Opinion
EHB 2024-077-W
07-18-2024
MOUNTAIN WATERSHED ASSOCIATION v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
For the Commonwealth of PA, DEP: Jeffrey Bailey, Esquire Richard Marcil, Esquire (via electronic filing system) For Appellant: Madison Hinkle, Esquire Jennifer Schiavoni, Esquire (via electronic filing system) For Intervenor: James V. Corbelli, Esquire Stefanie Pitcavage Mekilo, Esquire Sean M. McGovern, Esquire (via electronic filing system)
For the Commonwealth of PA, DEP: Jeffrey Bailey, Esquire Richard Marcil, Esquire (via electronic filing system)
For Appellant: Madison Hinkle, Esquire Jennifer Schiavoni, Esquire (via electronic filing system)
For Intervenor: James V. Corbelli, Esquire Stefanie Pitcavage Mekilo, Esquire Sean M. McGovern, Esquire (via electronic filing system)
OPINION AND ORDER ON PETITION TO INTERVENE
MARYANNE WESDOCK, Judge.
Synopsis
The Board grants intervention to an underground mining company in an appeal involving a petition to designate an area as unsuitable for surface mining. Although the appellant has set forth strong arguments against intervention, the mining company has sufficiently demonstrated a direct interest in the appeal.
OPINION
Introduction
In January 2024, Mountain Watershed Association (Mountain Watershed) submitted to the Department of Environmental Protection (Department) a petition seeking to have approximately 11,000 acres of land near the headwaters of Four Mile Run in Westmoreland County declared "unsuitable for mining" (UFM) under 25 Pa. Code Chapter 86, Subchapter D (the UFM petition). Subchapter D sets forth the criteria and procedures for designating areas of land unsuitable for surface mining operations. By letter dated February 23, 2024, the Department rejected the petition stating as follows:
The Department has found that the MWA's petition lacks sufficient allegations of facts and supporting evidence to establish that the petition area is unsuitable for all or certain types of surface mining operations, as required by 25 Pa. Code § 86.123(c)(2). The Department has determined that the allegations cf harm lack serious merit and therefore deemed the MW A's petition frivolous, as defined in 25 Pa. Code § 86.124(a)(2). As per 25 Pa. Code § 86.124(a)(4), the petition is being returned (enclosed).(Ex. B to Notice of Appeal) (emphasis added). Section 86.124(a)(2) defines a "frivolous petition" as "one in which the allegations of harm lack serious merit." 25 Pa. Code § 86.124(a)(2). The Department's letter set forth the reasons for its determination that Mountain Watershed's UFM petition was frivolous:
The petition does not establish a causal relationship between the allegations of harm cited in the petition and surface mining activities in the petition area. The allegations of harm cited in the petition include impacts to surface water bodies; these impacts include the potential for changes in stream flow and the introduction of pollution from parameters such as temperature, pH, iron, and manganese. The petition provides facts and supporting evidence that only associate those impacts with underground mining activities; the petition does not adequately link those impacts to surface mining activities as defined in §86.101.
The Department has determined that this petition does not qualify for review under the UFM program. However, the Department will still consider the concerns raised in the petition through the permit application review process.(Ex. B to Notice of Appeal.) On March 22, 2024, Mountain Watershed appealed the Department's determination to the Environmental Hearing Board (Board). On May 8, 2024, LCT Energy, L.P. (LCT) filed a petition to intervene in the matter. According to LCT's petition, it is a metallurgical coal producer that operates an underground coal mine known as the Rustic Ridge #1 mine (sometimes referred to herein as simply the "Rustic Ridge mine") in the area covered by the UFM petition. (Petition to Intervene, para. 3, 4.) LCT has applications pending before the Department to renew its Coal Mining Activity Permit (permit) for Rustic Ridge #1 and to modify the permit to include additional underground acreage (the Rustic Ridge #1 Expansion). (Id. at para. 11, 13, 15.) Additionally, in August 2022, LCT filed a pre-appIication with the Department to construct a new underground mine known as the Rustic Ridge #2 mine. (Id. at para. 18.) According to the map submitted with Mountain Watershed's UFM petition, LCT believes that the area subject to the petition would include LCT's existing and planned mining operations, "including the north central portion of Rustic Ridge #1 as it currently exists, nearly all of the forthcoming Rustic Ridge #1 Expansion, and a substantial portion of Rustic Ridge #2." (Id. at para. 23-24.) Although LCT operates an underground mine, the UFM petition includes several references to the Rustic Ridge mine and the proposed Rustic Ridge #2 mine as a basis for why the petition seeking to designate the area as unsuitable for surface mining should be granted. Specifically, the UFM petition addresses what Mountain Watershed contends are surface impacts from LCT's underground mining operation. Shortly after the UFM petition was submitted, LCT sent a letter to the Department opposing the petition. It now seeks to intervene in this appeal. Mountain Watershed filed an answer opposing the intervention petition. LCT was granted leave to file a reply, and Mountain Watershed a sur-reply. According to the petition to intervene, the Department does not oppose intervention. (Id. at para. 43.)
Standard for Intervention
Section 4(e) of the Environmental Hearing Board Act, 35 P.S. § 7514(e), governs intervention and provides that "any interested party may intervene in any matter pending before the Board." In the context of intervention, the phrase "interested party" means "any person or entity interested, i.e., concerned, in the proceedings before the Board." Browning Ferris, Inc. v. Department cf Environmental Resources, 598 A.2d 1057, 1060 (Pa. Cmwlth. 1991). The interest required to demonstrate standing to intervene "must be more than a general interest in the proceedings; it must be such that the person or entity seeking intervention will gain or lose by direct operation of the Board's ultimate determination." Consol Pennsylvania Coal Co. v. DEP, 2002 EHB 879, 880 (quoting P.H. Glafelter v. DEP, 2000 EHB 1204 (quoting Giordano v. DEP, 2000 EHB 1154, 1155-56)).
The right to intervene in a pending appeal is comparable to the right to file an appeal at the outset and, therefore, an intervenor must have standing. Lananger v. DEP, EHB Docket No. 2024-016-B et al., slip op. at 2 (Opinion and Order issued May 30, 2024) (citing 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. Muth v. Department of Environmental Protection, 315 A.3d 185, No. 1346 C.D. 2022, slip cp. at 19 (Pa. Cmwlth. Apr. 16, 2024) (citing Citizens Against Gambling Subsidies, Inc. v. Pennsylvania Gaming Control Board, 916 A.2d 624, 628 (Pa. 2007)). See also, Food & Water Watch v. Department cf Environmental Protection, 2021 Pa.Commw. Unpub. LEXIS 191 (Pa. Cmwlth. 2021); and Clean Air Council v. Department cf Environmental Protection, 245 A.3d 1207, 1212-13 (Pa. Cmwlth. 2021). A direct interest requires a showing that the matter complained of caused harm to the person's interest. Muth, supra.
Review Process for UFM Petitions
Before proceeding to the parties' arguments, it is helpful to review the regulatory process that is in place for declaring an area unsuitable for mining. Pursuant to 25 Pa. Code § 86.123(a), "[a] person who has an interest which is, or may be, adversely affected has the right to petition the Department to have an area designated as unsuitable for surface mining operations." The Department may determine a petition to be incomplete, in which case it will return the petition to the petitioner and ask for additional information. The Department may also determine that a petition is "frivolous" under Section 86.124(a)(2), in which case it will reject the petition outright and will not proceed with further review. As noted earlier, this is the determination that was made by the Department in this matter. Petitions that are complete and not rejected by the Department as frivolous will be processed in accordance with the procedures set forth in 25 Pa. Code §§ 86.124, 86.125 and 86.126. This process involves several opportunities for public comment as well as a public hearing. Id. at § 86.124(b)(1), § 86.125(a), § 86.125(j). Persons who are able to demonstrate that they will be directly impacted by the UFM designation may participate in the process as intervenors. Id at § 86.123(c). Following the hearing and public comment period, the Department will make a recommendation to the Environmental Quality Board (EQB). Id. at § 86.1250). If the EQB moves forward to designate an area as unsuitable for surface mining, the designation is made through the rulemaking process in accordance with the Regulatory Review Act. Id. at § 86.126(b)(1).
Discussion
LCT asserts that it should be permitted to intervene in this appeal of the Department's determination that Mountain Watershed's UFM petition was frivolous in order "to preserve and protect the direct, substantial, and immediate interests in the continued and uninterrupted operation of Rustic Ridge #1 and the further development of its mining operations in the Rustic Ridge area..." (Petition to Intervene, para. 37.) As a mine operator within the proposed UFM area, LCT asserts that its interests in this matter are greater than that of the general public. Additionally, LCT contends that it has a direct interest in this matter due to its concern that a decision by the Board requiring the Department to accept Mountain Watershed's UFM petition for review could impose a permit bar in the proposed petition area for the duration of the review period.
Mountain Watershed opposes intervention and strongly argues that LCT does not have standing in this matter because it will neither gain nor lose by direct operation of the Board's decision. Mountain Watershed argues that this appeal presents a very narrow question, i.e., whether "the Department appropriately engaged in its regulatory role when determining a threshold question under the UFM process." (Mountain Watershed Sur-reply, p. 2.) While Mountain Watershed acknowledges that a decision granting the UFM petition could impact LCT, it points out that this is not the action before the Board. The Board, at this juncture, is simply being asked to rule on the question of whether the Department erred in rejecting the UFM petition as "frivolous" under 25 Pa. Code § 86.124(a)(2). Mountain Watershed contends that even if the Board were to issue a decision in its favor, that decision would have no immediate or substantial adverse effects on LCT because if the Board finds that the Department erred, the next step is not approval of the UFM petition but simply the beginning of the review process outlined above. In other words, the outcome of the appeal before the Board is simply to determine whether that process begins; it is not a decision on the merits of the UFM petition itself. Mountain Watershed points out that, should that review take place, LCT will have an opportunity to participate as an intervenor in that process.
Mountain Watershed further argues that even if the Board finds that the Department must accept the UFM petition for review, there is no guarantee that it will result in a UFM designation. Nor would any such designation come quickly - both Mountain Watershed and LCT agree that the review process can take upwards of three years. Thus, argues Mountain Watershed, LCT has failed to establish that it has a "direct and immediate interest" in this matter, i.e., an interest that is not remote, but rather, one which establishes "a sufficiently close causal connection between the asserted interest and the actual or potential harm associated with the challenged action." William Penn Parking Garage v. City of Pittsburgh, 346 A.2d 269, 282 (Pa. 1975).
LCT disagrees and argues that even if Mountain Watershed's UFM petition is simply accepted for review it could have an immediate and substantial adverse impact on LCT's operations. In particular, LCT expresses concern that while the UFM petition is under review it could act as a block on its pending permit applications. Mountain Watershed counters this argument, pointing out that the UFM regulations no longer contain a permit block provision. While Section 86.124(a)(6) previously contained language prohibiting the Department from issuing permits for surface mining activities in proposed UFM areas where certain conditions were met, that language was removed several years ago.
25 Pa. Code § 86.124(a)(6) previously stated as follows: "The Department will not issue permits for suiface mining activities in areas included within a petition for a designation under § 86.122 (relating to criteria for designating lands as unsuitable) if the petition is received by the Department prior to the close of the public comment period for the permit, unless the permit applicant establishes prior substantial legal and financial commitments in a surface mining operation within the proposed permit area." (Emphasis added.) This language was removed effective November 29, 1997. See 27 Pa. B. 730 (February 8, 1997) and 27 Pa. 5. 6186 (November 29, 1997).
Nonetheless, LCT argues that the Department could choose to delay action on applications pending in the proposed UFM area even in the absence of regulatory language. As both the operator of a currently active mine and the applicant for a new mine within the proposed UFM area, LCT asserts that its interests in this matter are greater than that of the general public. LCT cites to several UFM regulations as support for its assertion that mine operators and/or permit applicants within a proposed UFM area have a substantial interest in UFM proceedings: For example, Section 86.124(a) requires the Department to provide notice of receipt of a UFM petition to operators with pending permit applications within the proposed petition area; Section 86.124(a)(6) authorizes the Department to dismiss a UFM petition for a proposed petition area in which an administratively complete permit application is pending; and Section 86.124(b)(2) requires the Department to give priority to UFM petitions that include areas with pending permit applications.
Mountain Watershed points out that the regulations relied on by LCT apply only to applicants for swface mining operations. Because LCT's pending permit applications are for underground mines, Mountain Watershed argues that LCT's interest is no greater than that of the general public. LCT acknowledges that the regulations pertain to surface mining operations but asserts "they nonetheless demonstrate a regulatory intent to respect the [Department's] broader permitting processes and the interests of mine operators who have invested resources in those processes." (Petition to Intervene, n. 2.) Moreover, LCT argues that Mountain Watershed's UFM petition is premised on the contention that the Department should consider environmental harms resulting from LCT's underground mining operations in determining whether to designate the area as unsuitable for mining, and, therefore, LCT's interests in this matter are more than merely a general interest.
Mountain Watershed argues that this appeal is primarily a matter of interpretation surrounding the term "surface mining operations," for which LCT can offer no meaningful input. It directs our attention to the following statement in the Department's determination letter finding the petition to be frivolous: "The petition provides facts and supporting evidence that only associate those impacts [cited in the UFM petition] with underground mining activities; the petition does not adequately link those impacts to surface mining activities as defined in §86.101." According to Mountain Watershed, this language indicates the following:
[T]he Department did find that there were allegations of harm present, but rejected those harms based on its incorrect interpretation of §86.101. Accordingly, the Department's "frivolous" finding was fundamentally based on its unsupported interpretation that the UFM
statutory scheme does not include impacts from surface mining incidental to underground operations.(Mountain Watershed Sur-reply, p. 7.) Mountain Watershed argues that, although LCT may have a general interest in the legal precedent established by the resolution of this question, its interest is not enough for intervention. In support of its argument, Mountain Watershed cites US Mining, Inc. v. DEP, 2003 EHB 507. In US, the Board rejected a petition by the United Mine Workers of America (UMWA) to intervene in an appeal of a mining company's challenge to compliance orders dealing with miner safety. In denying the petition, the Board determined that the petitioner had failed to explain how it had a direct interest in the outcome of the case, as opposed to a general interest in the precedent. The Board stated:
What [the petitioner] is really arguing is that it has a keen interest in the legal issue that is presented in this appeal. A party with such an interest may very well be entitled to participate as an amicus curiae, but such as [sic] interest, without more, is insufficient to justify standing as a party.Id. at 509 (quoting Joseph J. Brunner, Inc. v. DEP, 2003 EHB 186, 189).
Mountain Watershed argues that LCT, like the petitioner in US, simply has an interest in the legal precedent that may be set in this case, which is insufficient to convey standing to intervene as a party. Mountain Watershed states:
The purpose of this appeal is not to determine whether any or all of LCT's mining operations qualify as surface mining operations, but rather, to determine what qualifies as surface mining operations in general. Thus, this appeal has the potential to establish a legal precedent with respect to how a definition is interpreted for a particular regulatory scheme for the state and all mining companies as a whole, rather than for a specific mine, location, or company.(Mountain Watershed Answer, p. 8-9.) In its reply, LCT disputes that the statutory interpretation surrounding the term "surface mining operations" is the only question in this appeal, but even if it were, LCT argues that it nonetheless has a direct interest in this appeal since LCT's mining operations and pending permit applications are the subject of the UFM petition.
In evaluating the parties' filings, we find that both sides have set forth strong arguments in support of their respective positions. In particular, Mountain Watershed sets forth a well-articulated and compelling argument that the scope of this appeal is very limited: The Board has not been asked to review whether the UFM petition should be granted or denied, but simply whether the Department erred in failing to consider the petition at all pursuant to 25 Pa. Code § 86.124(a)(2). Mountain Watershed makes a strong argument that intervention by LCT at this stage of the process may be premature since the Board's decision will not result in an automatic UFM designation.
However, LCT sets forth an equally compelling argument that because its mining operation is the primary focus of the UFM petition, it has an interest in whether that petition is accepted for review by the Department. A close examination of the UFM petition reveals that it substantially focuses on LCT's operations at the Rustic Ridge #1 mine, the proposed expansion of the #1 mine, and the application for the Rustic Ridge #2 mine. It is clear that at least one goal of the petition is to address what Mountain Watershed believes are impacts from current and proposed mining operations at the Rustic Ridge mine. Indeed, a central question raised by this appeal is whether the Department is required to consider surface impacts incidental to underground mining operations in its evaluation of a UFM petition; Mountain Watershed's petition addresses not just surface impacts from underground mining in general, but specifically surface impacts from LCT's operations at the Rustic Ridge mine and the proposed Rustic Ridge #2 mine. In particular, this section of the UFM petition focuses on the surface facility that would be developed to provide portal access for the proposed Rustic Ridge #2 mine. Numerous other sections of the UFM petition also focus extensively on the Rustic Ridge operations.
In its reply, LCT notes that the words "LCT" and "Rustic Ridge" appear 80 times throughout the 78-page UFM petition, excluding abbreviations such as "RR #1" or "RR#2." (LCT Reply, n. 2.)
Although we agree with Mountain Watershed that a ruling in its favor in this appeal may have no immediate impact (or any impact) on LCT's ability to conduct mining in the petition area, LCT nonetheless has a direct interest in this matter by virtue of its prominent role in the UFM petition. For one thing, if the UFM petition is accepted for review by the Department, LCT will undoubtedly participate in the review process as an intervenor. Because its mining operation and proposed expansion play a significant role in the UFM petition, it may be required to provide information to the Department as part of the review process. It will likely seek to counter Mountain Watershed's argument that surface impacts incidental to its underground mining operation should be evaluated as part of the UFM process. In other words, it does have an interest in whether the UFM petition moves forward for review.
Additionally, although 25 Pa. Code § 86.124(a)(6) no longer contains language requiring the Department to implement a permit bar upon receipt of a UFM petition, LCT raises a valid point that the acceptance of Mountain Watershed's UFM petition for review could result in a delay or suspension of the Department's review of the permit application for the Rustic Ridge #2 mine since it is a subject of the UFM petition. The Rustic Ridge #2 mine is also referenced in the notice of appeal. In Objection No. 1 of the notice of appeal, Mountain Watershed states as follows:
DEP's determination was arbitrary and unreasonable because it relied on the incorrect claim that Appellant only provided evidence regarding impacts from underground mining activities. Appellant, in fact, provided legally sufficient evidence outlining the ways in which the surface activities incident to underground mining for the Rustic Ridge #2 mine would result in impacts that meet the criteria for unsuitability. Appellant's Petition provides legally sufficient
evidence that creates a causal connection between the stated anticipated harm/impacts and surface mining activities, as statutorily defined.(Notice of Appeal, p. 4, para. 1 of "Objections.") Thus, at least one goal of the UFM petition is to prevent or limit the development of the Rustic Ridge #2 mine in the proposed UFM area. LCT's interest in the potentially adverse impact the UFM petition may have on its ability to mine is sufficient to convey standing. PA Waste, LLC v. DEP, 2015 EHB 350, 355.
The Board has held that it is a relatively low burden to establish standing for intervention. Barnside Farm Composting Facility v. DEP, 2011 EHB 165,166; PA General Energy Co. v. DEP, 2021 EHB 7, 12; US Mining, 2003 EHB at 508. The Commonwealth Court has instructed that all that is required to have standing in an administrative agency action is a direct interest. Muth, supra', Food &Water Watch, supra. The requirement of a direct interest ensures that the Board concerns itself with "material interests that are discrete to some person or limited class of persons" rather than "more diffuse ones that are common among the citizenry." Muth, slip cp.atW (quoting Citizens Against Gambling Subsidies, 916 A.2d at 628). For the reasons set forth above, we believe that LCT has established a sufficiently direct interest in this appeal to meet the criteria for intervention.
In granting the petition to intervene, we are mindful that the question presented by this appeal is very narrow as set forth above. As such, LCT's intervention in this matter will not be permitted to expand the very limited scope of this appeal. 25 Pa. Code § 1021.81(f); PA Waste, 2015 EHB at 357 (citing Multilee, Inc. v. DER, 1994 EHB 989, 993).
Accordingly, we enter the following order:
ORDER
AND NOW, this 18th day of July, 2024, it is hereby ordered:
1) LCT's Petition to Intervene is granted.
2) Henceforth the caption shall read as follows:
MOUNTAIN WATERSHED ASSOCIATION
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and LCT ENERGY, L.P., Intervenor
EHB Docket No. 2024-077-W