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Environmental Hearing Board Denies Liberty Twp., Citizens Group Appeal Of DEP Tri-County Landfill Permit Over Threats Posed By Birds, Radioactive Oil & Gas Waste In Mercer County

On January 8, 2024, the Environmental Hearing Board issued an adjudication denying the 2021 appeal of a DEP permit for the Tri-County Landfill in Mercer County brought by Liberty Township and the Citizens Environmental Association of Slippery Rock Area. [Docket 2021007]

Among the issues raised by the appellants in their appeal were-- concerns the landfill’s operation would attract birds and interfere with the operation of the nearby Grove City Airport; that the oil and gas drilling wastes the landfill was allowed to accept presented a radiation hazard; and the landfill’s compliance history.

The Board’s 113-page adjudication was very critical of the case made by the appellants and the lack of expert testimony and the presentation of evidence relevant to the issues they raised..

A spokesperson for the Citizens Environmental Association of Slippery Rock Area told WFMJ news they would appeal this ruling. Read more here.

Birds

From the adjudication-- “There is no dispute that the increased potential for bird/aircraft collisions around a landfill is a known and potential adverse impact and environmental harm of the facility.

“As a result, Tri-County was required to submit a plan on how it would mitigate those effects. The bird control plan is the mitigation plan in this context.

“Thus, the key issue in this case is whether Tri-County’s bird control plan will “adequately protect the environment and the public health, safety and welfare.”

“...[T]he Department is to be commended for consulting closely with the FAA throughout the permit review process. It is difficult to imagine that either the Department or this Board would have issued or upheld the permit had the FAA objected to it, even though those objections would have been nonbinding.”

“Somewhat remarkably, the Appellants did not present any testimony on the critical point of the effectiveness of Tri-County’s bird control plan.”

“The Appellants presented the testimony of Russell DeFusco, Ph.D., a well-qualified, expert on bird strikes. However, Dr. DeFusco did not take any position on Tri-County’s bird control plan.

“In fact, he did not bother to review it, or most of the studies that led up to its preparation.

“He simply did not care what the bird control plan said because, in his view, it does not matter what it says: the fact that the landfill is as close as it is to the airport and directly on one of the flight paths to the airport, in and of itself, creates too great of a risk to public safety to allow the landfill to be permitted.

“The risk cannot under any circumstances be adequately mitigated in his view. His opinion is the Tri-County landfill should not be permitted regardless of any mitigation plans, for the sole reason that it is too close to the airport, full stop.”

“Despite the lack of expert support for their positions, the Appellants have lodged several criticisms of Tri-County’s plan and the Department’s review thereof in their post-hearing brief. Although the Appellants’ lack of expert testimony on this key point is fatal to their position.”

“In conclusion, to say that the Department has insisted on rigorous study and strict mitigation of the bird strike hazard would be an understatement.

“The extreme care it has taken was entirely justified given the public safety concerns involved.

“We reject Dr. DeFusco’s view that none of this matters. The Department’s decision to issue the permit because the bird hazard will be fully mitigated is consistent with the law, supported by the facts, and otherwise reasonable.”

Oil & Gas Waste

From the adjudication-- “The Appellants next argue that disposal of waste from oil and gas operations known as Series 800 residual waste at the landfill will harm the environment and pose a risk to human health.

“Series 800 waste includes such things as flowback resulting from hydraulic fracturing, produced fluids resulting from wells in production, drilling fluids and mud, sludge and solids produced during the processing of oil and gas related wastewater, synthetic liners used in storage structures or impoundments, drill cuttings, lubricant waste, and soil contaminated by oil and gas spills."

“Although Series 800 includes various types of liquid waste, according to the testimony of Tri-County’s Environmental Health and Safety Director, Elizabeth Bertha, the landfill will not accept liquids for direct disposal.

“The Appellants’ concern stems from the fact that the oil and gas waste, in addition to other unspecified “chemicals,” can contain technologically enhanced naturally occurring radioactive material (TENORM).

“Although they are not entirely clear on the routes of exposure that give rise to their concern, they appear to be worried that the radioactivity will make its way into treated leachate discharged from the landfill, and/or into the groundwater, and perhaps otherwise result in untoward exposure to the public or the environment through unspecified pathways.

“The initial difficulty we are having with the Appellants’ case on this issue is they never really explain what they would have this Board do in light of their concerns.

“At the end of a lengthy discussion regarding the dangers of radiation, they conclude that “[t]he Landfill should not be reopened to accept disposal of any TENORM waste....”

"Only two percent of the landfill’s total waste can be composed of TENORM waste. Even if all the Appellants’ arguments were valid, it would only justify prohibiting the disposal of that two percent. It would certainly not justify a rescission of the permit in its entirety.

“Although they have not asked us to modify the permit, it would seem that would be the most they could logically hope for as a remedy to address their radiation issue.

“However, they have not made a case for such a permit modification limiting the disposal of TENORM waste from oil and gas operations.

“The Appellants first say, without any expert or other support, that there will not be enough controls at the landfill to regulate incoming levels of radioactive materials.

“This is simply not true."

"As part of its permit application, Tri-County was required to prepare a Waste Analysis and Classification Plan, known as Form R. This form sets forth criteria for the screening, acceptance, and management of residual and special handling waste, including oil and gas waste."

"Tri-County is required to have a Radiation Protection Plan setting forth the process it will follow to ensure that it does not accept radioactive waste beyond the limit set by its permit. The landfill is required to monitor each incoming load of waste for radiation."

"The Department’s Bryan Werner explained that, although landfills are not required to obtain a license from the Department’s Bureau of Radiation Protection, they are still monitored by the Department for the handling of radioactive materials through the implementation of the landfill’s Radiation Protection Plan.

“The Department monitors landfills to ensure that they do not expose the public to a greater dose of radiation than that permitted by licensed facilities."

"At a fundamental level, the Appellants have failed to carry their burden of proving that disposal of Series 800 waste at the landfill will harm the environment or pose a risk to public health and safety."

"In support of their claim, the Appellants presented the expert testimony of Dr. John Stolz, Professor of Biological Sciences and Director of the Center for Environmental Research and Education at Duquesne University, who was recognized by the Board as an expert in microbiology and the radioactivity of oil and gas waste.

“Unfortunately, Dr. Stolz’s testimony was not particularly helpful.

“Distilled to its essence, Dr. Stolz believes that no oil and gas waste should ever under any circumstances be disposed at any municipal waste landfill.

“It is his opinion that oil and gas waste should be disposed at a hazardous waste landfill or, in the case of liquids, in a Class 2 injection well.

“Reminiscent of Dr. DeFusco on the bird issue, Dr. Stolz would have us throw out the entire regulatory program regarding the disposal of oil and gas wastes at municipal waste landfills.

“Aside from the fact that we have no such authority, Dr. Stolz offered very little to support what amounts to not much more than a personal opinion.

“Dr. Stolz has done some limited work comparing leachate from two other landfills. He asserted that leachate from the landfill accepting oil and gas waste was higher in radioactivity compared to a landfill not accepting such wastes.

“We were not given enough information to credit this work as a basis for expert opinion.

“We also find it damaging to Dr. Stolz’s credibility in general that he would rely on such work as apparently the primary basis for opining a causative connection between the disposal of oil and gas waste at one landfill and radioactivity seen in the leachate, notwithstanding the myriad of other variables that would seem to need to be considered."

"While Dr. Stolz explained in general terms the radioactive properties of oil and gas waste, his testimony did not extend to identifying specific risks to the environment or human health posed by Tri-County Landfill.

“For example, he did not express an opinion on the impact of oil and gas waste to be disposed at the landfill on area groundwater or drinking water.

"He readily admitted that he is not familiar with the operation of landfills."

"In short, Dr. Stolz’s testimony offered nothing to credibly support the Appellants’ claim that TENORM waste disposed at the landfill will result in any harm to the environment or the public health and safety.

“There is nothing else in the record that supports modification of the permit to prohibit the disposal of such wastes."

Compliance History

From the adjudication--“A third-party appellant who would have us overturn a permit based on the compliance history and status of the permittee has a heavy burden. This is an area where the Department has a considerable amount of discretion."

"The Appellants have failed to meet the burden of proving that Tri-County cannot be trusted with the permit. With respect to Section 503(c), the Appellants have not shown that Tri- County has a lack of ability or intention to comply with the law going forward as evidenced by past or continuing violations.

“All of the evidence leads to the opposite conclusion."

"The Vogel companies are having environmental audits performed by independent consultants. Those audits have not uncovered any major violations or uncorrected minor violations."

"The companies have an in-house environmental compliance staff and they implement a stringent environmental management system. These measures have been shown to be working over the last several years and we have not been given any reason to doubt that they will continue to work in the future."

"The Appellants presented no evidence regarding the specifics of any violations, leaving us to rely instead on written reports. The violations in those reports, however, appear to have been relatively minor, and the important point is that they were quickly corrected. Rather than show that Tri-County will not comply with the law, they actually show the opposite."

The Board concluded, “The Appellants have not met their burden of proof on their claims in this appeal.”

“The appellants did not establish that any other of the landfill’s harms should have caused the Department to deny the application for a major permit modification.”

The Appellants’ appeal was dismissed.

Four of the five judges on the Board signed the adjudication, including the two new members-- MaryAnne Wesdock and Paul Bruder. Chief Judge Steven Beckman was recused in this matter and did not participate in the decision.

Judge Bernard A. Labuskes, Jr. wrote the adjudication.

Click Here for a copy of the adjudication. [Docket 2021007]

Visit DEP’s Tri-County Landfill webpage for documents and other information related to permitting actions.

(Photo: WFMJ News.)

NewsClips:

-- WFMJ: Environmental Hearing Board Denies Citizen Appeal Of Tri-County Landfill Permit

-- WKBN27: Environmental Advocates’ Appeal Of Tri-County Landfill Permit Denied By EHB, Citizens Concerned About Disposal Of Radioactive Oil & Gas Waste

PA Weekly Oil & Gas Industry Public Notice Dashboards:

-- PA Oil & Gas Weekly Compliance Dashboard - Jan. 20 to 26 - 15 More Abandoned Conventional Wells; Plugging Abandoned Shale Gas Wells; Revolution Pipeline Land Slip; Brief Compressor Fire; Crypto Mining? What's That Pink Stuff? [PaEN]

-- 5 Months Later, Roulette Oil & Gas Still Has Not Resolved Violations For Abandoning A Shale Gas Well Without Plugging It In Potter County [PaEN]

-- XTO Energy Begins Plugging First Of 4 Abandoned Shale Gas Wells At Butler County Well Pad [PaEN]

-- 66 Months Later, DEP Worked With Conventional Well Owner, But Multiple Spills At A Well Site Have Still Not Been Cleaned Up; No Protections In Place For Operators Or Taxpayers [PaEN]