Opinion
2020-014-R
04-18-2022
RANGE RESOURCES-APPALACHIA, LLC v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
For the Commonwealth of PA, DEP: Michael A. Braymer, Esquire Douglas G. Moorhead, Esquire Kayla A. Despenes, Esquire Angela N. Erde, Esquire Dearald Shuffstall, Esquire For Appellant: Kimberly A. Brown, Esquire Benjamin T. Verney, Esquire Leon DeJulius, Esquire Roy A. Powell, Esquire
For the Commonwealth of PA, DEP:
Michael A. Braymer, Esquire
Douglas G. Moorhead, Esquire
Kayla A. Despenes, Esquire
Angela N. Erde, Esquire
Dearald Shuffstall, Esquire
For Appellant:
Kimberly A. Brown, Esquire
Benjamin T. Verney, Esquire
Leon DeJulius, Esquire
Roy A. Powell, Esquire
OPINION AND ORDER ON MOTION IN LIMINE TO PRECLUDE FACTS AND ISSUES NOT RAISED IN THE DEPARTMENT'S PRE-HEARING MEMORANDUM
Thomas W. Renwand, Chief Judge
Synopsis
Range's motion in limine is granted in part and denied in part. To the extent that the Department's prehearing memorandum does not address safety and risk assessment or protocols for inspecting the Gas Well, and the Department contends that those issues are not relevant to its case, those issues are deemed waived. The remainder of Range's motion is denied. To the extent that information about the sources of gas migration and the Department's investigation thereof are included in the Department's expert reports, those issues are not waived. Range's efforts to comply with the Department's order are not relevant to the Department's case-in-chief.
OPINION
Introduction
This matter involves an appeal filed by Range Resources - Appalachia, LLC (Range) challenging an order issued by the Pennsylvania Department of Environmental Protection (Department) contending that natural gas leaked from Range's Harman - Lewis Unit 1H gas well (the Gas Well) and affected ground water and surface water in Lycoming County, Pennsylvania. The order directs Range to take a number of actions, including the restoration and replacement of affected water supplies, investigation of the migration of natural gas from the gas well, and submission of a remedial investigation plan and well plugging plan. A hearing has been scheduled in this matter from May 2 - June 3, 2022 and prehearing memoranda have been filed. Additionally, the parties have filed several motions in limine. This Opinion addresses Range's Motion in Limine to Preclude Facts and Issues Not Raised in the Department's Pre-Hearing Memorandum.
Motion in Limine
A motion in limine is the proper vehicle for addressing evidentiary matters in advance of trial. The Delaware Riverkeeper Network v. DEP, 2016 EHB 159, 161. The purpose of a motion in limine is to provide the trial court an opportunity to consider potentially prejudicial evidence and preclude such evidence before it is referenced or offered at trial. Commonwealth of Pennsylvania v. Padilla, 923 A.2d 1189, 1194 (Pa. Super. 2007) (cited in Kiskadden v. DEP and Range Resources - Appalachia, LLC, 2014 EHB 634, 635).
Discussion
The Board's Rules of Practice and Procedure plainly set forth the required contents of a prehearing memorandum. 25 Pa. Code § 1021.104. Stanley v. DEP and Coterra Energy, Inc., EHB Docket No. 2021-013-L, slip op. at 4 (Opinion and Order on Motions in Limine issued February 17, 2022). A similar requirement is set forth in Prehearing Order No. 2, which schedules the hearing and sets forth the deadlines for filing prehearing memoranda. Stanley, supra. Prehearing Order No. 2 requires the following: 1) a statement of the facts in dispute; 2) a statement of the legal issues in dispute, including citations to statutes, regulations and caselaw supporting the party's position; 3) a description of scientific tests on which the party will rely; 4) a list of the expert witnesses on which the party intends to rely; 5) answers to expert interrogatories and/or expert reports; 6) a list of fact witnesses; and 7) a list of the exhibits the party seeks to introduce into evidence. Facts or contentions of law not set forth in a prehearing memorandum may be deemed waived. Prehearing Order No. 2, para. 7; Oley Township v. DEP, 1996 EHB 1098, 1126. Where a party does not comply with those requirements, the Board may impose sanctions, 25 Pa. Code § 1021.104(b).
25 Pa. Code § 1021.104(a)(1) also requires a listing of the facts upon which the parties agree.
Where requested in discovery, answers to expert interrogatories and/or expert reports may not be produced for the first time in a party's prehearing memorandum. Penn Township Municipal Authority v. DEP, 2021 EHB 72, 77; Rural Area Concerned Citizens v. DEP, 2010 EHB 337, 341-43.
25 Pa. Code § 1021.104(a)(6) and (a)(8) also require the prehearing memorandum to list the proposed order of witnesses and to include copies of any signed stipulations reached by the parties.
As we understand Range's argument, it is not contending that the Department's prehearing memorandum fails to contain the information required by § 1021.104 or Prehearing Order No. 2, but that the Department's statement of facts and legal issues fails to cover certain topics. Range asserts that the Department's prehearing memorandum is deficient because it omits "facts and issues concerning topics critical to its allegations against Range and to demonstrating its actions were reasonable and necessary." (Range Memorandum of Law in Support of Motion, p. 3.) According to Range those topics are as follows:
(1) the specific steps the Department followed to investigate the alleged gas migration; (2) Range's efforts to conduct the Department-ordered gas migration investigation and cooperate with the Department; (3) support for paragraph 1 of the [Department's] Order, which requires Range to 'confirm the restoration or replacement of seven of the 12 allegedly affected water supplies; (4) any pathway for the alleged gas migration; (5) any Department effort to rule out other sources of gas; (6) the specific actions the Order requires Range to take in order to address the Department's concerns; (7) any risk or safety assessment performed by the Department in the course of its investigation or its direction of remedial actions at the Gas Well; and (8) the protocols and procedures used to inspect the Gas Well or otherwise relied on in the Department's investigation,
including (i) initiating or conducting a gas migration investigation or issuing Notices of Violation in connection with stray gas; (ii) well plugging; (iii) measuring surface expressions; (iv) evaluating the risks, including safety risks, of proposed well interventions; (vii) placement and removal of defective cement violations; and (viii) inspecting the Gas Well [footnote omitted].(Id. at 3-4.) Range asserts that the Department's failure to address these topics in its prehearing memorandum is prejudicial to Range in the preparation of its case, and it asks the Board to deem waived any facts or issues not set forth in the prehearing memorandum.
Range correctly sets forth the purpose of a prehearing memorandum, which is "to 'flesh out' the appeal and to tell the Board what evidence will be presented." (Range's Memorandum of Law in Support of Motion, at 4) (quoting Mustang Coal and Contracting Corp. v. DER, 1990 EHB 720, 722). We have held that "[t]he pre-hearing memorandum is an essential part of the preparation for a hearing. It advises both the Board and the opposing parties of the details of the evidence supporting the appellant's claim so that surprise at the hearing will be eliminated." Zazo v. DEP, 2006 EHB 650, 654. As we have further explained, "Parties have a right to rely on the information presented in opposing parties' pre-hearing memoranda as the final statement of a party's case before the hearing on the merits commences." Stanley, slip op. at 6. We agree with Range that all aspects of a party's case should be addressed in its prehearing memorandum in order to prevent unfair surprise and undue prejudice to the opposing party. Where a party disregards the requirements of the Board's rules or Prehearing Order No. 2, the Board may impose sanctions, including the preclusion of testimony or documentary evidence. Id. at 5 (citing 25 Pa. Code § 1021.104(b)).
Here, Range does not contend that the Department failed to disclose witnesses or exhibits or abandoned any of the facts or legal authority cited in its order. Rather, Range asserts that the Department has failed to address certain topics in its recitation of the facts and issues. Generally, in instances where the Board has found a prehearing memorandum to be deficient, it was because a party completely omitted all or some of the information required by Prehearing Order No. 2 and § 1021.104. See, e.g., Stanley, supra (Appellants' prehearing memorandum did not identify any scientific tests or expert witnesses, nor did it list or include exhibits they intended to use at the hearing); Yourshaw v. DEP, 1998 EHB 1063 (Appellants filed a document purporting to be a prehearing memorandum, but which failed to include a statement of the legal issues in dispute, a description of scientific tests, a list of exhibits and a summary of one expert's testimony); Mustang Coal & Contracting Corp. v. DER, 1990 EHB 614 (Appellant's prehearing memorandum failed to contain a statement of facts, contentions of law and exhibits); Borough of Littlestown v. DER, 1983 EHB 544 (Appellant's prehearing memorandum failed to set forth a statement of facts, contentions of law with detailed citations to authority, description of scientific tests, summary of expert testimony or exhibits). In Borough of Littlestown, 1983 EHB at 546, the Board found that the appellant had "assault[ed] the orderly processes of the Board's rules of practice and procedure by filing a document which is not responsive to the order of the Board." In each of those cases, the Board found a party's prehearing memorandum to be deficient, not because it lacked sufficient detail, but because of a wholesale omission of a particular requirement of 25 Pa. Code § 1021.104 and Prehearing Order No. 2. Here, the Department's prehearing memorandum sets forth its statement of facts, statement of legal issues, list of witnesses and exhibits and all other requirements of our rules and Prehearing Order No. 2.
In DEP v. Seligman, 2014 EHB 755, 779, cited by Range in its Memorandum of Law, the Department filed a complaint for civil penalty which alleged three counts against the defendant. The Department's prehearing memorandum made no mention of the issue covered by Count II of the complaint, and, therefore, the Board found that it was waived. In Jake v. DEP, 2014 EHB 38, 60, also cited by Range, the Department did not raise the issue of the appellant's standing in its prehearing memorandum but waited until its post-hearing brief to do so. The Board found that by failing to raise the issue in its prehearing memorandum, the Department had waived its right to challenge the appellant's standing. In Magnum Minerals, Inc. v. DER, 1983 EHB 522, 525-26, after filing its prehearing memorandum, the Department filed a motion to dismiss, raising for the first time new grounds for its denial of the appellant's permit. The Board found that the Department had waived its right to raise the new grounds by virtue of its failure to include this information in its prehearing memorandum and amended prehearing memorandum. In each of these cases, the Board found that an issue was waived, not because it was not set forth in sufficient detail in the Department's prehearing memorandum, but because the Department subsequently attempted to rely upon a legal theory that was entirely absent from its prehearing memorandum (i.e., an entire count of a complaint, the issue of standing, new regulatory grounds for a permit denial.) These cases do not provide support for granting the relief requested by Range where the Department's prehearing memorandum, appears to fully comply with the Board's rules and Prehearing Order No.2. As the Department points out, Range "does not argue that the Department has abandoned key facts and theories underlying its Order" (Department's Memorandum of Law in Support of Response, p. 8-9); rather, its argument is that the Department has not set forth the facts and theories of its case with sufficient detail.
In response, the Department contends that much of the information sought by Range is set forth in the expert reports accompanying the Department's motion. It further states that where information has not been included, it is because that information is not relevant to its case. We will examine each of the topics addressed by Range in its motion:
Gas Migration and the Department's Investigation
Range asserts that the Department's prehearing memorandum fails to address the topics of gas migration and the Department's investigation of other potential sources of stray gas. In response, the Department points to numerous paragraphs in its prehearing memorandum setting forth factual information regarding the location and depth of the Gas Well, its casing and hydraulic fracturing stages. The Department asserts that "[t]he geological significance of those facts as they relate to the water supply impacts is the subject of expert opinion testimony that the Department has fully disclosed to Range and the Board." (Department's Memorandum of Law in Support of Response, p. 12.) The Department states that it has addressed the topics of gas migration and its investigation in great detail in its expert reports. Specifically, the Department asserts as follows:
The Department disclosed its anticipated opinion evidence regarding how the drilling and hydraulic fracturing operations at the Gas Well contributed to the methane migration to the impacted water supplies and surface expressions through its expert reports, including that of Bryce McKee…Additionally the Department's evaluation of other sources of gas and why those sources of gas are not likely the cause of the impacts to natural resources is the subject of expert testimony that was properly disclosed through the expert reports of William Kosmer, Thomas Darrah, Bryce McKee and Seth Pelepko.
(Department's Memorandum of Law in Support of Response, p. 10.)
The Department asserts that much of what Range is arguing has been omitted from the Department's "factual statement" is, in fact, opinion. Since expert reports may be used in lieu of detailed summaries of expert testimony in a party's prehearing memorandum, Pine Creek Valley Watershed Assn. v. DEP, 2011 EHB 98, 99, we find no basis for precluding the Department from presenting this evidence at hearing. Range will have an opportunity to counter this information with testimony from its own witnesses at the hearing.
Range's Efforts to Comply with the Department's Order
Range asserts that the Department's prehearing memorandum improperly omits any discussion of Range's efforts to conduct and cooperate in the investigation ordered by the Department and, further, that this omission hinders Range's ability to prepare a rebuttal. In response, the Department argues that Range's efforts to comply with the order have no relevance to the Department's case.
We agree with the Department. We fail to see how a discussion of Range's compliance efforts bears on the Department's case. We concur with the Department that "[t]he validity of the Department's Order and the steps Range may take to comply with the Department's Order are two separate questions." (Department's Memorandum of Law in Support of Response, p. 14.) As we held in M&M Stone Co. v. DEP, 2008 EHB 24, in an appeal of a Department order, the Board's "role is to assess the validity and content of [the] order, not the recipient's efforts to comply with [the] order." Id. at 67 (citing, inter alia, Ramey Borough v. Department of Environmental Resources, 351 A.2d 613, 615 (Pa. 1976).
Other Topics Related to the Department's Investigation
Finally, Range asserts that the Department has not provided enough detail with regard to its investigation. For example, Range states that the Department has failed to address topics such as safety and risk assessment and protocols and procedures used to inspect the Gas Well. The Department states that it has not waived any topics that are critical to its case-in-chief. To the extent that the Department has not addressed the topics of safety and risk assessment and protocols and procedures for inspecting the Gas Well in its prehearing memorandum or expert reports, and states that those topics are not relevant to its case, Range's motion is granted.
Finally, we note that the parties have engaged in robust discovery in this case. Additionally, they have exchanged painstakingly detailed expert reports. We believe that each party has been given more than adequate notice of the opposing party's case.
In conclusion we enter the following order:
ORDER
AND NOW, this 18th day of April, 2022, it is hereby ordered Range's Motion in Limine to Preclude Facts and Issues Not Raised in the Department's Prehearing Memorandum is granted with respect to safety and risk assessment and protocols used to inspect the Gas Well, as set forth in this Opinion. It is denied in all other respects.
ENVIRONMENTAL HEARING BOARD