Opinion
EHB 2022-068-L
09-28-2023
SALVATORE PILEGGI v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
For the Commonwealth of PA, DEP: Sean L. Robbins, Esquire (via electronic filing system) For Appellant: David Romine, Esquire (via electronic filing system)
For the Commonwealth of PA, DEP: Sean L. Robbins, Esquire (via electronic filing system)
For Appellant: David Romine, Esquire (via electronic filing system)
OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT
Bernard A. Labuskes, Jr., Judge Synopsis
The Board denies an appellant's motion for summary judgment in an appeal of a Department order where material facts remain in dispute over the nature and extent of the appellant's earth disturbance activities and where the Department has produced sufficient evidence to make a prima facie case in support of its order.
OPINION
Salvatore Pileggi has appealed an administrative order issued to him by the Department of Environmental Protection (the "Department") on August 11, 2022 following several inspections conducted by the Lackawanna County Conservation District (the "Conservation District" or "District") in 2021 and 2022 of property owned by Pileggi in Newtown Township, Lackawanna County. The order alleges that Pileggi conducted earth disturbance activities on his property without first obtaining an NPDES permit, without implementing appropriate best management practices (BMPs) or stabilizing the site, and without developing an erosion and sedimentation (E&S) control plan. The order requires Pileggi to cease any earth disturbance activity, implement appropriate BMPs, and submit an E&S control plan and an NPDES permit application to the Conservation District.
Pileggi has now moved for summary judgment. Pileggi does not dispute that he engaged in earth disturbance on his property. Rather, he argues that his earth disturbance activities fall within the regulatory definition of "road maintenance activities" and thus do not require an NPDES permit. He contends that the Department, which bears the burden of proof in this appeal, has not produced sufficient evidence to show otherwise. Additionally, Pileggi argues that his earth disturbance activities have ceased and are all in the past and therefore there is no "proposed" earth disturbance within the meaning of the regulations requiring an NPDES permit or an E&S plan. Finally, Pileggi contends that the Department has not sufficiently controverted his assertion that he did use BMPs while engaging in the earth disturbance.
In its response, the Department argues that Pileggi did not engage in any "road maintenance activities," but rather constructed roads on his property where before there were none. The Department asserts that the earth disturbance activities Pileggi undertook to construct those roads exceeded an acre and are part of a common plan of development and sale, thereby requiring him to obtain an NPDES permit, which he did not do. Additionally, the Department maintains that an E&S plan was never submitted for the project and that over multiple inspections it did not appear that BMPs were implemented. Overall, in response to the motion, the Department argues that it has made out a prima facie case to support its order and that several material facts in Pileggi's motion remain in dispute. Accordingly, the Department contends that summary judgment must be denied and that the issues in this appeal should be decided on a fully developed record following a hearing on the merits. Having reviewed the parties' filings, we deny Pileggi's motion.
In his reply brief, Pileggi argues that the Department's response was filed one day late and we should disregard it. The Department sought leave to respond to this argument, without opposition from Pileggi, which we granted in an Order on September 19, 2023. In its sur-reply, the Department includes exhibits of emails generated from the Board's electronic filing system showing that the Department's response was initially filed after business hours on August 28, the day the response was due, but was rejected by the Board on the morning of August 29. The Department then refiled its response shortly thereafter. The Board's electronic filing system experienced issues that were discovered the morning of August 29 that prevented documents from being processed and docketed. Therefore, the Board rejected the Department's filing. Because the fling delay was caused by a breakdown in the Board's electronic filing operations and Pileggi has not claimed any prejudice from the tardy filing, we will not disregard the Department's response and will instead decide the motion on the merits.
Summary judgment is appropriate when the record, including pleadings, depositions, answers to interrogatories, and other related documents, shows that there is no genuine issue of material fact in dispute and the moving party is, therefore, entitled to judgment as a matter of law. Pa.R.Civ.P. 1035.1-1035.2; Camp Rattlesnake v. DEP, 2020 EHB 375, 376. In evaluating whether summary judgment is proper, the Board views the record in the light most favorable to the nonmoving party. Stedge v. DEP, 2015 EHB 31, 33. All doubts as to whether genuine issues of material fact remain must be resolved against the moving party. Eighty Four Mining Co. v. DEP, 2019 EHB 585, 587 (citing Clean Air Council v. DEP, 2013 EHB 404, 406). Summary judgment is also available:
[I]f after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.Pa.R.Civ.P. 1035.2(2). Whitehall Twp. v. DEP, 2017 EHB 160, 163. In other words, the party bearing the burden of proof must make out a prima facie case. Beech Mountain Lakes Ass'n, Inc. v. DEP, EHB Docket No. 2022-053-L, slip op. at 4 (Opinion and Order on Motions for Summary Judgment issued July 18, 2023). In an appeal of a Department order such as this, the Department bears the burden of proof. 25 Pa. Code § 1021.122(b)(4).
Summary judgment is usually only granted in cases where a limited set of material facts are truly undisputed, and a clear and concise question of law is presented. Sierra Club v. DEP, EHB Docket No. 2022-032-B, slip op. at 3 (Opinion and Order on Partial Motion for Summary Judgment and Cross-Motion for Summary Judgment issued Apr. 6, 2023). Issues that involve mixed questions of fact and law are best decided at a full hearing and are generally not fit for summary judgment. Ctr. for Coalfield Justice v. DEP, 2016 EHB 314, 347. Summary judgment may only be granted in cases where the right to summary judgment is clear and free from doubt. Tri-Realty Co. v. DEP, 2016 EHB 214, 217.
Pileggi and the Department could hardly be farther apart in their depiction of the material facts of this appeal, or how the law applies to those facts, which is a hallmark indication that these issues are ill-suited for resolution by way of summary judgment. Pileggi describes grading and removing vegetation and dead branches in 2020 from Wooded Lane and Bonnie Circle, two dirt roads on his property that he classifies as township roads and/or rights-of-way. He asserts that a faulty PennDOT swale under Forest Acres Drive adjacent to Wooded Lane failed in 2021, causing flooding on Wooded Lane, and that the work he did was caused by the exigent circumstances of the flood. He claims that he did only what was necessary to protect his own land and rescue a neighbor who was cut off from Wooded Lane by the flooding. In Pileggi's notice of appeal and motion for summary judgment, he characterizes himself as a farmer caring for his property and a good Samaritan who stepped up to help a neighbor out of a jam caused by state and local regulatory failure. The Department, in contrast, disputes that the roads at issue even existed prior to Pileggi's activities, claiming instead that Wooded Lane was merely a two-track farm lane with grass growing between the tire track paths and trees lining the sides, and that Bonnie Circle was nothing more than a field.
The Department disputes that these roads, if that is what they are, are public.
Pileggi's primary contention is that all of his work constituted "road maintenance activities" that fall outside of the requirement to obtain an NPDES permit. The regulations in Chapter 102 generally require a person conducting an acre or more of earth disturbance to have first obtained an NPDES permit before proceeding with any work:
Other than agricultural plowing or tilling activities, animal heavy use areas, timber harvesting or road maintenance activities, a person proposing an earth disturbance activity that involves equal to or greater than 1 acre (0.4 hectare) of earth disturbance, or an earth disturbance on any portion, part, or during any stage of, a larger common plan of development or sale that involves equal to or greater than 1 acre (0.4 hectare) of earth disturbance, shall obtain an individual NPDES Permit or coverage under a general NPDES permit for Stormwater Discharges Associated With Construction Activities prior to commencing the earth disturbance activity.25 Pa. Code § 102.5(a). One of the stated exceptions to the permit requirement is for "road maintenance activities," which are defined as:
(i) Earth disturbance activities within the existing road cross-section or railroad right-of-way including the following:
(A) Shaping or restabilizing unpaved roads.
(B) Shoulder grading.
(C) Slope stabilization.
(D) Cutting of existing cut slopes.
(E) Inlet and endwall cleaning.
(F) Reshaping and cleaning drainage ditches and swales.
(G) Pipe cleaning.
(H) Pipe replacement.
(I) Support activities incidental to resurfacing activities such as minor vertical adjustments to meet grade of resurfaced area.
(J) Ballast cleaning.
(K) Laying additional ballast.
(L) Replacing ballast, ties and rails.
(M) Other similar activities.
(ii) The existing road cross-section consists of the original graded area between the existing toes of fill slopes and tops of cut slopes on either side of the road and any associated drainage features.25 Pa. Code § 102.1. Importantly, regardless of whether or not a person is required to obtain a permit for their earth disturbance work, the regulations still require compliance with the other provisions of Chapter 102, 25 Pa. Code § 102.5(k), such as, for example, developing an E&S plan for disturbances of 5,000 square feet or more (25 Pa. Code § 102.4), implementing BMPs (25 Pa. Code § 102.11), and stabilizing the disturbance on the site (25 Pa. Code § 102.22).
Relying on the definition of road maintenance activities, Pileggi argues that the Department has produced no facts showing that any of his earth disturbance activities occurred outside of the original graded area and any associated drainage features of the existing cross-section of the roads, and that such a showing would be impossible because the Department has not defined the exact location of the original graded area of the roads or associated drainage features.
The Department pushes back on Pileggi's assertions. The Department has provided an affidavit from Jerry Stiles, District Manager of the Lackawanna County Conservation District, who inspected the site five times between April of 2021 and December of 2022 and who avers that there were no roadway or cross-sections on Pileggi's property before Pileggi engaged in his work. (DEP Ex. 19.) Stiles avers that Pileggi constructed the two gravel access roads and drainage features, which appear designed to service a subdivision, without first having obtained the necessary approvals or having implemented environmental protections. All of Stiles's inspection reports with accompanying photographs are attached to the Department's response. (DEP Ex. 37.) The reports document similar observations of roadways and other areas being graded and not stabilized and the absence of erosion and sedimentation controls. The December 2022 report included a Google Earth image from 2019 that the Department claims shows only a field where Bonnie Circle now lies. (DEP Ex. 3). In the July 11, 2022 and December 6, 2022 inspection reports, Stiles estimated the total disturbance of the site to be greater than an acre. (DEP Ex. 3, 7.)
In his reply brief, Pileggi accuses the Department of moving the goalposts without notice by arguing for the first time that he was engaged in road construction rather than road maintenance. On this basis, Pileggi argues that we should disregard this "new" allegation from the Department. However, Paragraphs S and T of the Department's order make it clear that it has always been the Department's position that Pileggi was engaged in construction rather than maintenance activities:
S. On May 27, 2021, Pileggi sent an email to the District, stating he believes he is doing road maintenance activities, which are excluded from the NPDES permitting requirements. Pileggi requested the District to inform him if an E&S control plan is required.
T. On June 2, 2021, the District responded via email informing Pileggi the road widening and additional drainage practices are not a maintenance activity and are considered earth disturbance activities for construction. The District also explained that because an E&S control plan is part of an NPDES permit, the first step is the NPDES permit.(Notice of Appeal at 19.)
Pileggi goes on to argue that, because road construction is not regulatorily defined, it is legally irrelevant and would not be determinative or tend to show that Pileggi was required to obtain a permit. Instead, Pileggi insists that the only yardstick the Department and Board may use to determine whether Pileggi was or was not engaged in earth disturbance activities requiring a permit is the definition of road maintenance activities. This argument has no merit and belies the fact that earth disturbance activities related to a road may or may not fall under the definition of road maintenance activities depending on the particular actions taken by the entity or individual engaged in earth disturbance activities. Were this not the case, the specific enumerated activities described in the definition of "road maintenance activities" would be superfluous.
Furthermore, although road construction is not specifically defined, "earth disturbance activity" is, and it clearly encompasses construction work:
A construction or other human activity which disturbs the surface of the land, including land clearing and grubbing, grading, excavations, embankments, land development, agricultural plowing or tilling, operation of animal heavy use areas, timber harvesting activities, road maintenance activities, oil and gas activities, well drilling, mineral extraction, and the moving, depositing, stockpiling, or storing of soil, rock or earth materials.25 Pa. Code § 102.1. Here, the Department argues that Pileggi's activities do not fit within the definition of road maintenance activities and instead are earth disturbance activities -"construction or other human activity which disturbs the surface of the land" - which the Department describes as road construction.
In short, this dispute cannot be resolved through summary judgment. All we have from Pileggi are a series of conclusory assertions in which he maintains that he has unequivocally shown that he was engaged only in road maintenance activities and claims that the Department has produced no evidence to the contrary. The Department's exhibits, however, including the inspection reports and photos, as well as the Stiles Affidavit, are sufficient to support a prima facie case at the summary judgment stage that Pileggi's activities were not road maintenance. At the very least, the Department's exhibits make it abundantly clear that the nature of Pileggi's work is a material fact remaining in dispute. Further, the parties' continued argument back and forth over the regulatory definitions only supports the need to develop a full record at a hearing to determine what kind of activities Pileggi engaged in and which requirements apply. The question of whether Pileggi's activities constitute road construction or maintenance is a mixed question of fact and law and is inappropriate for dispensation in summary judgment. See Williams v. DEP, 2019 EHB 764, 773-74 (discussing the need for a full hearing where there is an interaction between a legal definition and factual evidence that will be further elucidated from a hearing providing further context than the summary judgment filings and exhibits can alone).
Other aspects of the permitting issue are also best resolved following a merits hearing. For instance, the Department contends in its response that Pileggi's work is a common plan for development and sale of a subdivision. The Department claims that Pileggi currently has Lot 5 in the subdivision listed for sale, (DEP Ex. 9), and points to the construction of roads to create frontage lots, the grant of an easement to PPL Electric Utilities to serve those lots, and Pileggi's prior litigation before the Board relating to sewage access for those lots as evidence that the land is a common plan for development and sale. (DEP Ex. 1, 18.) Pileggi contests this classification of his property, arguing that "advertising land for sale and proposing earth disturbance activities are different things, and it would be unreasonable to infer from evidence of advertising for sale that Mr. Pileggi is proposing earth disturbance activities, or anything other than sale." (Reply at 6.) As with the question of whether Pileggi engaged in road maintenance or road construction activities, the question of whether the land at issue here is a common plan for development and sale is a mixed question of law and fact that is inappropriate for resolution at summary judgment. See Williams, supra at 773-74.
Next, Pileggi seeks summary judgment on the part of the order requiring him to submit an E&S plan for his work. The regulatory requirement for an E&S plan provides:
(2) A person proposing earth disturbance activities shall develop and implement a written E&S Plan under this chapter if one or more of the following criteria apply:
(i) The earth disturbance activity will result in a total earth disturbance of 5,000 square feet (464.5 square meters) or more.
(ii) The person proposing the earth disturbance activities is required to develop an E&S plan under this chapter or under other Department regulations.25 Pa. Code § 102.4(b)(2).
Pileggi argues that, because his earth disturbance activities occurred in the past, he is not "proposing" anything at this time, and so the regulation cannot apply to him. He asserts that it is pointless to require him to submit an E&S plan now since his work is already done. We reject Pileggi's argument. To the extent Pileggi is arguing that the Department cannot issue an order addressing earth disturbance after the work has already occurred, we have plenty of cases where that has happened. See, e.g., DEP v. Colombo, 2013 EHB 635; DEP v. Simmons, 2010 EHB 262; DEP v. Pecora, 2008 EHB 146; DEP v. Angino, 2007 EHB 175. To the extent that Pileggi is challenging the remedy required in the order, we cannot say based on the existing record whether or not it is unreasonable for the Department to require Pileggi to submit an E&S plan. Nor can we say on the basis of the existing record whether or not Pileggi has in fact finished his work, as he claims. For instance, we have no evidence on whether or not the site has been stabilized as alleged in the order. We also do not know the extent of the disturbance at the site, which the Department claims to exceed an acre and Pileggi has previously asserted in an email to the Conservation District that at that time he estimated his earth disturbance to be approximately 12,800 square feet. (DEP Ex. 12.) These are all issues that need to be resolved at a hearing.
Finally, Pileggi challenges the provision of the order requiring him to implement BMPs. Under the regulations, a person engaging in earth disturbance must implement appropriate BMPs regardless of the size of the disturbance. 25 Pa. Code § 102.4(b)(1). Pileggi asserts that he used a variety of BMPs while engaging in his work, including bumper areas, slope fencing, mulching, and the installation of a sediment basin. (DEP Ex. 1, 12.) On the other hand, in its response the Department contends that it has supplied evidence of the lack of BMPs via the Conservation District's inspection reports, which consistently note that it did not appear to the inspectors as though BMPs were in use at the site. (DEP Ex. 4, 5, 6.) Pileggi argues that these reports are equivocal, and therefore Pileggi's own deposition testimony stating that he did implement BMPs should overcome the inspectors' observations. The resolution of this type of factual dispute is not a determination that can be made in the context of the summary judgment motion based on the current record. Weighing the facts in the light most favorable to the Department, the inspection reports at the very least create a dispute over a material fact that needs to be resolved at a hearing.
For the foregoing reasons, we issue the Order that follows.
ORDER
AND NOW, this 28th day of September, 2023, it is hereby ordered that the Appellant's motion for summary judgment is denied.