IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, : Department of Environmental : Protection : : No. 367 C.D. 201 8
v. : : Argued : December 11, 201 8 Green ‘N Grow Composting, LLC : and Stephen R. Lehman, :

Appellants :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY JUDGE McCULLOUGH FILED: December 31, 2018

Green ‘N Grow Compos ting, LLC and Stephen R. Lehman (collectively Appellants) appeal from the February 20, 2018 Order of the Lancaster County Court of Common Pleas (trial court), which granted the Pennsylvania Department of
Environ mental Protection’s (Department) petition to enforce and, in doing so, held t hat Appellants violated a consent agreement and subsequent court order directing them to remove solid waste from the property located at 266 Douts Hill Road, Martic Township, Lancaster County, Pennsylvania (the Property).

Facts and Procedural History Green ‘N Grow Composting, LLC, through its sole owner, Mr. Lehman, operated a composting facility on the Property under a research and development2

(R&D) permit that was issued by the Department in March of 2014 and expired on December 31, 2015. Appellants also obtained a general permit for the composting facility that expired in March 2017. (Trial Ct. Op. at 1

- 2.)

In May 2014, the Department conducted an inspe ction and found that Appellants committed numerous violations of the Solid Waste Management Act ( SWMA ), Act of July 7, 1980, P.L. 380, as amended , 35 P.S. §§6018.101

- 6018.1003. As a result, the Department issued an administrative order rescinding Appellants’ permits until they could demonstrate the ir ability to comply with the SWMA

. Appellants appa rently did so and the Department reinstated the permit in July 2014. The Department also granted Appellants’ request to extend their R&D permit until December 2015, although it appears that Appellants continued to conduct their R&D operation at the compos ting facility even after the extended permit expired. (Trial Ct. Op. at 2.) After receiving numerous odor complaints, the Department conducted further inspections of Appellants’ operation in September 2016 and issued a notice of violations. Following ad ditional complaints by neighbors, the Department conducted another inspection in October 2016 and subsequently issued a compliance order, noting more violations. Appellants filed an appeal of that order with the Environmental Hearing Board but , prior to t he conclusion of those proceedings, the Department and Appellants executed a consent a greement in January 2017 (January Consent Agreement ) , which permitted Appellants to continue composting until March 1, 2017, provided they comply with certain conditions. Id. ; see also S.R.R. 502b

- 22b

.

In April 2017, the Department again inspected Appellants’ composting operation and , having found multiple violations of the January Consent Agreement , filed a petition to enforce its terms . On April 28, 2017, the trial co urt entered a rule to3

show cause as to why the Department’s petition should not be granted. Appellants filed preliminary objections to the enforcement petition and the Department responded
with a motion to strike. Just prior to the hearing scheduled b y the trial court for August 28, 2017, the Department and Appellants reached another agreement, which was read
into the record at the hearing and made an order of the Court (August 28, 2017 Order). The August 28, 2017 Order did not, however, supersede the J anuary Consent Agreement pursuant to a stipulation of the parties. 1 I nstead, it established additional conditions and time for Appellants to terminate composting operations and included a provision that “all solid waste and compost is to be removed from 2 66 Douts Hill Road by December 31st, 2017.” (Trial Ct. Op. at 2

- 3 ) (quoting S.R.R. at 202b).

On November 28, 2017, Appellants’ counsel withdrew their appearance believing that the issue was resolved; however, when additional complaints were made
to the Department, it filed a new petition to enforce. The trial court scheduled a hearing
for February 5, 2018, to determine whether the August 28, 2017 Order had been violated. Appellants, proceeding pro se , filed an untimely answer to the petition to
enforc e on January 10, 2018. 2 The Department requested an expedited hearing “because of the inundation of daily complaints from neighbors of Appellant[s’] property regarding malodors,” which the court denied. (Trial Ct. Op. at 3.) Mr. Lehman then issued subpo enas to eight employees of the Department and four of his neighbors, s eeking their medical and veterinary records, and demanding their attendance at depositions. The Department moved to quash the subpoenas and the trial court granted the motion. Id. at 3

- 4.

1 See Supplemental Reproduced Record (S.R.R.) at 203b.

2 In its opinion, the trial court notes that Appellants filed an amended answer despite not having filed an original answer. (Trial Ct. Op. at 3.)4

The trial court held a two

- day hearing o n February 5, and February 15, 2018, regarding Appellant s’ compliance with the court’s January Consent Agreement and August 18, 2017 o rder

. Appellants attended and were represented by new counsel.
At the heari ng, Anthony Rathfo n , Waste Program Manager for the Southcentral Regional Office of the Department, testified that he observed numerous plastic bottles, metal cans, and food packaging items interspersed with the soil throughout the Property
when he inspecte d it on January 8, 2018. Mr. Lehman did not dispute this finding , acknowledging that he failed to remove all solid waste from the P roperty by December 31, 2017. Id. at 4.

The following exchange took place during the hearing on February 5, 2018, between Mr. Lehman and counsel for the Department:

Q. Mr. Lehman, just because you stopped the composting process doesn’t mean that whatever metals or plastics were in the materials suddenly vanished, correct? A. Correct. Q. In fact, on walking around [the Proper ty] there’s visible pieces of plastic and metal in the ground, correct? A. I’m not sure about metal. Q. Plastic, you’ll agree with me on plastic? A. There’s plastic, but there’s plastic in many fields along the roadways. Q. We’re talking about [the Property] though, correct? A. Correct. (S.R.R. at 344b.) Further, Megan Kreider, the Site Manager for Green ‘N Grow and Mr. Lehman’s daughter, also testified at the hearing and acknowledged that plastic and
metal were intermixed in the soil on the Proper ty after the date of compliance. (Trial Ct. Op. at 5.)

Additionally, Mr. Lehman admitted during the hearing that he had dumped large quantities of the adulterated material from the Property into a hole on his own adjoining private property at 300 Douts Hill Road (Personal Property), instead of5

in a permitted landfill. 3 Mr. Rathfon testified that he discovered the material that Mr.
Lehman relocated to the Personal Property and observed a fresh layer of dirt covering a pile of packaging material, including “plastics sticking up through the soil.” Id. (quoting S.R.R. at 371b).

On February 20, 2018, the trial court issued an order finding that Appellants had violat ed the January Consent Agreement and the August 28, 2017 Order and granted the Department’s petition to enforce the January Consent Agreement . The trial court authorized the Department to access the Property as needed “to remove all
solid waste located wi thin three hoop structures appearing in the [Department]’s
Exhibits 8G

- 8I and 8M

- 8V, the berm containing solid waste appearing in the [Department]’s Exhibit 8L and all solid waste appearing in the [Department]’s Exhibits 8K, 8V, 8Y, and 8Z.” (Trial Ct. Fe b. 20, 2018 Order at ¶1.) The order also directed Appellants not to modify the condition of the Property without further order of the court; ordered Appellants not to hinder the Department during its performance of duties under the order; and ordered the costs of abatement incurred by the Department to be paid by Appellants within 30 days of a written request for payment with a penalty of $100.00 per day for failure to pay the amount in the written request. Id. at ¶¶3

- 6.

Appellants filed an appeal on M arch 20, 2018. The trial court directed Appellants to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied, and the trial court issued an opinion in support of its order, pursuant to Pa.R.A.P. 1925( a).

In its opinion, the trial court stated that the testimony of Mr. Lehman and Ms. Kreider “i ndicated that either Appellants were not familiar with their duty to
remove the solid waste from [the] [P] roperty or that they did not make any reasonable

3 Mr. Lehman testified that he was “not aware of an y restriction [on] removing that material.” (S.R.R. at 360b.)6

good faith e fforts to comply with the Order[] of this Court.” (Trial Ct. Op. at 5.) The court continued, “The latter possibility is bolstered by [] Appellants [’] attempts to avoid their obligations and obscure their non

- compliance with the January 18, 2017 C onsent [ Agreement ] and August 28, 2017 Order by dumping large quantities of the affected material into a hole on Mr. Lehman’s adjoining private property at 300 Douts Hill Road instead of in a permitted landfill.” Id.

On appeal, 4 Appellants argue that t he trial court abused its discretion by failing to dismiss the Department’s enforcement action “when [the Department]’s main witness testified that the allegations in the [e]nforcement petition were false”; by “changing the matter from an [e]nforcement [h] earing to a comprehensive hearing at the last minute”; and by “entering a vague order that was devoid of means for determining what constitutes ‘solid waste.’” (Appellants’ Br. at 7.)

Discussion In Appellants’ first issue, they assert that the trial cou rt erred in refusing to dismiss the enforcement petition where, at the hearing, Mr. Rathfon 5 was repeatedly questioned about the violations giving rise to the enforcement petition during cross

examination and responded that there were no such violations wh en the enforcement petition was filed or thereafter, up to and including at the time of the hearing. Appellants, however, have failed to develop this argument in any substantive fashion as they have provided no citations to the record in support of their argument that Mr.

4 “ Our review on this appeal is limited to dete rmining whether the trial court’ s findings are supported by competent evidence and whether an error of law was committed .” Department of Environmental Protection v. Blue Chip Transportation Co. , 61 A.3d 296, 299 (Pa. Cmwlth. 2012).

5 In their brief, Appellants refer to a “Tony Rathbone,” but presumably are referring to Mr. Anthony Rathfon, Waste Program Manager for the Southcentral Region al Office of the Department.7

Rath fon made these alleged statements , nor do they cite to any legal authority in support of their argument. As the Court is unable to conduct any meaningful review of this argument , it is waived for lack of development

. 6 See Pa.R.A.P. 2101 (“[I] f the defects are in the brief or reproduced record of the appellant and are substantial, the appeal or other matter may be quashed or dismissed .”); Pa.R.A.P. 2119(a) (“ The argument shall be divided into as many parts as there are questions to b e argued; and shall have at the head of each part

-- in distinctive type or in type distinctively displayed

-

- the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent. ” (emphasis added) ); (b) (“ If r eference is made to the pleadings, evidence, charge, opinion or order, or any other matter appearing in the record, the argument must set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the m atter referred to appears

. ” (emphasis added) ). See also Commonwealth v. Perez , 93 A.3d 829, 838 (Pa. 2014) ( “[T]o the extent [an] appellant’s claims fail to contain developed argument or citation to supporting authorities and the record, they are waived . . . .”).

We nonetheless note the following. T he January Consent Agreement specifically stated that solid waste was to be deposited in a “permitted landfill.” (S.R.R.
at 53b

- 55b.) The subsequent August 28, 2017 Order, which Appellants stipulated did

no t supersede the January Consent Agreement , S.R.R. at 203b, required Appellants to remove “all solid waste and compost . . . from 266 Douts Hill Road by December 31st, 2017.” (S.R.R. at 202b). Thus, at a minimum, Appellants had until December 31, 2017, to dispose of the solid waste in a permitted landfill. The Department alleged,

6 While Appellants attach to their brief various pages of what appear to be transcribed testimony from the hearing, Appellants have not explained why these pages are relevant or how the testimony support s their argument. Appel lants ’ argument s are not self

- proving and , without any legal or factual development or citation to the record , are waived.8

an d Mr. Lehman acknowledged, that instead of disposing o f the solid waste in a landfill Appellants simply relocated it to the adjacent Personal Property. (S.R.R. 345b

- 348b,
351b , 360b

- 61b.) Further, Mr. Lehman acknowledged that solid waste remained visible on the Property after December 31, 2017 . (S.R.R. at 344b.) Thus, Appellants
violated both the January Consent A greement and the August 28, 2017 O rder by, at a minimum, allowing solid waste to remain on the Property after December 31, 2017,
and by failing to dispose of the solid waste in a permitted la ndfill. As such, we cannot agree with Appellants that t he trial court erred in refusing to dismiss the petition to
enforce where there is substantial evidence supporting the trial court’s finding that Appellants violated the January Consent Agreement and the August 28, 2017 Order.

In their second issue, Appellants a rgue that the court erred in refusing to grant a continuance. Appellants contend that, during the pre

- trial conference, the trial court, after being advised that the alleged violations were not true, changed the hearing to a “comprehensive [h]earing and p roceeded with the [h]earing.” (Appellants’ Br. at 8.) While acknowledging that the pre

- trial conference scheduled for February 5, 2018,
was not transcribed , Appellants assert that they did object to converting the pre

- trial
conference into a hearing , but the trial court “made it clear that no continuances would be given and that the [h]earing would proceed as scheduled.” Id.

In its 1925(a) opinion, the trial court addresses this argument, stating that “Appellants did not object at the time of the hear ing and I consider the issue waived.” (Trial Ct. Op. at 9.) As Appellants are unable to show that they raised an argument as to the type of hearing at any point below, the issue is waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”).9

Even if the issue w ere not waived, Appellants ’ argument is unpersuasive. In their brief, Appellants do not distinguish what they term a “hearing” from a “comprehensive hearing,” nor do they make an effort to explain how they were prejudiced by this alleged change in the type of hearing or describe why they were unprepared to proceed. Further, t he trial court n oted that it stated on the record

numerous times that the issue before it was whether Appellants had complied with the
the January Consent Agreement and the court’s August 28, 2017 Order. There is support for this in the record. At the beginning of the hearing , the court stated, “This
is the date and time scheduled for a hearing relating to compliance or noncompliance
with the [January] Consent [Agreement] and subsequent modifications previously held by this Court.” (S.R.R. at 329b). The court subsequently stated, “I’m going to be making the rul in g if there’s a violation of this agreement, and it’s going to be dealt with. If there’s no violation of the agreement, then it’s going to come to an end today
as well.” Id. at 358b. Finally, at the end of the hearing, the trial court reiterated, “[W]h at I have before me is all the original agreements, the consent [agreement] of January 18th, 2017, and the stipulated order of 8/28/17.” Id. at 471b.

“It is well settled that the grant or refusal of a continuance rests in the
discretion of the court or a dministrative agency to which the application is made, and its exercise of this discretion will not be reviewed except in clear cases of abuse.” Blackledge v. Pennsylvania State Police , 435 A.2d 309, 311 (Pa. Cmwlth. 1981). Here,
we are satisfied that , e ven if Appellants could demonstrate that they raised the issue below, the trial court did not abuse its discretion in denying the request for a
continuance where Appellants have not explained how they were prejudiced by the court’s decision to proceed with the February 2, 2018 hearing and where the court10

repeatedly stated throughout the hearing the issue before it without objection from Appellants

. 7 In their final issue, Appellant s state that, “throughout the pre

- litigation period” they requested clarification on “various terms, including but not limited to ‘solid waste,’” but the Department “continually provided inconsistent definitions” and “mostly referred Appellants to various w ebsites and/or sections of the Pennsylvania Code that had nothing to do with definitions or examples of the requested definitions of terms.” (Appellants’ Br. at 9.) Appellants assert, “For the most part, [they] were left to guess at definitions or try to come up with them on their own.” Id.

Appe llants state that this vague use of terms a lso occurred in the trial court’s order, as it “lacked any substantive guidance regarding ‘solid waste.’” (Appellants’ Br. at 9.) They assert that the term was defin ed by the court for the first time in its 1925(a) opinion and, even there, the opinion cites to various definitions for “solid waste” in contexts other than the composting. Although they do not provide any
citation for the case , Appellants direct this Cou rt to Association of Battery Recyclers,
Inc. v. United States Environmental Protection , 208 F.3d 1047 (D.C. Cir. 2000), which they argue addressed a similar issue regarding a vague definition of solid waste.

In Association of Battery Recyclers , the Dist rict of Columbia Circuit held,
inter alia , that the United States Environmental Protection Agency did not properly define “solid waste” in the regulations it promulgated dealing with residual materials

7 Additionally, even if we were to agree with Appellants that the hearing was solely for the purpose of addressing the Department’s p etition to enforce, Appellants were nonetheless on notice that the issue of their failure to remediate the P roperty would be addressed since , as the trial court observed, the petition to enforce specifically alleged that Appellants failed “to remove all pi eces of food packaging waste from the grounds of Green ‘N Grow, which is a violation of [35 P.S. §6018.301], and 25 Pa. Code § 299.11(4).” (S.R.R. at 9b.) As such, we find no merit in Appellants’ argument that the trial court erred in failing to grant a continuance.11

generated in mining and mineral processing operations because it based the definition on an improper interpretation of the term “discarded” and the court’s precedent. Id. at 1056. As the Department notes, Association of Battery Recyclers , is not relevant here
as it concerned challenges to a federal statute, mining and mineral processing, and a federal agency ’s regulation defining solid waste in terms of residual materials generated, reclaimed, and stored. As such , we do not find the case persuasive.

Upon review, we hold there is substantial evidence in the record that the term solid waste was sufficiently defined, such that both Appellants and the Department were aware of what specifically the court was referring to when it used the

term “solid waste” in the February 20, 2018 order.

The trial court, in i ts 1925(a) opinion, stated that “the term ‘solid waste’ is defined in the SWMA and refers to ‘municipal, residential, or hazardous waste’ and as was stated ad nauseum during the two

- day hearing, ‘solid waste’ includes garbage, refuse, and pre

- consumer pack aged food.” (Trial Ct. Op. at 6) (quoting Section 103 of the SWMA, 35 P.S. §6018.103). Section 103 of the SWMA defines “Solid waste” as “[a] ny waste, including but not limited to, municipal, residual or hazardous wastes, including solid, liquid, semisoli d or contained gaseous materials. The term does not include coal ash or drill cuttings. ” 35 P.S. §6018.103. During the hearing, the trial court specifically reiterated this definition while handing down its ruling that Appellants violated the court’s pr ior orders by failing to remove the refuse on the Property. See S.R.R. at 472b.

Furthermore, i n the order, the trial court specifically described where the
solid waste was located on the P roperty , stating that the Department was authorized “ to remove all solid waste located within three hoop structures appearing in the [Department]’s Exhibits 8G

- 8I and 8M

- 8V, the berm containing solid waste appearing12

in the [Department]’s Exhibit 8L and all solid waste appearing in the [Department]’s Exhibits 8K, 8V, 8Y, and 8Z.” (Trial Ct. Feb. 20, 2018 Order at ¶1.) Upon review of these exhibits in the supplemental reproduced record, (S.R.R. at 644b

- 46b, 650b

- 60b,
662b

- 63b), we agree that “ [i] t takes only a cursory glance a t the referenced exhibits to
see that solid wa ste is present in these areas and are subject to removal pursuant to the [January Consent Agreement ] and the [August 28, 2017 Order]. ” (Trial Ct. Op. at 6.) Clearly, the various plastic bottles, metal cans, furniture, and food packaging material
observed in these exhibits qualify as “solid waste” under the SWMA definition.

Finally, throughout the proceedings, the Department made clear to Appellants that it considered the plastic water bottles, aluminum cans , glass containers, construction debris, furni ture materials, plastic pales and tarping, and food packaging waste that it observed and documented on the Property to be “solid waste,” which was
to be removed to a permitted landfill

. See S.R.R. at 5b

- 11b, 34b, 52b, 84b

- 85b, 125b

27b. As we stated in Starr v. Department of Environmental Resources , “the construction given a statute by those charged with its execution and application is entitled to great weight and should not be disregarded unless it is clear that the agency ’ s interpretation is incorrect

. ” 607 A.3d 321, 323 (Pa. Cmwlth. 1992). Here, we find no error in the Department’s interpretation of the term “solid waste” to include the garbage and refuse depicted in the Department’s exhibits. As such, we find no merit in Appellants’ contention tha t they were left without any “substantive guidance” from the Department or the trial court regarding the term solid waste. (Appellants’ Br. at 9.)

Accordingly, for all of these reasons, the February 20, 2018 order of the
trial court is affirmed.

________________________________ PATRICIA A. McCULLOUGH, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania, : Department of Environmental : Protection : : No. 367 C.D. 2018
v. : : Green ‘N Grow Composting, LLC : and Stephen R. Lehman, :

Appellants :

ORDER

AND NOW, this 31 st day of December , 201 8 , the February 20 , 2018 Order of the Lancaster County Court of Common Pleas is hereby affirmed.

________________________________ PATRICIA A. McCULLOUGH, Judge