Opinion
2022-053-L
07-18-2023
BEECH MOUNTAIN LAKES ASSOCIATION, INC. v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and SETH MAURER, Permittee
For the Commonwealth of PA, DEP: Michael T. Ferrence, Esquire For Appellants: John Kenneth Lisman, Esquire William L. Byrne, Esquire For Permittee: Brett Woodburn, Esquire Christine Line, Esquire
For the Commonwealth of PA, DEP: Michael T. Ferrence, Esquire
For Appellants: John Kenneth Lisman, Esquire William L. Byrne, Esquire
For Permittee: Brett Woodburn, Esquire Christine Line, Esquire
OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Bernard A. Labuskes, Jr., Judge
Synopsis
The Board grants a joint motion for summary judgment filed by the Department and a permittee and denies an appellant's motion for summary judgment where the appellant, bearing the burden of proof in this appeal, has relied on general assertions and not produced sufficient evidence to make out a prima facie case to show that the Department erred in approving coverage under a general permit for a small floating dock, or show that any issues remain for a merits hearing.
OPINION
This matter involves an appeal by Beech Mountain Lakes Association, Inc. ("BMLA") of the Department of Environmental Protection's (the "Department's") approval of Permittee Seth Maurer's registration of a small floating dock under General Permit BWEW-GP-2, Small Docks and Boat Launching Ramps, on the Lake of the Four Seasons ("Lake") in Butler Township, Luzerne County. Mr. Maurer submitted application no. 024002122-002 to the Department for authorization to build a small floating dock on February 14, 2022. In the project description, Mr. Maurer described the proposed dock as a recreational and temporary structure approximately 15 feet by 15 feet that would float on the Lake adjacent to Mr. Maurer's property. In late April, the Department issued a Correction Notice to Mr. Maurer, to which he responded. The Department determined that the application was administratively complete on May 8, 2022, and Mr. Maurer was granted coverage under the permit on May 10, 2022.
On August 2, 2022, BMLA appealed the Department's grant of coverage under the permit after receiving notice of the Department's authorization on July 6, 2022 via a Right-To-Know response from the Department. BMLA is an association comprised of various owners of interests in the Beech Mountain Lake Development and Quail Hollow Village in Butler Township, adjacent to the Lake. Mr. Maurer and Christina Maurer own two properties in Butler Township that are also adjacent to the Lake, but they are not members of BMLA. BMLA owns the Lake and issues policies concerning its use. BMLA contends that, although the Maurers own property on the Lake, they do not have the right to use the Lake. To that end, on March 18, 2022 BMLA initiated litigation in the Court of Common Pleas of Luzerne County against the Maurers and other defendants seeking declaratory judgment that the defendants collectively do not have the right to use the Lake. That litigation remains ongoing.
There is no dispute that the Maurers hold title to the land wherefrom the dock will extend; what is apparently disputed is the substance of that title and what rights and restrictions it may or may not contain regarding use of the Lake.
Both BMLA and the Department, joined by Mr. Maurer, have moved for summary judgment in this matter. BMLA submits five arguments in support of its request for summary judgment: (1) Mr. Maurer did not include all relevant facts in his permit registration materials, primarily not disclosing the litigation before Common Pleas court; (2) Mr. Maurer did not address any potential effects his dock might have on public safety and failed to provide an adequate water dependency statement; (3) these omissions prevented the Department's consideration of the effect of the floating dock on the property or riparian rights of owners upstream, downstream, or adjacent to the project; (4) Mr. Maurer did not obtain releases from owners of affected riparian property; and (5) the Department did not hold a hearing prior to approving coverage under the permit.
The Department and Mr. Maurer, in their motion, argue that all of BMLA's objections to the grant of coverage under the permit flow from the property rights dispute between BMLA and Mr. Maurer over the right to use the Lake, and that such a dispute is not a factor that need be considered in reviewing coverage under the small dock general permit because it does not convey any property rights. They also argue that Mr. Maurer submitted all of the necessary information for coverage under the permit, and that, as third-party appellants of a permit bearing the burden of proof, BMLA has not submitted sufficient evidence of facts to make out a prima facie case. For the reasons that follow, we deny BMLA's motion, grant the Department and Mr. Maurer's motion, and dismiss this appeal.
Summary judgment is appropriate when the record, including pleadings, depositions, answers to interrogatories, and other related documents, shows that there is no genuine issue of material fact in dispute and the moving party is, therefore, entitled to judgment as a matter of law. Pa.R.Civ.P. 1035.1-1035.2; Camp Rattlesnake v. DEP, 2020 EHB 375, 376. In evaluating whether summary judgment is proper, the Board views the record in the light most favorable to the non-moving party. Stedge v. DEP, 2015 EHB 31, 33. All doubts as to whether genuine issues of material fact remain must be resolved against the moving party. Eighty Four Mining Co. v. DEP, 2019 EHB 585, 587 (citing Clean Air Council v. DEP, 2013 EHB 404, 406). Summary judgment is also available:
[I]f after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at
trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.Pa.R.Civ.P. 1035.2(2); Whitehall Twp. v. DEP, 2017 EHB 160, 163. In other words, the party bearing the burden of proof must make out a prima facie case. Longenecker v. DEP, 2016 EHB 552, 554. In third-party appeals of the Department's issuance of a permit, the party protesting the issuance of the permit bears the burden of proof to show that the Department erred in issuing the permit. 25 Pa. Code § 1021.122(2). BMLA bears that burden in this appeal.
Before getting into the merits of the parties' arguments, we think it is useful to have some brief background on permitting under the Dam Safety and Encroachments Act, Act of November 26, 1978, P.L. 1375, as amended, 32 P.S. §§ 693.1 - 693.27 (DSEA). In order to construct a water obstruction or encroachment such as a recreational dock, a person must first obtain an individual permit or register for coverage under a general permit from the Department under the DSEA. Because projects involving water obstructions and encroachments are widely varied in size, structure, and risk, there are different permit types - standard, small project, and general - and each places specific application or registration requirements on the prospective permittee that fulfill the statutory mandates of the DSEA. See generally 25 Pa. Code §§ 105.1-105.451. Although there is some overlap in these requirements, the extent of the information that must be produced by the prospective permittee differs based on the permit type. See Lyons v. DEP, 2011 EHB 169, 180-81 (discussing the reasonability of differentiated application requirements based on permit type under the DSEA).
General permits function somewhat differently than individual permits. The DSEA grants the Department the authority to develop and issue general permits for certain classes of activities, and to waive certain permit requirements where appropriate:
(a) The Environmental Quality Board may, by regulation, waive the permit requirements for any category of dam, water obstruction or encroachment which it determines has insignificant effect upon the safety and protection of life, health, property and the environment.
(b) The department may, in accordance with rules adopted by the Environmental Quality Board, issue general permits on a regional or Statewide basis for any category of dam, water obstruction or encroachment if the department determines that the projects in such category are similar in nature, and can be adequately regulated utilizing standardized specifications and conditions.
(c) General permits shall specify such design, operating and monitoring conditions as are necessary to adequately protect life, health, property and the environment, under which such projects may be constructed and maintained without applying for and obtaining individual permits. The department may require the registration of any project constructed pursuant to a general permit
(d) All general permits shall be published in the Pennsylvania Bulletin at least 30 days prior to the effective date of the permit.32 PS. § 693.7. See also 25 Pa. Code § 105.442 (elaborating on authorization for issuing general permits).
The regulations in Chapter 105 detail how a general permit satisfies the major regulatory permitting requirements and provides for a process of obviating the need for the submission of an individual permit application to utilize a general permit:
(a) When the Department issues a general permit for a specified category of dam, water obstruction or encroachment on either a regional or Statewide basis, persons who intend to construct, operate, maintain, modify, enlarge or abandon a dam, water obstruction or encroachment in accordance with the specifications and conditions of the general permit may do so without filing an individual application for, and first obtaining, an individual permit.
(b) Use of an applicable general permit shall satisfy the permit requirements set forth in § 105.11 (relating to permit requirements), so long as:
(1) Activities are conducted in accordance with the specifications and conditions of the applicable general permit.
(2) The owner of the dam, water obstruction or encroachment complies with the registration requirements set forth in the general permits, as authorized by § 105.448 (relating to determination of applicability of a general permit).25 Pa. Code § 105.443. Persons seeking to avail themselves of a general permit for their project register for coverage under that permit instead of submitting an application for an individual permit. 25 Pa. Code § 105.447. All registration statements must include: "(1) The name and address of the person responsible for the project. (2) The location of the project. (3) The name or number of the general permit being utilized for the project." 25 Pa. Code § 105.447(c)(1)-(3).
For the general permit involved here, the Department first issued the BWEW-General Permit-2 for small docks and boat launching ramps on December 29, 1990 and modified and reissued it on August 6, 1994. (DEP Exhibits 1-5.) Since then, the permit has been available for use by anyone with an eligible project that satisfies the terms and conditions and first registers the project with the Department. 25 Pa. Code §§ 105.443, 105.447.
BMLA's first four stated grounds for summary judgment all concern the question of whether Mr. Maurer submitted a complete and accurate registration for coverage under the general permit, and thus whether the Department erred when it granted coverage to Mr. Maurer under the permit. BMLA says that, because of the allegedly missing information, the Department was prevented from carrying out its statutory and regulatory obligations in reviewing projects for permitting. See 25 Pa. Code § 105.21(a)(1) (the Department is only empowered to approve complete and accurate applications and registrations). However, "[a] party who would challenge a permit must show us that errors committed during the application process have some continuing relevance." O'Reilly v. DEP, 2001 EHB 19, 51. See also Shuey v. DEP, 2005 EHB 657, 712 (holding that revocation or remand of a permit must be based on material error in the permitting process). Parties who complain that the Department should have considered something in its review of a project need to "tell us how that consideration would have made any difference." Sludge Free UMBT v. DEP, 2015 EHB 469, 484. In its motion, BMLA does not explain why any of the information that it believes should have been included in Mr. Maurer's permit registration should have prompted a different result with respect to the approval of permit coverage.
The first of BMLA's arguments contends that Mr. Maurer should have disclosed to the Department the ongoing Common Pleas litigation regarding the Maurers' right to use the Lake so that the Department could have "been informed of and assessed these facts, regardless of [its] ultimate decision." The Department and Mr. Maurer, on the other hand, argue that the existence of the Common Pleas litigation is not a relevant fact for a grant of coverage under this general permit because the permit does not grant, convey, or otherwise affect property rights.
We agree with the Department and Mr. Maurer. First, it is clear by its own terms that the general permit does not grant or convey any property rights to the permit holder: "PROPERTY RIGHTS - This General Permit does not authorize trespassing on private property nor convey any property rights, either in real estate or material, or in any exclusive privileges; nor does it authorize any injury to property or invasion of rights or any infringement of Federal, State, or local laws or regulations." (DEP Exhibit 6, page 2-5, Section F, Paragraph 7 (underlining in original).) Regardless of the ongoing litigation in the Court of Common Pleas, the Department's authorization of coverage under the general permit does not somehow authorize Mr. Maurer to use the Lake if that right does not already exist. The permit does not independently grant Mr. Maurer any property interest in the Lake. See Abod v. DEP, 1997 EHB 872, 885 (the Department's authorization of a permit under the DSEA to build a dock where ownership is in dispute does not grant any property rights or allow the permittee to build and maintain a dock on the property of another).
The dispensation of the parties' dispute in the Court of Common Pleas may ultimately preclude the Maurers from having their small floating dock on the Lake, but that does not necessarily mean that the permit coverage was issued in error. We have held on several occasions that the mere existence of a possible property dispute is irrelevant to the Department's review of a general permit registration absent a clear statutory or regulatory directive to the contrary. In Bernie Enterprises, Inc. v. DEP, 1996 EHB 239, we dismissed an appeal from the Department's grant of coverage under a general permit where the only issue on appeal related to the permittee's right to use the property of another and the appellant had already initiated litigation in the court of common pleas to determine that right. We held that:
The issuance of the Permits is DEP's decision that the proposed facilities satisfy the public's concern for safety, navigation and environmental conservation. It goes no further. Permittee's right to enter upon the land and install the facilities must be established independent of the Permits. That issue is properly left to the Court of Common Pleas of Bucks County.Id. at 243. See also Bentley v. DEP, 1999 EHB 447, 450 (discussing the question of what is authorized by permits issued by the Department and finding that "the Department is not precluded from issuing a permit for an activity that requires use of the property of another. The right to enter or use the land of another must be independently established by the permittee and disputes regarding such use must be resolved in the courts of common pleas." (internal citations omitted)).
To the extent that any property interests are relevant, there is no dispute that Mr. Maurer is the record owner of the land from which the dock will extend. We cannot say that the Department erred when it authorized Mr. Maurer's dock under the general permit without knowledge of the Common Pleas litigation. The Department tells us that knowledge of the litigation would not have affected the Department's review of the Mr. Maurer's registration materials and would not have changed the Department's grant of coverage under the permit. We find no reason why the existence of the litigation should have prompted the Department to deny coverage under the general permit or why that litigation should prompt us to reverse or vacate coverage under the permit. The question of Mr. Maurer's right to use the Lake is properly before the Court of Common Pleas. Therefore, BMLA's request for summary judgment based on the omission of the litigation from Mr. Maurer's permit registration is denied.
Next, BMLA argues that Mr. Maurer failed to describe, illustrate, or define the effect the dock will have on public safety and failed to provide an adequate statement on water dependency. Specifically, BMLA argues that because the Maurers are not members of BMLA and BMLA issues rules for using the Lake, their dock will create an inherent potential for conflict that will impact safety on the Lake, and that Mr. Maurer's general permit registration was misleading because he did not mention BMLA in his materials. The Department and Mr. Maurer respond that the Department has already considered the categorical effect of small docks and boat launches on public safety and their water dependency in its promulgation of the general permit, as it is authorized to do under the DSEA, 32 PS. § 693.7. (DEP Exhibits 1-5, 7; Affidavit of Michael Tarconish.)
Small docks and boat launches strike us as precisely the class of activities that is appropriately regulated under a general permit due to their relatively standardized nature and predictable environmental impacts. An assessment of public safety and a water dependency statement are requirements under the DSEA and must be submitted by applicants for individual permits, 25 Pa. Code § 105.14(b)(7), but registration for coverage under the general permit does not require the prospective permittee to submit individualized information on these questions. Even if it did, BMLA has not explained why any of that information, if it were submitted to the Department, would matter here or warrants anything but coverage being approved. See O'Reilly, supra, 2001 EHB at 51.
Tellingly, BMLA does not explain what safety impact there will be because of Mr. Maurer's dock or how they will come about. BMLA produces no record evidence of any potential safety issues. BMLA provides copies of some of its policies for using the Lake, (BMLA Exhibits 3, 4), but those alone are insufficient to establish a safety issue. BMLA says "one can imagine potential conflicts with the BMLA Boating and Lake Policy," but that obviously does not explain any potential safety issue, let alone one that would justify reversing coverage under the permit. While it is true that the Department should not approve misleading permit applications and registrations that lack all relevant facts, BMLA has failed to explain why its policies are relevant to this permitting process or why they should have prevented the Department from authorizing coverage under the general permit. With respect to water dependency, it is somewhat difficult to imagine how a dock is not a water-dependent project. It is inherent in the definition of a dock that it will have some projection into the water to allow for a boat to land. We would think that most if not all docks require access or proximity to or siting within water to fulfill their basic purpose. See 25 Pa. Code § 105.13(e)(1)(iii)(D).
BMLA next argues that the Department was prevented from considering potential adverse effects on property or riparian rights of owners upstream, downstream, or adjacent to the floating dock, again based on Mr. Maurer's failure to disclose BMLA's existence. While such considerations are required under the regulations for individual permits, 25 Pa. Code § 105.14(b)(3), for proposed projects under the small docks general permit, the Department looks at the placement of the proposed project to make a determination of impact. If the project is to be placed straight into the water from the permittee's land, the Department generally concludes that there will be no adverse effects on property or the riparian rights of owners upstream, downstream, or adjacent to the small floating dock. (Affidavit of Michael Tarconish ¶ 6.) Based on the project description, Mr. Maurer's dock is to be placed straight into the water from his land. (Id. ¶ 7.) Thus, even if Mr. Maurer had made mention of BMLA in his registration materials, that mention would not have caused the Department to change its review of his registration unless he had indicated that the dock would not be built straight into the body of water.
Further, although BMLA has provided various documents related to its own policies and the property dispute, it has offered nothing to show that the placement of the dock has any actual effect on upstream, downstream, or adjacent property rights. BMLA has not articulated, let alone offered any evidence of, any impact on anyone's property or riparian rights as a result of Mr. Maurer's 15-foot by 15-foot floating dock. Accordingly, summary judgment is denied on this issue.
BMLA also argues that under Section 105.332 of the regulations, Mr. Maurer was required to obtain and furnish releases from the owners of affected riparian property. That regulation provides: "When an applicant proposes location of a structure on or in front of riparian property not owned by the applicant, the applicant shall obtain and furnish to the Department notarized and signed releases from the owners of the affected riparian property." 25 Pa. Code § 105.332 (emphasis added). First, to the extent this regulation even applies to this general permit, as opposed to an individual permit application submitted under 25 Pa. Code §§ 105.13 and 105.331, there is no dispute that Mr. Maurer owns the property from where the dock will attach. While BMLA suggests that every parcel on the Lake constitutes affected riparian property, and that Mr. Maurer should have obtained releases from BMLA or all riparian property owners on the Lake, that is simply not what the regulation requires.
Even so, BMLA once again has offered no evidence of how every riparian property owner on the Lake is specifically affected by the Maurers' proposed 15-foot by 15-foot floating dock running straight out from their property. See Cooper v. DER, 1982 EHB 250, 272 (holding that there must actually be "affected" riparian property to require the permittee to produce such releases). BMLA's apparent position would result in requiring every riparian property owner on any body of water within the Commonwealth to obtain and furnish releases from every other riparian property owner on that body of water, no matter how distant from the project, thus reading "affected" out of the regulation. Without record support of how these riparian owners are affected, BMLA's assertions here are broad and generalized, and insufficient to rise to the level of specificity and support needed to succeed on a summary judgment motion. See Shuey, 2005 EHB at 712; Goetz v. DEP, 2003 EHB 16, 19; Eagleshire v. DEP, 1998 EHB 610, 614-15.
BMLA also argues that the Department should have held a hearing on Mr. Maurer's permit registration prior to granting coverage, but, as BMLA admits, the decision of whether or not to hold a hearing is discretionary. 32 PS. § 693.8(c). BMLA argues that this situation is unique, and that the Department could only understand its complexities via a hearing. However, BMLA bases this argument once again within the context of the dock's general interaction with all other property owners and whether its use will be consistent with BMLA's policies for the Lake. Once again, these claims lack specificity and are unsupported in the record. Without specific claims and record support, it is impossible to say that the Department erred when it chose not to hold a hearing on a routine general permit registration.
By generally arguing that Mr. Maurer should have provided information that is not required by the Department under this general permit, BMLA in some ways appears to be lodging an attack on the entire concept of a general permit. BMLA's arguments here are not dissimilar from those put forth by the appellant in Lyons v. DEP, where the Board found that Lyons was attacking an entire category of permit, rather than the specifics of the permit at issue. 2011 EHB at 180-81. In that appeal, Lyons challenged the Department's issuance of a small projects permit under the DSEA, arguing that the dock at issue should not have been permitted under a small projects permit, but rather that the Department could not rationally determine whether the dock qualified as a small project without all the information required by a standard permit application, and therefore the permittee should have been required to submit a standard permit application. Id. We rejected that argument, finding that the differing approach to individual permits was a
reasonable way to apportion limited resources based on risk. The purpose of creating reduced requirements for small projects is to save permit applicants and permit reviewers the considerable time and expense associated with a full-blown application where such detailed information is simply not necessary. Lyons's approach would defeat that purpose. There would be no point to creating reduced application requirements for small projects if applicants for small projects were required to submit standard applications anyway.Id.
Here, as in Lyons, Department personnel received Mr. Maurer's registration, requested and received more information, and then determined that the permit sought was the appropriate permit for this particular project. The Department has provided evidence describing what it does and does not consider in its review under this general permit for small docks and boat launches, including the rulemaking under which the general permit was promulgated and affidavits of Department personnel. (DEP Exhibits 1-5, 7; Affidavit of Michael Tarconish.) The Department's review of such projects generally, and specifically here with Mr. Maurer's project, appears to be a reasonable and appropriate exercise of its authority under the DSEA.
Turning to the Department and Mr. Maurer's motion, they argue that BMLA's entire appeal is about a property dispute that is more appropriately resolved before the Court of Common Pleas. They say this dispute is simply not relevant to a general permit that does not convey or establish any property rights, and there really is not anything more to BMLA's appeal. They also assert that discovery in this matter has closed and BMLA does not have sufficient evidence to prove its case. In opposing the motion, BMLA says that its appeal is about more than simply property issues, pointing out that there are 16 objections in its notice of appeal.
There is certainly merit to the Department and Mr. Maurer's argument. As discussed above with respect to BMLA's motion, nearly all of BMLA's arguments relate to alleged property disputes, whether it is failing to identify the Common Pleas litigation, failing to consider nearby property or riparian rights, or failing to obtain releases from riparian owners, which we have already resolved in favor of the Department and Mr. Maurer.
Although BMLA says its appeal is about more than property issues, it never says which of its objections from its notice of appeal are not related to the property dispute or what aspect of its case remains beyond the property rights dispute that is appropriately before the Court of Common Pleas. The notice of appeal contains some general objections about the Department's decision to authorize coverage being "unreasonably and unlawfully motivated," "technically and procedurally deficient," "unlawful," "premature, unreasonable, arbitrary, and capricious," "unreasonable, unsupported by the facts, and/or not in accordance with applicable law," and without a "sufficient legal reason." (NOA Obj. 1-6.) These somewhat boilerplate objections lack any specificity and BMLA, in its response to the Department and Mr. Maurer's motion, has not produced evidence of any facts essential to establishing any of these claims in any detail. Pa.R.Civ.P. 1035.2(2). There are also certain objections that contend the project broadly violated the DSEA and the Chapter 105 regulations. Although the notice of appeal does not set forth any specific explanation of any provision that was violated, (NOA Obj. 11, 14), we have already dealt with the statutory and regulatory provisions that BMLA has since identified in its summary judgment papers and found BMLA's arguments unavailing.
BMLA never explains any specific basis for its appeal that is not tied to its baseline disagreement that Mr. Maurer is not allowed to use the Lake. All of the more specific objections in BMLA's notice of appeal identify property issues or complain that Mr. Maurer did not tell the Department about the Common Pleas litigation, which we have already determined to be inconsequential to the approval of coverage under this general permit. (NOA Obj. 7-10, 12, 13, 15.) Just as BMLA has not produced any evidence to establish any of these claims in its own motion, it has not produced any evidence to establish these claims in response to the Department and Mr. Maurer's motion.
The final objection in the notice of appeal argues that the Department failed to review the Maurer dock to determine the cumulative impact of the project and other potential or existing projects, 25 Pa. Code § 105.14(b)(14). (NOA Obj. 16.) We have already addressed a portion of this concern above regarding the effect of Mr. Maurer's dock on the property or riparian rights of owners upstream, downstream, or adjacent to the project. In addition, there is no explanation from BMLA of why the 15-foot by 15-foot floating dock has some negative cumulative impact in conjunction with, for instance, existing or potential other docks on the Lake beyond the refrain that Mr. Maurer's use of his dock might not comply with BMLA's policies and that it might cause some vague and unspecified conflict. BMLA does not identify any other projects. The Department identifies another small dock that it permitted under a general permit on the Lake, but there is no suggestion that that dock along with Mr. Maurer's creates any environmental impact or concern in the aggregate. The remainder of the regulatory provision cited in BMLA's objection says the Department will evaluate whether several piecemeal changes could result in a major impairment of wetland resources or whether an affected wetland is part of a larger, interrelated wetland area. We have not been informed of anything like that at issue in this appeal. Section 105.14(b) lists the factors the Department is to consider when reviewing a permit application to make an assessment of the project's impact. To the extent it even applies to a registration for coverage under a general permit, there is simply no credible showing of any impact on anyone from Mr. Maurer's dock, either on its own or in conjunction with any other project in the area.
Under our Rules, an adverse party to a summary judgment motion may not rest upon the mere allegations or denials of the adverse party's notice of appeal. 25 Pa. Code § 1021.94a(l). Instead, the adverse party's response, by way of affidavits or otherwise, must set forth specific facts showing there is a genuine issue for a hearing. Id. A party that does not respond accordingly risks having summary judgment entered against it. Id.; Clean Air Council v. DEP, 2022 EHB 350, 362. The onus is on BMLA to show us what remains of its case that is not related to property issues more appropriately resolved before the Court of Common Pleas. BMLA has failed to provide any evidence to show us that there are issues left to be adjudicated at a hearing on the merits before this Board. In so doing, BMLA has also failed to make out a prima facie case, making summary judgment appropriate. Pa.R.Civ.P. 1035.2(2); Casey v. DEP, 2014 EHB 439, 443-44. Based on the foregoing, BMLA's motion for summary judgment is denied, and the Department and Mr. Maurer's joint motion for summary judgment is granted.
Accordingly, we issue the Order that follows.
ORDER
AND NOW, this 18th day of July, 2023, it is hereby ordered that the Appellant's motion for summary judgment is denied and the Department and Permittee's motion for summary judgment is granted. The docket for this appeal will be marked closed.
STEVEN C. BECKMAN Chief Judge and Chairperson, MICHELLE A. COLEMAN Judge, BERNARD A. LABUSKES, JR. Judge, SARAH L. CLARK Judge