Opinion
EHB 2021-067-B
04-01-2022
GREG HOPKINS v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and CONSOL PENNSYLVANIA COAL COMPANY, LLC, Permittee
For the Commonwealth of PA, DEP: Wendy Carson, Esquire Michael J. Heilman, Esquire For Appellant: Tim Fitchett, Esquire Sophia Al Rasheed, Esquire For Permittee: Casey Snyder, Esquire Megan S. Haines, Esquire
For the Commonwealth of PA, DEP:
Wendy Carson, Esquire
Michael J. Heilman, Esquire
For Appellant:
Tim Fitchett, Esquire
Sophia Al Rasheed, Esquire
For Permittee:
Casey Snyder, Esquire
Megan S. Haines, Esquire
OPINION AND ORDER ON MOTION FOR PARTIAL DISMISSAL OF APPEAL
THOMAS W. RENWAND CHIEF JUDGE AND CHAIRMAN
Synopsis
The Board grants the Permittee's motion for partial dismissal where there is no factual dispute that the Appellant is not the landowner of three out of the four property parcels that he claims suffered the mine subsidence damage at issue in this appeal. The Bituminous Mine Subsidence Land Conservation Act designates specific categories of individuals and entities, including landowners, that can bring a claim for mine subsidence damage. Appellant is not within one of the listed categories and, therefore, the Appellant cannot sustain a challenge to the Department's decision denying a mine subsidence claim involving properties that he does not own.
OPINION
Introduction
On February 3, 2021, Greg Hopkins ("Mr. Hopkins or "Appellant") submitted a mine subsidence damage claim ("the Claim") in his name with the Pennsylvania Department of Environmental Protection's ("the Department's") California District Mining Office. In his Claim, Mr. Hopkins alleged that seven separate structures located on multiple properties suffered structural damage due to mine subsidence. In a letter dated June 1, 2021, the Department informed Mr. Hopkins that upon investigation into his Claim, the Department concluded that mining did not cause the damage alleged in the Claim. On July 8, 2021, Mr. Hopkins filed an appeal of the Department's rejection of his Claim with the Environmental Hearing Board ("the Board"). The Notice of Appeal listed the Appellant as Greg Hopkins and was filed pro se and signed by Mr. Hopkins. On November 15, 2021, counsel entered an appearance on behalf of Appellant Greg Hopkins.
On January 7, 2022, Consol Pennsylvania Coal Company, LLC, ("Consol" or "Permittee") filed a Motion for Partial Dismissal ("the Motion"). The Department filed a Memorandum of Law in Support of Consol's Motion on January 20, 2022. On February 17, 2022, Mr. Hopkins filed a Response in Opposition to Consol's Motion ("the Response") along with a Memorandum of Law in support of his Response ("the Response Memorandum"). Consol filed a Reply Brief in Support of its Motion on March 4, 2022. We are now prepared to rule on the Motion.
Standard of Review
A motion to dismiss is appropriate where a party objects to the Board hearing an appeal due to a lack of jurisdiction, an issue of justiciability, or another preliminary concern. Consol Pennsylvania Coal Company, LLC v. DEP, 2015 EHB 48, 54. The Board evaluates a motion to dismiss in the light most favorable to the nonmoving party and will only grant the motion where the moving party is entitled to judgment as a matter of law. Id., See also Bernardi v. DEP, 2016 EHB 580, 581; West Buffalo Township Concerned Citizens v. DEP, 2015 EHB 780, 781; Boinovych v. DEP, 2015 EHB 566, 567; Blue Marsh Labs., Inc. v. DEP, 2008 EHB 306, 307; Borough of Chambersburg v. DEP, 1999 EHB 921, 925; Smedley v. DEP, 1998 EHB 1281, 1282. Rather than comb through the parties' filings for factual disputes, for the purposes of resolving motions to dismiss, we accept the nonmoving party's version of events as true. Id.; Ehmann v. DEP, 2008 EHB 386, 390.
Discussion
The facts relevant to the Motion are not in dispute but, consistent with our standard, we accept Mr. Hopkins' version of events as true and recite them here. In his Response, he states the following: The Claim relates to seven structures on four parcels of land identified as 1804-200, 1804-202, 1804-225 and 1805-121. (Response ¶ 2.) Mr. Hopkins is the record owner of 1805-121 on which three of the structures are located. (Response ¶ 2.) The other three parcels, containing the remaining four structures, are owned by H&S Rental Properties LLC (1804-200), Hopkins' Laundromat LLC (1804-202) and Hopkins Store LLC (1804-225) (collectively, the "LLCs"). (Response ¶ 4 and Response Memorandum at 2.) Mr. Hopkins is a member and manager of two of the LLCs, H&S Rental Properties LLC and Hopkins' Laundromat, LLC. (Response Memorandum at 2.) Mr. Hopkins is a member of the third LLC, Hopkins Store LLC. Id.
In its Motion, Consol asserts that the Board lacks jurisdiction over Mr. Hopkin's appeal of the Department's rejection concerning the portion of his Claim associated with the three parcels of property owned by the LLCs. Consol cites the portion of the Bituminous Mine Subsidence Land Conservation Act ("BMSLCA" or "Act") that refers to the right to hearing and appeals and provides "…any landowner […] which shall be aggrieved or affected by any administrative rule, regulation or order of the department […] shall have the right to appear at any hearing before the Environmental Hearing Board…" 52 P.S. § 1406.16. Consol argues that because Mr. Hopkins is not the landowner of Parcels 1804-200, 1804-202, and 1804-225, he lacks standing to appeal damage to structures on these properties and may not appeal on behalf of or in lieu of the LLCs.
In its Memorandum of Law in Support of the Motion, the Department agrees with the position set forth by Consol and argues that the plain text of the BMSLCA and associated regulations provide that only owners of structures are authorized to file claims and receive compensation for mine subsidence damages. In addition to the statutory/regulatory argument, the Department also sets forth a policy argument that allowing a non-landowner to bring a claim for mine subsidence damages has implications for the integrity and effectiveness of the mine subsidence remedial process. The Department argues that it assumes that the claimant is speaking as the owner of the property and that it relies on the information provided by that individual. The Department maintains that allowing non-landowners to bring claims compromises the Department's ability to investigate claims and make sound determinations. The Department supports its position with an affidavit from a Department employee, J.D. Floris, P.E.
The Department's stated concern about non-landowners bringing claims could be easily addressed by a question about ownership on its claim form and/or asking about ownership as part of its claim investigation process. Based on the claim form completed by Mr. Hopkins and the Department's report of its investigation of Mr. Hopkins' claim (Motion, Exs. A and B), it appears that the Department did neither in this case. We trust the Department will take steps to address this shortcoming in the future so all parties, including the Board, can avoid the issues evident in this case.
In his Response, Mr. Hopkins contends that the Board has standing over claims associated with all of the parcels as they are the subject of an appeal from the Department's action and were filed pursuant to the Environmental Hearing Board Act (35 P.S. § 7514) and the Administrative Agency Law (2 Pa C.S. Chapter 5A). He also raises the argument that a motion to dismiss is not the proper legal vehicle to challenge an appellant's standing because standing is not a jurisdictional issue. Mr. Hopkins cites Hendryx v. DEP, 2010 EHB 144 and Robert B. Mayer v. DEP, 2012 EHB 400, in support of his argument. Mr. Hopkins further argues that while a standing challenge is not permissible through a motion to dismiss, if the Board looks at the issue of his standing, he satisfies standing requirements as his interests are substantial, direct, and immediate.
We presume Mr. Hopkins meant jurisdiction rather than standing since the Board is not a party and, therefore, standing is not a legal concept that applies to the Board. (See Response at 1.)
After reviewing the arguments of the parties, we find that this case is not a standing case in the way we typically think of and review issues of standing. Before we consider the question of whether Mr. Hopkins satisfies the traditional requirements for standing i.e., that his interests in this matter are substantial, direct, and immediate, we must first determine whether he is within one of the designated categories of individuals or entities that are provided a right to bring a claim under the relevant statute. This issue is rarely in play in our cases because many of the environmental laws are broadly written and allow any person to proceed with an action under the law with traditional standing serving as the only limiting requirement. See Clean Streams Law, 35 P.S. § 691.307(b), "Any person having an interest which is or may be adversely affected by any action of the department under this section may proceed to lodge an appeal with the Environmental Hearing Board…", Coal Refuse Disposal Act, 52 P.S. § 30.55(i), "any person having an interest which is or may be adversely affected by any action of the department under this subsection, or by the failure of the department to act upon an application for a permit, he may proceed to lodge an appeal with the Environmental Hearing Board…" Air Pollution Control Act, 35 P.S. § 4010.2, "Any person aggrieved by an order or other administrative action of the department issued pursuant to this act or any person who participated in the public comment process for a plan approval or permit shall have the right […] to appeal the action to the hearing board …" The term "person" in these statutes is typically defined to include natural persons, partnerships, associations, corporations, political subdivisions and state and federal government agencies, etc. See Clean Streams Law, 35 P.S. § 691.1, and Air Pollution Control Act, 35 P.S. § 4003.
Consol and the Department in essence contend that the relevant statute in this case, the BMSCLA, is written more narrowly than the aforementioned environmental laws. They argue that the BMSLCA creates a statutory cause of action and that the plain language found in the Act limits who can bring a claim for mine subsidence damage and who can challenge a Department decision addressing a claim. They contend that for the three parcels in question, Mr. Hopkins is not a party that can bring a claim or challenge a Department determination on that claim since he does not satisfy the requirements of the BMSLCA because he is not the landowner of those properties. Mr. Hopkins did not directly address this issue in his Response, but instead relied on a standing argument.
In order to reach a decision on the Motion, we turn our attention to the language of the BMSLCA and consider it using the principles of statutory construction. The purpose of statutory construction is to ascertain and effectuate the intention of the General Assembly. 1 Pa.C.S.A. §§ 1901 and 1921(a); Brunner v. DEP, 2004 EHB 684, 693 Commonwealth v. Gilmour Manufacturing Company, 822 A.2d 676, 679 (Pa. 2003); Adams Sanitation Company v. DEP, 715 A.2d 390, 393-394 (Pa. 1998). The plain language of a statute is the best indication of legislative intent. See, Gilmour Manufacturing, 822 A.2d at 679; Bowser v. Blom, 807 A.2d 830, 835 (Pa. 2002). Thompson v. Thompson, 223 A.3d 1272, 1277 (Pa. 2020).
The Act, in relevant part, provides as follows:
Any owner, operator, lessor, lessee, general manager, superintendent, or other person in charge of or having supervision over any bituminous coal mine or mining operation subject to the provisions of this act, any landowner, or any political subdivision or county which shall be aggrieved or affected by any administrative rule, regulation or order of the department issued pursuant to the provisions of this act, shall have the right to appear at any hearing before the Environmental Hearing Board at which the secretary shall reconsider said action. After such hearing the Environmental Hearing Board shall issue an adjudication from which the aggrieved or affected party may appeal in the manner provided by Title 2 of the Pa.C.S.52 P.S. § 1406.16 (emphasis added).
We find that the plain language of the BMSLCA in this section limits who may bring appeals of Department actions under the BMSLCA to certain listed parties including landowners. The statute does not include the broader phrase "any person" seen in other environmental statutes. Had the General Assembly intended to provide a more expansive list of who could file appeals under the BMSLCA, it could have done so explicitly and plainly as it has done in other environmental statutes.
Reading further into the provisions of the BMSLCA, there are various references to "owners," making it clear that mine subsidence damage claims are limited to owners and landowners. The Act requires the operator of a coal mine to compensate the "owner" of a building that is damaged from the operator's underground mining operations. See 52 P.S. § 1406.5d(a)(4); 25 Pa. Code § 89.142(a)(f)(1). Under the Act, the "owner of any building" seeking compensation for damage to their property from underground mining must notify the mine operator, and if no agreement for compensation is reached, "the owner of the building" may file a claim with the Department. 52 P.S. § 1406.5e(a)-(b). Finally, if the Department issues an order in response to a mine subsidence damage claim, BMSLCA authorizes either the landowner or an operator to appeal the order to the Board. See 52 P.S. § 1406.5e(e). These portions of the BMSLCA make clear that the General Assembly intended through the exclusive use of the terms "owner" and "landowner" to limit who can assert a claim for mine subsidence damage. They further support our determination that the right to challenge a Department decision addressing a mine subsidence claim is limited to certain defined parties including landowners.
It is undisputed that Mr. Hopkins is not the landowner of the three properties in question in this Motion. They are owned by the LLCs and the right to bring the claim and challenge the Department's decision rests with the LLCs which are distinct legal entities from Mr. Hopkins. His status as a member and manager of the LLCs does not permit him to stand in place of the LLCs in bringing this action. See United Environmental Group, Inc. v. DEP, 2019 EHB 253. Because Mr. Hopkins is not the landowner of the three properties in question and the BMSLCA makes clear that he is not authorized under the Act to bring the claims in his individual capacity on behalf of the LLCs, we hold that dismissal of the appeal as to those three parcels, 1804-200, 1804-202, 1804-225, is appropriate. Mr. Hopkins' appeal of the Department's determination regarding the parcel where he is the landowner, 1805-121, may proceed. Nothing in this Opinion and Order should be read to preclude the LLCs from filing their own mine subsidence claims with the Department with regards to the three properties to the extent those claims are permitted under the BMSLCA. For the foregoing reasons, we issue the following order.
ORDER
AND NOW, this 1st day of April, 2022, it is hereby ORDERED that the Permittee's Motion for Partial Dismissal is granted.
ENVIRONMENTAL HEARING BOARD
MICHELLE A. COLEMAN Judge, BERNARD A. LABUSKES, JR. Judge, STEVEN C. BECKMAN Judge