Opinion
EHB Docket 2021-026-C 2021-027-C
10-12-2022
JOHN SICKERI and DENNIS NELEN v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and BELL RESOURCES, INC., Permittee
DEP, General Law Division: Attention: Maria Tolentino (via electronic mail) For the Commonwealth of PA, DEP: Craig S. Lambeth, Esquire (via electronic filing system) For Appellants, Pro Se: John Sickeri 4812 Irishtown Rd. Grampian, PA 16838 (via U.S. Mail) Dennis Nelen (via electronic filing system) For Permittee: Matthew R. Zwick, Esquire C.J. Zwick, Esquire Gregory D. Sobol, Esquire (via electronic filing system)
DEP, General Law Division: Attention: Maria Tolentino (via electronic mail)
For the Commonwealth of PA, DEP: Craig S. Lambeth, Esquire (via electronic filing system)
For Appellants, Pro Se: John Sickeri 4812 Irishtown Rd. Grampian, PA 16838 (via U.S. Mail) Dennis Nelen (via electronic filing system)
For Permittee: Matthew R. Zwick, Esquire C.J. Zwick, Esquire Gregory D. Sobol, Esquire (via electronic filing system)
MICHELLE A. COLEMAN Judge BERNARD A. LABUSKES, JR. Judge STEVEN C. BECKMAN Judge
OPINION AND ORDER DISMISSING APPEAL
THOMAS W. RENWAND CHIEF JUDGE AND CHAIRMAN
Synopsis
The Board dismisses one of the appeals in a consolidated appeal because the appellant failed to file his pre-hearing memorandum despite being afforded multiple opportunities to do so.
OPINION
In February 2021, John Sickeri filed a letter appealing the Department of Environmental Protection's (the "Department's") issuance of Surface Mining Permit No. 17180101 and accompanying NPDES Permit No. PA0269891. The permits were issued to Bell Resources, Inc. for an expansion of surface mining operations at Bell Resources' Area 51 Operation in Penn Township, Clearfield County. The letter from the Department informing Mr. Sickeri of the issuance of the permits provided the following with respect to residents' water supplies:
After considering the local hydrogeology, it was decided that Bell Resources, Inc., could not operate, as proposed, without impacting many of the water supplies located along Irishtown Road. Bell Resources, Inc., is currently in the process of obtaining permission from the local water authority to install a public water line along Irishtown Road. No coal extraction may occur until this water line is installed and those residents along Irishtown Road are offered the chance to connect to the public water line. The only mining activities that may take place prior to the
installation of the public water line are the construction of a haul road and installation of erosion and sedimentation control structures.Sickeri's appeal expressed concern about being forced to connect to public water and sewer and having to pay the associated bills. He also objected to trees being cut down, natural springs being destroyed, property being damaged due to blasting, and the noise and dirt from trucks at the mining operation.
Not long after receiving Sickeri's appeal, we received an appeal from Dennis Nelen appealing the same permits and outlining similar concerns as Sickeri. After the deadlines for filing dispositive motions in both appeals came and went, we held a conference call in each appeal. During the calls, the parties expressed an interest in attempting to reach a settlement. They also indicated that they believed consolidation of the two appeals was appropriate. We issued an Order consolidating the appeals and staying the consolidated appeal to provide time for the parties to discuss the possibility of settlement. The parties' discussions ultimately did not lead toward a settlement so we reached out to obtain dates everyone could agree on for a hearing on the merits. We issued our Pre-Hearing Order No. 2 and scheduled the hearing for October 24-27 from 9:00 a.m. to 12:00 p.m. each day to accommodate the Appellants' work schedules.
Our Pre-Hearing Order No. 2 set a deadline of September 6, 2022 for the Appellants to file their pre-hearing memoranda. On September 2, 2022, Dennis Nelen and Tammy Bukousky emailed staff at the Board saying that their main dispute with Bell Resources was with obtaining water and that it was not clear what Bell Resources was doing with the relevant water authorities to provide them and the other potentially impacted residents with water. The subject line of the email was "pre hearing memoranda." We uploaded Nelen's email to the docket.
On September 7, 2022, having received nothing further from Mr. Nelen, and nothing at all from Mr. Sickeri, we issued an Order providing the following:
1. To the extent the email from Dennis Nelen and Tammy Bukousky was intended to be Dennis Nelen's pre-hearing memorandum, it does not comply with the Board's Rules on what is to be contained in a pre-hearing memorandum, 25 Pa. Code § 1021.104, or what was listed in the Board's Pre-Hearing Order No. 2 issued on August 8, 2022.
2. A pre-hearing memorandum must contain, among other things: a statement of facts and legal issues in dispute and the identification of facts on which the parties agree a list of witnesses who will testify at the hearing, the identification of any expert witnesses who will testify along with their qualifications and a summary of their testimony, and the exhibits that a party will seek to introduce at the hearing.
3. The deadline for the Appellants to file pre-hearing memoranda that comply with the Board's Rules shall be extended until September 22, 2022.
4. The failure to file pre-hearing memoranda that comply with the Board's Rules may result in the imposition of sanctions that could include the dismissal of one or both Appellants or the dismissal of the appeal. See 25 Pa. Code §§ 1021.104(b), 1021.161.On September 19, we received a filing from Mr. Nelen. To date, we have received nothing from Mr. Sickeri in response to our Orders requiring the filing of his pre-hearing memorandum. Because Mr. Sickeri has not filed anything in response to our Orders, we will dismiss his appeal.
Our Rules of Practice and Procedure authorize us to impose sanctions upon parties for failing to abide by the Board's orders and/or our Rules. 25 Pa. Code § 1021.161. Included within these sanctions is the dismissal of an appeal. We have consistently held that dismissal is appropriate where a party has shown a disinterest in proceeding with an appeal evinced by a failure to submit filings or respond to Board orders. This is particularly true when a party has chosen not to file a pre-hearing memorandum in advance of a scheduled hearing, and then has not responded to a subsequent order giving the party a second chance to file it. See, e.g., Foust v. DEP, 2018 EHB 604; Slater v. DEP, 2016 EHB 380; Casey v. DEP, 2014 EHB 908; Daly v. DEP, 2009 EHB 647. This is because the pre-hearing memorandum is not a mere formality. "The 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. See also Stanley v. DEP, EHB Docket No. 2021-013-L, slip op. at 6 (Opinion and Order Feb. 17, 2022) ("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."). Accordingly, Mr. Sickeri's failure to file a pre-hearing memorandum leaves us with no choice but to dismiss his appeal as Mr. Nelen's appeal moves forward.
The Department and Bell Resources have both filed detailed pre-hearing memoranda in accordance with our Rules.
We issue the Order that follows.
ORDER
AND NOW, this 12th day of October, 2022, it is hereby ordered as follows:
1. The above appeals are unconsolidated and the appeal of John Sickeri at EHB Docket No. 2021-026-C is dismissed.
2. All future filings shall be made at the following caption and docket number: