Opinion
2022-015-B
07-21-2022
SENATOR KATIE J. MUTH v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and EUREKA RESOURCES, LLC, Permittee
OPINION AND ORDER ON PERMITTEE'S RENEWED MOTION TO DISMISS
STEVEN C. BECKMAN, JUDGE
Synopsis
The Board denies the Permittee's Renewed Motion to Dismiss where the new information brought forth by the Permittee is not free from doubt and does not show that the Appellant lacks standing as an individual as a matter of law.
OPINION
Background
This matter involves an appeal filed with the Environmental Hearing Board ("the Board") by Pennsylvania Senator Katie J. Muth ("Senator Muth"), challenging the issuance of Authorization to Discharge Under the National Pollutant Discharge Elimination System, NPDES Permit No. PA0276405 to Eureka Resources, LLC ("Eureka") by the Department of Environmental Protection ("the Department"). Eureka has proposed the construction and operation of an oil and gas liquid waste treatment facility located in Dimock Township, Susquehanna County. The permit authorizes Eureka to discharge wastewater to Tributary 29418 to Burdick Creek, a tributary of the Susquehanna River, in Susquehanna County. Senator Muth is a Pennsylvania State Senator who represents District 44, which includes parts of Berks, Montgomery and Chester Counties. (Amended Notice of Appeal, para. 1, 2.) On April 12, 2022, Eureka filed a Motion to Dismiss on the basis that Senator Muth did not have standing to bring this appeal. Senator Muth filed a Response opposing the motion on May 12, 2022, and Eureka filed a Reply on May 13, 2022. The Department filed no response to the motion. In an Opinion and Order issued June 3, 2022, the Board granted in part and denied in part Eureka's Motion to Dismiss. The Board held that Senator Muth did not have representational standing or standing as a trustee pursuant to the Environmental Rights Amendment. However, the Board deferred ruling on Senator Muth's individual standing until further discovery was conducted. On June 7, 2022, Eureka filed a Petition for Reconsideration that the Board denied on June 8, 2022.
On June 15, 2022, Eureka filed a Renewed Motion to Dismiss ("Renewed Motion") and a Brief in Support seeking again to dismiss the appeal. On June 16, 2022, Attorney Mark L. Freed entered his appearance on behalf of Senator Muth and the following day, Attorney Lisa Johnson withdrew her appearance as counsel on behalf of the Senator. On June 17, 2022, the Board held a conference call with the parties to discuss the substitution of counsel and how to proceed with the case. On the same day, June 17th, Eureka filed an Amended Brief in Support of Renewed Motion to Dismiss. The Board issued an Order on June 21, 2022, staying this matter with exceptions for conducting discovery and filing dispositive motions on the issue of Senator Muth's individual standing and to address Eureka's Renewed Motion. Senator Muth filed a Response opposing the Renewed Motion on July 15, 2022, and Eureka filed a Reply on July 18, 2022. The Department filed no response to the Renewed Motion.
Standard of Review
The Board evaluates a motion to dismiss in the light most favorable to the nonmoving party; a motion to dismiss may be granted only where the moving party is entitled to judgment as a matter of law. Downingtown Area Regional Authority v. DEP, EHB Docket No. 2021-127-L, slip op. at 3 (Opinion and Order on Motion to Dismiss issued April 5, 2022) (citing Burrows v. DEP, 2009 EHB 20, 22); Hopkins v. DEP, EHB Docket No. 2021-067-B, slip op. at 2 (Opinion and Order on Motion for Partial Dismissal of Appeal issued April 1, 2022) (citing, inter alia, Consol PA Coal Co. v. DEP, 2015 EHB 48, 54). A motion to dismiss may only be granted when a matter is free from doubt. Downingtown, slip op. at 3 (quoting Bartholomew v. DEP, 2019 EHB 515, 517). Therefore, with these principles in mind, we evaluate Eureka's Renewed Motion and Senator Muth's Response.
Analysis
In its Renewed Motion, Eureka asks us for the third time to dismiss this case based on a claim that Senator Muth lacks standing to proceed with this appeal. The Board previously granted Eureka's motion to dismiss on the questions of representational standing and trustee standing pursuant to Article I, §27 of the Pennsylvania Constitution but denied the motion on the issue of her individual standing. We next denied a Petition for Reconsideration of our decision on individual standing. In this third attempt to get the appeal dismissed over the issue of standing, Eureka relies on two emails from Senator Muth's former counsel, Attorney Lisa Johnson. Eureka claims that those two emails, written while Attorney Johnson was still attorney of record for Senator Muth, clearly demonstrate that this was never an appeal by Senator Muth in her individual capacity and that this is fatal to her appeal. In her response, Senator Muth argues that the two emails are not part of the record in this case at this point in the proceeding and, as discussions among counsel, they are not relevant to the issue of standing. She further points out that in her brief in response to the original motion to dismiss, her former counsel, on her behalf, set forth the basis for her individual standing and that this was recognized by the Board in its June 3, 2022, Opinion and Order.
We evaluate the Renewed Motion in the light most favorable to Senator Muth. In that light, we find that the "new and critical and dispositive" information that Eureka claims demonstrates that Senator Muth lacks standing to proceed with this case is not free from doubt and does not show that she lacks standing as an individual as a matter of law. Therefore, we hold that this Renewed Motion is denied. We are uncertain whether we should even consider the emails between counsel as part of the record in this case. While the Board's Assistant Counsel, Ms. Hilfinger, was copied on one of the two emails, they were not directed to the Board. They are not part of a sworn affidavit or otherwise produced under oath as part of discovery. We do not question the authenticity of the emails but remain unsure what to make of them and whether we can treat them as an official part of the record on which we can base a decision on a motion to dismiss for lack of standing. In the absence of consideration of those emails, nothing has changed from the time we reached our prior decision on the issue of Senator Muth's standing and we stand by our prior decision.
Even if we did choose to consider them, we do not think they clearly stand for the argument that Eureka is attempting to make in its Renewed Motion. At the time the emails were written, the case was in flux and the parties, along with the Board, were working through how to move forward in the case. Eureka had filed a motion requesting a limited stay of proceedings to conduct discovery on the issue of Senator Muth's individual standing. Responses to that motion were due on June 15, 2022. The first email, apparently written early in the morning of June 15th, asks for a 30-day stay of proceedings to allow Senator Muth to find substitute counsel stating that "[M]y representation does not include proceeding on an individual basis." (Eureka's Renewed Motion, Ex. A). We find this email ambiguous as to the nature of Attorney Johnson's past representation of Senator Muth. One plausible reading of the email is that it explains the reason for Attorney Johnson not continuing in the case moving forward but provides no information about the past attorney client relationship. It does not unambiguously say that the representation never included representing Senator Muth in her individual capacity as Eureka argues. It only states that she will not be doing so going forward. The second email, apparently written in the early morning of June 15th after the first email, is only addressed to Department counsel. It primarily appears to be intended to convey to Department counsel that Attorney Johnson is no longer representing Senator Muth and instead she has two new clients who are claiming to have been impacted by the permitted facility. The second email does not unambiguously say that Attorney Johnson did not represent Senator Muth as an individual in the past, but only that she does not do so at the time of the second email.
Neither of the emails relied on by Eureka clearly say what Eureka wishes them to say. In order to grant the Renewed Motion, we would need to find that the emails clearly show that Senator Muth never had individual standing to bring this case. We do not think that we can draw that conclusion from the statements made by her former counsel in these two emails. As we have stated on two prior occasions, discovery and additional motions directed at the issue of Senator Muth's standing to pursue this appeal will assist the Board in resolving this question. The parties should proceed forward on that basis so that the Board can determine that issue based on a clear factual record.
Therefore, we issue the following Order:
ORDER
AND NOW, this 21st day of July, 2022, it is hereby ordered that the Permittee's Renewed Motion to Dismiss is denied.