Opinion
EHB 2023-074-W 2022-072-W
12-20-2024
PROTECT PT v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and APEX ENERGY (PA), LLC, Permittee
OPINION AND ORDER ON DEPARTMENT'S MOTION IN LIMINE TO EXCLUDE ISSUES RESOLVED THROUGH RULINGS ON DISPOSITIVE MOTIONS OR WAIVED, DEPARTMENT'S MOTION TO EXCLUDE TESTIMONY OF MARC GLASS, AND APEX'S MOTIONS IN LIMINE TO EXCLUDE EVIDENCE OF WAIVED CLAIMS AND DISMISSED TOPICS
MARYANNE WESDOCK, Judge.
Synopsis
Several motions in limine filed by the Department and Permittee are granted in part and denied in part.
OPINION
Background
On August 17, 2022, the Department of Environmental Protection (Department) issued permits to Apex Energy (PA) for the drilling of the Drakulic 1H and 7H wells (the permits) in Penn Township, Westmoreland County. The permits were appealed by Protect PT, a grassroots nonprofit organization formed "to ensure the safety, security, and quality of life for people in Penn Township, Trafford and surrounding areas from unconventional natural gas development." (Notice of Appeal, Docket No. 2022-072-W, para. 7.) That appeal is docketed at EHB Docket No. 2022-072-W (the Initial Appeal). Apex elected not to drill the Drakulic wells while the appeal was pending, and instead sought a two-year renewal of the permits, which was granted on August 15, 2023. On September 14, 2023, Protect PT appealed the renewal of the permits. That appeal is docketed at EHB Docket No. 2023-074-W (the Renewal Appeal). On September 19, 2023, the Initial Appeal and the Renewal Appeal were consolidated.
A well permit expires one year after issuance if drilling has not commenced. 58 Pa. C.S. § 3211(i); 25 Pa. Code 78a.17(a). An operator may request a two-year renewal accompanied by a fee, a surcharge and an affidavit affirming that the information in the original application is still accurate and complete. 25 Pa. Code § 78a.17(b).
On February 7, 2024, the Environmental Hearing Board (Board) issued an Opinion which granted in part Apex's motion to dismiss certain claims that were determined to be outside the scope of the Renewal Appeal. Protect PT v. DEP and Apex Energy (PA), LLC, EHB Docket No. 2023-074-W (Consolidated with 2022-072-W) (Opinion and Order issued on February 7, 2024) (the Dismissal Opinion). On October 29, 2024, the Board issued an Opinion on motions for partial summary filed by Apex and the Department which again dismissed certain claims in the Renewal Appeal which were determined to be outside the scope of that appeal. Protect PT v. DEP and Apex Energy (PA), LLC, EHB Docket No. 2023-074-W (Consolidated with 2022-072-W) (Opinion and Order issued on October 29, 2024 (the Summary Judgment Opinion).
This matter is scheduled for hearing beginning on January 15, 2025. Protect PT filed its prehearing memorandum on November 15, 2024 and the Department and Apex filed their prehearing memoranda on November 25, 2024. Pending before the Board are various Motions in Limine. This Opinion addresses the Department's Motion in Limine to Exclude Issues Resolved Through Rulings on Dispositive Motions or Waived, Apex's Motion in Limine to Exclude Evidence of Waived Claims. Apex's Omnibus Motion in Limine to Exclude the Admission of Testimony and Documents on Dismissed Topics and to Strike the Same from Appellant's Prehearing Memorandum, and the Department's Motion to Exclude Expert Testimony of Marc " Glass.
Standard of Review
A motion in limine is the proper vehicle for addressing evidentiary matters in advance of a hearing. 25 Pa. Code § 1021.121; Liberty Township v. DEP, 2023 EHB 43, 44. The purpose of a motion in limine is to provide the Board an opportunity to consider potentially prejudicial evidence and preclude such evidence before it is referenced or offered at hearing. Kiskadden v. DEP, 2014 EHB 634, 635. A motion in limine should generally be used to challenge whether certain evidence relative to a given point is admissible, not whether the point itself is a valid one. Morrison v. DEP, 2020 EHB 404, 405.
Motions in limine are better suited to address specific and narrow evidentiary matters that focus on particular exhibits or testimony. Range Resources - Appalachia, LLC v. DEP, 2022 EHB 84, 85 (citing Dauphin Meadows, Inc. v. DEP, 2002 EHB 235, 237 ("One clue to determining whether a motion [in limine] is properly limited is whether it cites to specific pieces of evidence and asks that they be excluded.")). Motions in limine that contain sweeping claims aimed at eliminating an opposing party's case are rarely successful and generally not a productive use of the Board's resources on the eve of trial. Range Resources, 2022 EHB at 85. In evaluating a motion in limine, the Board is asked to determine whether the probative value of the proposed evidence is outweighed by considerations such as undue delay, waste of time, or needless presentation of cumulative evidence. McCauley v. DEP, 2020 EHB 448, 450 (quoting Delaware Riverkeeper Network v. DEP, 2016 EHB 159, 161).
Discussion
The Department and Apex contend that Protect PT has included claims in its prehearing memorandum that were either a) dismissed by the Board's Dismissal Opinion and Summary Judgment Opinion or b) waived, and they argue that Protect PT should not be permitted to present evidence on those claims.
It is important to note that this case is a consolidation of two appeals: the appeal of the initial issuance of the permits for the Drakulic 1H and 7H wells and the appeal of the renewal of those permits. As we explained in the Dismissal Opinion and the Summary Judgment Opinion, the scope of the Renewal Appeal is much narrower than the scope of the Initial Appeal. Therefore, certain issues raised in the Renewal Appeal were determined to be outside the scope of that appeal and they were dismissed from the Renewal Appeal. However, as Protect PT correctly points out, "[t]here is a distinct difference between the Issuance Appeal [i.e., the Initial Appeal] and the Renewal Appeal." (Protect PT's Omnibus Memorandum of Law in Support of Its Responses to the Department's and Permittee's Motions in Limine, p. 10.) As a result, some of the issues dismissed from the Renewal Appeal may still remain in the Initial Appeal and are still a part of this overall consolidated case, as the Board noted in its Summary Judgment Opinion. Summary Judgment Opinion, slip op. at n. 9 and 16.
Rather than comb through individual statements made in Protect PT's prehearing memorandum, we address the disputed claims by topic since that is how they are presented in the motions:
PFAS
The Board's Summary Judgment Opinion determined that Protect PT did not produce sufficient evidence to move forward on this claim and, therefore, summary judgment was granted to the Department and Apex pursuant to Pa. R.C.P. 1035.2(2). Although Protect PT's prehearing memorandum made reference to PFAS, in its response to the Department's and Apex's motions Protect PT acknowledges that this claim has been dismissed.
Harms/Benefits Analysis
One of the claims dismissed from the Renewal Appeal was Protect PT's claim that a harms/benefits analysis should have been conducted prior to issuance of the permits. The Board dismissed this claim as being beyond the scope of the Renewal Appeal. The Board also rejected Protect PT's argument that Marcellus Shale Coalition v. Department of Environmental Protection, 292 A.3d 921 (Pa. 2023), suggested that a harms/benefits analysis should have been conducted prior to the issuance of the permits. Summary Judgment Opinion, slip op at 13.
In its Memorandum of Law, Protect PT argues that a balancing of harms and benefits must be conducted pursuant to the Environmental Rights Amendment, Article I, Section 27 of the Pennsylvania Constitution, and quotes language from Pennsylvania Environmental Defense Foundation v. Commonwealth, 161 A.3d 911, 945 (Pa. 2017) setting forth part of the legislative history of this provision. In support of its claim, Protect PT intends to introduce expert testimony by Sean O'Leary to discuss economic development and economic harm as it relates to the oil and gas industry and, particularly, his opinion that oil and gas development has not led to economic growth in Westmoreland County. Protect PT asserts that this issue was raised in the Initial Appeal by virtue of the fact that the Initial Appeal discusses Article I, Section 27.
Allegations not raised in a notice of appeal are waived. Rhodes v. DEP, 2009 EHB 325, 327 (citing Fuller v. Department of Environmental Resources, 599 A.2d 248 (Pa. Cmwlth. 1991)). However, both the Commonwealth Court and the Board have allowed some leeway with regard to the manner in which an objection is raised. As the Board explained in Rhodes:
[G]iven the strict requirement to file a notice of appeal within 30 days of receiving notice of the Department's action and our general distaste for trap-door litigation, we have been relatively indulgent when it comes to interpreting less than precise notices of appeal So long as an issue falls within the scope of a broadly worded objection found in the notice of appeal, or the "genre of the issue" in question was contained in the notice of appeal, we will not readily conclude that there has been a waiver. Angela Cres Trust v. DEP, 2007 EHB 595, 600-01; Ainjar Trust v. DEP, 2001 EHB 59, 66, affd, 806 A.2d 402 (Pa. Cmwlth. 2002); Jefferson County Board of Commissioners v. DEP, 1996 EHB 997, 1005.Id. See also Croner, Inc. v. Department of Environmental Resources, 589 A.2d 1183, 1187 (Pa. Cmwlth. 1991) (An issue in a notice of appeal may be raised in general terms).
However, while an appellant may raise an issue in a "broadly worded objection" or within the "genre of an issue," nevertheless, there are limits on how broadly the objection can be raised. As the Board explained in Center for Coalfield Justice v. DEP, 2016 EHB 523 526, one purpose of this rule is to prevent unfair surprise at the hearing. In this case, while the Initial Appeal generally discusses Article I, Section 27, there is no indication that Protect PT intended to raise a claim regarding alleged economic harm or lack of economic benefit brought on by oil and gas development. Certainly, the Board's review of the Initial Appeal did not reveal this to be an issue that Protect PT intended to raise at the hearing.
Based on the failure to raise this claim in the Initial Appeal, and the dismissal of Protect PT's harms/benefits claim from the Renewal Appeal, we find that Protect PT may not present testimony by Mr. O'Leary on the subject of economic development or economic harm caused by oil and gas development in Westmoreland County.
Threatened and Endangered Species
Protect PT raised this claim in its Initial Appeal but it was later waived. Protect PT again raised this claim in its Renewal Appeal. The Board did not dismiss this claim in its Summary Judgment Opinion because it determined that it was within the scope of the Renewal Appeal based on the review of the renewal applications conducted by the Department. Summary Judgment Opinion, slip op at 15. Therefore, this claim remains in the Renewal Appeal.
In Objection 66 of the Renewal Appeal, Protect PT states that the Department abused its discretion by failing to consider the potential impacts of the Apex operation on public resources. "Public resources" includes "rare and endangered flora and fauna." 58 Pa. C.S. § 3215(c)(4)
However, based on a review of the expert reports submitted by Protect PT it does not appear that Protect PT intends to present expert testimony on this issue. Without expert testimony we do not believe that Protect PT is able to pursue this claim. In light of the fact that the hearing begins in less than one month, Protect PT is precluded from introducing an expert at this late date.
Turtle Creek
In its prehearing memorandum, Protect PT discusses impairment to Turtle Creek and surrounding waters. This issue was not set forth in the Initial Appeal nor in the Renewal Appeal. It appears to be raised for the first time in Protect PT's Motion for Summary Judgment filed a few months ago in August 2024. In its response to the motions in limine, Protect PT asserts that it raised the subject of Turtle Creek in discovery and, therefore there is no prejudice to the Department or Apex. However, based on the documentation provided by Protect PT in support of its response, it appears that Protect PT served an interrogatory asking for identification of the nearest waterway to the site, to which Apex responded that the closest stream was an unnamed tributary to Turtle Creek. Protect PT also served an interrogatory asking if the location of the site was in a protected watershed, to which the Department responded that the site appeared to be in the Turtle Creek Watershed, which it did not consider to be a special protection watershed. We do not believe that this limited exchange of discovery was sufficient to put the Department and Apex on notice that impairment to Turtle Creek and surrounding waters was an issue in this appeal.
Paragraph 52 of the Initial Appeal states, "Contamination of waters of the Commonwealth - both surface water and groundwater - is a violation of the Clean Streams Law," and then cites various sections of the Clean Streams Law. We do not believe this statement by itself is sufficient to encompass the claim that Protect PT is now making, i.e., that Apex's gas operation will cause impairment to Turtle Creek and surrounding waters.
Additionally, issues relating to erosion, sedimentation and runoff impacting surface waters were raised in a prior appeal of the Erosion and Sediment Control General Permit 3 that is not at issue in this case. That appeal was subsequently withdrawn and those issues are now waived.
Protect PT v. DEP and Apex Energy (PA), LLC, EHB Docket No. 2021-096-R (Order Following Withdrawal issued Jan. 19, 2023).
Therefore, Protect PT is precluded from presenting evidence on these issues.
PPC Plan and Emergency Response
Certain issues pertaining to Apex's Prevention Preparedness and Contingency Plan (PPC Plan) were raised by Protect PT in a prior appeal. In that case, the Board held that a PPC Plan was not required to be submitted with a permit application pursuant to the oil and gas regulations.
Protect PT v. DEP and Apex Energy (PA), LLC, 2020 EHB 27.
However, in its Memorandum in Support of Its Motion for Partial Summary Judgment, Apex stated that it was not seeking summary judgment with respect to Protect PT's Article I, Section 27 claims pertaining to the PPC Plan and emergency response measures. Therefore, Protect PT may present evidence regarding its Article I, Section 27 claims with respect to Apex's PPC Plan and emergency response measures.
See Footnote 14 of Apex Brief in Support of Motion for Partial Summary Judgment (EHB Docket Entry no. 35).
Air Monitoring
The Department and Apex assert that Protect PT should be precluded from presenting ¶ testimony regarding air monitoring. Specifically, they seek to preclude testimony by Protect PT's expert, Marc Glass, on this topic. They argue that the issue of air monitoring has been dismissed from the case.
The Department points to paragraph 36 of the Renewal Appeal which states as follows:
36. The Applications, Permits, and the PPC Plans do not provide for worker and site safety, reuse of site equipment and materials, waste management, transfer, and disposal, monitoring of surface, groundwater, and air emissions and other environmental monitoring, or adequate levels of financial assurances, which violates the ERA [Environmental Rights Amendment].(Renewal Appeal, para. 36.)
The Department correctly notes that this objection was dismissed by the Board as being outside the scope of the Renewal Appeal. Dismissal Opinion, slip op. at 14. Specifically, in that opinion, the Board dismissed any objections to the initial permits and permit applications as being outside the scope of the Renewal Appeal since the Renewal Appeal applied only to the renewals of the permits. The Department further argues that this issue was not raised in the Initial Appeal and, therefore, because it was dismissed from the Renewal Appeal and waived in the Initial Appeal, Protect PT is precluded from presenting evidence in support of this claim at the hearing.
Apex also argues that the subject of air monitoring has been dismissed from the case but does not provide a detailed argument regarding its position on this matter. In its Memorandum of Law in support of its Omnibus Motion in Limine, Apex provides a chart detailing facts pulled from Protect PT's prehearing memorandum and a reference to where each claim was dismissed from the appeal but does not reference air monitoring.
In its Memorandum of Law in support of its Motion in Limine to exclude the expert testimony of Mr. Glass, the Department acknowledges that Protect PT raises a general allegation of threats to ambient air in paragraph 61 of the Renewal Appeal which states as follows:
61. The Drakulic Well Site will threaten the ambient air quality and cause significant noise pollution to nearby residents. See Robinson Township, 83 A.3d at 937- 38 (recounting an affidavit of homeowner living approximately 1,500 feet from drilling operations; "traffic caused significant noise pollution … Air quality also became degraded, beginning 'to smell of rotten eggs, sulfur, and chemicals'"); id. at 1005….(Renewal Appeal, para. 61.) However, it argues that, even under the language of Rhodes, quoted earlier, the issue of "air monitoring" cannot be seen as falling within this general objection.
As we discussed earlier, "[s]o long as an issue falls within the scope of a broadly worded objection found in the notice of appeal, or the 'genre of the issue' in question was contained in the notice of appeal, we will not readily conclude that there has been a waiver." Rhodes, 2009 EHB at 327. As noted above, paragraph 61 of the Renewal Appeal contends that the well site will "threaten the ambient air quality." (Renewal Appeal, para. 61.) Moreover, paragraph 68 of the Initial Appeal states as follows:
68. Protect PT objects to the Department's approval of the Well Permits which allow hydraulic fracturing, well drilling, and natural gas production in close proximity to sensitive receptors and populations such as residential homes, a school, and species of special concern in violation of the Department's responsibilities under Article I, Section 27 of the Pennsylvania Constitution.(Initial Appeal, para. 68) (emphasis added). Paragraph 3 of the Initial Appeal contains a similar objection. In his report, Mr. Glass discusses why he believes additional monitoring is necessary and one such basis is his believe that exceedances of certain emissions from oil and gas operations can be "harmful to sensitive subpopulations (i.e., asthmatics, elderly, chemical specific sensitive groups)…" (Glass Report, Ex. A to Department's Motion in Limine to Exclude Expert Testimony of Marc Glass, p. 4.) Mr. Glass's report further states that it is his opinion that the Department should have required additional air monitoring in the permits and, presumably, this is to ensure that the air quality is safe for the surrounding community. We find that the issue of air monitoring is encompassed within the objections set forth above.
TENORM
The Department and Apex assert that Protect PT should be precluded from presenting any evidence regarding TENORM (technically enhanced naturally occurring radioactive material) since these claims were dismissed from the Renewal Appeal and were not raised in the Initial Appeal. Indeed, the Board's prior opinions in this matter dismissed paragraphs 30-42 of the Renewal Appeal entitled "The Permits Authorize the Generation, Storage, and Transportation of Radioactive Waste." These paragraphs of the Renewal Appeal contend that Apex's operation will generate radioactive material which will present a number of risks. These claims were dismissed from the Renewal Appeal as being beyond the scope of the Renewal Appeal since they were challenges to the initial permits.
The Department and Apex argue that because these claims were dismissed from the Renewal Appeal and were not raised in the Initial Appeal, Protect PT should be precluded from presenting any evidence with respect to TENORM and radiation. Specifically, the Department has moved to exclude the testimony of Protect PT's expert, Marc Glass, whose expert report focuses substantially on TENORM, radon gas and the radiological components of gas production.
It is undisputed that the Initial Appeal does not mention TENORM or radiation. However, as we noted above, we find that Protect PT has sufficiently raised the issues of air emissions and air monitoring in this consolidated appeal. Because radon gas and its progeny emissions fall within the scope of Protect PT's claim regarding air emissions and air monitoring, we find that Mr. Glass is not precluded from testifying as to these issues.
However, to the extent that Mr. Glass's report includes a discussion of the management of ¶ TENORM waste we do find this topic to be outside the scope of this consolidated appeal, as discussed below.
Waste Management/Radioactive Waste/TENORM Waste
Certain paragraphs in Protect PT's prehearing memorandum discuss the management of waste generated by oil and gas operations. For example, paragraph 52 of the prehearing memorandum states, "The Permits do not specify any limitation on the volume of oil and gas drilling waste that could be generated at the Site." (Appellant's Prehearing Memorandum, para. 52.) As noted above, objections in the Renewal Appeal dealing with TENORM waste/radioactive waste/waste management were dismissed, and there is no mention of managing TENORM waste in the Initial Appeal. Therefore, we find this issue to be precluded.
Hazardous Chemicals
The Board's prior opinions dismissed paragraphs 25-29 entitled "The Permits Authorize the Use, Generation, Storage, and Transportation of Hazardous Waste." Although entitled "Hazardous Waste," those paragraphs generally discuss what Protect PT contends are hazardous chemicals that it believes will be used at the Drakulic well site. These objections were dismissed from the Renewal Appeal because they pertained to the issuance of the initial permits which was outside the scope of the Renewal Appeal. As we have noted, an appeal of the renewal of a permit cannot be used to attack the original issuance of the permit. Dismissal Opinion, slip op. at 4.
As we pointed out earlier, in its Initial Appeal Protect PT raised a concern about the safety of Apex's operation in close proximity to sensitive populations, residences and a school. (Initial Appeal, paragraphs 3 and 68.) Both the Initial Appeal and the Renewal Appeal also include objections relating to the PPC Plan and emergency response measures. To the extent that Protect PT intends to present evidence regarding chemicals that it believes may be used at the Drakulic site in connection with these claims, it is not precluded from doing so.
As discussed earlier, Protect PT's Article I, Section 27 claims regarding the PPC Plan and emergency response measures have not been waived or dismissed.
Public Comment
This issue is preserved in the Renewal Appeal - i.e., whether the Department considered public comments in renewing the permits. However, there is no objection raised in the Initial Appeal contending that the Department failed to consider public comments in issuing the permits in the first place. Therefore, Protect PT is precluded from presenting evidence in support of its claim that the Department failed to consider public comments when initially issuing the permits.
Lack of Coordination with DCNR
This issue was not raised in either the Initial Appeal or the Renewal Appeal and, therefore, is deemed to be waived. As such, Protect PT may not present evidence on this issue.
Conclusion
Several motions and responses have been filed in this matter, including exhibits comprising an extensive number of pages. Ruling on the motions in limine necessarily involved referring to prior documents filed in this case, comprising hundreds of pages. To the extent this Opinion fails to address an issue that was raised in one of the motions or responses, it will be addressed at the hearing or, if the parties request it, a conference call prior to the hearing.
Accordingly, we enter the following order:
ORDER
AND NOW, this 20th day of December, 2024, it is ordered that the following motions in limine are granted in part and denied in part as set forth in this Opinion: Department's Motion in Limine to Exclude Issues Resolved Through Rulings on Dispositive Motions or Waived, Apex's Omnibus Motion in Limine to Exclude the Admission of Testimony and Documents on Dismissed Topics and to Strike Same from Appellant's Prehearing Memorandum, Apex's Motion in Limine to Exclude Evidence of Waived Claims, and Department's Motion in Limine to Exclude Expert Testimony of Marc Glass.
ENVIRONMENTAL HEARING BOARD