Opinion
EHB Docket 2021-108-L 2021-109-L
09-27-2023
DELAWARE RIVERKEEPER NETWORK AND THE DELAWARE RIVERKEEPER, MAYA VAN ROSSUM and STEVEN GIDUMAL AND VIRTUS CAPITAL ADVISORS, LLC v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION, and PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, Permittee
DEP, General Law Division: Attention: Maria Tolentino For the Commonwealth of PA, DEP: William J. Gerlach, Esquire Jason Goodman, Esquire For Appellants, Delaware Riverkeeper Network and the Delaware Riverkeeper, Maya van Rossum: Janine G. Bauer, Esquire Daryl Grable, Esquire For Appellants, Steven Gidumal and Virtus Capital Advisors, LLC: Timothy Bergere, Esquire Bianca Valcarce, Esquire For Permittee: Kenda Jo M. Gardner, Esquire
DEP, General Law Division:
Attention: Maria Tolentino
For the Commonwealth of PA, DEP:
William J. Gerlach, Esquire
Jason Goodman, Esquire
For Appellants, Delaware Riverkeeper Network and the Delaware Riverkeeper, Maya van Rossum:
Janine G. Bauer, Esquire
Daryl Grable, Esquire
For Appellants, Steven Gidumal and Virtus Capital Advisors, LLC:
Timothy Bergere, Esquire
Bianca Valcarce, Esquire
For Permittee:
Kenda Jo M. Gardner, Esquire
OPINION IN SUPPORT OF ORDER ON MOTION TO SUPPLEMENT THE RECORD
BERNARD A. LABUSKES, JR. JUDGE
Synopsis
The Board denies what is styled as a motion to supplement the record, in which an appellant seeks to further delay the recently rescheduled hearing on the merits in this matter.
OPINION
This case involves two consolidated appeals, one filed by Delaware Riverkeeper Network and the Delaware Riverkeeper, Maya van Rossum (hereinafter "the Riverkeeper"), and one filed by Steven Gidumal and Virtus Capital Advisors, LLC ("Gidumal") (referred to collectively as the "Appellants"). Both appeals were filed on November 15, 2021. The Riverkeeper and Gidumal are appealing Water Obstruction and Encroachment Permit No. E0901120-026 issued by the Pennsylvania Department of Environmental Protection (the "Department") to the Pennsylvania Department of Transportation ("PennDOT") on September 29, 2021. The appealed permit authorizes PennDOT to remove the Headquarters Road Bridge in Tinicum Township, Bucks County, and construct a new replacement bridge. The Headquarters Road Bridge spans Tinicum Creek. The bridge was constructed in 1812 and has been closed to vehicles and pedestrians since 2011 because of advanced deterioration and resulting safety concerns.
On the same day the Riverkeeper filed their notice of appeal, they also filed a petition for supersedeas. We scheduled a conference call with the parties in the Riverkeeper appeal to discuss moving forward on the supersedeas proceedings. On November 30, 2021, the day of the scheduled call, Gidumal filed a letter in their own appeal indicating that they also intended to file a petition for supersedeas and that they were available to participate in the scheduled conference call. We held the call with the parties from both appeals and discussed the consolidation of the two appeals and a timeline for proceeding toward a hearing on the supersedeas petitions. The parties asked to begin the supersedeas hearing more than three months later on March 2, 2022. Following the call, we issued an Order consolidating the two appeals at EHB Docket No. 2021-108-L, staying the deadlines set forth in our Pre-Hearing Order No. 1 pending the outcome of the supersedeas proceedings, and requiring the parties to submit a joint proposed schedule regarding the supersedeas.
The parties filed a joint proposed pre-hearing schedule for the supersedeas, which we adopted in an Order, providing for Gidumal to file their petition for supersedeas by December 8, for the Department and PennDOT to file responses to the Riverkeeper's petition by December 21, and for the Department and PennDOT to file supplemental responses to address Gidumal's petition by January 7, 2022. The scheduling Order also contained dates for serving answers to discovery requests and exchanging lists of witnesses and exhibits. We held a pre-hearing conference call with the parties on February 25 to discuss final logistics in advance of the hearing. The supersedeas hearing was held on four days: March 2, 3, 4, and 7, 2022. The parties agreed to brief the proceedings on the basis of expedited transcripts and filed simultaneous briefs on March 21, 2022. On April 1, 2022, we issued an Opinion and Order denying the Appellants' petitions for supersedeas. Del. Riverkeeper Network v. DEP, 2022 EHB 113.
In the supersedeas filings of the Department and PennDOT, the Board was given the impression that the Headquarters Road Bridge was a situation that needed immediate attention. In its brief following the supersedeas hearing, the Department impressed upon us that the bridge was a threat to public safety that could no longer be tolerated:
Expert testimony establishes that the Bridge is structurally unsound, functionally obsolete, and in a state of imminent failure, posing a danger of collapse. The Bridge is a public nuisance that poses an ongoing threat to public health and safety and injury to the public. No supersedeas can properly issue, as such a grant would perpetuate the nuisance conditions and associated threat to public health and safety and injury to the public during the period of the supersedeas.(DEP Brief at 17.) PennDOT conveyed to us the costs associated with any delay of this project, asserting that a 12-month delay would increase the cost of the project by $140,000 and an 18-month delay would increase the cost by $190,000-costs to be borne by the taxpayers of the Commonwealth. (PennDOT Brief at 37-38.) PennDOT claimed in March 2022 that an 18-month delay of the project would push the opening of the new bridge to October 2024. As far as we know, nothing has happened with the construction of this project in the two years since this permit was issued or the 18 months since our supersedeas decision.
Following our supersedeas decision, there was no activity on the docket until September 16, 2022, when the Appellants jointly moved for an extension of the deadlines for conducting discovery and filing dispositive motions. The motion stated that the Appellants understood the Board's November 30, 2021 Order to mean that the 180-day discovery period began to run on April 1, 2022 when the Board issued its Opinion and Order on the petitions for supersedeas, meaning that discovery was to be completed by September 28, 2022. The motion averred that the Appellants and PennDOT had been conducting discovery but the Department had not served any discovery requests. The Appellants said that they were working on settling the Board appeal and other court actions regarding the bridge and that a mediation had been scheduled in federal district court in the Eastern District of Pennsylvania on September 28, 2022. The Appellants requested that the discovery deadline be extended until January 15, 2023, and the deadline for dispositive motions be extended until March 15, 2023. PennDOT in part opposed the Appellants' motion for an extension, asking that the discovery deadline be extended until October 31, 2022, and the dispositive motion deadline be extended until November 29, 2022. The Department in its response generally echoed PennDOT's position on a more modest extension of the deadlines. The Department also acknowledged that it had not served any discovery requests in this appeal. We denied the motion for an extension in an Order on September 30, 2022 and did not extend any of the existing deadlines.
Seeing no reason to wait for the dispositive motion deadline to schedule the hearing on the merits, staff from the Board then communicated to the parties the presiding judge's desire to schedule the merits hearing for the week of January 9, 2023. Both PennDOT and the Department confirmed their availability for that date. Counsel for Gidumal indicated that Gidumal first wanted to establish a hearing schedule in related litigation before the State Board of Property. Counsel for the Riverkeeper indicated a preference for the hearing to be held in April 2023. On October 6, 2022, we issued our Pre-Hearing Order No. 2 and scheduled the hearing on the merits to begin on January 9, 2023. The Order provided that "[a]ny party may, but is not encouraged to, file a dispositive motion at any point prior to the commencement of the hearing." The Order also provided that the Appellants were to file their pre-hearing memoranda by November 28, 2022, and the Department and PennDOT were to file their pre-hearing memoranda by December 19, 2022.
On October 14, 2022, the Department and PennDOT filed a joint motion for summary judgment. On November 11, 2022, the Riverkeeper filed a letter with a proposed order requesting an extension of time until November 22 for the Appellants to respond to the motion for summary judgment, which was not opposed by the Department or PennDOT. The Board granted the extension on November 14. On November 22, both Gidumal and the Riverkeeper filed their responses to the motion for summary judgment. On November 28, Gidumal filed their pre-hearing memorandum. On the same day, instead of filing their pre-hearing memorandum, the Riverkeeper filed a motion seeking an extension of time to file their pre-hearing memorandum until December 5, 2022, citing the complexity of the appeal, having to respond to the summary judgment motion, and certain personal issues of one of the Riverkeeper's attorneys as justification for the request.
The exhibits accompanying Gidumal's pre-hearing memorandum were filed later on November 30.
On November 30, the Appellants collectively filed a motion to postpone the hearing. The Appellants said they had been working diligently on a settlement in the federal court case that would also settle the appeal before the Board. The Appellants noted Gidumal's pursuit of a quiet title action against PennDOT before the State Board of Property and claimed that the adjudication of Gidumal's property rights claim was relevant to this appeal before the Environmental Hearing Board. The Appellants said the Board of Property could potentially adjudicate the property claim by mid-January 2023 if it granted Gidumal's summary judgment motion, or otherwise the Board of Property trial was scheduled for February 2023. The motion purported to attach the Board of Property's pre-trial scheduling order, but attached instead was a Board of Property order scheduling a telephone conference for June 1, 2022.
At the same time, one of the attorneys for the Riverkeeper contacted staff at the Board and indicated her desire to postpone the hearing because of recent and ongoing personal matters.
The Appellants requested in their motion that the hearing then-scheduled for January 2023 be postponed until at least July 2023 so that various other litigation involving the property could be resolved:
For all of the above reasons, Appellants seek a postponement to July 2023 of the hearing on the merits of the pending appeal, to afford Appellants additional time to work with PennDOT and the Township on a global resolution of the issues now pending before this Board, the Board of Property, and in separate litigation in the Bucks County Court of Common Pleas and the United States District Court for the Eastern District of Pennsylvania. As well, Appellant VCA [Gidumal] believes the hearing on the merits should be postponed until a date after the Board of Property adjudicates the quiet title action respecting some of the lands to be impacted under the PaDEP permit that is the subject of this appeal.(Motion at ¶ 6.)
The motion reflected that the Department and PennDOT did not oppose the request to postpone the hearing:
Appellants have conferred with Appellees PaDEP and PennDOT. PennDOT and PaDEP authorize Appellants to convey to the Board that they do not oppose the requested postponement subject to the availability of witnesses on the rescheduled trial date, while also noting that counsel for PennDOT will be out of the country and unavailable for trial during most of the month of May 2023. As well, the Board should not construe PennDOT's or PaDEP's agreement not to oppose the motion to continue as acceptance or assent to any of the factual recitations and legal averments contained herein, as PennDOT and PaDEP disagree with several of the recitations and averments set forth herein.(Motion at ¶ 7.)
On December 1, 2023, faced with an unopposed motion to postpone the hearing, we issued an Order granting the motion and continuing the deadlines set forth in our Pre-Hearing Order No. 2, including the Riverkeeper's outstanding pre-hearing memorandum:
AND NOW, this 1st day of December, 2022, in consideration of the Appellants' motion to continue the hearing on the merits in this matter, which is unopposed, much to the surprise of the Board given the fact that PennDOT vigorously opposed the Appellants' petitions for supersedeas, it is hereby ordered that the hearing previously scheduled to begin on January 9, 2023 is continued to a date to be determined later. All other pre-hearing deadlines in the Board's Pre-Hearing Order
No. 2, including the remaining pre-hearing memoranda, are continued pending further order of the Board.
On December 19, 2022, we issued an Order denying the motion for summary judgment filed by the Department and PennDOT.
In February 2023, counsel for PennDOT emailed staff at the Board, copying counsel for the other parties in this matter, to ask for a new hearing date to be scheduled. Staff at the Board stated that the parties were welcome to confer and propose dates to the presiding judge or file a joint proposal on the docket. Staff at the Board informed the parties that the presiding judge was available for a hearing the week of July 24. Counsel for PennDOT then responded that one of PennDOT's witnesses would be out of the country from July 4 until August 11, 2023. Counsel for PennDOT stated that coordinating witness availability with the Department had been difficult for the summer months and suggested a hearing in September 2023. Staff at the Board suggested the week of September 25. Counsel for the Department and PennDOT indicated they were available. Counsel for Gidumal stated that they would check with their client and witnesses. Counsel for the Riverkeeper did not respond.
No communication from the parties was received for nearly two months when, in April 2023, counsel for PennDOT with the concurrence of the other parties emailed staff at the Board a proposal that the hearing begin on September 25, 2023, that the Riverkeeper file its pre-hearing memorandum by August 18, and that the Department and PennDOT file their pre-hearing memoranda by September 5. Counsel for the Riverkeeper then indicated that the Riverkeeper had asked the parties to include in the proposal the opportunity to provide supplemental expert reports in advance of the hearing including dates for responsive expert reports, but that the Department and PennDOT did not agree to that request. The Riverkeeper said, consequently, it would be filing a motion addressing supplemental expert reports. Staff from the Board thanked the parties for the proposal and informed the Riverkeeper that any outstanding disputes among the parties could be addressed in appropriate motions.
The Board issued an Order on April 24, 2023, rescheduling the hearing to begin on September 25, 2023. The Order provided that, by August 18, the Riverkeeper was required to file its pre-hearing memorandum and that Gidumal could supplement their pre-hearing memorandum by that date. The Order provided for the Department and PennDOT to file their pre-hearing memoranda by September 5.
No filings were made on the docket, and no communications were made to the Board, until August 28, 2023, when the Department and PennDOT filed a motion noting that the Riverkeeper had not filed their pre-hearing memorandum by the August 18 due date. The Department and PennDOT's motion requested that their pre-hearing memoranda deadline be "extended by the amount of days [the Riverkeeper's] pre-hearing memorandum is overdue."
Gidumal did not file a supplement to their November 2022 pre-hearing memorandum.
On September 5, 2023, having still not received the Riverkeeper's pre-hearing memorandum or any other filing or communication from the Riverkeeper, we issued a Rule to Show Cause noting that the Riverkeeper had failed to comply with our April 24, 2023 Order by not filing their pre-hearing memorandum by August 18. We required the Riverkeeper to file a response to the Rule by September 8 and show cause why the Board should not impose sanctions, which could include dismissing the Riverkeeper's portion of this consolidated appeal. Later on September 5, both the Department and PennDOT filed their pre-hearing memoranda by the due date established in the Board's April 24 Order. We later denied as moot the Department and PennDOT's motion to extend their pre-hearing memoranda deadline.
On September 6, the Riverkeeper filed what we interpreted to be its response to the Rule to Show Cause, which was styled as a "Motion for Adjournment of September 25, 2023 Hearing Date and for Extension of Other Deadlines in Order Dated April 24, 2023 and for Dismissal of Proposed Sanctions Filed by the Board on September 5, 2023 Pursuant to Pa. Code § 1021.161." In the response, one of the attorneys for the Riverkeeper detailed a series of personal challenges spanning the preceding approximately year and a half to explain why the attorney was unable to file the pre-hearing memorandum by the due date or thereafter or file a request for an extension or otherwise communicate with the Board. The response did not note any personal challenges on the part of the Riverkeeper's co-counsel. The response requested that the Riverkeeper be given until September 15 to file its pre-hearing memorandum and that the merits hearing be rescheduled to start on October 23.
The response to the Rule to Show Cause also stated that in April 2023 the attorney for Riverkeeper informed the parties that it "would be filing a motion to introduce and admit expert opinion on the technical feasibility of the rehabilitation of the Headquarters Road Bridge by Douglas Bond, P.E. and on the applicability of PADEP General Permit # 11 to that rehabilitation project by Mary Paist Goldman, P.E." The response foreshadowed a future filing that would make good on that promise from months earlier. The response indicated that counsel for Riverkeeper had just received Mr. Bond's expert report and would be receiving Paist-Goldman's report "shortly" and would be providing both to the other parties that week.
On September 11, both the Department and PennDOT filed responses to the Riverkeeper's response to the Rule to Show Cause and the motion contained therein. The Department and PennDOT generally did not oppose allowing the Riverkeeper to file its pre-hearing memorandum and rescheduling the hearing, given one of the Riverkeeper's attorney's personal matters. However, the Department noted that the Riverkeeper is represented by two attorneys in this matter and the Department questioned why the Riverkeeper's co-counsel could not have filed the pre-hearing memorandum or at the very least filed a motion or letter requesting more time due to co-counsel's personal issues. PennDOT and the Department in particular also objected to any attempts by the Riverkeeper to utilize new expert testimony after the close of discovery.
On September 12, staff at the Board emailed the parties to convey that the presiding judge was still considering the response to the Rule to Show Cause and the Department's and PennDOT's subsequent responses but, if the hearing were extended, that the presiding judge could conduct it on dates in mid-October and early November, but then not until mid- to late-January 2024. Counsel for PennDOT responded the next day and stated that PennDOT and the Department were ready to proceed with the hearing on the November dates. Counsel for the Riverkeeper responded and indicated the Riverkeeper's preference to have the hearing held in late January. Counsel for PennDOT reiterated its position to have the hearing held in November. Gidumal did not respond.
On September 13, we issued an Order discharging the Rule to Show Cause and rescheduling the hearing for November 1-3, 6, and 7, 2023. We required the Riverkeeper to file its pre-hearing memorandum by September 22 and allowed the Department and PennDOT to supplement their pre-hearing memoranda by October 13. Our Order provided that "[n]o further postponements or continuances will be granted in this appeal." To the extent the Riverkeeper's response to the Rule to Show Cause and the motion contained within the response requested any relief not otherwise addressed by our Order, we denied it.
On September 15, counsel for the Riverkeeper emailed staff at the Board and counsel for the other parties and said that the Riverkeeper had not had a chance to see if their witnesses were available for the November hearing but that counsel would respond again once counsel conferred with the Riverkeeper's witnesses.
After hours on September 15, 2023, the Riverkeeper filed the instant motion, which they had been teasing since April 2023. The motion was docketed on the morning of Monday, September 18. The motion seeks to "supplement the record" by allowing the Riverkeeper to introduce at the upcoming merits hearing "an expert opinion by Douglas Bond, P.E. regarding the technical feasibility of rehabilitation of the Headquarters Road Bridge, and a supplemental expert opinion by Mary Paist Goldman, P.E. on the applicability of General Permit #11 to the rehabilitation of the Headquarters Road Bridge…." (Motion at 1.) The motion attaches the expert report of Mr. Bond and again says that the Riverkeeper expects to receive the Paist-Goldman report "shortly." However, the motion also asks that the merits hearing be postponed yet again until some undefined point in the future after the Department and PennDOT have an opportunity to review the Riverkeeper's new expert reports and respond to them:
Delaware Riverkeeper Network and Delaware Riverkeeper respectfully request that the full hearing on the merits of this Appeal be continued until after the Agencies have an opportunity to read and respond to Mr. Bond's and Ms. Paist Goldman's reports, should they desire to do so, and that the reports of Mr. Bond and Ms. Paist Goldman be received into evidence and that the Appellants' experts be permitted to testify to the additional evidence at the full hearing on the merits, and the opinions they draw from that additional and supplemental evidence.(Motion at 5-6.)
The motion did not contain any indication of the position of any other party on the relief requested. On the morning of September 18, we issued an Order requiring any responses to the Riverkeeper's motion to be filed by 5:00 p.m. on September 20. The Department and PennDOT filed responses in opposition to the motion on September 20. Both PennDOT and the Department oppose rescheduling the hearing. Gidumal did not file a response to the motion. On September 21, 2023, we issued an Order denying the Riverkeeper's motion and indicated that this Opinion would follow in support of that Order.
Discussion
Although the Riverkeeper has filed what it calls a motion to supplement the record, in reality we are now presented with merely the latest request for a continuance of the merits hearing. The motion cites our rule on reopening a record prior to adjudication, 25 Pa. Code § 1021.133, but that rule only applies "[a]fter the conclusion of the hearing on the merits of the matter pending before the Board and before the Board issues an adjudication…." The hearing on the merits has not yet happened in this case, despite repeated efforts from the Board to move forward with it. Simply put, there is not any record from a merits hearing to reopen. This rule has no applicability to the current situation and it was appropriate to deny the motion on that basis alone.
Putting the procedural infirmity aside, we still must address the Riverkeeper's fundamental request that we further delay the merits hearing. However, we just rescheduled the hearing for the second time to accommodate the Riverkeeper and the Riverkeeper now asks that we reschedule it yet again. Just a few weeks ago, in its response to the Rule to Show Cause, the Riverkeeper proposed starting the hearing on October 23, more than a week earlier than when we ultimately rescheduled the hearing for on November 1. Now the Riverkeeper essentially wants an indefinite postponement. The Riverkeeper's motion asks "that the Hearing be adjourned until the Agencies are able to review and respond to the supplemental reports of Appellants' experts." (Motion at ¶ 17.) There is no indication how long it would take the Department and PennDOT to review the new reports and retain their own experts, who would then presumably need time to develop their own expert opinions, with whatever predicate research or investigation that would need to be conducted to form those opinions. This process could take untold months, even assuming that new outside events do not prompt counsel to request even more delays.
As the extensive procedural history above reveals, these appeals were filed nearly two years ago. Discovery concluded more than a year ago. The hearing in this matter was originally scheduled for January of this year, before all the parties requested that it be postponed so that various other litigation and settlement efforts in those matters could play out. Perhaps unsurprisingly with a project that has been embroiled in litigation for several years, those settlement efforts were apparently fruitless. Indeed, Gidumal has told us that the State Board of Property decision that Gidumal claims is integral to this appeal of a water obstruction and encroachment permit is now pending on appeal to the Commonwealth Court.
It is not merely the Board's own interest in ensuring the just, speedy, and inexpensive determination of every appeal that compels us to deny the request to further delay these proceedings. See 25 Pa. Code § 1021.4. There are significant public interest concerns at issue as well. During the supersedeas hearing, we heard extensive testimony about the risk of collapse of the Headquarters Road Bridge due to its deteriorated condition. There is no compelling reason why this hearing should be further postponed in the face of such a risk, even if PennDOT has declined to move forward with this project for the last two years. The existing bridge has been closed since 2011 because of concerns over the bridge's safety and structural integrity. We received evidence at the supersedeas hearing of a four-foot wide hole in the bridge deck. We also heard testimony about a 15.6-mile detour that residents must endure while the bridge has been closed. We heard testimony that, not only is this inconvenient to residents, but it also impacts the ability of emergency vehicles to respond to the area, as they too must utilize the more than 15-mile detour.
Whether or not Mr. Bond will ultimately be permitted to testify on behalf of the Riverkeeper and whether or not Ms. Paist-Goldman will be permitted to offer the additional opinions proffered by the Riverkeeper will be resolved in a forthcoming Opinion and Order deciding a joint motion in limine filed by the Department and PennDOT on September 22, seeking a ruling on that issue among others. However, the attempted use of new experts and new expert opinions is simply not a basis to justify putting off this hearing any longer. Even more so here because the Riverkeeper's own papers show that it contemplated filing such a motion at least five months ago. The Riverkeeper's desire to use new experts and offer new expert opinions a year after the close of discovery does not establish a compelling reason for delaying the hearing for an indefinite period of time, particularly in a case already replete with inexplicable delays.
While we are sympathetic to the personal challenges of one of the attorneys for the Riverkeeper, at a certain point, the interests of the attorneys in a particular case need to give way to the broader interests of the public in receiving a determination in an appeal one way or the other. The desire of one party to unilaterally dictate the litigation schedule must give way to the rights of the other parties in the litigation and the right of a permittee to have the litigation over its permit resolved one way or the other. See Clean Air Council v. DEP, 2019 EHB 685, 701-02. As we made clear in our Order issued on September 21, we will not counsel further delays.
For the foregoing reasons, we issued the Order that is attached to this Opinion.
ORDER
AND NOW, this 21st day of September, 2023, in consideration of the Delaware Riverkeeper Network's motion to supplement the record, and the responses in opposition thereto filed by the Department of Environmental Protection and the Department of Transportation, and having received no response from Steven Gidumal, it is hereby ordered that the motion is denied. An Opinion in support of this Order will follow.