfill agreed to pay the community. Those fees totaled $2.3 million. A couple, Lisa and Steven Giordano, who live approximately 2 miles from the landfill, appealed the permit decision to the EHB, which favored their argument about harms and rescinded the permit. BFI/Allied appealed that decision to a state court, which reversed the EHB decision. At press time, the Giordanos were asking the state Supreme Court to review the decision. But BFI/Allied currently is permitted to take on additional tonnage.

With the end of the ordeal still out of sight, the weight and the fate of the harms-benefits test remains in the balance. “These cases could be relevant to others in the industry because waste from a number of states is disposed of in Pennsylvania,” says David Biderman, general counsel for NSWMA.

PENNSYLVANIA PERMIT IN TIME