Opinion
EHB Docket 2021-127-L
04-05-2022
DOWNINGTOWN AREA REGIONAL AUTHORITY v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
For the Commonwealth of PA, DEP: William H. Gelles, Esquire For Appellant: Mark L. Freed, Esquire
For the Commonwealth of PA, DEP: William H. Gelles, Esquire
For Appellant: Mark L. Freed, Esquire
OPINION AND ORDER ON MOTION TO DISMISS
BERNARD A. LABUSKES, JR., JUDGE.
Synopsis
The Board denies a motion to dismiss an appeal from a Departmental letter on jurisdictional grounds because the matter is not free from doubt.
OPINION
The Downingtown Area Regional Authority ("DARA") operates a sewage treatment plant in East Cain, Chester County, pursuant to an NPDES permit most recently renewed in 2018. DARA's permit contains the following provision:
Site-Specific Copper Criteria
DARA participated with a group that submitted a copper WER [water-effect ratios] study to the DEP. Site-Specific copper WER were public noticed in the Pennsylvania Bulletin on November 20, 1999. The EPA approved a dissolved Cu WER of 5.1 for DARA. Based on the Department's copper criteria equations, site-specific effluent hardness of 216 mg/l; background hardness of 110 mg/l, and a dissolved WER of 5.1; the site-specific copper criteria for DARA are:
Criteria Continuous Criteria (total recoverable): 68 ug/l
Criteria Maximum Criteria (total recoverable): 122 ug/l
Since the WER was developed in 1999, the permittee shall submit an updated site-specific copper criteria study within the term of this permit.
The permittee shall complete the required actions and milestones in accordance with the following schedule:
1. Submit a proposed plan of study for site-specific criteria [25 Pa Code 93.8d(d)] to the Department within 36 months of permit issuance.
2. Submit a scientific study progress report [25 Pa Code 93.8d(b)] to the Department within 48 months of permit issuance.
3. Submit a completed scientific study [25 Pa Code 93.8d(b)] to the Department with the permit renewal application due 6 months prior to permit expiration.(Notice of Appeal Ex. A.)
After the permit was issued, 25 Pa. Code § 93.8d(c) was revised to read, in part: "The development of new or updated site-specific criteria for copper in freshwater systems shall be performed using the biotic ligand model (BLM)." DARA apparently does not like the BLM requirement and, on September 13, 2021, it sent the Department of Environmental Protection (the "Department") a letter requesting that, as an alternative to running a BLM study as the basis for a site-specific water quality criterion to be applied to the DARA discharge in its next permit renewal in 2023, DARA should be allowed to conduct a WER study. In a letter dated November 30, 2021, the Department said no. It said it could not agree to the WER-based alternative discussed in DARA's letter and said it looked forward to DARA submitting a completed BLM study to update the site-specific copper criterion for DARA's discharge.
"The basic idea behind the WER is to compare a water sample from the specific site to the laboratory water that is used to set the nationwide levels, generating a ratio that compares the two….If the water characteristics at the sample site suggest that the CWA's environmental goals can be achieved even when greater amounts of copper are discharged, a WER-based site-specific standard would be more lenient….In 2007, the EPA recommended the use of a new method for measuring the environmental harms of copper, known as the Biotic Ligand Model (BLM). Compared to the WER, which relies on expensive sampling, the BLM draws from a large set of available data to assess a wider range of water characteristics…. According to the EPA, the BLM method is the more cost-effective method, which allows for more frequent tests. The EPA is also of the view that the BLM model more accurately accounts for the effect of individual water quality parameters at a given site." Sanitary Bd. Of City of Charleston, 918 F.3d 324, 336 (internal citations and quotations omitted).
DARA filed this appeal from the Department's November 30, 2021 letter. The Department has now moved to dismiss the appeal, citing virtually every argument that has ever been made in Board cases for why the Board lacks jurisdiction to review the Department's letter (e.g. the letter merely describes the state of the law; the letter does not respond to a formal application for relief; the letter is provisional; the letter comes too soon and too late to affect DARA's rights; the Board cannot grant effective relief, etc.) DARA vigorously opposes the motion.
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. Burrows v. DEP, 2009 EHB 20, 22. Rather than comb through the parties' filings for factual disputes, for the purposes of resolving motions to dismiss, the Board accepts the non-moving party's version of events as true. Consol Pa. Coal Co. v. DEP, 2015 EHB 48, 54 (citing Ehmann v. DEP, 2008 EHB 286, 390); Lawson v. DEP, 2018 EHB 513, 514-515. "Importantly, motions to dismiss will be granted only when a matter is free from doubt." Bartholomew v. DEP, 2019 EHB 515, 517. See also Merck Sharp & Dohme Corp. v. DEP, 2015 EHB 543, 544; Northampton Twp. v. DEP, 2008 EHB 563, 570; Emerald Mines Res., LP v. DEP, 2007 EHB 611, 612. The requirement that the matter be free from doubt applies to jurisdictional disputes such as the one raised by the Department in this case. The Board is in most cases the only forum where aggrieved parties can find due process. We should hesitate to dismiss appeals on jurisdictional grounds when the matter is not free from doubt.
The Board's jurisdiction is defined by statute:
The Board is authorized by the Environmental Hearing Board Act (Act) and the Environmental Hearing Board regulations to "hold hearings and issue adjudications …on orders, permits, licenses or decisions of the department" and review any "action" taken by the Department. See Section 4(a), (c) of the Act, 35 P.S. § 7514(a), (c) (emphasis added). "Action" is defined as:
an order, decree, decision, determination or ruling by the Department affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of a person including, but not limited to, a permit, license, approval or certification.
25 Pa. Code § 1021.2.HJL, LLC v. Dep't of Env't Prot., 949 A.2d 350, 352-53 (Pa. Cmwlth. 2008) (footnotes omitted) (emphasis in original).
"There is no bright line rule for what communication from the Department is an 'action' of the Department." Id. at 353.
The appealability of Department decisions needs to be assessed on a case-by-case basis. Dobbin v. DEP, 2010 EHB 852, 858; Kutztown, 2001 EHB 1115, 1121. In determining whether a Departmental letter constitutes a final, appealable action, we generally consider: the wording of the letter; its substance, meaning, purpose, an 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. Merck, 2015 EHB 543, 545-46; Teska v. DEP, 2012 EHB 447, 454; Dobbin, 2010 EHB 852, 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.Northampton Bucks Cty. Mun. Auth. v. DEP, 2017 EHB 84, 86.
The Board's role is necessarily circumscribed by the precise Departmental action that has been appealed. Winegardner v. DEP, 2002 EHB 790, 793. Here, the Department has only made one decision: If DARA wants a site-specific criterion for copper in its next permit, the study in support thereof must use BLM, not WER. If we have jurisdiction, it is only to review that one particular decision. Thus, the requirement that an updated site-specific water quality criterion will be needed if DARA does not want to comply with the statewide criteria is not open to challenge.
It is true that for prudential reasons we tend to avoid reviewing piecemeal the many interim decisions that make up part of the permit application review process. United Refining Co. v. DEP, 2000 EHB 132, 133. We also look askance at letters from permittees wholly outside of the proper regulatory application processes which appear calculated to manufacture an appealable issue. Perano v. DEP, 2011 EHB 587 and 2011 EHB 750. The Department's letter in this case does not fit neatly into either of these categories. There is no permit application currently pending, yet the study process is clearly contemplated by DARA's existing permit for application in future permit renewals. The rather odd situation presented here is not exactly a request to modify DARA's existing permit, see 25 Pa. Code § 92a.72 incorporating 40 CFR 122.62, 122.64, although it does come quite close. In this hybrid situation, the Department's claim that the Board lacks jurisdiction is hardly free from doubt. Therefore, we must deny the Department's motion to dismiss.
Just as DARA may not challenge the need to do some kind of study if it wants a site-specific permit limit, it also may not challenge the timeframe for performing the study set forth in its permit. As DARA itself has recognized in the workplan it has submitted since it filed this appeal, time is apparently already running short to complete a study. It may be that a Board appeal will not allow it, as a practical matter, to avoid the Hobson's choice described in its papers.
Accordingly, we issue the Order that follows.
ORDER
AND NOW, this 5th day of April, 2022, it is hereby ordered that the Department's motion to dismiss is denied.