Opinion
EHB Docket 2020-012-B
08-09-2022
BRIAN TELEGRAPHIS v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
For the Commonwealth of PA: Brian L. Greenert, Esquire Michael J. Heilman Esquire (via electronic filing system) For Appellant: Frank D. Magone, Esquire (via electronic mail)
For the Commonwealth of PA: Brian L. Greenert, Esquire Michael J. Heilman Esquire (via electronic filing system)
For Appellant: Frank D. Magone, Esquire (via electronic mail)
OPINION AND ORDER ON APPELLANT'S MOTION TO COMPEL DRILLING
STEVEN C. BECKMAN, JUDGE.
Synopsis
The Board denies appellant's motion to compel where the Board finds that the Department's actions following remand by the Board are consistent with the remand and where the requested relief is now moot.
OPINION
The Board issued a final Adjudication and Order in this matter on November 4, 2021 ("Adjudication"). The Adjudication granted Mr. Telegraphis' appeal and remanded the matter to the Department to determine whether mine subsidence caused damage to Mr. Telegraphis' commercial structure and, if subsidence had occurred, a determination of liability for the damage. Both parties acknowledge in their recent filings that the Department has undertaken a further investigation of the mine subsidence claim in accordance with our remand instructions and that the investigation is ongoing at this time. Mr. Telegraphis is clearly not satisfied with the way the Department's investigation is proceeding. We recently denied a motion from Mr. Telegraphis that requested that the Board direct the Department to comply with certain claim procedures. Telegraphis v. DEP, EHB Docket No. 2020-012-B (Opinion and Order, August 1, 2022). While our ruling on that motion was pending, Mr. Telegraphis filed this new Motion to Compel Drilling ("Motion"). As we understand it, the Department planned to conduct a geotechnical exploration project on Mr. Telegraphis' property as part of the investigation. In order to access the property, the Department proposed that the parties execute a document entitled "Consent for Right of Entry" ("Entry Agreement"). Mr. Telegraphis and the Department have not been able to reach an agreement on the terms for the Entry Agreement. In his Motion, Mr. Telegraphis requests that the Board issue an order that "addresses the rights of the parties." Mr. Telegraphis' Motion at 3. While it is not entirely clear what Mr. Telegraphis wants in his Motion, the Board reads the Motion as requesting that the Board order the Department to conduct the proposed project and decide the specific terms of the right of entry agreement. The Board has reviewed the parties' filings addressing the Motion and holds that the Motion is denied.
As we said in our recent decision on the prior motion to compel, the actions taken by the Department following our Adjudication are consistent with the remand and appear to be reasonably aimed at determining the subsidence damage claim made by Mr. Telegraphis. Telegraphis v. DEP, EHB Docket No. 2020-012-B, slip op. at 2, (Opinion and Order, August 1, 2022). The Board does not intend to micromanage that investigation and does not think it appropriate or necessary to dictate the manner of that investigation or specific terms of any agreements between the parties that may be required to carry out the investigation. In this specific instance, our denial of the Motion is further supported by the fact that the Department has now decided not to pursue the geotechnical exploration project, rendering the issue concerning the terms of the Entry Agreement moot. Department's Response to Motion to
Compel Drilling at 3. The appropriate role for us at this point is to allow the investigation process to play out until the Department has made a final determination on the claim. Any party that is aggrieved by the Department's eventual determination of whether mine subsidence caused damage to Mr. Telegraphis' commercial building may appeal that decision to the Board at the appropriate time in accordance with the Board's rules governing appeals of Department actions.
Therefore, we issue the following Order:
ORDER
AND NOW, this 9th day of August 2022, following review of Mr. Telegraphis' Motion to Compel Drilling and his Brief in Support and the Department's Response and Memorandum in Support thereto, the motion is hereby denied.