Opinion
2022-006-B
03-24-2022
BARR FARMS, LLC v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
For the Commonwealth of PA: Steven Edward Gavin, Esquire Dawn M. Herb, Esquire For Appellant: Errin T. McCaulley, Esquire Scott A. Gould, Esquire For Intervenors: William G. Roark, Esquire Steven A. Hann, Esquire
For the Commonwealth of PA:
Steven Edward Gavin, Esquire
Dawn M. Herb, Esquire
For Appellant:
Errin T. McCaulley, Esquire
Scott A. Gould, Esquire
For Intervenors:
William G. Roark, Esquire
Steven A. Hann, Esquire
OPINION AND ORDER ON PETITION TO INTERVENE
STEVEN C. BECKMAN JUDGE
Synopsis
The Board grants the petition to intervene in an appeal of the Department of Environmental Protection's recission of its earlier correspondence acknowledging Appellant's Land Application System Plan. The petitioners have a substantial, immediate, and direct interest in this appeal.
OPINION
Background
Barr Farms, LLC, ("Barr Farms" or "Appellant") has appealed the Department of Environmental Protection's ("the Department's") recission of an earlier email the Department sent addressing Barr Farms' Land Application System Plan ("LAS Plan"). The sequence of events leading up to this appeal are as follows: On December 10, 2021, the Department sent an email ("December 10 Email") that stated that it concurred with changes to Barr Farms' LAS Plan to apply Food Processing Residual ("FPR") waste and that "[L]and application of the FPR 1 present in the tank may proceed in accordance with 25 Pa. Code § 287.101(b)(2) …" On December 13, 2021, Thomas and Lori Clopper, Anthony and Stacie Grove, and Brad and Kayla Kershner (collectively, "the Petitioners"), filed a Notice of Appeal of the Department's December 10 Email, alleging, amongst other things, that the storage of FPR by Barr Farms had a negative impact on their property and drinking water and that allowing the land application of the FPR material endangered the safety of the Petitioners. That appeal is docketed at EHB No. 2021-124-B. Brian Barr is a party to that appeal. On January 5, 2022, the Department sent an email to Barr Farms ("Recission Email") rescinding the acknowledgement contained in the December 10 Email. The Recission Email detailed that a lab analysis of a sample taken from the material in the tanks located on Barr Farms' property detected human gene material. The Recission Email went on to explain that because human gene material was detected "the material currently contained in both tanks cannot be considered FPR under the FPR manual as this waste also contains human waste." (Appellant's Notice of Appeal, Ex. A). The Department further states that the material in the tanks is considered residual waste and Barr Farms would need to obtain a waste permit in order to spread the material.
Barr Farms appealed the Department's Recission Email on February 3, 2022. On February 25, 2022, the Petitioners filed their Petition to Intervene ("the Petition"). In a letter filed with the Board, the Department expressed that it does not oppose the Petition to Intervene. Barr Farms on the other hand, filed its Answer in Opposition to Petition to Intervene ("the Answer") on March 11, 2022.
Standard
Section 4(e) of the Environmental Hearing Board Act, 35 P.S. § 7514(e), provides that "any interested party may intervene in any matter pending before the board." The 2 Commonwealth Court has explained that, in the context of intervention, the phrase "any interested party" actually means "any person or entity interested, i.e., concerned, in the proceedings before the Board." Clean Air Council v. DEP, 2017 EHB 184, 191 (citing Browning Ferris, Inc. v. DER, 598 A.2d 1057, 1060 (Pa. Cmwlth. 1991). The intervenor must have standing. Pileggi v. DEP, 2010 EHB 433, 434. Standing requires more than a general interest in the proceedings; it must be such that the person or entity seeking intervention will gain or lose by direct operation of the Board's ultimate determination. Jefferson County v. DEP, 703 A.2d 1063, 1065 n. 2 (Pa. Cmwlth. 1997); Wheelabrator Pottstown, Inc. v. DER, 607 A.2d 874, 876 (Pa. Cmwlth. 1992); Hostetter v. DEP, 2012 EHB 386, 388; Pagnotti Enterprises, Inc. v. DER, 1992 EHB 433, 436.
A person or entity seeking to intervene has standing if its interests in the matter are substantial, direct, and immediate. Lawson v. DEP, 2017 EHB 968, 970; Borough of Glendon v. DER, 603 A.2d 226, 233 (Pa. Cmwlth. 1992), petition for allowance of appeal denied, 608 A.2d 32 (Pa. 1992); Tortorice v. DEP, 1998 EHB 1169, 1170. For an interest to be considered "substantial," the interest must "surpass the common interest of all citizens seeking obedience to the law." Darlington Township Board of Supervisors v. DEP, 1997 EHB 934, 935. "Direct" and "immediate" mean that there must be a sufficiently close causal connection between the person's interest and the actual and potential harm associated with the challenged action. In other words, the intervenor's interest must not be remote. University Area Joint Authority v. DEP, 2019 EHB 750, 752. When standing is challenged in an answer to a petition to intervene, we accept as true all verified facts set forth in the petition and all inferences fairly deducible from those facts and decide whether the averments nevertheless fail to establish a basis for standing as a matter of law. Lawson v. DEP, 2017 EHB 968, 970 (citing Logan v. DEP, 2016 EHB 531, 533). 3
Analysis
The Petitioners assert that they have a substantial, direct, and immediate interest in this appeal because it is directly related to their separate appeal at EHB Docket No. 2021-124-B. In their Notice of Appeal in that case, the Petitioners assert that the FPR stored by Barr Farms caused odor issues and water contamination on their properties. They claim that the Department failed to properly investigate their concerns and failed to comply with the requirements of the FPR Manual. The Petitioners specifically objected to the contents of the December 10 Email that they characterize as an approval by the Department for the spreading of the FPR material on fields near their properties by Barr Farms. The Petitioners state that if they are permitted to intervene, they intend to present evidence relating to the impact of this appeal on their related appeal before the Board, including the impact the Board's decision in this appeal will have on their properties and drinking water.
Barr Farms objects to the Petition and asserts in its Answer that the Petitioners do not meet the standards for intervention because the Petitioners will neither gain nor lose as a direct result of the Board's decision in this appeal. According to Barr Farms, the sole subject of this appeal is the determination by the Department set forth in the Recission Email that the material in the tanks located at its farm do not qualify as FPR. Barr Farms argues that Petitioners should not be allowed to expand the appeal and state that any issues the Petitioners raise are already being addressed in their appeal docketed at 2021-124-B. Barr Farms relies on a Commonwealth Court case, Jefferson County. v. DEP, 703 A.2d 1063 (Pa. Cmwlth. 1997) in support of its position that the Petition should be denied because of the related appeal.
We find that the Petitioners have a substantial, direct, and immediate interest in this appeal and we reject Barr Farms' argument that the Petitioners will neither gain nor lose as a 4 result of the Board's decision in this appeal. The Petitioners live adjacent to or in close proximity to Barr Farms and the fields where the FPR would be allowed to be land applied in the absence of the Recession Email from the Department. While the Commonwealth Court and this Board have held on numerous occasions that mere ownership of property near a subject site is not enough by itself to confer standing or justify intervention, we remain mindful that it is a factor in our consideration. Tessitor v. DER, 682 A.2d 434, 437 (Pa. Cmwlth. 1996), petition for allowance of appeal denied, 693A.2d 591 (Pa. 1997); Darlington Township v. DEP, 97 EHB 934, 935; P.A.S.S. v. DEP, 1995 EHB, 940, 942. In this case, the proximity of the Petitioners' property supports a finding that their interest is substantial because it results in their interest surpassing the common interest of the general citizenry in compliance with the relevant laws. They are more likely than members of the general public to suffer from any negative consequences caused by the land application of the material in the tanks in the event such an application creates a water contamination issue.
The Petitioners' interest in this appeal is also direct and immediate. So long as the Department's Recession Email remains in place, Barr Farms cannot land apply the material in the tanks as FPR without violating the waste regulations. The Petitioners contend that the contamination of the ground water that they use for drinking water is the result of tanks leaking or land application of the FPR by Barr Farms. The Petitioners clearly articulate that the harm they are asserting is caused by Barr Farms and, therefore, they have a direct and immediate interest in seeing that the Department's Recission Email remains in place and Barr Farms is prevented from spreading the FPR material on the fields in the vicinity of their wells and property. Assuming the facts set forth are true and accepting all inferences deducible from those facts as we are required to do, the Petitioners clearly gain if the Board denies Barr Farms' appeal 5 (no land application of the material in the tanks without additional permitting requirements) and lose if the appeal is granted (land application of the FPR that the Petitioners allege has the potential for groundwater and drinking water contamination).
We want to address Barr Farms' position that the Petition should be denied because the Petitioners are pursuing identical arguments in their related appeal. Barr Farms cites the Commonwealth Court's decision in Jefferson County. v. DEP, 703 A.2d 1063 (Pa. Cmwlth. 1997) in support of its position. In its Answer, Barr Farms describes the Court as affirming the Board's denial of a petition to intervene where the issues the intervenors sought to raise were already being addressed in a separate case before the Board that the intervenors filed. However, upon reviewing Jefferson County, the Court did not affirm the Board's decision based on that reasoning. In fact, the Court quashed the appeal of the petitioners in that case because they did not meet the requirements for an appeal under the collateral order doctrine and made no determination as to the soundness of the Board's reasoning in denying the petition to intervene in that case. Upon further investigation of the Jefferson County case, it appears the Board only issued an order without an accompanying opinion in denying the petition in that instance. The Jefferson County case does not support the position advocated by Barr Farms. In this instance, we see no reason to deny the Petition despite the Petitioners raising similar issues in their separate appeal.
Barr Farms also argues that if the Petitioners are permitted to intervene, that the Board should limit the issues the Petitioners are able to raise to those issues raised by Barr Farms in its appeal. Under our rule on intervention, the Board may specify the issues as to which intervention is allowed. 25 Pa. Code § 1021.81(f). Barr Farms contends that "the sole and exclusive subject of the appeal filed by Appellant is [the Department's] January 5, 2022, 6 determination that the material contained in the two tanks located at Appellant's farm does not qualify as FPRs" and that "[t]he evidence sought to be introduced by [the Petitioners] bears no connection to the instant appeal…" (Barr Farms' Answer at 5). In other words, Barr Farms argues that Petitioners should not be allowed to raise issues about water pollution concerns because such arguments are beyond the scope of this appeal. After considering Barr Farms' request, we conclude that the proper exercise of the discretion granted to us under our intervention rule is not to limit the Petitioners to the single issue of whether the material in the tanks qualify as FPR.
Our concern with Barr Farms' request that we limit the issues that Petitioners may raise is that our review of Department actions is de novo. National Fuel Gas Midstream Corp. v. DEP, 2015 EHB 909, 921, citing Warren Sand & Gravel Company v. DER, 341 A.2d 556, 565 (Pa. Cmwlth. 1978). The Department action under appeal in this case is its recission of its earlier email that cleared the path for Barr Farms to land apply the FPR. The Department's reasons for its decision set forth in the Recission Email are certainly one focus of the appeal but the Board is not bound by the reasoning set forth by the Department and can consider other facts and legal reasoning for why Barr Farms should not be able to land apply the FPR stored in its tanks. See Smedley v. DEP, 2001 EHB 131, 156. We do not simply defer to and/or adopt the Department's findings of fact. Id. Rather, we make our own factual findings based on the presentation of the evidence of record, regardless of whether or not that information was considered or generated by the Department. Id. In order to aid in our de novo review of the Department's action, the Petitioners may present relevant facts and legal arguments in opposition to Barr Farms' plan, whether or not those arguments or facts served as a basis for the Department's action.
In summary, we find that the Petitioners have a substantial, direct, and immediate interest 7 in the outcome of this appeal. They stand to gain or lose as a result of the outcome of these proceedings, even withstanding a related appeal they have currently before the Board. Additionally, because our review is de novo and we can substitute our discretion for that of the Department's, we conclude that the issues the Petitioners can raise are not limited to those arguments presented by the original parties. The Board is satisfied that the threshold for intervention has been met by the Petitioners. Accordingly, we issue the following Order. 8
ORDER
AND NOW, this 24th day of March, 2022, it is hereby ORDERED that the Petition to Intervene is granted. The caption is amended as follows and shall be used on all future filings:
BARR FARMS, LCC
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION, and CLOPPER, ET AL., INTERVENORS
EHB Docket No. 2022-006-B 9