Notice of appeal

COMMONWEALTH OF PENNSYLVANIA BEFORE THE ENVIRONMENTAL HEARING BOARD ) ) ) ) ) ) ) EHB Docket No. ) ) ) ) ELECTRONICALLY FILED ) ) ) )

FRIENDS OF LACKAWANNA, Appellant, v.

COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee, and Keystone Sanitary Landfill, Inc., Permittee.

NOTICE OF APPEAL

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NOTICE OF APPEAL FORM APPEAL INFORMATION

1. Name, address, telephone number, and email address (if available) of Appellant: Friends of Lackawanna 201 South Blakely Street #305 Dunmore, PA 18512 Appellant may be contacted via counsel at 267-898-0570.

2. Describe the subject of your appeal: (a) What action of the Department do you seek review?

(NOTE: If you received written notification of the action, you must attach a copy of the action to this form.)

Permit Renewal for the Keystone Sanitary Landfill, Inc. (b) Which Department official took the action?

Roger Bellas, Environmental Program Manager, Waste Management Program (c) What is the location of the operation or activity which is the subject of the Department’s action (municipality, county)?

Dunmore and Throop Boroughs, Lackawanna County (d) How, and on what date, did you receive notice of the Department’s action?

April 7, 2015 – via DEP press release and email (A copy of the Department’s letter granting the approval is attached.)

3. Describe your objections to the Department’s action in separate, numbered paragraphs.

(NOTE: The objections may be factual or legal and must be specific. If you fail to state an objection here, you may be barred from raising it later in your appeal. Attach additional sheets if necessary.)

Please see the attached (Additional Averments in Support of Notice of Appeal).

4. Specify any related appeal(s) now pending before the Board. If you are aware of any such appeal(s) provide that information.

None.

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COMMONWEALTH OF PENNSYLVANIA BEFORE THE ENVIRONMENTAL HEARING BOARD ) ) ) ) ) ) ) EHB Docket No. ) ) ) ) ELECTRONICALLY FILED ) ) ) )

FRIENDS OF LACKAWANNA, Appellant, v.

COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee, and Keystone Sanitary Landfill, Inc., Permittee.

ADDITIONAL AVERMENTS IN SUPPORT OF NOTICE OF APPEAL

Parties 1. Friends of Lackawanna (“FOL”) is a Pennsylvania registered Non-Profit, Non-Stock Corporation with its registered address located at 201 South Blakely Street #305, Dunmore, Lackawanna County, Pennsylvania 18512.

2. FOL is committed to protecting the health and safety of the local community, as well as the region’s image and the environment.

3. FOL consists of and represents the interests of citizens concerned with local and regional environmental matters, including Keystone Sanitary Landfill, Inc. (“KSL”)’s ongoing operations and proposed Phase III expansion.

4. FOL has become involved in better understanding the impacts of the KSL’s existing operations on the community and advocating for better protection of the community, including FOL members, from existing problems at the landfill.

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5. FOL has standing in its own right as the the Department’s approval of a renewal of KSL’s operating permit directly impacts the organization’s mission and work.

6. Also, many FOL members live and work in close proximity to KSL, send their children to daycare nearby, and/or recreate in the local area, including at the backup drinking water reservoir located directly next to KSL. 7. FOL members are adversely impacted due to, inter alia, concerns about health, including due to untreated leachate discharges through the sewer system, landfill leaks, and the Marcellus Shale waste that KSL accepts; leaking of harmful gases into homes; odors; bird droppings; negative community image; and aesthetic impacts.

8. FOL has standing as a representative of its members, who are adversely affected by KSL’s continued operation.

9. KSL is located in Dunmore and Throop Boroughs in Lackawanna County, Pennsylvania.

10. The Department’s Northeast Regional Office approved the action under appeal, which is a renewal of KSL’s municipal waste landfill operating permit.

Objections and General Bases 11. KSL’s waste operations currently cover approximately 714 acres in both Dunmore and Throop; there is also a quarry in the middle of the KSL site.

12. KSL primarily consists of four (4) separate waste disposal areas.

13. Three (3) of the disposal areas are capped: Keystone/Dunmore (which is unlined); Logan; and Tabor.

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14. The Keystone/Dunmore area of the landfill, which has been closed for approximately more than a decade, is located on top of several abandoned coal strip pits and at least two (2) mined-out coal seams.

15. The fourth disposal area, Phase II, is currently being used for waste disposal and comprises approximately half of KSL’s facility.

16. Although classified as a municipal waste landfill, KSL has, in recent years, accepted an increasing amount of residual waste.

17. Since 2009, the amount of residual waste disposed of at KSL has increased more than five-fold.

18. Since 2012 or earlier, that increase has been driven primarily by waste from shale gas drilling operations.

19. KSL first received approval to accept loads of drilling waste in August 2009.

20. Drilling waste disposed of at KSL includes drill cuttings and hydraulic fracturing flowback sand from Marcellus Shale operations, in addition to liquid material such as spent lubricant or production fluid.

21. Drill cuttings consist of rock material from the drilling of an unconventional deep shale gas well, and may be coated in substances like drilling mud or other liquids used during the drilling process.

22. The rock bits themselves can have radioactive characteristics.

23. Drill cuttings, such as those disposed of at KSL, also contain and/or can leach the following: barium, chloride, strontium, total dissolved solids (“TDS”), total petroleum hydrocarbons (“TPH”), oil and grease, and acetone.

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24. Fracturing flowback sand consists of the silica sand, or other type of proppant, that returns to the surface (rather than staying underground to hold open fractures in the rock) after high-volume hydraulic fracturing operations.

25. This material has been in contact both with the chemicals used in the fracturing fluid, the rock deep below the surface of the earth, and any produced water or brine that is released during fracking and returns to the surface with the flowback material.

26. In addition to the disposal areas onsite, KSL operates a “pug mill” near the entrance of its facility.

27. The pug mill is used to solidify liquid drill waste prior to disposal.

28. KSL has also operated a portable pug mill on Pad 6 in Phase II. 29. KSL received approval in or about 2011 to use drill cuttings as “alternative daily cover.”

30. KSL also received DEP approval in or about 2014 to “process water-based drilling fluid waste for the purpose of separating solid material to dump.”1 31. In addition, KSL has had at least three (3) fires (also called thermal events or subsurface oxidation events) since 2009.

32. In or about December 2009, a thermal event on the western side of the Logan disposal area involving two landfill gas wells resulted in disconnection of the two wells, charred areas in the disposal area, and melting of a gas line riser.

33. It also caused damage to the liner, which was allegedly repaired several months later.

34. In or about March 2011, another thermal event occurred in the Phase II disposal area involving a different gas well, requiring excavation of a 15 foot by 15 foot area as part of efforts to put out the fire.

1

http://www.timesleader.com/news/local-news-news/1528945/Keystone-landfill-now-allowed-to-receive-wastefracking-fluid 1465255.4/49505

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35. In or about May 2014, a subsurface oxidation event at a different gas well in the Phase II area resulted in black smoke coming out of the landfill gas well, and closure of leachate cleanouts and other nearby wells to cut off air flow.

36. Landfill fires cause multiple problems, including damage to landfill systems (such as leachate and gas collection systems) as well as air pollution.

37. Such events also can damage (and at KSL have damaged) the landfill liners.

38. KSL has had recurring problems with leaks in the landfill.

39. The leaks have worsened, and DEP’s own records reflect that, as a result of these leaks, KSL is polluting the groundwater.

40. KSL has inaccurately characterized the aquifer system on site.

41. It claims that there are two separate aquifer systems (the upper and lower aquifer systems) that it characterizes as being totally isolated from one another.

42. This claim is false; the alleged upper and lower aquifer systems are actually one continuous, hydraulically interconnected fractured rock aquifer.

43. These “upper” and “lower” aquifer systems are actually hydraulically connected due to site characteristics such as vertical fractures, lack of continuous geologic confining layers between the upper and lower aquifer systems across the site, and history of earth-moving activity on the site, such as blasting.

44. As a result, any contamination of the “upper” aquifer system means that the “lower” system is also contaminated; the same applies in the reverse.

45. When water, such as rainwater, comes in contact with the drilling waste disposed of in the landfill, it creates leachate that is chemically similar to Marcellus Shale drilling wastewater.

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46. The water chemistry in groundwater monitoring wells has grown increasingly similar to the chemistry of Marcellus Shale drilling wastewater and similar to KSL landfill leachate in recent years, indicating that both the primary and secondary liners at KSL have failed under the Phase II section of the landfill.

47. Monitoring well (“MW”) 29UR is one such polluted well.

48. This well tracks with KSL leachate, including pollutants in Marcellus Shale drilling waste, reflecting contamination of the deep groundwater below KSL. 49. In addition to polluting the groundwater, there are areas of the landfill where the primary liner has holes in it, as evidenced by leachate detection zone (“LDZ”) samples that match the chemical signature of KSL leachate.

50. The samples show that the primary liner in Phase II Pads 3 to 7 failed in or about 2009.

51. These samples also show that the primary liner in Phase II Pads 1 and 2 failed sometime in or about the third quarter of 2013.

52. KSL also has been identified as a potential source of harmful gases, such as carbon monoxide (“CO”) that have leaked into homes, including in the Swinick neighborhood where some FOL members live.2 53. KSL has discharged raw, untreated leachate through the public sewer system.3 54. The Department erred in renewing KSL’s operating permit.

55. KSL has caused and continues to cause groundwater contamination, including from the currently-operating Phase II portion of the facility.

56. The Department has admitted that KSL is causing groundwater pollution, and has erred in allowing it to continue.

2

http://m.thetimes-tribune.com/news/in-dunmore-an-environmental-mystery-never-solved-1.1870610

3

http://thetimes-tribune.com/news/landfill-leachate-entered-sewers-during-private-management-1.1874558

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57. The Department’s approval of a renewal for KSL’s operating permit is improper, an abuse of discretion, and violates the Solid Waste Management Act, the Clean Streams Law, associated Department regulations, and Article I, Section 27 of the Pennsylvania Constitution. See, e.g., 35 P.S. §§ 6018.502(d), 6018.503(c), 6018.601, 6018.610; 25 Pa. Code §§ 271.101, 273.241, 273.301; 35 P.S. §§ 691.301, 691.307, 691.401, 691.611; 71 P.S. § 510-17.

58. Indeed, Department regulations place the burden on the permittee to “affirmatively demonstrate[]”: a) that the landfill “will not cause surface water pollution or groundwater pollution;” and b) compliance with both the Solid Waste Management Act and the Clean Streams Law, among other laws. 25 Pa. Code § 271.101.

59. KSL has failed to carry its burden, has failed to prove that it will not cause such pollution and has failed to prove that it will comply with the law.

60. KSL has a substantial hurdle to meeting its burden because it is substantially in violation of the law by, inter alia, contaminating the groundwater already.

61. KSL also has failed to demonstrate that it is not the source of the harmful gases that have migrated into homes in Dunmore Borough, including in the Swinick neighborhood.

62. KSL also has a history of repeated failures to comply with the law.

63. The Department erred in approving a renewal of KSL’s operating permit without KSL meeting its burden to affirmatively demonstrate that it will not cause pollution and that it will comply with other environmental laws.

64. A municipal waste landfill “shall be designed, constructed, maintained and operated to prevent and minimize the potential for fire, explosion or release of solid waste

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constituents . . . that could threaten public health or safety, public welfare or the environment.” 25 Pa. Code § 273.301.

65. KSL has not been designed, constructed, and particularly not maintained and operated to prevent and minimize threats to public health, safety, welfare, and the environment.

66. This is evidenced by, inter alia, repeated fires (a.k.a. thermal or subsurface oxidation events) at the landfill; damage to liners and landfill systems due to such fires, threatening groundwater pollution; holes in the primary and secondary liners of the landfill that are causing groundwater pollution; and potential gas migration.

67. Department approval of a renewal of KSL’s operations permit despite KSL’s multiple problems – including landfill fires and groundwater pollution – violates the Solid Waste Management Act, the Clean Streams Law, associated Department regulations, and Article I, Section 27 of the Pennsylvania Constitution.

68. Indeed, the Department “has sanctioned a direct and harmful degradation of the environmental quality of life in these communities” by allowing the many problems at KSL to continue and thus prolonging the impact of the landfill on the community, including on the air, the groundwater, and quality of life of citizens, such as FOL members. Robinson Twp., Washington Cnty. v. Com., 83 A.3d 901, 980 (Pa. 2013)(plurality).

69. Groundwater pollution is a nuisance under (and therefore a violation of) the Solid Waste Management Act and the Clean Streams Law. 70. The Department erred in approving a renewal of KSL’s operating permit because KSL is causing a nuisance, including by polluting waters of the Commonwealth in violation of the Solid Waste Management Act and the Clean Streams Law. 35 P.S. §§ 6018.502(d), 1465255.4/49505

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6018.601, 35 P.S. 6018.610; 35 P.S. §§ 691.301, 691.307, 691.401, 691.611; 71 P.S. § 510-17.

WHEREFORE, Appellant respectfully requests that the Board vacate the Department’s approval and grant such other relief as may be proper.

By filing this Notice of Appeal with the Environmental Hearing Board, the undersigned hereby certify that the information submitted is true and correct to the best of our information and belief.

Respectfully submitted, CURTIN & HEEFNER LLP By: Date: May 7, 2015

s/Jordan B. Yeager JORDAN B. YEAGER PA ID No. 72947 Lauren M. Williams PA ID. No. 311369 2005 S. Easton Road, Suite 100 Doylestown, PA 18901 Tel.: 267-898-0570 jby@curtinheefner.com lmw@curtinheefner.com Counsel for Appellants

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COMMONWEALTH OF PENNSYLVANIA BEFORE THE ENVIRONMENTAL HEARING BOARD ) ) ) ) ) ) ) EHB Docket No. ) ) ) ) ELECTRONICALLY FILED ) ) ) )

FRIENDS OF LACKAWANNA, Appellant, v.

COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee, and Keystone Sanitary Landfill, Inc., Permittee.

CERTIFICATE OF SERVICE I, the undersigned, certify that a true and correct copy of the foregoing was filed by Electronic Filing with the Pennsylvania Environmental Hearing Board and was served on the following on the date listed, and in the manner indicated, below:

By Electronic Service Office of Chief Counsel, Litigation Support Unit Department of Environmental Protection Commonwealth of Pennsylvania Attention: Glenda Davidson 16th Floor Rachel Carson State Office Building 400 Market Street, P.O. Box 8464 Harrisburg, PA 17105-8464 Roger Bellas, Environmental Program Manager Waste Management Program Northeast Regional Office Department of Environmental Protection Commonwealth of Pennsylvania 2 Public Square Wilkes-Barre, PA 18701-1915

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By Overnight Mail Joe Dexter, P.E. Site Manager Keystone Sanitary Landfill, Inc. 249 Dunham Drive Dunmore, PA 18512 Courtesy Copy By Email Lance Zeyher, lzeyher@pa.gov Jeff Belardi, jeff@belardilaw.com

Respectfully submitted, CURTIN & HEEFNER LLP s/Jordan B. Yeager Jordan B. Yeager, Esq. Curtin & Heefner LLP Doylestown Commerce Center 2005 South Easton Road, Suite 100 Doylestown, PA 18901 (267) 898-0570 office Date: May 7, 2015

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COPY OF DEPARTMENT ACTION