Opinion
EHB 2022-081-C
12-06-2022
ROCK SPRING WATER COMPANY v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
For Appellant: J. Roy Campbell
For Appellant: J. Roy Campbell
OPINION AND ORDER DISMISSING APPEAL
Michelle A. Coleman, Judge Synopsis
The Board dismisses an appeal where an appellant company has not perfected its appeal in accordance with the Board's Rules, has not obtained counsel, and has not responded to the Board's orders.
OPINION
On October 3, 2022, the Board received a letter dated September 30, 2022 from Rock Spring Water Company that we docketed as an appeal. The letter provided in its entirety:
To Environmental Hearing Board
This letter is to inform you that Rock Spring Water Company is appealing the Civil Penalty Assessment dated October 17, 2018. Currently speaking with State College Water on potential sale.
Sincerely,
J. Roy Campbell
Rock Spring Water Company
We issued an Order on October 3, 2022 requiring Rock Spring to perfect its appeal in accordance with our Rules. See 25 Pa. Code § 1021.51 (governing required content of a notice of appeal). Our Order identified the information that Rock Spring needed to submit to the Board, including the copy of the action of the Department of Environmental Protection (the "Department") that Rock Spring was appealing, the date it received notice of the action, its objections to the action, and proof of service of the appeal on the Department. 25 Pa. Code § 1021.51(d), (e), (f)(2)(vi), and (k). Our Order gave Rock Spring until October 24, 2022 to perfect its appeal and warned that failing to supply the missing information could result in the dismissal of the appeal.
Because the letter appeared to be filed by an employee of Rock Spring and not by an attorney, on the same day we also issued a letter to Rock Spring notifying it of our requirement that parties, except individuals appearing on their own behalf, need to be represented by counsel. 25 Pa. Code § 1021.21. Our letter requested that Rock Spring have counsel enter an appearance on its behalf no later than November 4, 2022. We advised Rock Spring that the failure to do so could also result in the dismissal of its appeal. We also included in our letter information on the pro bono program for small corporations operated by Pro Bono Committee of the Pennsylvania Bar Association's Environmental &Energy Law Section.
On November 1, 2022, we received another letter from Rock Spring, dated October 25, which was identical to the first letter except it contained an additional sentence claiming that this letter constituted a second appeal to the Board:
To Environmental Hearing Board
This letter is to inform you that Rock Spring Water Company is appealing the Civil Penalty Assessment dated October 17, 2018. Currently speaking with State College Water on potential sale. This letter is now the second appeal sent to the Environmental Hearing Board.
Sincerely, J. Roy Campbell Rock Spring Water Company
We docketed this letter at the existing docket number created by Rock Spring's first letter. The second letter did not have anything attached to it. Rock Spring still did not provide any of the information required by our perfection Order.
On November 9, 2022, after the November 4 deadline for obtaining counsel passed without an entry of appearance, we issued a Rule to Show Cause. We noted that Rock Spring failed to comply with our October 3 Order and failed to have counsel enter an appearance. We stated that Rock Spring's second letter did not provide any of the information we required for the perfection of its appeal. We gave Rock Spring until November 30 to file the missing information and have counsel enter an appearance. Our Rule to Show Cause again advised Rock Spring that failing to comply could result in the dismissal of its appeal as a sanction. See 25 Pa. Code § 1021.161. As of the date of this Opinion and Order, we have not received anything further from Rock Spring. Dismissal of this appeal is appropriate.
Our Rule at 25 Pa. Code § 1021.161 authorizes the Board to dismiss an appeal as a sanction when a party fails to abide by the Board's Rules and orders. When appellants ignore the Board's Rules and orders requiring the perfection of their appeal and show no interest in continuing with their appeal, we have found it necessary to dismiss the appeals. In Phelps v. DEP, 2018 EHB 838, we encountered a similar situation, where we received a letter that did not include a copy of the Department's action, the date the appellant received notice of the action, or any proof that the appeal was served on the Department. We issued an Order for the perfection of the appeal, and, when we received nothing in response to the Order, a Rule to Show Cause. When we then received nothing in response to the Rule to Show Cause, we dismissed the appeal, concluding that the appellant no longer intended to pursue her appeal. See also King v. DEP, EHB Docket No. 2021-102-L (Opinion and Order, Jan. 24, 2022); Kuncio v. DEP, 2018 EHB 278. Our dismissal of this appeal is also consistent with our cases in which an appellant company has filed to obtain counsel after being directed to do so. See, e.g., Earth First Recycling, LLC v. DEP, 2018 EHB 819; L.A.G. Wrecking, Inc. v. DEP, 2015 EHB 338; Falcon Coal and Constr. Co. v. DEP, 2009 EHB 209. Rock Spring has had more than two months to comply with our orders and it has demonstrated no intention of doing so.
Furthermore, if Rock Spring's letters are to be believed, it is likely now far too late to appeal a civil penalty assessment from four years ago. See 25 Pa. Code § 1021.52 (notice of appeal to be filed within 30 days after receiving notice of the action).
Accordingly, we issue the Order that follows.
ORDER
AND NOW, this 6th day of December, 2022, it is hereby ordered that the Appellant's appeal is dismissed.
THOMAS W. RENWAND Chief Judge and Chairman, MICHELLE A. COLEMAN Judge, BERNARD A. LABUSKES, JR. Judge, STEVEN C. BECKMAN Judge, SARAH L. CLARK Judge