Tri-County Landfill Inc. is having an unhappy new year.
The waste hauler - which has been losing its battle to reopen its controversial landfill in Pine and Liberty townships with the state Department of Environmental Protection for over 23 years lost an appeal to the Commonwealth Court of Pennsylvania on Jan. 9.
"We're disappointed in the opinion, particularly following the oral argument (before the Commonwealth Court in November)," said Clifford Levine, a Pittsburgh attorney who represents Tri-County. "We thought it went great."
Judges Bernard L. McGinley, Renee Cohn Jubelirer and Robert Simpson heard 10-minute arguments from Levine and Robert B. McKinstry, the Philadelphia lawyer who represented objectors against Tri-County's appeal, including Pine and Liberty officials, Dr. Ray Yourd, Diana Hardisky, Eric and Polly Lindh, Bill and Lisa Pritchard, Dave and Anne Dayton, Doug Bashline and Grove City Factory Shops Limited Partnerships.
Tri-County has operated a waste transfer station at the old landfill property since 1992 and is under the umbrella of Vogel Holdings Inc. in Mars, along with Seneca Landfill in Zelienople and Vogel Disposal in Mars. The businesses are run by the Vogel family, who purchased and operated the Pine/Liberty landfill in 1975. It had been in use since the 1940s - until it was shut down by the DEP in 1990.
The firm's current fight with the DEP began in 2010, when the agency deferred Tri-County to the townships to decide whether zoning laws allowed for a landfill, which evolved into lengthy township hearings between Tri-County and affected citizens/businesses.
Pine zoning officers determined 1976 zoning laws place the landfill in a residential area - and it was not grandfathered because Tri-County abandoned operation in 1990 when it closed. Even if it were grandfathered, it was also subject to a 40-foot height restriction for structures. Liberty supervisors said the landfill on their side was zoned industrial and could operate; however, the 40-foot structure restriction also applied there.
An appeal by Tri-County to the Mercer County Court of Common Pleas resulted in Judge Thomas Dobson siding with the townships on 40-foot restrictions, because modern landfills are complex engineering designs likened to a structure.
Tri-County wants to cap it at 160 feet - giving it the term "trash mountain" by opponents - and argued the restriction would be a financial hardship; however, the Commonwealth Court sided with Dobson's decision.
"We could have a landfill but it's only allowed to be 40 feet in height when the average landfill is 200 to 300 feet in height," Levine said. The landfill operation would be 99 acres and include exhuming waste from the old landfill and placing it on an industrial liner at the owner's cost, per DEP requirements. He added that the depth of the landfill could be about 50 feet.
The Supreme Court of Pennsylvania has doctrines "that guide people in determining ordinances and statutes," he said, and Liberty and Pine's zoning law regarding the 40-foot restriction didn't follow those guides.
"There was ambiguity in the way the statute was written about structures," Levine explained. "It doesn't make sense to limit it to 40 feet."
However, the Commonwealth Court sided with Dobson's agreement with Tri-County that the portion of the old landfill in Pine was grandfathered and should be allowed to operate under the 40-foot height restriction. Pine's abandonment argument didn't stand.
Both courts agreed with Tri-County's argument that it spent $4 million to $5 million trying to gain a permit from the DEP to operate the old landfill since it was closed in 1990; therefore, it did not abandon the operation.
According to the Commonwealth Court's opinion - written by Simpson - for Tri-County's appeal of Dobson's decision for Pine, it saw no financial hardship for Tri-County in limiting the proposed landfill to 40 feet.
"Tri-County currently operates a profitable business on its property, a large portion of the property remains unused and could be developed for a use permitted in the R-1 district," it said.
Regarding restriction in Liberty, the Commonwealth Court came to a similar conclusion. It agreed with Dobson that a modern landfill would be considered a structure and be restricted to a 40-foot height in the township.
However, it vacated its agreement because Dobson failed in his attempt to remand the 40-foot issue to Liberty's zoning board to determine the ambiguity present in the ordinance's language for structures; Tri-County and objectors didn't feel a remand was necessary.
Before the Commonwealth Court ruling, the DEP announced in September that it did not approve Tri-County's permit application.
Levine said it was based on Tri-County not having the zoning approved in Pine - as well as a history of violations from its other companies - but in the former, Dobson approved the zoning in both townships, affirmed by Commonwealth Court.
Based on that confusion, Tri-County has filed an appeal to the Environmental Hearing Board to challenge the DEP decision, Levine added. "We have a right to operate on 99 acres. The only question is if it's a structure. If it's a structure, then it's subject to 40 feet. That would be fairly unprecedented when landfills are normally 200 to 300 feet."
The only other avenue for Tri-County is submitting a petition for appeal to the Supreme Court of Pennsylvania, which wouldn't be heard unless three out of seven judges voted in favor of hearing the appeal, Levine said. Learning if that vote passed or failed could take until summer, he noted.
Tri-County believes the 40-foot restriction "is not realistic" and the Supreme Court wrote the doctrines that determine how to write ordinances and statutes, Levine added.
If it took the appeal higher and lost, Tri-County could still have a 99-acre landfill operation spanning Pine and Liberty that's 40-feet high. Such a ruling at that level would "have some serious consequences for landfills (in the future)," he noted. "It could have limiting effect on industries." He said it was "highly unlikely" that Tri-County could operate a landfill of that size. "I doubt it would be viable," he said.
Tri-County has 30 days to review filing a petition to the state Supreme Court, and objectors would have 14 days to respond. If Tri-County did not appeal, objectors could appeal after 30 days, McKinstry said.
The objectors disagree with the Commonwealth Court upholding the lower court's decision that the old landfill was still grandfathered, since language in Dobson's decision seemed to side with the objectors, he added. Commonwealth Court approved a motion by Tri-County to not allow the objectors to raise the grandfathered issue again since they hadn't cross-appealed it to Dobson - which was based on their belief that the lower judge sided with them, McKinstry explained.
"We're still evaluating it," McKinstry said, as a possible appeal issue to the state Supreme Court.
Otherwise, the objectors are happy. The Commonwealth Court "did affirm the denial of Tri-County on height limitation and independently the DEP has denied application for a solid waste permit," McKinstry added. "Tri-County would have to go back to day-one on the application," he noted, and the objectors believe a entirely new engineering design would affect what zoning the company gained.
"It really says they can't build the landfill they proposed. That's clear unless it gets reversed in the Supreme Court. I don't think they can," he said, and "Tri-County said repeatedly they wouldn't build if was only 40 feet."
Levine said Tri-County will decide whether it will petition the state Supreme Court in two or three weeks.
Published Jan. 15, 2014, in Allied News. Pick up a copy at 201 A Erie St., Grove City.
Tri-County will decide whether to pursue
Tri-County Landfill Inc. is having an unhappy new year.
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