Opinion
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05-30-2024
MIRANDA LANANGER, et al., v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION AND CATALYST ENERGY LLC, PERMITTEE
For the Commonwealth of PA, DEP: Jennifer N. McDonough, Esquire Paul J. Strobel, Esquire Nicholas A. Maskery, Esquire (via electronic filing system) For Appellants: Lisa Johnson, Esquire (via electronic filing system) For Permittee: Jean M. Mosites (via electronic filing system)
For the Commonwealth of PA, DEP: Jennifer N. McDonough, Esquire Paul J. Strobel, Esquire Nicholas A. Maskery, Esquire (via electronic filing system)
For Appellants: Lisa Johnson, Esquire (via electronic filing system)
For Permittee: Jean M. Mosites (via electronic filing system)
OPINION AND ORDER ON PETITION TO INTERVENE
Steven C. Beckman, Chief Judge and Chairperson
Synopsis
The Board grants a petition to intervene where the standing of the Petitioners is not challenged and the Board finds that it is appropriate to allow the Petitioners to intervene under the facts of this case.
OPINION
On January 11, 2024, the Department of Environmental Protection ("DEP" or the "Department') issued a permit to Catalyst Energy, LLC ("Catalyst") for an injection well in Keating Township, McKean County, Pennsylvania. Thirty-nine individuals filed Notices of Appeal challenging the Department's issuance of the permit. One individual withdrew his appeal and the Board, with the agreement of the parties, consolidated the remaining 38 appeals into this consolidated action. On May 6, 2024, the Board received a Petition to Intervene ("Petition") on behalf of sixteen individuals ("Petitioners"). On May 21, 2024, the Department filed the Department's Answer to the Petition to Intervene ("Answer") along with a Memorandum in Support of the Department's Answer in Opposition to Petition to Intervene ("Memorandum"). In its Memorandum, the Department stated its opposition to the Petition and requested that the Board deny it. Catalyst did not file an answer to the Petition.
According to the Petition, counsel for Catalyst advised that Catalyst does not believe that intervention is appropriate but defers to the Board's evaluation and determination. (Petition at 8).
Standard of Review
Section 4 of the Environmental Hearing Board Act states that "[a]ny interested party may intervene in any matter pending before the Board." 35 P.S. § 7514(e). See also 25 Pa. Code § 1021.81 (a person may petition to intervene in any matter prior to the initial presentation of evidence). The Board will deny the petition to intervene if it fails to include sufficient legal grounds or verified factual averments to establish the right to intervene. 25 Pa. Code § 1021.81(e). The Board has held that the right to intervene in a pending appeal should be comparable to the right to file an appeal at the outset and, therefore, an intervenor must have standing. Logan v. DEP, 2016 EHB 531, 533; Wilson v. DEP, 2014 EHB 1, 2; Pileggi v. DEP, 2010 EHB 433, 434.
In order to have standing to appeal an administrative decision, persons must have a direct interest in the subject matter of the case. A direct interest requires a showing that the matter complained of caused harm to the person's interest. Muth v. Dep't of Environmental Protection, A.3d, No. 1346 C.D. 2022, slip op. at 14 (Pa. Cmwlth. Apr. 16, 2024) (citing Citizen's Against Gambling Subsidies, Inc. v. Pennsylvania Gaming Control Board, 916 A.2d 624, 628 (Pa. 2007)). See also, Food & Water Watch v. Dep't Environmental Protection, 2021 Pa.Commw. Unpub. LEXIS 191 (Pa. Cmwlth. 2021); and Clean Air Council v. Dep't of Environmental Protection, 245 A.3d 1207, 1212-13 (Pa. Cmwlth. 2021).
Analysis
The Petition provides limited individual information addressing standing in sixteen numbered paragraphs, one for each of the sixteen Petitioners. (See Petition ¶ 1-16). Given the limited information provided, it is difficult for the Board to determine whether each of the sixteen Petitioners have a direct interest sufficient to establish standing. In its Answer to one of the Petition's sixteen paragraphs, the Department admits to the listed address of one Petitioner. (See Answer ¶ 8). In response to the remaining 15 paragraphs, the Department states that it has no reason to dispute the named Petitioners' addresses and therefore admits them. (See Answer ¶ 1-7, 9-16). For any of the statements in the sixteen paragraphs beyond the Petitioners' addresses, the Department states that it is without knowledge or information sufficient to form a belief concerning the truth or falsity of the remaining allegations and, therefore, denies them. (Id. ¶ 1-16). However, in its Memorandum, the Department does not directly challenge the standing of any of the Petitioners. Therefore, for the purposes of this Opinion and Order, we will presume that the Petitioners have the necessary standing to intervene in this case.
The only issue the Department raises in its Memorandum is whether the Petition should be denied because the Petitioners are attempting to circumvent the 30-day appeal period established by 25 Pa. Code § 1021.52. Petitioners acknowledge in their Petition that they "heard through word of mouth that the Department issued the Permit and were unable, for various reasons, to join in the Appeal in the timeframe required to file the Appeal." (Petition at 4). The Department argues that because the Petitioners admit that they were aware of the permit issuance within the 30-day period for filing an appeal and chose not to file an appeal for unexplained reasons, we should not grant them intervention at this point. The Department discusses two Board decisions, Coyne v. DEP, 2020 EHB 118 and Darlington v. DEP, 1997 EHB 934, that it argues supports its position.
After reviewing the two cases the Department relied on, along with other Board decisions, it is clear to us that the issue in this case is not as straightforward as the Department suggests. In Coyne, the Department issued two separate but substantially identical orders to Adventure/Champion Partnership ("Adventure") and the Coynes. Adventure did not appeal the order directed at it but, instead, at a later date, petitioned the Board to intervene in the case brought by the Coynes who had timely appealed the order directed at them. The Board denied Adventure's petition because, rather than appealing the order directed at it, Adventure sought to intervene in the appeal of the Coynes' order that was substantially identical to Adventure's order. The Board noted that the order had become final as to Adventure when the 30-day period elapsed without an appeal. The Board concluded that absent extraordinary circumstances, Adventure could not circumvent the 30-day appeal period by intervening in the appeal of a separate order brought by the Coynes where Adventure had failed to appeal the order directed at it. The key fact in the Board's decision denying intervention in Coyne was that the entity seeking intervention had received a substantially identical order that it failed to appeal.
A factual scenario similar to that in Coyne was presented to the Board in Jefferson Township Supervisors v. DEP, 1999 EHB 693. In that case, the Department issued an administrative order to Jefferson Township and the Jefferson Township Sewer Authority. The Jefferson Township Supervisors filed a timely appeal of the order, but the Sewer Authority did not. One year later, the Sewer Authority sought to intervene in the appeal filed by the Supervisors. The Board denied the petition to intervene stating that precedent made clear that a petitioner may not use intervention as a tool for circumventing the time constraints of 25 Pa Code § 1021.52. Jefferson Township Supervisors, 1999 EHB at 695. The Board noted that third-parties could intervene after the 30-day time period as long as they had standing, but that this rule did not apply if the third-party was also subject to a Department order related to the appeal they sought to intervene in. The Board held that in such cases, absent showing extraordinary circumstances, the third-party will not be granted permission to intervene.
See also Conners v. State Conservation Commission et. al., 1999 EHB 669, fn. 4.
The Department also cites in its Memorandum to Darlington v. DEP, 1997 EHB 934, a case where the Board denied intervention to a citizen's group, Tri-State Concerned Citizens ("TSCC"). After reviewing our decision in Darlington, it is clear that the main basis for denying TSCC's petition to intervene was that TSCC failed to demonstrate it was an interested party and therefore lacked standing. The Board then discussed as an additional reason for its decision that TSCC could have appealed the permit but chose not to even though the issuance of the permit was published in the Pennsylvania Bulletin. The Board noted with disapproval that TSCC sought to intervene four months later rather than choosing to file a timely appeal.
The final case cited, but not relied on by the Department in its Memorandum, is Crawford v. DEP, 1994 EHB 912. While the Board ultimately denied intervention in Crawford, it did so on the basis that the petitioner's interests were adequately represented by other parties and rejected the Department's and the permittee's argument that the intervention should be denied as it was an attempt by the petitioner to circumvent the 30-day appeal period. Even though the Board noted that issuance of the permit was published in the Pennsylvania Bulletin, it found that the petitioner was not aware of the impact of the permitted activity on her property until she received a letter five months later and investigated the issue. Without further explanation, the Board stated that it rejected the Department and the permittee's contention that the petitioner was attempting to avoid the time limitation for filing an appeal.
A review of the above cases shows that the Board has developed a bright line rule whereby, absent extraordinary circumstances, a petition to intervene should be denied when the petitioner is also the recipient of either the order under appeal or a substantially identical order, but failed to timely appeal the order. However, when a Department order is not involved, the Board's case law is not as straightforward. In Jefferson Township, the Board, stated as a general rule that "third parties, whose interest in the Department's action is sufficient to give them standing, may intervene after the time established for an appeal." Jefferson Township Supervisors, 1999 EHB at 695. This is consistent with the language of the Environmental Hearing Board Act which provides that any interested party may intervene. See 35 P.S. § 7514(e). Our intervention rule specifically allows for the filing of a petition to intervene prior to the initial presentation of evidence. 25 Pa Code § 1021.81. In the other cases the Department cites, the Board denied intervention for reasons principally related to standing and adequate representation by other parties. The discussions on the issue of circumvention of the 30-day appeal period were largely dicta in these decisions. Furthermore, Darlington and Crawford reached opposite results on the circumvention argument based on when the party seeking intervention became aware of the permit at issue.
After evaluating the language of the Environmental Hearing Board Act and of our rules, and after careful review of the relevant case law, we conclude that under the facts of this matter, the Petition should be granted. The Petitioners are not the recipients of a Department order, so the bright line rule and the underlying reasoning of Coyne and Jefferson Township do not apply to the Petitioners in this case. As noted in Jefferson Township, third parties are generally allowed to intervene after the 30-day appeal period if they satisfy the standing requirements. While the decisions in Darlington and Crawford suggest that in addition to looking at standing, the Board should consider whether the petitioner had notice about the underlying action, we are hesitant to endorse that approach. Besides these two cases, we find no support for such an approach in the many other cases where the Board looked at third-party intervention. Further, we see no support for making notice an issue in the statutory or regulatory text that govern intervention in front of the Board. See 35 PS. § 7514(e) and 25 Pa. Code § 1021.81. We are concerned that by adding issues of notice to our review of intervention requests, additional discovery issues would arise, subjecting non-party petitioners to interrogatories seeking information on what the petitioner knew and when they knew it. Our decision in this case is complicated by the fact that the Petitioners somewhat cryptically acknowledge that they had notice of the permit action by the Department within the 30-day appeal period but chose not to timely file appeals. Granting the Petition in the face of that statement and the Department's argument regarding circumvention is a close issue for the Board. The Department's argument has initial appeal but, ultimately, we find for the reasons we set forth above that the proper decision is to grant the Petitioners request to intervene in this case.
We are cognizant that as a result of our granting this Petition, there are now 54 individuals listed as either appellants or intervenors on the side of the appellants, creating the potential for problems in administering the case. At this point, the appeals have been consolidated with the agreement of the parties and all the individuals are represented by the same attorney. This has greatly reduced the administrative burden of this case on the Board and the parties. As this matter proceeds, we trust that the parties will continue to cooperate in streamlining the administrative process and be aware of the difficulty posed by the number of parties. If the matter should proceed to hearing, we note that the Board has the authority to limit the number of witnesses upon an issue and will not hesitate to do so in order to avoid repetitive testimony. See 25 Pa. Code § 1021.126.
ORDER
AND NOW, this 30th day of May, 2024, it is hereby ORDERED that the Petition to Intervene is granted. The following caption shall be reflected on all future filings: