Opinion
EHB 2024-024-W
07-25-2024
RANDY A. DIETTERICH v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION
DEP, General Law Division: Attention: Maria Tolentino For the Commonwealth of PA, DEP: Sharon Stritmatter, Esquire Kathleen A. Ryan, Esquire For Appellant: Randy A. Dietterich, pro se
DEP, General Law Division:
Attention: Maria Tolentino
For the Commonwealth of PA, DEP:
Sharon Stritmatter, Esquire
Kathleen A. Ryan, Esquire
For Appellant: Randy A. Dietterich, pro se
OPINION AND ORDER ON MOTION TO DISMISS
MARYANNE WESDOCK, Judge
Synopsis
The Department's motion to dismiss is denied where there is ambiguity surrounding the action that is being appealed.
OPINION
This Opinion addresses a Motion to Dismiss (motion) filed by the Department of Environmental Protection (Department) seeking to dismiss an appeal filed by Randy A. Dietterich. Mr. Dietterich is the owner of two unconventional gas wells located in Robinson Township, Washington County known as the Brown 4 well and the Guy V Ida well. On January 23, 2024, the Department issued an order finding that the wells were abandoned and ordering that they be plugged (plugging order). The plugging order directed Mr. Dietterich to take either of the following actions within 10 days of the order: a) commence plugging of the wells or b) notify the Department in writing that within 30 days he would be submitting a detailed plan and schedule for the plugging of the wells.
On February 2, 2024, Mr. Dietterich wrote to George Traister, a compliance specialist in the Department's oil and gas program, advising Mr. Traister that he would like to put the wells back into production. Mr. Dietterich asked for an extension of 60 days to restore the wells to operating status as follows:
I would like to put these wells back into production. We were blocked out of the site by a padlocked chain at the beginning of summer which prevented access to the site. This is currently under litigation and is to soon be heard in Washington County, Case Number CV 2023-04635. In the short time I have fixed the gas leak at the DC Brown 4 well, replaced the permit number tages [sic] and are [sic] getting signed [sic] made with the name and address associated. These will be attached soon. I am scheduling a service company to restore the Brown well after the litigation. The Guy V Ida well is equipped for production with the exception of a stolen motor that has to be replaced. I am working on getting on the schedule of the service company list. Due to the unpredictable weather this time of the year, I am therefore requesting 60 days to restore the wells to operating status.(Ex. C to Department Motion.)
Mr. Traister responded on the same day, stating that the Department denied Mr. Dietterich's request for extension (the February 2 email):
The Department will not grant your request for a 60 day extension. The wells in question have been out of compliance for several years and continue to be out of compliance. If you feel aggrieved by the Departments [sic] order you may file an appeal to the Environmental Hearing Board. Instructions on how to file an appeal are located on the last 2 pages of the order.(Id.)
On February 15, 2024, Mr. Dietterich filed a notice of appeal with the Environmental Hearing Board (Board). In response to paragraph 2(b) of the notice of appeal form, asking "[w]hat action of the Department do you seek to have the Board review...?" Mr. Dietterich stated "Plugging Order." (Notice of Appeal, para. 2(b).) However, in a document attached to the notice of appeal, in which Mr. Dietterich provides information regarding the status of the Brown 4 and Guy V Ida wells, he states:
I am appealing the denial of an extension of the deadline for the plugging order and requesting a 90 day extension to repair the wells for production and restore the wells to active status. I request that, upon fulfillment of these commitment [sic] the plugging order be rescinded.(Notice of Appeal, Attachment, p. 2.)
It is the Department's contention that the action that Mr. Dietterich has appealed is not the plugging order, but the February 2 email denying his request for an extension. In support of this argument, the Department points to the language of the document accompanying the notice of appeal, stating "I am appealing the denial of an extension of the deadline for the plugging order..." The Department also relies on Mr. Dietterich's response to written interrogatories. In particular, Interrogatory no. 25 reads, "Please state that the sole basis for your NOTICE OF APPEAL is the 'denial of an extension of the deadline for the plugging order and requested [sic] a 90-day extension to repair the wells for production and restore the wells to active status.'" Mr. Dietterich responded, "This was the partial reason for the appeal. The other reason for the filing was the failure of the DEP to work with me on the restoration of the wells and the short timeline." (Ex. D to Department Motion.)
Pursuant to the Environmental Hearing Board Act (EHB Act), 35 P.S. §§ 7511 - 7516, the Board has the power and duty to hold hearings and issue adjudications on orders, permits, licenses or decisions of the Department. 35 P.S. § 7514(a). Although "decision" is not defined in the EHB Act or the Board's rules, "administrative agency laws generally refer to the term 'decision,' as including a determination which can be classified as quasi-judicial in nature and which affects rights or duties." Borough of Glendon v. DEP, 2014 EHB 201, 203 (quoting Sayreville Seaport Associates Acquisition Co. v. Department of Environmental Protection, 60 A.3d 867, 872 (Pa. Cmwlth. 2012) (quoting Department of Environmental Resources v. New Enterprise Stone &Lime Co., Inc., 359 A.2d 845, 847 (Pa. Cmwlth. 1976)). Section 4 of the EHB Act states that "no action of the department adversely affecting a person shall be final as to that person until the person has had the opportunity to appeal the action to the board .... "35 P.S. § 7514(c). An action is defined as "[a]n order, decree, decision, determination or ruling by the Department affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of a person including, but not limited to, a permit, license, approval or certification." 25 Pa. Code § 1021.2(a). "In short, the Board has jurisdiction to review final Department actions adversely affecting personal or property rights, privileges, immunities, duties, liabilities, or obligations." Borough of Glendon, 2014 EHB at 203 (citing Lower Salford Township Authority v. DEP, 2011 EHB 333, 339).
Not all communications from the Department are appealable to the Board. See, e.g., Sayerville Seaport Associates, supra) (communications that do not affect a party's personal or property rights, remedies, or avenues of redress are not appealable actions); Borough of Glendon, supra (Department email providing interpretation of law that no permit would be required is not an appealable action); Chesapeake Appalachia, LLC v. DEP, 2013 EHB 447 (Department letter modifying and approving a corrective action plan established pursuant to a consent order and agreement did not constitute an appealable action.) When it comes to Department communications, there is no bright line rule for what constitutes a final, appealable action; it must be decided on a case-by-case basis. Carlisle Pike Self Storage v. DEP, 2022 EHB 25, 28-29.
The Department argues that this case is analogous to New Enterprise Stone &Lime, supra, in which the Commonwealth Court upheld the Board's dismissal of an appeal of the denial of a request for an extension. In that case, the Department's predecessor, the Department of Environmental Resources (DER), and New Enterprise entered into an agreement which extended the time for compliance with a DER order. New Enterprise requested DER to modify the agreement by granting another extension of the compliance date. DER refused and the company appealed. Although the Board dismissed the appeal on other grounds, the Commonwealth Court upheld the dismissal on the grounds that DER's refusal to modify the agreement to extend the time for compliance was not an appealable action. In reaching this conclusion, the Court stated:
Here, the refusal by the DER to modify the outstanding agreement with New Enterprise lacks the elements which would suggest that a "decision" had been made in the technical sense of the word because the rights and obligations of New Enterprise have not been altered. We believe, therefore, that the DER's determination was not appealable and that the EHB properly dismissed the appeal....359 A.2d at 847.
Like the matter in New Enterprise, the Department argues that the February 2 email lacks the elements of an appealable action and urges us to dismiss this matter. However, it is not clear to us that Mr. Dietterich is appealing the February 2 email, rather than the plugging order itself. As noted earlier, on page one of the notice of appeal form, in response to the question in paragraph 2(a) asking Mr. Dieterrich to state what action of the Department he was asking the Board to review, he replied "Plugging Order." Additionally, in response to the question in paragraph 2(e) asking Mr. Dieterrich if he received written notice of the action being appealed, he responded "yes" and attached a copy of the plugging order. Notably, he did not attach a copy of the February 2 email. Moreover, even in the document attached to the notice of appeal in which he states that he is appealing the Department's denial of his request for an extension of the deadline set forth in the plugging order, he makes several statements indicating that he is appealing the plugging order itself. For example, the document is captioned: "This is the Appeal to the Plugging Order issued to Randy Dietterich.by the Department of Environmental Protection issued on January 23, 2024." The document alleges that "[t]he information in the plugging order describing the wells is not accurate" and then goes on to provide information regarding the wells. The document concludes by asking that "the plugging order be rescinded." (Notice of Appeal, Attachment, p. 2.) Additionally, we note that Mr. Traister's February 2 email advises Mr. Dietterich, "If you feel aggrieved by the Departments [sic] order you may file an appeal to the Environmental Hearing Board. Instructions on how to file an appeal are located on the last 2 pages of the order." (Ex. C to Department's Motion) (emphasis added). These are all indications that Mr. Dietterich intended to appeal the plugging order.
The Department bases its motion on Mr. Dieterrich's response to Interrogatory No. 25 asking him to "state that the sole basis for [his] NOTICE OF APPEAL is the 'denial of an extension of the deadline for the plugging order and requested [sic] a 90-day extension to repair the wells for production and restore the wells to active status.'" As noted earlier, Mr. Dietterich responded that this was a "partial reason for the appeal" with the other reason being the Department's failure to work with him on the restoration of the wells and the short timeframe given to comply with the order. Mr. Dietterich is acting pro se, and while the Board has frequently stated that an appellant who chooses to represent himself in a proceeding before the Board does so at his own risk, Goetz v. DEP, 2002 EHB 976, 977-79; Van Tassel v. DEP, 2002 EHB 625, 628, we also recognize that a pro se appellant is not as likely to craft a carefully worded response to interrogatories as is an attorney. Despite Mr. Dietterich's answer to Interrogatory no. 25, it is not clear to us that he intended to appeal only the February 2 email and not the plugging order. This is especially true where Mr. Dieterrich has given plenty of indications that he is indeed appealing the plugging order. Nor is the wording of Interrogatory No. 25 itself particularly clear. We suspect that if the Department had phrased its interrogatory as "please state that the basis for your appeal is the plugging order," Mr. Dieterrich may well have answered in the affirmative. At a minimum, it appears that Mr. Dietterich may have conflated the two - that is, he is appealing the plugging order and one basis for his appeal of the plugging order is the "failure of the DEP to work with [him] on the restoration of the wells and the short timeline." (Ex. D to Department's Motion, Response to Interrogatory No. 25.)
Mr. Dietterich could have cleared up some of the confusion by responding to the Department's motion, but unfortunately he did not. Based on his lack of response, we may deem all properly pleaded facts in the Department's motion as admitted. 25 Pa. Code §§ 1021.91(e) and 1021.94(f); Rocky Ridge Motel v. DEP, 2012 EHB 302, 306; KH Real Estate, LLC v. DEP, 2012 EHB 319, 321. However, we must also view the motion to dismiss in the light most favorable to the non-moving party. Scott v. DEP, 2023 EHB 138, 139; Muth v. DEP, 2022 EHB 262, 264. A motion to dismiss may be granted only when the matter is free of doubt. Scott, 2023 EHB at 140; Downingtown Area Regional Authority v. DEP, 2022 EHB 153, 155. Here, for the reasons we have articulated, we have serious doubt that Mr. Dietterich is appealing the February 2 email and not the plugging order.
If indeed Mr. Dietterich is appealing the plugging order, there is no question that it is an appealable action. 35 P.S. § 7514(a). The Department admits this. (Memorandum in Support of Department Motion, n. 1.) The Department's only challenge is whether the plugging order is the subject of this appeal. For the reasons set forth above, we believe that the language of Mr. Dietterich's notice of appeal indicates an intent to appeal the plugging order. At a minimum, the language is ambiguous and, in the face of such ambiguity, the Department's motion cannot be granted.
Finally, the Department asks the Board to consider an alternate remedy, stating:
In the event that the Board finds that there is ambiguity in the notice of appeal sufficient to deny a complete dismissal, the Department requests that any objections related to the denial of the extension to
comply with the Plugging Order should be dismissed or otherwise stricken.(Memorandum in Support of Department Motion, p. 7.)
The Department does not expand on its argument. To the extent the Department is asking the Board to preclude Mr. Dietterich from raising any challenge to the compliance schedule set forth in the plugging order, we decline to do so. This issue appears to be within the scope of Mr. Dietterich's appeal of the plugging order. For instance, Mr. Dietterich objects to the "short timeline" for complying with the plugging order. Additionally, it is not clear whether Mr. Dietterich's email to Mr. Traister asking for time to restore his wells was his attempt to comply with the plugging order's directive of providing a detailed plan within 10 days. Without further information, it is not appropriate to dismiss any portion of Mr. Dietterich's appeal. As noted earlier, motions to dismiss or motions for partial dismissal may be granted only when a matter is free of doubt. Scott, 2023 EHB at 140.
ORDER
AND NOW, this 25th day of July, 2024, it is hereby ordered that the Department of Environmental Protection's Motion to Dismiss is denied. Upon the issuance of this Opinion, the Board will contact the parties to schedule a conference call in this matter.