decided: January 14, 1986.
PENNSYLVANIA ENVIRONMENTAL MANAGEMENT SERVICES, INC., PETITIONER
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES ET AL., RESPONDENTS
Appeal from the Order of the Environmental Hearing Board in case of Pennsylvania Environmental Management Services, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources, County of Chester, New Garden Township and Concerned Citizens, Docket No. 79-153-M.
Thomas A. Riley, Jr., Riley Law Associates, Inc., with him, Hershel J. Richman and Jane Massey Licata, Cohen, Shapiro, Polisher, Shiekman and Cohen, for petitioner.
Kenneth A. Gelburd, Assistant Counsel, for respondent.
George A. Brutscher, Brutscher, Brutscher & Foley, for intervenors, New Garden Township and Concerned Citizens of Southern Chester County.
Janet M. Colliton, Solicitor for intervenor, Chester County.
President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by President Judge Crumlish, Jr. Judge Rogers did not participate in the decision in this case. Judge Palladino dissents.
[ 94 Pa. Commw. Page 184]
The Department of Environmental Resources (DER) denied an application by Pennsylvania Environmental Management Services, Inc. (PEMS), for a solid waste management permit to operate a landfill in New Garden Township, Chester County. PEMS appeals an Environmental Hearing Board (EHB) order upholding this denial. New Garden Township, Chester County, and Concerned Citizens of Southern Chester County intervene opposing the permit.
PEMS' application was originally denied by DER, pursuant to the Pennsylvania Solid Waste Management Act (1968 Act),*fn1 because the landfill would create a hazard by attracting foraging birds into the flight path of small planes using the nearby New Garden Flying Field. PEMS appealed that denial to EHB. EHB reversed, holding that PEMS had established that it was capable of controlling the "bird strike" hazard, and remanded to DER retaining jurisdiction.
DER then began a re-evaluation of the application. It required PEMS to answer (1) a compliance history questionnaire to enable DER to perform its duties under Sections 503(c) and (d) of the newly passed
[ 94 Pa. Commw. Page 185]
Solid Waste Management Act (1980 Act)*fn2 and (2) a questionnaire enabling DER to conduct an Environmental Assessment Process (EAP) in order to render a decision, balancing environmental and social concerns pursuant to PA. CONST. art. I, § 27,*fn3 which would pass the three-pronged test set forth in Payne v. Kassab, 11 Pa. Commonwealth Ct. 14, 312 A.2d 86 (1973), aff'd, 468 Pa. 226, 361 A.2d 263 (1976).*fn4 PEMS challenged the propriety of this re-evaluation through a petition to EHB for a determination of the applicable law and scope of the remand. In response, EHB held that the scope of the remand was initially for DER's determination.
On remand, PEMS' application was again denied by DER, this time pursuant to the 1980 Act*fn5 and PA.
[ 94 Pa. Commw. Page 186]
CONST. art. I, § 27. DER listed as reasons: (1) PEMS' refusal to answer Question 8 of DER's compliance history questionnaire, concerning compliance with federal and out-of-state laws, (2) the application's failure to address the risk of harm from, and prevention of, a major leachate*fn6 spill or discharge from the landfill into the adjoining White Clay Creek which, in addition to being a high water quality trout stream, is used for biological research and (3) the application's failure to address the inadequacy of proposed approach routes for trucks transporting waste to the site. Although PEMS did not appeal it, EHB conducted hearings on the second denial. EHB affirmed this denial. In its decision, EHB additionally considered the proposed landfill's impact (1) on a neighboring inn, nearby residences and an interstate highway, due to its visibility and (2) on nearby fruit orchards and the major local mushroom industry. EHB found that the issue of PEMS' failure to answer Question 8 of DER's compliance history questionnaire was moot because, during EHB's hearings concerning the second denial, sufficient evidence was adduced to answer the question.
Our scope of review of EHB decisions is limited to determining whether constitutional rights have been violated, an error of law has been committed or any necessary finding of fact is unsupported by substantial evidence. A. H. Grove & Sons, Inc. v. Department of Environmental Resources, 70 Pa. Commonwealth Ct. 34, 452 A.2d 586 (1982).
[ 94 Pa. Commw. Page 187]
PEMS contends that DER committed an error of law in its application of the third prong of the Payne test. We agree.*fn7
The third prong of the Payne standard is the final test of whether a decision has adequately balanced environmental and social concerns as required by PA. CONST. art. I, § 27. It requires a reviewing court to inquire whether "the environmental harm which will result from the challenged decision or action [to allow a project] so clearly outweigh[s] the benefits to be derived therefrom that to [allow such project to] proceed further would be an abuse of discretion." In other words, DER abuses its discretion if it allows a project to proceed where the harm clearly outweighs the benefits. In this case, where DER disallowed PEMS' landfill, it follows logically that DER has abused its discretion if the benefits clearly outweigh the harm.*fn8
In its decision upholding DER's second denial of PEMS' application, EHB admitted that there is an "urgent need" for landfills in the region covering the proposed site. However, EHB concluded that there is no benefit to be derived by siting a landfill at the proposed location because that particular site is not critical to the needs of the region. This site-specific
[ 94 Pa. Commw. Page 188]
interpretation of the benefits to be considered is untenable because (1) there is a benefit in that the region would receive an urgently needed landfill and (2) the alleged unsuitability of the site is a factor to be considered in determining the harm to the environment, not the benefit from the landfill. We hold that DER must balance the regionwide benefits which would result from operation of the urgently needed landfill against the environmental harm it threatens.
It would be inappropriate for us to presently review DER's factual determinations, made pursuant to its incorrect application of the third prong of the Payne test. We therefore vacate the EHB's order and remand this case for further fact-finding proceedings properly balancing the environmental and social concerns pursuant to Payne.*fn9
[ 94 Pa. Commw. Page 189]
Vacated and remanded.
The order of the Environmental Hearing Board, Docket No. 79-153M dated May 29, 1984, is vacated and this case is remanded for further proceedings consistent with the foregoing opinion.
Judge Rogers did not participate in the decision in this case.
Judge Palladino dissents.
Vacated and remanded.