Jul 20, 2018 3 min read

A Washington County judge ruled Smith Township supervisors’ uncertainty about the impact of a new landfill in Bulger for Marcellus shale drill cuttings and other non-hazardous residual waste on the surrounding area wasn’t sufficient reason to deny the facility owner’s application.

Judge Michael Lucas rendered the five-page decision July 13, remanding the matter to the township and instructing officials to consider whether MAX Environmental Technologies’ conditional-use application “should be subject to reasonable conditions, and if so, imposing such conditions.”

MAX, which early in 2017 was bought by private-equity firm Altus Capital Partners, sought Smith officials’ nod to build a new, roughly 21-acre landfill at the former Mill Service disposal site, which first became operational in 1958.

The Green Tree-based company appealed in December after supervisors voted 3-0 in November to deny the application.

Lucas found the township made an “error of law” when it rejected the application on the basis they were “unable to determine if Max’s operations would detrimentally impact the health, safety and general welfare of the public.”

As part of its plans to open the new landfill and build a treatment facility, MAX plans to seek permission from the state Department of Environmental Protection to accept waste containing technologically enhanced naturally occurring radioactive material, or TENORM – which is often present in oil and gas waste – at the new landfill.

Many from the Bulger area raised questions and objections to that aspect of the company’s plans during the proceedings. A crowd of roughly 40 people attended the Nov. 16 voting meeting.

Lucas’ order noted the landfill is allowed as a conditional use in the industrial zoning district where MAX has its facility.

Citing case law, the judge said if a use is “permitted by the classification legislatively created,” it “is presumptively consistent with the health, safety and welfare of the public.”

Those objecting must therefore meet the burden of showing “the proposed use would have a detrimental impact on the health, safety and welfare of the public,” according to the order.

“The objectors testified to a variety of concerns and questions regarding the acceptance of TENORM into the facility …,” Lucas continued. “However, the testimony does not show that the site would have an impact beyond that normally associated with any other landfill accepting residual waste.”

Materials on MAX’s website give a multi-year timeline for obtaining needed permits from the state Department of Environmental Protection. The company doesn’t expect the new landfill to become active until 2020 or 2021.

One of the 32 conditions supervisors considered placing on their approval before denying MAX’s plans would have required the company to provide at least 30 days’ notice before any DEP hearings and public-comment periods to allow township officials and those living nearby to weigh in on the plans.

It is unclear if either side will appeal Lucas’ ruling.

Township solicitor Michael Cruny said the “board has not yet made a decision” on its next move, and any action would have to be voted on at a public meeting.

MAX’s attorney, Sandy Garfinkel, said the matter is still “pending litigation.”

“We’re not in a position to comment,” Garfinkel added.

The next regular township meeting will be Aug. 20.