BEFORE THE WEST VIRGINIA ENVIRONMENTAL QUALITY BOARD CHARLESTON, WEST VIRGINIA

Transcription

1 BEFORE THE WEST VIRGINIA ENVIRONMENTAL QUALITY BOARD CHARLESTON, WEST VIRGINIA LACKAWANNA TRANSPORT COMPANY Appellant, v. Appeal No EQB LISA McCLUNG, DIRECTOR DIVISION OF WATER AND WASTE MANAGEMENT DEPARTMENT OF ENVIRONMENTAL PROTECTION and Appellee, WETZEL COUNTY SOLID WASTE AUTHORITY, and WEST VIRGINIA PUBLIC SERVICE COMMISSION, Intervenors. FINAL ORDER The Appellant, Lackawanna Transport Company ("LTC"), filed an appeal of the Cease and Desist Orders of May 8 and May 17, 2006 issued by the West Virginia Department of Environmental Protection ("DEP"). Appellant filed the Notice of Appeal and Motion for Stay with the Environmental Quality Board ("Board") on June 7,2006. On June 12,2006, the Board held a stay hearing on Appellant's Motion for Stay. Logan Hassig, Esquire and William F. Fox, Jr., Esquire represented the Appellant. Roland Huson, Esquire, of the West Virginia Department of Environmental Protection's Office of Legal Services represented the Appellee. Silas Taylor, Esquire, Senior Attorney General with the West Virginia Attorney General's Office represented I 1

2 the Wetzel County Solid Waste Authority and Richard Allen, Esquire, appeared on behalf of the Public Service Commission ("PSC"). At the Stay hearing the parties agreed that there were no issues of material fact pending in the appeal and agreed to submit the appeal for decision based on Cross Motions for Summary Judgment. The May 8 and May 17,2006 Cease and Desist Order issued by DEP required Appellant to do the following: 1. As of June 15, 2006 LTC shall cease and desist acceptance of sewage sludge for composting. 2. Lackawanna shall complete the composting and removal of all sludge and other composting materials on-site by July 3 1, As an alternative to removal, LTC may consider disposal in accordance with its permit within the time frame specified herein. 3. No later than thirty (30) days after the final resolution of the issues in the Wetzel County Circuit Court litigation, Civil Action No. 05-C-43K, LTC shall submit to DEP for approval a plan for use or removal of the composting structure. 4. During the pendency of the Wetzel County Circuit Court litigation, LTC may utilize the composting structure for alternative purposes as approved by DEP. The West Virginia Rules of Civil Procedure require the court or the Board to enter summary judgment "forthwith" when "there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law." W.Va. R.Civ.P. 56(c). This Board's procedural rules recognize summary judgment as a method by which issues may be presented for decision. 46 C.S.R. Series 4, Based upon the certified record, the testimony and exhibits relied on, all written findings and memoranda, the relevant law and rules, and all arguments by counsel, the Board unanimously makes the following Findings of Fact, Conclusions of Law, and Final Order.

3 FINDINGS OF FACT The Board considered the proposed findings of fact submitted by the parties. After due consideration of each and every finding proposed, the Board hereby rejects, accepts, incorporates, or modifies each such proposed finding by adoption of the Board's own Findings of Fact as set forth below: 1. The orders (and one resolution) submitted by Intervenor Wetzel County Solid Waste Authority ("WCSWA"), received in evidence without objection at the Stay Hearing and marked as Intervenor's Exhibit 3, accurately describe the procedural history of executive branch and judicial rulings on LTC's efforts, through June 12,2006, to secure a PSC Certificate of Need ("CON"). 2. Paragraphs 1 through 4 of the affidavit of Senior Deputy Attorney General Silas B. Taylor, also part of Intervenor's Exhibit 3, accurately describe the orders and resolution included in Exhibit 3, and accurately describe the proceedings which the affidavit discusses. The Board finds that the balance of Mr. Taylor's affidavit (11 5 and 6) is not essential to its decision. 3. In the interest of completeness, the portions of Intervenor's Exhibit 3 described above are set forth below verbatim: (1.) That [Mr. Taylor] has served as counsel for the Wetzel County Solid Waste Authority in all the following proceedings, the final Orders from which are appended hereto as the following exhibits: Exhibit A [Intervenor's Exhibit 3 received by the Board on June 12, Public Service Commission ORDER of May 9,2003, in Heiss v. Lackawanna Transport Co., Case No SWF-C, holding that Lackawanna's 1991 "grandfather" CON, and its 1992 DNR Permit, did not authorize the sewage sludge composting facility built in ,

4 and that said facility was consequently required to obtain a Certificate of Need. Exhibit B [to Intervenor's Exhibit 3 received by the Board on June 12, Supreme Court of Appeals ORDER of March 2, 2006, in Lackawanna Transport Co. v. Heiss, Docket No , refusing Lackawanna's Petition for Appeal from the Public Service Commission's Order of May 9,2003 (item A above). Exhibit C [to Intervenor's Exhibit 3 received by the Board on June 12, Public Service Commission ORDER of August 19,2005, in Lackmvanna Transport Co., Application for a Certzfzcate of Need, Case SWF-C, denying Lackawanna's 2002 application for a Certificate of Need for its new composting facility. Exhibit D [to Intervenor's Exhibit 3 received by the Board on June 12, Public Service commission ORDER of November 10,2005, in Lackawanna Transport Co., Application for a Certzfzcate of Need, Case No SWF-C, denying Lackawanna's Petition for Reconsideration of the PSC's Order of August 19,2005 (item C. above). Exhibit E [to Intervenor's Exhibit 3 received by the Board on June 12, Supreme Court of Appeals ORDER of March 2, 2006, in Lackawanna Transport Co. v. Public Service Commission, Docket No. Service Commission's Orders of August 19,2005 and November 10,2005 (items C. and D. above). Exhibit F [to Intervenor's Exhibit 3 received by the Board on June 12, Wetzel county Solid Waste Authority, RESOLUTION of April 12,2005 (as amended on May 5,2005), refusing Lackawanna's request to amend the Wetzel County Commercial Solid Waste Facility Siting Plan to allow for commercial sewage sludge composting facilities at the site of the Wetzel County landfill. Exhibit G [to Intervenor's Exhibit 3 received by the Board on June 12, Circuit Court of Kanawha County, FINAL ORDER of October 21,2005, in Lackawanna Transport Co. v. Wetzel County Solid Waste Authority, CA No. 05-AA-73, dismissing Lackawanna's appeal in Kanawha County from the April 12, 2005, Resolution of the Wetzel County Solid Waste Authority (item F. above). Exhibit H [to Intervenor's Exhibit 3 received by the Board on June 12, Circuit Court of Wetzel County, MEMORANDUM OPINON AND ORDER of May 19,2006, in Lackawanna Transport Co. v. Wetzel County Solid Waste Authority, Case No. 05-C-73-K, dismissing

5 Lackawanna's appeal in Wetzel County from the April 12, 2005, Resolution of the Wetzel County Solid Waste Authority (item F. above). (2.) The Notice of Appeal filed by Lackawanna herein states, at page 21, that "there are pending appeals that arise directly out of the cases reference in Paragraph 14 of the Finding[s] of Fact Portion of the May 8,2006 DEP [Cease and Desist] Order." All appeals from said cases were refused by the Supreme Court of Appeals on March 2, 2006 (Exhibits B and E). Lackawanna may be referring to a pending mandamus proceeding (not an appeal) wherein the Wetzel county Solid Waste Authority has asked the Supreme Court of Appeals to require the Public Service Commission to enforce its Order of August 19,2005 (Exhibit C). (3.) At page 16 of its Notice of Appeal, Lackawanna correctly states that its request to the Wetzel County Solid Waste Authority to amend its Siting Plan to allow for sewage sludge composting was denied. Lackawanna also states that it "is pursuing its appeals in that matter." However, both of Lackawanna's appeals from that matter have been dismissed (Exhibits G and H.) Lackawanna's time for any further appeal of the Kanawha County decision expired in February, 2006, four months after the decision was rendered. I have no notice that any such appeal was filed. Lackawanna could still appeal the Wetzel County decision to the Supreme Court of Appeals, but I have received no notice that it has done so. (4.) The undersigned represented two State agencies in the federal court action referenced on page 25 of the Notice of Appeal herein (Valero v. McCoy, 36 F. Supp. 724 (N.D. W.Va. 1997), which decision enjoined as unconstitutional the statutes requiring commercial solid waste facilities to obtain local siting approval and certificates of need. That decision was later partially vacated (in 1999) by the same court that issued it, and fully vacated (held for naught) by the Fourth Circuit of Appeals in Valero Tenestrial Corp. v. Paige, 21 1 F.3d 112 (4th Cir., 2000), an accurate copy of which is appended as Exhibit I. "Vacate" is defined in Black's

6 Law Dictionary (8th Ed. 2004) as follows: "A retroactive obliteration of a judicial decision, having the effect of restoring the parties to their pretrial positions." 4. Subsequent to the events set forth from Mr. Taylor's submission, and after the June 12, 2006, hearing on LTC's motions for stay in this case, that is, after the Board last convened on the case, the following events occurred (or failed to occur): a. On June 29, 2006, the West Virginia Supreme Court issued an order directing the PSC to order LTC to cease and desist operating its sewage sludge composting facility, based on its failure to obtain a PSC CON. Wetzel County Solid Waste Authority v. Public Sewice Commission (Docket No ), S.E.2dP, 2006 WL (2006). b. On July 5, 2006, in compliance with the Supreme Court's June 29 decision, the PSC issued such a cease and desist order. PSC Order filed July 5, 2006, in Case Nos SWF-C and SWF-CN, available at orders/2006~07/ord O.pdf. c. On July 12, 2006, the PSC received for filing in the cases referenced immediately above the "Affidavit of Pasquale N. Mascara," sworn to by him on LTC's behalf on July 11, 2006, in Montgomery County, Pennsylvania, in which Mr. Mascaro states "[tlhat Lackawanna Transport Company, pursuant to Orders entered by the West Virginia Department of Environmental Protection and the West Virginia Public Service Commission, has ceased and desisted the operation of its commercial compost facility by discontinuing the receipt of sewage sludge for composting at its commercial compost facility. 5. As requested by DEP in its Motion for Summary Judgment, the Board takes administrative notice of the facts described in the foregoing Paragraph 4 of the Findings of Fact.

7 CONCLUSIONS OF LAW 6. West Virginia Code $ c, which requires that a facility such as LTC's obtain a PSC certificate of need, contemplates explicitly that an operator must obtain a certificate of need &om the PSC before DEP may issue a permit: c. Certificates of need required for solid waste facilities. Id. site approval. Id. (a) Any person applying for a permit to construct, operate or expand a commercial solid waste facility as defined in [W.Va. Code ? or any person seeking a major permit modification... from the division of environmental protection first shall obtain a certificate of need from the public service commission. 7. The statute similarly directs a prospective operator to next obtain a certificate of (e) An application for a certificate of need shall be submitted prior to submitting an application for certificate of site approval in accordance with [W.Va. Code $ , Upon the decision of the commission to grant or deny a certificate of need, the commission shall immediately notifl the solid waste management board and the division of environmental protection. 8. West Virginia Code (g) provides (and provided at the time LTC built its sewage sludge cornposting facility): $ Prohibitions; permits required Id. (g) In addition to all the requirements of this article and the rules promulgated hereunder, a permit to construct a new commercial solid waste facility or to expand the spatial area of an existing facility, may not be issued unless the public service commission has granted a certificate of need, as provided in [$ c] of this code...

8 9. LTCYs contention that it possesses a "grandfathered" CON for the sewage sludge composting activities which are the subject of this appeal has been conclusively and finally decided by the Public Service Commission, in its July 5, 2006 Order. 10. Even if LTCYs lack of a CON was less than final when the DEP issued its cease and desist order, or when this Board conducted its June 12,2006 hearing in this case, LTC's lack of CON is now indisputably final. 11. LTCYs lack of a PSC Certificate of Need for its sewage sludge composting facility in Wetzel County removes any basis for a DEP permit allowing LTC to conduct such an operation. 12. The DEP's cease and desist order from which LTC appealed to this Board was lawful and proper under all of the unusual circumstances of this case. The DEP order was a straightforward and efficient means of halting operations being conducted under a permit which had been conclusively determined to have no legal basis. 13. As a matter of law, LTC is bound in this proceeding before the Board by the now- final order of the PSC denying its application for a certificate of need. Because the power to issue a Certificate of Need is committed by law to the PSC alone, West Virginia Code $24-2- lc(a) supra, this Board lacks jurisdiction to grant LTC a PSC Certificate of Need, or to rule that LTC is entitled to one. As a result, the Board is not a tribunal where LTC could litigate its entitlement to a PSC certificate of need, even if it were not bound by the outcome of its PSC litigation. 14. The Board hears appeals of enforcement orders in accordance with West Virginia Code $22B- 1-7.

9 15. The Board's standard of review is de novo (West Virginia Code 5 22B-1-7(e)) which requires the Board to hear the appeal and be the "ultimate finder of fact and to act independently on the evidence before it." Accordingly, the Board does not afford deference to the decision of the DEP. 16. Under West Virginia law, finished Class A compost can be stored within a compost building for up to one year. The Order as written by the DEP gives an inadequate time period to market and distribute the finished Class A compost generated from the material that was received through June 15, The material that was received and composted by LTC should be allowed to remain within the compost building, while awaiting marketing and distribution, for the period provided under West Virginia statute.

10 /28/ : SCIEIdCE & MATH DIVIS PAGE 03 The Appellee's issuance of a cease and desist order is AFFIRMED in part, and MODIFIED in part. The Board modifies the Order to require the removal of all finished compost as soon as possible but no later than June 15,2007. rjzl It is so ORDERED this day of December Environmental Quality Board DRAFT

11 NOTICE OF RIGHT TO APPEAL FINAL ORDER In accordance with 822B-1-7Q) of the West Virginia Code, you are hereby notified of your right to judicial review of this FINAL ORDER in accordance with 522B-1-9(a) and 522B- 3-3 of the West Virginia Code. If appropriate, an appeal of this final order may be made by filing a petition in the appropriate circuit court within thirty (30) days from your receipt of this final order in the manner provided by S29A-5-4 of the West Virginia Code.

12 BEFORE THE WEST VIRGINIA ENVIRONMENTAL QUALITY BOARD CHARLESTON, WEST VIRGINIA Lackawanna Transport Company, Appellant, Lisa McClung, Director Division of Water and Waste Management Department of Environmental Protection, Appeal Number: EQB and Appellee, Wetzel County Solid Waste Authority, and West Virginia Public Service Commission, Intervenors. CERTIFICATE OF SERVICE This is to certify that I, Jackie D. Shultz, Clerk for the Environmental Quality Board, have this day, the 29th day of December, 2006, served a true copy of the foregoing "FINAL ORDER to all parties in Appeal No EQB, by personal service andlor by mailing the same via United States Mail, with sufficient postage, to the following addresses: via Certzfied United States Mail, postage prepaid: William F. Fox, Jr., Esquire 2650 Audubon Road Audubon, PA Logan Hassig, Esquire Snyder & Hassig 233 Main Street New Martinsville, WV Certified Mail # Certified Mail #

13 via Interdepartmental Mail: Silas B. Taylor, Esquire Office of Attorney General 1900 Kanawha Boulevard, East Charleston, WV Richard M. Allen, Esquire WV Public Service Commission P.O. Box 812 Charleston, WV via Personal Service: Roland Huson, Esquire WV Department of Environmental Protection Office of Legal Services th Street Charleston, WV Lisa McClung, Director WV Division of Water and Waste Management " Street Charleston, WV EGEOVE OFFICE OF LEGAL SERVICES ECEOVE WV DEPARTMENT OF ENVIRONMENTAL PR0TECT)ON DWWM - DIRECTOR'S OFFICE yb b- &kd% fac 'e D. Shultz, Clerk