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EHB Finds Another Violation of PA's Environmental Rights Amendment, But Again Only in the Presence of a Regulatory Violation

On November 8, 2017, the Pennsylvania Environmental Hearing Board (the “Board”) issued an adjudication in Friends of Lackwanna v. DEP, EHB Docket No. 2015-063-L (Adjudication issued Nov. 8, 2017), in which the Board upheld the Pennsylvania Department of Environmental Protection’s (“DEP”) issuance of a renewal of Keystone Sanitary Landfill, Inc’s (“Keystone”) solid waste management permit for the Keystone Landfill. At the same time, the Board added a condition to the permit requiring Keystone to prepare a groundwater assessment plan based on groundwater degradation observed in one of its monitoring wells. Interspersed throughout this decision was language that shed additional light on the Board’s view of how Article I, Section 27 of the Pennsylvania Constitution, often referred to as the Environmental Rights Amendment, applies to DEP permitting decisions.

Last summer, the Board issued its decision in Center for Coalfield Justice v. DEP, EHB Docket No. 2014-072-B (Adjudication issued Aug. 15, 2017) (“CCJ”), in which the Board provided initial guidance on how to apply Article I, Section 27 in the context of a DEP permitting decision. Applying the Pennsylvania Supreme Court’s decision in Pa. Environmental Defense Found. v. Commonwealth, No. 10 MAP 2015 (Pa. June 20, 2017), the Board held in CCJ that the Section 27 Constitutional standard is not coextensive with compliance with DEP’s statutes and regulations, suggesting that the Board could find a violation of Section 27 even if an applicant otherwise complied with all applicable statutes and regulations.

In Friends of Lackwanna, the Board explicitly stated that Article I, Section 27 applies “[r]egardless of which statutory or regulations apply.” The Board further explained that, “in theory, an operation may be compliant with all specific regulatory requirements and yet not be permittable due to the unreasonable degradation it will cause” under Section 27. The Board admitted that this is “a rather vague standard,” but added that “it is not that different from the standard that this Board has employed for decades.” 

Turning to the merits of the appeal, the Board began by recognizing that DEP possesses the authority to add conditions to permits through the permit renewal process. Based on degradation found in a well prior to issuance of the permit renewal, Keystone was required under DEP’s regulations at 25 Pa. Code § 273.286(a) to prepare and submit to DEP a groundwater assessment plan within 60 days after observing the degradation. DEP, however, issued the permit renewal before Keystone had fully complied with this requirement. The Board therefore added a condition to the permit requiring Keystone to submit a groundwater assessment plan within 60 days. The Board also held that, by issuing the permit while this violation was outstanding, DEP violated its duties as trustee of the Commonwealth’s natural resources under Article I, Section 27. Similar to the Board’s prior holding in CCJ, the Board found that a violation of DEP’s regulations necessarily resulted in a violation of Section 27. 

On other issues, including compliance history, odors, and leachate management, the Board found that the appellant had failed to carry its burden of proof to necessitate a remand of the permit renewal. In the discussion of offsite odors, however, the Board acknowledged that, in addition to compliance with DEP’s odor regulations at 25 Pa. Code §§ 123.31(b) and 273.218(b), “offsite landfill odors are a cognizable injury subject to evaluation and control pursuant to Article I, Section 27 of the Pennsylvania Constitution.” The Board framed the issue as “whether those odors are causing an unreasonable degradation or deterioration of the environment and the quality of life of the landfill’s neighbors such that the Department violated the neighbors’ constitutional rights by renewing the permit and thereby effectively allowing the odors to continue for another ten years.” The Board, nevertheless, found that the appellant had failed to carry its burden of proof and noted that “[s]hutting down this facility at this juncture is simply too extreme a resolution in the context of a permit renewal.” 

A key takeaway from Friends of Lackawanna is that, while the Board will continue to announce that the Section 27 Constitutional standard is not coextensive with DEP’s regulations, the result in the Board’s most recent holdings is that regulatory compliance results in Section 27 compliance and regulatory noncompliance results in Section 27 noncompliance. Thus, to avoid running afoul of Section 27, permit applicants should take particular care in demonstrating strict compliance with all applicable statutes and regulations.