Opinion
2022-093-C
07-14-2023
CLEAN AIR COUNCIL v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and ENCINA DEVELOPMENT GROUP, Permittee
DEP, General Law Division: Attention: Maria Tolentino (via electronic mail) For the Commonwealth of PA, DEP: Geoffrey J. Ayers, Esquire David M. Chuprinski, Esquire (via electronic filing system) For Appellant: Alexander G. Bomstein, Esquire Eleanor M. Breslin, Esquire Joseph Minott, Esquire (via electronic filing system) For Permittee: Robert D. Fox, Esquire Carol F. McCabe, Esquire Diana A. Silva, Esquire (via electronic filing system)
DEP, General Law Division: Attention: Maria Tolentino (via electronic mail)
For the Commonwealth of PA, DEP: Geoffrey J. Ayers, Esquire David M. Chuprinski, Esquire (via electronic filing system)
For Appellant: Alexander G. Bomstein, Esquire Eleanor M. Breslin, Esquire Joseph Minott, Esquire (via electronic filing system)
For Permittee: Robert D. Fox, Esquire Carol F. McCabe, Esquire Diana A. Silva, Esquire (via electronic filing system)
OPINION AND ORDER ON MOTION TO DISMISS
Michelle A. Coleman, Judge
Synopsis
The Board grants a motion to dismiss an appeal of a Department letter that informed a company that the company's proposed facility met the definition of an "advanced recycling facility" and did not require a permit under the Solid Waste Management Act.
OPINION
Clean Air Council has appealed a letter sent from the Department of Environmental Protection (the "Department") to Encina Development Group, LLC ("Encina") dated August 1, 2022 concerning a proposed facility in Point Township, Northumberland County. The letter states the following:
Thank you for the letter dated July 5, 2022, which was submitted by All 4 on behalf of Encina Development Group, LLC (Encina).
Based upon the information provided to the Department of Environmental Protection (Department), your proposed facility meets the definition of an "Advanced Recycling Facility" per the Solid Waste Management Act (SWMA), 35 P.S. §§ 6018.101-6018.1001. Please be advised that in order to continue to meet this definition, the materials that you receive at your facility shall originate from residential, municipal or commercial sources, and may include source-separated recyclable plastics from a materials recycling facilities (MRFs), that are not mixed with solid waste, municipal waste, residual waste, regulated medical and
chemotherapeutic waste, hazardous waste, electronic waste, waste tires or construction or demolition waste. Under the SWMA, an Advanced Recycling Facility cannot receive residual waste.
We appreciate the breakdown of materials you expect to receive. The Department has evaluated these materials and have concerns that the expanded polystyrene logs, polypropylene super sacks, and the industrial high impact polystyrene may be indicative of material that could be originating from residual waste sources. Some consolidation programs collect from both municipal and residual sources. If Encina chooses to accept these types of materials, please be aware of the origin to avoid residual wastes
In order to receive residual waste material to conduct "advanced recycling," Encina would need to apply for and obtain a permit from the Department's Bureau of Waste Management, as residual waste does not meet the definition of a "post-use polymer" and, as a result, Encina would no longer meet the definition of an "advanced recycling facility."
Additionally, in Pennsylvania, scrap yards, which are listed as a potential source of feedstock material for the proposed facility, are considered to be residual waste generators.
Please note that the current exemption that applies to Encina for obtaining a permit under the SWMA does not apply to other permits that may need to be obtained from other Department Programs.
If you have any questions about operating as an Advanced Recycling Facility or the requirements of the SWMA please contact(Encina Ex. A.)
The letter from the Department was preceded by communications and meetings between Encina and the Department regarding what permits Encina would require for its proposed facility and whether the facility needed a permit under the Solid Waste Management Act, 35 P.S. §§ 6018.101 - 6018.1003. (CAC Ex. B-O.) The communication immediately preceding the letter under appeal was a letter from Encina dated July 5, 2022 identifying a list of the different types of materials Encina proposes to accept at its facility. (CAC Ex. N.) The letter from Encina also contained the following paragraph:
Encina understands that, based on the type and origin of materials described herein, the Facility qualifies as an advanced recycling facility and therefore does not require a waste permit. Should Encina desire to accept waste from industrial or institutional establishments in the future, they can apply for a GP [general permit]
or individual permit. Until such time as a permit would be received, materials considered residual wastes could not be accepted.(Id.)
Clear Air Council argues in its appeal that the Department erred (1) "in determining that both phases of the planned Encina Point Township facility would meet the definition of an 'Advanced Recycling Facility'… where Phase 1 would be a standalone project that would engage in processing plastic waste and not in 'advanced recycling'" and (2) "in exempting both phases of the planned Encina Point Township facility from the requirement to apply for and receive a processing facility permit… where Phase 1 would be a standalone project not involving 'advanced recycling' but instead activities which meet the definition of 'processing'…." (Notice of Appeal, Obj. 1, 2.)
The parties frequently discuss "Phase I" and "Phase II" of Encina's proposed facility. Clean Air Council tells us that Phase I would be a "mechanical sorting operation for recyclable materials" and that Phase II would involve "advanced recycling."
Encina has now moved to dismiss this appeal. Encina argues, among other things, that the Department letter is not an appealable action because the letter merely reflects the Department's legal interpretation of definitions contained in the Solid Waste Management Act. Encina contends that, under the Solid Waste Management Act, there is no Departmental action necessary for what it calls the "advanced recycling exemption" to apply. In other words, Encina says it is a self-executing exemption; it arises from the definitions within the Act itself. Encina argues that the Department's letter does no more than confirm that Encina's proposed facility meets the statutory definition of an "advanced recycling facility," and it does not affect anyone's rights, privileges, immunities, duties, liabilities, or obligations.
The Department supports Encina's motion and has filed a memorandum of law pursuant to 25 Pa. Code § 1021.94(b). The Department argues that the Solid Waste Management Act does not provide for a formal role for the Department to determine whether or not a facility qualifies as an "advanced recycling facility," nor does it provide for any process by which the Department would make such a determination. The Department says that it may at some point be responsible for administering and enforcing the Solid Waste Management Act at the facility, but at this point it is premature for Encina's proposed facility. Finally, the Department argues that the letter has no practical effect, and that Encina is in the same position as if the letter had never been issued because the letter does not affirmatively require Encina to do anything or refrain from doing anything.
Clean Air Council opposes the motion. Clean Air Council asserts that the Department engaged in a detailed review of information provided by Encina over the course of several months through emails, phone calls, and meetings, (see CAC Ex. B-O), and that the Department rendered a decision exempting Encina from obtaining a permit after significant consideration and evaluation of the information provided by Encina. Clean Air Council argues that the Department engaged in a fact-specific deliberation about Encina's proposed facility that resulted in a final action that authorizes Encina to operate its Phase I facility without a solid waste management permit.
For the reasons that follow, we grant Encina's motion and dismiss this appeal.
Standard of Review
The Board evaluates a motion to dismiss in the light most favorable to the non-moving party and will only grant the motion where the moving party is entitled to judgment as a matter of law. Ritsick v. DEP, 2022 EHB 283, 284; Fox v. DEP, 2008 EHB 515, 517. For the purposes of resolving motions to dismiss, the Board accepts the non-moving party's version of factual events as true. Pa. Fish and Boat Comm'n v. DEP, 2019 EHB 740, 741. A motion to dismiss will be granted only when a matter is free from doubt. Greyhound Aramingo Petroleum, Co. v. DEP, 2022 EHB 96, 98; Bartholomew v. DEP, 2020 EHB 19, 21.
The Board only has jurisdiction over final Department actions affecting personal or property rights, privileges, immunities, duties, liabilities, or obligations. 35 P.S. § 7514(a); 25 Pa. Code § 1021.2 (definition of "action"); Monroe Cnty. Clean Streams Coalition v. DEP, 2018 EHB 798, 800; Kennedy v. DEP, 2007 EHB 511, 511-12. There is no bright line rule for what constitutes a final, appealable action. Chesapeake Appalachia, LLC v. Dep't of Envtl. Prot., 89 A.3d 724, 726 (Pa. Cmwlth. 2014); HJH, LLC v. Dep't of Envtl. Prot., 949 A.2d 350, 353 (Pa. Cmwlth. 2008); Borough of Kutztown v. DEP, 2001 EHB 1115, 1121. The appealability of Department decisions needs to be assessed on a case-by-case basis. Glahn v. DEP, 2021 EHB 322, 326, recon. denied, 2021 EHB 347; Dobbin v. DEP, 2010 EHB 852, 858; Kutztown, 2001 EHB at 1121.
In determining whether a Departmental letter constitutes a final, appealable action, we generally consider: the wording of the letter; its substance, meaning, purpose, and intent; its practical impact; the regulatory and statutory context; the apparent finality of the letter; what relief, if any, the Board can provide; and any other indicia of the impact upon the recipient's personal or property rights. Hordis v. DEP, 2020 EHB 383, 388 (citing Merck v. DEP, 2015 EHB 543, 545-46; Teska v. DEP, 2012 EHB 447, 454; Dobbin, 2010 EHB at 858-59; Kutztown, 2001 EHB at 1121). In short, we ask whether a Department decision adversely affects a person. 35 P.S. § 7514(a) and (c); 25 Pa. Code § 1021.2. Department decisions that "do not affect a party's personal or property rights, remedies, or avenues of redress are not appealable actions." Sayreville Seaport Assocs. Acquisition Co. v. Dep't of Envtl. Prot., 60 A.3d 867, 872 (Pa. Cmwlth. 2012). Further, "a letter that 'merely affirm[s] the status quo' is not a decision from which an appeal may be taken." Glahn v. Dep't of Envtl. Prot., A.3d, No. 1273 C.D. 2021, slip op. at 7 (Pa. Cmwlth. July 10, 2023).
Background
To frame the context of the Department's letter, it is necessary to have an understanding of a recent amendment to the Solid Waste Management Act, which became effective in January 2021. The amendment to the Act added new definitions for "advanced recycling," "advanced recycling facility," and "post-use polymers," and also changed the existing definitions of "municipal waste," "processing," and "treatment" in ways that address "advanced recycling" and "post-use polymers." See Act of Nov. 25, 2020, P.L. 1233, No. 127; 35 P.S. § 6018.103. In our view, the key definition is the newly added term "advanced recycling facility," which is defined as:
A manufacturing facility that receives post-use polymers and separates, stores and converts the post-use polymers using advanced recycling. The term does not include a resource recovery facility, processing facility, municipal waste processing or disposal facility or any other facility that receives unsorted municipal waste for the purpose of separating out post-use polymers for use in advanced recycling.35 P.S. § 6018.103 (emphasis added).
The definition of "advanced recycling facility" implicates two other newly defined terms in the Act: "post-use polymers" and "advanced recycling." "Post-use polymers" are defined as:
Post-use plastic derived from any residential, municipal or commercial source that would not otherwise be recycled, including source-separated recyclable plastics from a materials recycling facility, that is not mixed with solid waste, municipal waste, residual waste, regulated medical and chemotherapeutic waste, hazardous waste, electronic waste, waste tires or construction or demolition waste and may contain incidental contaminants or impurities, such as paper labels or metal rings. For the purpose of this act, post-use polymers that are converted using advanced recycling shall not be considered solid waste, municipal waste or residual waste.Id. (emphasis added). "Advanced recycling" is then defined as:
A manufacturing process for the conversion of post-use polymers through processes, including pyrolysis, gasification, depolymerization, catalytic cracking, reforming, hydrogenation and other similar technologies, into any of the following:
(1) Basic hydrocarbon raw materials, feedstocks, chemicals, liquid fuels, waxes and lubricants.
(2) Other products, including, but not limited to, monomers, oligomers, plastics, crude oil, naphtha, liquid transportation fuels and other basic hydrocarbons.Id. (emphasis added).
In addition to adding new definitions to the Solid Waste Management Act, the amendment also revised existing definitions. The revision to the definition of "municipal waste" adds a sentence at the end that now explicitly excludes "post-use polymers that are converted through advanced recycling" from the definition of "municipal waste." Id. The definition of "processing" was amended so that "[t]he term does not include…[t]he conversion of post-use polymers through advanced recycling in which the manufacturing activities, handling of the post-use polymers at an advanced recycling facility and the products and by-products of the advanced recycling conversion comply with all applicable Environmental Protection Agency and department rules and regulations." Id. The definition of "treatment" also was amended to include the same language that was added to the definition of "processing."
The recent amendment to the Solid Waste Management Act, therefore, provides that the "advanced recycling" of "post-use polymers" shall not be classified as waste or waste processing or treatment, and appears to place facilities that engage in that activity outside of the solid waste permitting regime. See 35 P.S. § 6018.501 (requiring a permit for the processing, storage, treatment, or disposal of solid waste). There is no statutory or regulatory process for seeking the "advanced recycling facility" designation. It exists only by way of the above definitions.
Discussion
The question with which we are presented is whether the Department's letter stating that Encina's proposed facility meets the definition of an "advanced recycling facility," and therefore does not need to obtain a permit under the Solid Waste Management Act, is an appealable action. Initially, Encina asserts in its motion that the Department has only addressed the "first element" of an "advanced recycling facility," which it construes as whether Encina's facility will be accepting materials that meet the definition of "post-use polymers." We do not read the letter that way. The letter plainly states that Encina's "proposed facility meets the definition of an 'Advanced Recycling Facility' per the Solid Waste Management Act." As laid out above, the definition of "advanced recycling facility" clearly states that it is for a manufacturing facility that (1) receives post-use polymers and (2) separates, stores, and converts them (3) using advanced recycling. By meeting the definition of an "advanced recycling facility," which incorporates the key terms of "post-use polymers" and "advanced recycling," the facility necessarily has been determined to receive post-use polymers (i.e. post-use plastic derived from any residential, municipal, or commercial source) and engage in advanced recycling (i.e. converting them through an approved process into hydrocarbon raw materials, etc.). Although the bulk of the letter does focus on the materials Encina has proposed to accept, we cannot ignore the clear language of the first substantive sentence in the letter.
Nevertheless, we find that this case falls in line with others in which we have determined that Department letters or communications are not appealable actions when they indicate that a proposed facility or activity meets a certain statutory or regulatory definition and does not require a permit under the law. In Associated Wholesalers, Inc. v. DEP, 1997 EHB 1174, a developer sought to demolish a building at a shopping center to construct a new building. The project involved the placement of fill near a creek. The developer's consultant and staff from the Department met to discuss the plan for the site and the consultant then sent a letter enclosing its plans to the Department for a preliminary review to determine whether or not a water obstruction and encroachment permit was required. The Department issued a letter to the developer stating that some of the work would require a permit but other work would not. The developer and staff from the Department then had a phone conversation about work being performed outside of the floodway of the creek. The developer then sent the Department another letter with additional plans. The Department responded with the letter that was the subject of the appeal determining that the proposed project did not constitute a water obstruction or encroachment within the floodway of the creek, relying on the definition of "floodway" in the Chapter 105 regulations when evaluating the submitted plans. The letter also stated that the permit requirement was waived under the Dam Safety and Encroachment Act for the placement of fill in the floodway of another small watercourse with a drainage area of 100 acres or less. We found that the letter did not constitute an appealable action because it provided the Department's interpretation of the law and regulations and did not affect the personal or property rights, privileges, immunities, duties, liabilities, or obligations of any person. We dismissed the appeal.
In Gordon-Watson v. DEP, 2005 EHB 812, the appellants had lodged a complaint with the Department after the Pennsylvania Department of Transportation dumped a significant amount of asphalt road millings on property across the street from the appellants. The appellants believed that PennDOT was disposing of waste without a permit. The Department responded to the appellants' complaint with a letter stating that the road millings were "recycled asphalt paving" that met the regulatory definition of "used asphalt," which is included in the definition of "clean fill," and that a solid waste permit was not required for the activity. The appellants filed an appeal of the letter, arguing that the Department's determination was incorrect and that PennDOT was dumping the millings without a solid waste permit. We granted a motion to dismiss the appeal because we determined that, although the Department's letter explained its decision to not require PennDOT to secure a permit, the letter did not actually authorize PennDOT to engage in any activity because the solid waste regulations simply state that no permit is required for the use of clean fill. Id. at 814-15. We noted that the Department's letter did not require any party to do anything or refrain from doing anything.
In Borough of Glendon, 2014 EHB 201, we considered an email the Department sent to a company engaged in the processing of wooden pallets into wood chips and then into fiberboard. The email stated that the company's process "falls out of the definition of a waste and that a recycling permit is not needed from the Waste Management program." Id. at 202. We relied on our prior decisions in Associated Wholesalers and Gordon-Watson to dismiss the appeal, reasoning that the email did not affect anyone's rights or liabilities or direct anyone to do anything or refrain from doing anything. We determined that, even if the email "had said that [the company] does need a permit, we doubt it would have been appealable." Id. at 206.
In all three of those cases, the Department concluded, based on its view of the law and an assessment of statutory and regulatory definitions, that an activity or process did not require a permit. In Borough of Glendon and Gordon-Watson, the Department opined that the activity either met a definition that did not require a permit or did not meet the definition of something that would have required a permit. The same is true here. The Department looked at the new definitions in the Solid Waste Management Act and found that Encina's proposed facility met a definition of an activity that does not require a permit under the Act.
Clean Air Council attempts to distinguish Borough of Glendon, Gordon-Watson, and Associated Wholesalers by arguing that, in those cases, a Department communication was not issued in response to the facility seeking an exception or exemption from permitting. Instead, Clean Air Council argues, those cases involved errant communications from the Department or responses to third-party complaints. However, in Associated Wholesalers, a company engaged the Department about its project and whether or not it needed a permit and then had several communications before the Department opined that certain activities did not need a water obstruction and encroachment permit. That is the same back-and-forth that Encina and the Department engaged in here.
Clean Air Council relies heavily on Winner v. DEP, 2014 EHB 135, where we denied a motion to dismiss an appeal of a Department letter that granted an exception from revising a township's sewage facilities plan for a proposed development with an onlot sewage system. However, in Winner, there was a defined and detailed regulatory process with several conditions that needed to be satisfied in order to obtain an exception to the planning revision process. See 25 Pa. Code § 71.55. Under that process, a developer must submit a Component 1 Sewage Facilities Planning Module to the Department that is coupled with a certification from a municipality that the proposed development is consistent with the municipality's sewage facilities plan, and evidence of review by a municipality's sewage enforcement officer. The planning module must also include a description of the site and an analysis of the soils for their suitability for use with an onlot sewage disposal system. The regulation at issue in Winner then requires the Department to act on the request for an exception within 30 days of receipt of a complete planning module and appropriate documentation or the exception will be deemed to apply. 25 Pa. Code § 71.55(d).
That regulation outlines a somewhat extensive procedure to obtain exceptions from planning:
(a) A municipality does not have to revise its official plan when the Department determines that the proposal is for the use of individual onlot sewage systems serving detached single family dwelling units in a subdivision of ten lots or less and the following apply:
(1) The proposal, in addition to the existing or proposed subdivision of which it is a part, will not exceed ten lots.
(2) The subdivision has been determined to have soils and site conditions which are generally suitable for onlot sewage disposal systems under § 71.62 (relating to individual and community onlot sewage systems).
(3) For the purposes of determining whether a proposal qualifies for an exception under this section, the enumeration of lots shall include only lots created after May 15, 1972.
(4) The proposal is consistent with the requirements of § 71.21(a)(5)(iii) (relating to content of official plans).
(b) Documentation supporting a request for exception under this section shall be submitted to the Department using the Department's sewage facilities planning module and shall include:
(1) A statement by the governing body of the municipality acknowledging that they and an existing municipal planning or zoning agency, or both, have reviewed the proposal and found it to be consistent with the municipality's official plan.
(2) Evidence of review by the municipality's sewage enforcement officer.
(c) The municipality shall review sewage facilities planning modules upon receipt. If appropriate documentation and comments required by subsection (b) were not included in the planning module, the municipality shall forward a copy of the sewage facilities planning module to the sewage enforcement officer and appropriate planning or zoning agency within 10 days of receipt. The municipality shall review and act upon an application for an exception to the requirement to revise an official plan within 60 days of receipt of a complete sewage facilities planning module or additional time that the applicant and municipality may agree to in writing. Failure of the municipality to act within the 60-day period or an agreed-to time extension shall cause the application for the exception to the requirement to revise to be deemed approved by the municipality and the complete application shall then be submitted to the Department by the municipality or the applicant. Documentation of the period of time the application for the exception to the requirement to revise was in possession of the municipality shall be in the form of a completeness checklist signed by a municipal official confirming that the requirements of subsections (a) and (b) have been met.
(d) The Department may act on requests for exceptions to the requirement to revise official plans within 30 days of the Department's receipt of the properly completed and submitted components of the Department's sewage facilities planning module, and proper written documentation. If the Department fails to act within the 30-day period, the exception to the requirement to revise the official plan shall be deemed to be applicable.25 Pa. Code § 71.55.
Clean Air Council also cites Stern v. DEP, 2001 EHB 628, where we denied a motion to dismiss Department letters granting an exemption from full sewage facilities planning for a housing development. But once again, like in Winner, Stern involved an assessment made by the Department utilizing a detailed process in the regulations for determining whether the exemption applies. See 25 Pa. Code § 71.51(b). The regulatory process in Stern involved, among other things, the submission and evaluation of information regarding area geology and soil testing to confirm an adequate soil absorption area. See also 35 P.S. § 750.7(b)(5) (statutory corollary in the Sewage Facilities Act providing that revisions to sewage facilities plans and permits are not required when the Department determines that five factors apply, including soil testing and an evaluation of local geology).
That regulation provides in part:
Except for new land developments proposing the use of retaining tanks, exemptions from sewage facilities planning for new land development will be processed as follows:
(1) Revisions for new land development, exceptions to the requirement to revise and supplements are not required, and permits for onlot systems using a soil absorption area or a spray field may be issued without this planning, when the Department or, in the case of supplements, a delegated agency determines that the following have been met:
(i) The official plan shows that those areas of the municipality are to be served by onlot sewage disposal facilities using a soil absorption area or a spray field as confirmed by signature of the municipal officials.
(ii) The area proposed for the use of individual or community sewage systems is not underlain by carbonate geology nor is this area within 1/4 mile of water supplies documented to exceed 5 PPM nitrate-nitrogen as confirmed by the Department from a USGS geology map or sampling data.
(iii) The area proposed for development is outside of high quality or exceptional value watersheds established under the regulations and policies promulgated under The Clean Streams Law as confirmed by the Department from the location of the new land development on a USGS topographic quadrangle map.
(iv) Subdivided lots and the remaining portion of the original tract after subdivision are 1 acre or larger as confirmed by signature of the applicant.
(v) Complete soils testing and site evaluation establish that separate sites are available for both a permittable primary soil absorption area or spray field and a replacement soil absorption area or spray field on each lot of the subdivision as confirmed by a signed report of the sewage enforcement officer serving the municipality in which the new land development is proposed. The local agency or municipality may require deed restrictions or take other actions it deems necessary to protect the replacement soil absorption area or spray field from damage which would make it unsuitable for future use.25 Pa. Code § 71.51(b)(1).
In contrast to Winner and Stern, for an "advanced recycling facility" there is no defined evaluative process in the statute or regulations, there is no provision of law requiring the Department to render a decision, there is no sampling or testing that needs to be conducted to demonstrate that site conditions are acceptable, there is no form or application or information that a person is required to submit to the Department to be declared an "advanced recycling facility." There is no process at all. Indeed, although the parties throughout their papers refer to an "advanced recycling facility" as a permitting "exemption," we are not sure that that is actually the appropriate nomenclature. The new definitions in the Solid Waste Management Act never use the term "exemption" or say that such a facility is "exempt" from permitting. The Act merely declares that a group of materials (post-use polymers) converted in a certain way (through advanced recycling) is not waste, and a facility that handles those materials in that way to be not engaged in the "processing" or "treatment" of waste under the Act. The effect of meeting the definition of an "advanced recycling facility" may be that no permit is required, but there is no formal "exemption" set forth in the Act.
We do not mean to suggest that a Department decision always needs to definitively arise out of a statutory or regulatory process or obligation to be appealable. We simply hold here under the facts of this case that the Department's statement that Encina's proposed facility meets the definition of an advanced recycling facility and does not need a permit under the Solid Waste Management Act is not an appealable action.
In Winner, we noted that, under the regulatory scheme to determine the applicability of an exception, "the Department makes a determination that certain conditions exist, entitling a municipality to permit a development without revising its official plan, as it would otherwise be obligated to do under the law." 2014 EHB at 140 (emphasis added). In other words, a defined process and evaluation was followed to determine whether or not an activity that would otherwise require a plan revision under the law met the conditions necessary to be granted an exception. Here, in contrast, the Act has declared an advanced recycling facility to be outside of the solid waste permitting regime because it is not dealing with waste. There is no permit that is otherwise required by law under the Solid Waste Management Act. Like in Borough of Glendon and Gordon-Watson, the letter here lays out the Department's interpretation that an activity meets a statutory or regulatory definition that falls outside of a particular permitting regime. Since the so-called "advanced recycling exemption" is merely a matter of meeting a definition, it would seem that Encina does not need any approval at all from the Department under the Solid Waste Management Act to operate an advanced recycling facility so long as Encina is within the confines of the definitions in the Act.
Encina and Clean Air Council both tell us that there are several other permits, not under the Solid Waste Management Act, that Encina needs to obtain for the development and operation of its proposed facility, including an air quality plan approval, the application for which is apparently currently under review.
This is also not a situation where the Department follows a defined statutory or regulatory procedure for investigating a complaint and is required by law to render a determination on that complaint one way or the other, such as under the Oil and Gas Act, 58 Pa.C.S. § 3218, and the Bituminous Mine Subsidence and Land Conservation Act, 52 P.S. § 1406.5e. See Kiskadden v. DEP, 2012 EHB 171 (complaint of water supply contamination under the Oil and Gas Act); Love v. DEP, 2010 EHB 523 (mine subsidence claim under the Bituminous Mine Subsidence and Land Conservation Act). See also Carlisle Pike Self Storage v. DEP, 2022 EHB 25 (complaint under Section 604 of the Clean Streams Law, 35 P.S. § 691.604). In Borough of Glendon, we noted that when the Department fulfills a mandatory statutory duty to investigate, analyze, and decide a claim, that decision impacts a person's property rights and we have jurisdiction over those actions. 2014 EHB at 207. However, like in Borough of Glendon, here there is no mandatory duty or defined statutory or regulatory procedure or framework requiring the Department to make a decision on whether an activity qualifies as an "advanced recycling facility."
Clean Air Council also focuses heavily on the communications between Encina and its consultants and the Department. However, as Associated Wholesalers demonstrates, the appealability of a Department letter does not necessarily turn on the extent of the communication between the Department and a party that led up to that letter. The documentation from Clean Air Council suggests that Encina's facility may be the first advanced recycling facility to be proposed in Pennsylvania. It does not strike us as unusual that the Department and Encina would have a dialogue about whether or not Encina met the definition of such a facility and whether or not a permit was necessary under the Solid Waste Management Act. Although prefatory communications may be helpful as context, a series of communications between a party and the Department does not necessarily mean that a Department letter following those communications is an appealable action. What matters for appealability is if the letter affects any party's personal or property rights, privileges, immunities, duties, liabilities, or obligations. The Department's letter to Encina does not affect any of those things.
The appealability of a Department communication is always decided on a case-by-case basis. We find that the Department's letter to Encina is in community with other situations where we have held that Department communications are not appealable because they merely offer the Department's interpretation of the law that an activity meets or does not meet a statutory or regulatory definition. When Department letters "do not grant or deny a pending application or permit, and they do not direct [a company] to take any action nor impose any obligations on the company[,]" those letters typically are not appealable actions. Sayreville Seaport Assocs., supra, 60 A.3d at 872. "Rather, the letters are best characterized as advisory opinions, expressing the Department's understanding of Pennsylvania law." Id. The letter at issue here is just such a letter.
Accordingly, we issue the Order that follows.
ORDER
AND NOW, this 14th day of July, 2023, it is hereby ordered that the Permittee's motion to dismiss is granted and this appeal is dismissed.
ENVIRONMENTAL HEARING BOARD
STEVEN C. BECKMAN Chief Judge and Chairperson
MICHELLE A. COLEMAN Judge
BERNARD A. LABUSKES, JR. Judge
SARAH L. CLARK Judge