DEP erred when approving Keystone Sanitary Landfill expansion, board rules
The Keystone Sanitary Landfill’s massive Phase III expansion faced a setback Tuesday when a panel of judges ruled the state Department of Environmental Protection erred in approving the expansion without adequately addressing leachate and odor issues.
The Pennsylvania Environmental Hearing Board remanded the landfill’s Phase III expansion approval back to the DEP on Tuesday amid a nearly four-year-old legal battle between the Louis and Dominick DeNaples-owned landfill and landfill opposition group Friends of Lackawanna. The ruling does not overturn the expansion, but it does require the DEP to review whether additional measures are needed to control offsite odors and excess leachate generation. Leachate is the liquid that percolates through garbage piles.
The DEP acknowledged the decision in a statement Tuesday night.
“DEP has received and is reviewing the Environmental Hearing Board ruling today regarding the 2021 decision to approve Keystone Landfill’s permit application for expansion,” spokeswoman Colleen Connolly said.
The DEP approved a major permit modification for the landfill’s 42.4-year Phase III expansion June 3, 2021, allowing the landfill in Dunmore and Throop to triple its capacity through the 2060s by hauling in just over 94 million tons, or about 188 billion pounds, of additional garbage. Grassroots group Friends of Lackawanna, which formed in 2014 to oppose Keystone and its expansion, appealed the decision July 5, 2021, sending it to the Pennsylvania Environmental Hearing Board. The appeal named the DEP as a defendant, and the Sierra Club, a California-based nonprofit organization with a local and statewide presence, later joined Friends of Lackawanna in the appeal.
In its decision Tuesday, the hearing board said the landfill has experienced challenges controlling offsite odors and excess leachate generation at its facility for several years.
“The Department erred in issuing a permit that does not sufficiently control or mitigate these issues,” the judges wrote.
The landfill will remain operational while the DEP assesses the remanded permit because neither Friends of Lackawanna nor the Sierra Club have shown that the expansion permit should be halted during the remand, according to the decision. The environmental groups had argued that the permit modification should be rescinded because of the landfill’s compliance history.
Keystone’s compliance history does not at this time demonstrate an inability or unwillingness to operate the landfill in accordance with the permit or with the law, the hearing board determined.
The Environmental Hearing Board is a five-member independent, quasi-judicial agency. The five judges, who serve six-year terms that can be renewed, are appointed by the governor and confirmed by the state senate.
Part of the board’s decision hinges on a March 29, 2024, consent order and agreement between the DEP and landfill that was the culmination of 14 odor-related violations since January 2023 that followed nearly 1,000 odor complaints in seven months, as well as DEP staff detecting offsite landfill gas and leachate odors attributed to Keystone at least 70 times. The settlement, which included the landfill paying a $575,000 fine, occurred less than a month before arguments began in front of the hearing board April 22, 2024.
By signing the order, the landfill agreed to 26 corrective actions, which the hearing board characterized as “extensive provisions for Keystone to manage odors.” In addition to a detailed schedule for putting caps and tarps on garbage to control odors, it requires Keystone to apply foam to its leachate lagoons and to add a sulfur control additive to control odors from its lagoons; to install two 2.5-million-gallon leachate storage tanks by April 1; to use drones at least once a month for surface monitoring; to ensure intermediate cover materials meet standards to control odors; to revise its nuisance minimization and control plan to include measures contained in the agreement; and to provide the DEP with monthly status reports on its progress implementing the corrective actions.
“Whether the measures in the CO&A will be successful in controlling offsite odors is unclear,” the board wrote, citing testimony from Roger Bellas, the DEP’s waste program manager for the northeast regional office, who “expressed mixed feelings on the odor control measures.”
Last year’s consent order also contains provisions addressing leachate management at the landfill, including to adjust its reverse osmosis treatment systems to reduce the amount of concentrate — the waste left over when the leachate is filtered through the system — to install a fourth unit, which the landfill already intended to do; to evaluate areas that contribute most to leachate generation and to provide measures to minimize the impact of storms on creating leachate.
However, Bellas testified that, while Keystone must comply with the corrective actions, they are not amendments to the landfill’s permit and will eventually expire, according to the board.
“We think on remand the Department must take a hard look and assess whether the measures in the CO&A warrant inclusion in the Phase III permit modification,” the Environmental Hearing Board wrote. “For instance, part of the CO&A requires Keystone to perform studies and keep open lines of communication with the Department to try to determine a maximum acreage of intermediate cover that can be managed so as to ensure that odors are properly controlled. Whatever the appropriate maximum acreage is determined to be could be a worthwhile permit condition.”
During testimony, the DEP signaled it was interested in amending the Phase III permit based in part on what it learns from Keystone’s compliance with the consent order, according to the decision.
Other items addressed during the hearing were not contained in the order but should be required as a permit condition or as part of Keystone’s operating plans, according to the board. For example, it is not a requirement of the Phase III permit for Keystone to have rain tarps in place prior to the DEP certifying a landfill cell for construction or to place waste, but Bellas testified the DEP is going to now require it. Bellas told the hearing board there is only a verbal agreement with the landfill to use rain tarping during all stages of Phase III to keep uncontaminated stormwater out of the leachate collection system.
“We do not see why what the Department and Keystone believe to be such an important requirement for keeping Keystone’s leachate under control should be left to an informal, verbal agreement until that time,” the judges said.
The state Environmental Hearing Board said it does not see why there is any reason to wait for a future permitting action from the DEP for appropriate conditions to be imposed, or plan amendments to be enacted.
“Our remand ensures that the Department assesses any appropriate changes in a timely manner,” the judges wrote.
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