01/28/2019

COMMONWEALTH OF PENNSYLVANIA
ENVIRONMENTAL HEARING BOARD

PLAINFIELD TOWNSHIP :
:
v. : EHB Docket No. 2018-092-C
:
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF ENVIRONMENTAL :
PROTECTION and GRAND CENTRAL : Issued: January 28, 2019
SANITARY LANDFILL, INC. :

OPINION AND ORDER ON

MOTION TO DISMISS

By Michelle A. Coleman, Judge

Synopsis

The Board denies a motion to dismiss where an appellant has appealed a letter from the

Department sent to a permittee regarding proposed modifications to a sedimentation basin. The

moving party has not provided enough information for the Board to conclude that dismissal is

appropriate and free from doubt.

OPINION

Before the Board is a motion to dismiss filed by Grand Central Sanitary Landfill, Inc.

(“Grand Central”). Grand Central apparently operates a solid waste facility in Plainfield

Township, Northampton County. Plainfield Township has appealed a letter dated August 10,

2018 issued by the Department of Environmental Protection (the “Department”) to Grand

Central regarding proposed modifications to a sedimentation basin at the facility. The letter

provides:

The Department of Environmental Protection (DEP) has reviewed information

provided by EarthRes Group, Inc (ERG) regarding proposed modifications to
sedimentation basin number 2. ERG provided DEP with background information

Rachel Carson State Office Building – 2nd Floor| 400 Market Street, P.O. Box 8457 | Harrisburg, PA 17105-8457 | T: 717.787.3483 | F: 717.783.4738
http://ehb.courtapps.com
 01/28/2019

regarding the history of this basin in an email correspondence dated June 26,
2018. (copy enclosed) The purpose of this correspondence was to seek
clarification regarding the regulatory classification of this body of water.
Upon review of the information provided and DEP’s historic knowledge
regarding basin number 2, DEP has determined that the basin was engineered and
presently being maintained as a sediment basin and stormwater control facility. It
is a regulated body of water under Pa Code Chapter 105. However, modifications,
including filling a portion of the facility is waived from state water obstruction
and encroachment permitting requirements under 105.12(a)6 [sic]. This waiver is
for water obstructions and encroachments located in, along, across or projecting
into a stormwater management facility or an erosion and sedimentation pollution
control facility which meets the requirements in Chapter 102.
I trust that you find this information helpful. If you have additional questions
about your application, please contact me.

The letter is signed by Roger Bellas, Program Manager for the Department’s waste management

program.

The Township contends in its notice of appeal, among other things, that Sedimentation

Basin No. 2 is not eligible for a permit waiver, that the sedimentation basin has a significant

effect on the protection of life, health, property, or the environment, that the continued use of the

sedimentation basin will cause contamination to waters of the Commonwealth, and that

Sedimentation Basin No. 2 is actually an abandoned quarry pit from an old slate mine that has

never been properly engineered to function as a sedimentation basin or stormwater control

facility.

Grand Central argues in its motion to dismiss that the letter is not an appealable action

because it only provides the Department’s legal interpretation and it does not direct any action of

or impose any obligations on anyone. The Department has filed a letter indicating its

concurrence in Grand Central’s motion. The Township opposes it, arguing that there are several

determinations made in the letter that have real impacts upon the Township. Primarily, the

Township contends that the purpose of the modification to the sedimentation basin is to

accommodate a future sewage sludge drying operation on Grand Central’s property, and it is

2
 01/28/2019

unknown whether the Department assessed the potential impact of the modification on safety,

life, health, property, or the environment, as the Township says it requested the Department to

determine.

The Board has the authority to grant a motion to dismiss where there are no material facts

in dispute and where the moving party is entitled to judgment as a matter of law. Lawson v. DEP,

EHB Docket No. 2017-051-B, slip op. at 2 (Opinion and Order, May 17, 2018); Brockley v.

DEP, 2015 EHB 198, 198; Blue Marsh Labs., Inc. v. DEP, 2008 EHB 306, 307; Borough of

Chambersburg v. DEP, 1999 EHB 921, 925. The Board evaluates a motion to dismiss in the

light most favorable to the nonmoving party. Ctr. for Coalfield Justice v. DEP, EHB Docket No.

2018-028-R, slip op. at 4 (Opinion and Order, Sep. 5, 2018); Teska v. DEP, 2012 EHB 447, 452;

Pengrove Coal Co. v. DER, 1987 EHB 913, 915. Importantly, motions to dismiss will be

granted only when a matter is free from doubt. Merck Sharp & Dohme Corp. v. DEP, 2015 EHB

543, 544; Northampton Twp. v. DEP, 2008 EHB 563, 570; Emerald Mine Res., LP v. DEP, 2007

EHB 611, 612.

Our issue with Grand Central’s motion is that it provides almost no contextual or

background information on its site or the sedimentation basin addressed in the letter. Grand

Central has not explained what the site is, what happens at the site, or how Sedimentation Basin

No. 2 fits in at the site. We are told that Sedimentation Basin No. 2 is currently covered by Solid

Waste Permit No. 100265 and NPDES Permit No. PA0074083, but we do not know what that

means exactly, or how that relates to what the Department is saying in the letter. Even though

Grand Central may think it is self-evident, only the Township has told us that this site is a solid

waste facility. Only the Township has taken the time to address in even any remote detail what it

contends is the function and history of Sedimentation Basin No. 2. The Department’s letter

3
 01/28/2019

purports to be prompted by an email sent to the Department from Grand Central’s consultant, but

no party has at any time provided the Board with a copy of that email. The email may not end up

being material to the issue of whether the Department’s letter is an appealable action, but we do

not know that for sure at this point. Perhaps because we do not have the email, we do not know

what the proposed modifications to the basin involve. It is also unclear what “application” Mr.

Bellas is referring to in the letter, although we note that a portion of the subject line contains

“Minor Permit Modification – Slate Belt Heat Recovery Center.”

Motions to dismiss are only to be granted when a matter is free from doubt, and we

typically proceed with caution when there are unresolved questions. See Diehl v. DEP, 2016

EHB 853 (denying a motion to dismiss premised on lack of jurisdiction where the limited record

before the Board at an early stage of the proceedings did not provide adequate context for the

letter under appeal). We do not have enough information one way or the other to resolve the

issue of jurisdiction at this time. The denial of the motion to dismiss is without prejudice to

Grand Central filing a subsequent dispositive motion with more factual support.

We issue the Order that follows.

4
 01/28/2019

COMMONWEALTH OF PENNSYLVANIA
ENVIRONMENTAL HEARING BOARD

PLAINFIELD TOWNSHIP :
:
v. : EHB Docket No. 2018-092-C
:
COMMONWEALTH OF PENNSYLVANIA, :
DEPARTMENT OF ENVIRONMENTAL :
PROTECTION and GRAND CENTRAL :
SANITARY LANDFILL, INC. :

ORDER

AND NOW, this 28th day of January, 2019, it is hereby ordered that Grand Central

Sanitary Landfill, Inc’s motion to dismiss is denied. The previously ordered stay of discovery in

this matter is lifted, and the deadlines originally established in this matter in the Board’s Pre-

Hearing Order No. 1 shall be in effect.

ENVIRONMENTAL HEARING BOARD

s/ Michelle A. Coleman
MICHELLE A. COLEMAN
Judge

DATED: January 28, 2019

c: DEP, General Law Division:

Attention: Maria Tolentino
(via electronic mail)

For the Commonwealth of PA, DEP:

Lance H. Zeyher, Esquire
(via electronic filing system)

For Appellant:
John R. Embick, Esquire
(via electronic filing system)

5
 01/28/2019

For Permittee:
Robert D. Fox, Esquire
Thomas M. Duncan, Esquire
(via electronic filing system)