Opinion
EHB 2022-055-L
09-27-2022
MARJORIE HUDSON, DAVID LIPPERT, and JAMES H. MELLOTT v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION, FULTON COUNTY CONSERVATION DISTRICT, and STATE CONSERVATION COMMISSION; and COUNTRY VIEW FAMILY FARMS, LLC, Permittee
DEP, General Law Division: Attention: Maria Tolentino (via electronic mail) For the Commonwealth of PA, DEP, Fulton County Conservation District, and State Conservation Commission: Curtis C. Sullivan, Esquire (via electronic filing system) For Petitioners: Mark L. Freed, Esquire (via electronic filing system) For Permittee: Scott A. Gould, Esquire Errin T. McCaulley, Jr., Esquire Brigid L. Khuri, Esquire (via electronic filing system)
DEP, General Law Division: Attention: Maria Tolentino (via electronic mail)
For the Commonwealth of PA, DEP, Fulton County Conservation District, and State Conservation Commission: Curtis C. Sullivan, Esquire (via electronic filing system)
For Petitioners: Mark L. Freed, Esquire (via electronic filing system)
For Permittee: Scott A. Gould, Esquire Errin T. McCaulley, Jr., Esquire Brigid L. Khuri, Esquire (via electronic filing system)
MICHELLE A. COLEMAN Judge, BERNARD A. LABUSKES, JR. Judge, STEVEN C. BECKMAN Judge
ORDER
THOMAS W. RENWAND CHIEF JUDGE AND CHAIRMAN
AND NOW, this 27th day of September, 2022, it is hereby ordered as follows:
1. The Environmental Hearing Board could not reach a majority opinion on the Petitioners' Petition for Leave to File Appeal Nunc Pro Tunc.
2. Therefore, by operation of law, the status quo is maintained and the Petition is denied.
3. The Opinions in support of denying and granting the Petition are attached.
OPINION IN SUPPORT OF DENYING PETITION FOR LEAVE TO FILE APPEAL NUNC PRO TUNC
By Bernard A. Labuskes, Jr., Judge
On June 9, 2022 the Fulton County Conservation District (the "Conservation District") approved a renewed nutrient management plan for a concentrated animal feeding operation (CAFO) located in Big Cove Tannery, PA to be operated by Country View Family Farms, LLC ("Country View"). The approval of the renewed nutrient management plan was the latest action taken in a series of permits and approvals for this facility, which have been the subject of numerous appeals before the Environmental Hearing Board and are consolidated at EHB Docket No. 2015-116-L (Consolidated with 2014-037-L, 2015-096-L, 2015-115-L, 2016-115-L, 2018-039-L, 2019-095-L, and 2019-110-L). Notice of the approval was published in the Pennsylvania Bulletin on June 25, 2022. Therefore, the deadline for filing an appeal from the approval was July 25, 2022. See 3 Pa.C.S.A. § 517 (30 days to file an appeal of action on a nutrient management plan); 25 Pa. Code § 1021.52(a)(2)(i) (Board rule requiring aggrieved persons to file appeals within 30 days of publication of notice in the Pennsylvania Bulletin). Marjorie Hudson, David Lippert, and James H. Mellot (the "Petitioners") did not file a timely appeal before July 25, 2022. Instead, on August 8, 2022, two weeks after the appeal deadline, they filed the petition for leave to file an appeal nunc pro tunc that is now before us. The Appellees and the Permittee oppose the petition. For the reasons that follow, we would deny the petition.
In addition to the nutrient management plan, the appeals have involved a PAG-02 permit, PAG-12 permit, water quality management permit, and their various renewals. On August 27, 2015, we issued an Order granting a petition for supersedeas filed by a group of appellants that included two of the current Petitioners-Marjorie Hudson and David Lippert-of the PAG-02 authorization issued to Country View by the Department of Environmental Protection for the stormwater discharges associated with this facility. See EHB Docket No. 2015-096-L. An Opinion in support of that Order followed on September 1, 2015. Hudson v. DEP, 2015 EHB 719. Country View's overall CAFO project has been on hold since that time more than seven years ago.
Of course, the untimeliness of an appeal generally deprives the Board of jurisdiction. Rostosky v. Dep't of Envtl. Res., 364 A.2d 761, 763 (Pa. Cmwlth. 1976); Mon View Mining Corp. v. DEP, 2003 EHB 542; Ziccardi v. DEP, 1997 EHB 1, 3. See also 25 Pa. Code § 1021.52(a) ("jurisdiction of the Board will not attach to an appeal from an action of the Department unless the appeal is in writing and is filed with the Board in a timely manner"). Nevertheless, in very limited circumstances we may grant permission to appeal nunc pro tunc upon written request and for good cause shown. 25 Pa. Code § 1021.53a. What constitutes good cause is determined in accordance with "the common law standards applicable in analogous cases in courts of common pleas in this Commonwealth." Id.
To prevail on a nunc pro tunc petition,
The party seeking nunc pro tunc filing must show 1) that extraordinary circumstances, involving fraud or breakdown in the administrative process or non-negligent circumstances related to the party, its counsel or a third party, caused the untimeliness; 2) that it filed the document within a short time period after the deadline or date that it learned of the untimeliness; and 3) that the respondent will not suffer prejudice due to the delay.Feudale v. DEP, 2016 EHB 774, 776 (quoting Bureau Veritas N. Am., Inc. v. DOT, 127 A.3d 871, 879 (Pa. Cmwlth. 2015)). See also Bass v. Cmwlth., 401 A.2d 1133 (Pa. 1979); Grimaud v. Dep't of Envtl. Res., 638 A.2d 299, 303-04 (Pa. Cmwlth. 1994); Barchik v. DEP, 2010 EHB 739, 742; Greenridge Reclamation LLC v. DEP, 2005 EHB 390, 391. An administrative breakdown occurs when an administrative board or body is negligent, acts improperly, or unintentionally misleads a party. Union Elec. Corp. v. Bd. of Prop. Assessment, 746 A.2d 581, 584 (Pa. 2000); Harris v. Unemployment Comp. Bd. of Review, 247 A.3d 1223, 1229 (Pa. Cmwlth. 2021). Non-negligent circumstances are found "only in unique and compelling cases" where a person has attempted to file an appeal "but unforeseeable and unavoidable events precluded her from actually doing so." Criss v. Wise, 781 A.2d 1156, 1160 (Pa. 2001).
We must be mindful that we cannot extend the time for taking an appeal as a matter of grace or indulgence. Ametek, Inc. v. DEP, 2014 EHB 65, 68; Rostosky, 364 A.2d at 763. "Allowing an appeal nunc pro tunc is a recognized exception to the general rule prohibiting the extension of an appeal deadline." Union Elec. Corp., 746 A.2d at 584. "[A]n appeal nunc pro tunc is intended as a remedy to vindicate the right to an appeal where that right has been lost due to certain extraordinary circumstances." Id. (quoting Commonwealth v. Stock, 679 A.2d 760, 764 (Pa. 1996)). It is a heavy burden to justify an untimely appeal. Suber v. Unemployment Comp. Bd. of Review, 126 A.3d 410, 412 (Pa. Cmwlth. 2015).
The Petitioners have not alleged that this Board has done anything wrong or that there has been a breakdown in our administrative process. Rather, they argue that the "fraud or breakdown in the administrative process or non-negligent circumstances" that entitle them to file an appeal nunc pro tunc is that the notice of the nutrient management plan renewal that was published in the Pennsylvania Bulletin did not contain the words "Bivouac" or "Bivouac Sow Farm." As the Petitioners monitored the ongoing developments at the site, they only performed a word search of the Bulletin for "Bivouac" or "Bivouac Sow Farm." Oddly, they did not search for any other terms, not even the name of the operator, Country View Family Farms, LLC. As a result, they did not pick up the notice and they missed the appeal deadline.
They learned about the approval some weeks later during a conference call in the related appeals mentioned above.
The Petitioners say they were entitled to design a word search relying exclusively on "Bivouac" and "Bivouac Sow Farm" because the nutrient management plan itself identified the site as the Bivouac Sow Farm and every prior Pennsylvania Bulletin notice regarding the site mentioned that name. For example, the notice of the application for approval of the nutrient management plan (as opposed to the later approval) identified the "Agricultural Operation Name and Address" as follows:
Country View Family Farms, LLC Bivouac Sow Farm 15197 Great Cove Rd Big Cove Tannery, PA 1721252 Pa.B. 2018 (Apr. 2, 2022). (Pet. Ex. J.) The notice also identified the county of the operation (Fulton), the total acres (224), the animal equivalent units (3,271.50), the animal types (sows, sows with litters, gilts and boars), whether any special protection waters were involved (NA), and whether it was a new or renewed plan (Renewal). The Country View facility was the only facility listed in the Bulletin under the section entitled "PROPOSED NUTRIENT MANAGEMENT PLANS RELATED TO APPLICATIONS FOR NPDES PERMITS FOR CAFOs."
In contrast, they complain that the notice published for the approval of the nutrient management plan identified the Agricultural Operation without the term "Bivouac Sow Farm":
Country View Family Farms, LLC15197 Great Cove Road Big Cove Tannery, PA 17212 52 Pa.B. 3620 (June 25, 2022). (Pet. Ex. L.) We note that the notice still identified County View Family Farms, LLC as the permittee. It contained the same address of the operation. The notice also contained the same information regarding the county of the operation, the total acres, the animal equivalent units, the types of animals, and the special protection waters. It also informed people how to appeal an action taken on the plan to the Board. Country View's facility was the only one listed under the section entitled "NUTRIENT MANAGEMENT PLANS RELATED TO APPLICATIONS FOR NPDES PERMITS FOR CAFOs." In a nutshell, the Petitioners argue that they should be allowed to file a late appeal because, despite their intense interest in this site, they did not read the Bulletin and instead chose to rely upon a poorly designed word search.
Initially, we are not entirely satisfied that the sufficiency of public notice in the Bulletin is a relevant inquiry for justifying nunc pro tunc relief. For purposes of a nunc pro tunc appeal, it is not a breakdown in the administrative process concerning the notice published in the Bulletin by a different agency that matters, but a breakdown in the Board's operations that appears to be the appropriate criterion. See Spencer v. DEP, 2008 EHB 573, 575 ("nunc pro tunc appeals will be allowed only where there has been fraud, a breakdown in the Board's operations, or other unique and compelling circumstances"); Hopwood v. DEP, 2001 EHB 1254, 1259 (nunc pro tunc petitions "are only granted where there is fraud or breakdown in the Board's operation or unique and compelling factual circumstances establish a non-negligent failure to appeal" (emphasis in original)). See also Dellinger v. DEP, 2000 EHB 976, 983 (discussing JEK Construction Co. v. DER, 1987 EHB 643, and Washington Twp. v. DER, 1995 EHB 403, where breakdowns in the Board's operations justified nunc pro tunc relief). The Petitioners have not directed us to any Board cases where we have held that a deficient notice in the Bulletin has provided grounds for a nunc pro tunc appeal.
Even if we entertain the Petitioners' argument that the public notice is what we should be looking at in terms of an administrative breakdown precedent to a nunc pro tunc appeal or that it can otherwise constitute a unique and compelling circumstance, in this context the Petitioners still have not convinced us that they are entitled to nunc pro tunc relief. In the analogous situation where we consider whether a party received constitutionally adequate notice, we look to whether the notice in question was "reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Harvilchuck v. Dep't of Envtl. Prot., 117 A.3d 368, 372 (Pa. Cmwlth. 2015). We have held that "the standard for the adequacy of a notice is whether it clearly identifies an action of the Department such that an ordinary member of the public would have sufficient information to determine that they may be affected by such an action for the purposes of filing an appeal with the Board." Telford Borough Auth. v. DEP, 2009 EHB 333, 338.
The approval notice at issue here clearly contained sufficient information for an ordinary person to determine that they may be affected by the approval of the nutrient management plan. Perhaps most importantly, the notice contained the name of the permittee, Country View Family Farms, LLC, and the county and full address of the facility. It also contained information on the animal types and units and whether any special protection waters are involved. We think anyone reading the Bulletin notice would be able to discern what site was involved. Although a name a permittee makes up for its facility may be helpful information to those already familiar with the operation, we cannot conclude that the absence of that name in this instance renders the notice inadequate. Country View's facility was the only one listed under the notices of nutrient management plan approvals. Again, anyone who read the notice would understand that the nutrient management plan had been approved, that the approval had been given to Country View Family Farms, LLC, and that the approval governed its facility at 15197 Great Cove Road. We note that a search for the term "Country View" yields exactly one result in the April 2 notice of the application for the nutrient management plan and one result in the June 25 notice of approval of the nutrient management plan. Thus, even if we utilize the Petitioners' method of searching instead of reading the Bulletin, simply using a portion of the name of the permittee easily locates the notice. The Petitioners' own choice of using limited search terms and not actually reading the Bulletin is not worthy of nunc pro tunc relief.
This case stands in contrast to Solebury Township v. DEP, 2003 EHB 208, wherein we denied a motion to dismiss premised on an untimely appeal because we found that the notice published in the Pennsylvania Bulletin did not meet the standard that it be reasonably calculated to inform a member of the public of the action taken. Solebury Township involved an appeal of a Section 401 water quality certification for the construction and maintenance of a limited access highway. The consolidated appeal was filed more than three years after the publication of notice in the Bulletin that purported to reflect the issuance of the water quality certification. However, after reviewing the published notice, we determined that it only indicated approval of the permittee's environmental assessment and contained no mention at all of the water quality certification. An ordinary person reading the notice would have had no idea that the water quality certification had been approved. Here, in contrast, there can be no question that the notice informed the public what was being approved, who the approval was given to, and where the approved facility was located.
The Petitioners cite H.D. v. Pennsylvania Department of Public Welfare, 751 A.2d 1216, 1220 (Pa. Cmwlth. 2000). However, in that case the agency sent notice to an outdated address for the petitioner, thereby causing the petitioner to miss the 45-day appeal window. Thus, someone who was entitled to receive personal notice did not because of an error by the agency mailing the notice. See also UPMC Health Sys. v. Unemployment Comp. Bd. of Review, 852 A.2d 467 (Pa. Cmwlth. 2004) (reversing denial of nunc pro tunc appeal of employer where Unemployment Center used employer's incorrect zip code and employer did not receive notice until after expiration of appeal period). The Petitioners also cite Croft v. Board of Property Assessment, 134 A.3d 1129 (Pa. Cmwlth. 2016), where the Commonwealth Court reversed a denial of nunc pro tunc appeal where a taxpayer's deed was improperly recorded and he received no notice of accumulating liens on one parcel of his property. There are no allegations in the cases cited by the Petitioners that there were any deficiencies in the contents of the notices, and none deal with public notice.
Finally, the Petitioners contend that the Commonwealth and Country View had some sort of duty to apprise the Petitioners of the approval of the nutrient management plan as part of broad discovery requests served more than three years ago in the pending consolidated case at EHB Docket No. 2015-116-L. The Petitioners cite to no authority for this duty. They do not, for instance, identify any Pennsylvania Rule of Civil Procedure that imposes an ongoing obligation to supplement that sort of discovery request. Rule 4007.4 imposes an obligation to seasonably supplement responses regarding the identity of expert witnesses and persons with knowledge of discoverable matters. Pa.R.Civ.P. 4007.4(1). See also DEP v. EQT Prod. Co., 2016 EHB 489, 491-95. There is also an obligation to correct a response that was incorrect or is no longer true. Pa.R.Civ.P. 4007.4(2). But absent an order of the Board, an agreement between the parties, or a new request to supplement a prior discovery response, there is "no duty to supplement the response to include information thereafter acquired." Pa.R.Civ.P. 4007.4(3). The Petitioners provide no explanation for why discovery propounded on the Commonwealth and Country View in April 2019 creates some indefinite, open-ended entitlement to personal notice of every subsequent action taken with respect to the subject site or why, even if it did, a failure to immediately supplement those discovery responses justifies nunc pro tunc relief.
As we stated at the beginning, there is a heavy burden to obtain nunc pro tunc relief. See Freyer Excavating, LLC v. DEP, 2020 EHB 270, 273-74 (collecting cases where petitioners failed to demonstrate good cause for being permitted to appeal nunc pro tunc). Indeed, in Freyer Excavating, we only granted a nunc pro tunc appeal in light of the recent onset of the COVID-19 pandemic. We found that unique and compelling factual circumstances existed in the Governor of Pennsylvania ordering the closure of all non-life-sustaining businesses shortly after the appellant business received the civil penalty assessment from the Department. There are no comparable unique and compelling circumstances here.
Because we have not found an administrative breakdown or unique and compelling circumstances justifying an untimely appeal, we do not need to reach the issues of whether the Petitioners acted within a short period of time after discovering the approval or the prejudice to the other parties in allowing an untimely appeal.
OPINION IN SUPPORT OF GRANTING PETITION FOR LEAVE TO FILE APPEAL NUNC PRO TUNC
By Thomas W. Renwand, Chief Judge
The Pennsylvania Environmental Hearing Board has the power to grant an exception to the general rule prohibiting the extension of the appeal period by allowing an Appellant to file his appeal nunc pro tunc. Union Electric Corporation v. Bd. Of Prop. Assessment, Appeal & Review of Allegheny County, 746 A.2d 581, 584 (Pa. 2000); Commonwealth v. Stock, 679 A.2d 760, 764 (Pa. 1996). See also 25 Pa. Code § 1021.53a ("The Board upon written request and for good cause shown may grant leave for the filing of an appeal nunc pro tunc.") An appeal nunc pro tunc may be allowed not only where extraordinary circumstances involving fraud or a breakdown in the administrative process exist, but also if non-negligent circumstances related to the petitioner, his attorney or a third party caused the delay in filing the appeal. Smith v. DEP, 2002 EHB 640 (petition to appeal nunc pro tunc was granted where it was not clear that the Department's letter was a final action); Fisher v. DER, 1993 EHB 425 (petition to appeal nunc pro tunc was granted where the language of a mine subsidence insurance agreement relating to the appeal period was misleading). Under the unique history of this litigation involving numerous cases which have all been consolidated and date back to 2014, I find that special non-negligent circumstances exist such that an appeal nunc pro tunc is not only allowed but, in the interest of justice and fairness, is required.
I believe the unique factual circumstances of this case slightly tip the scales of justice in favor of allowing the Appellants leave to file their appeal of the nutrient management plan nunc pro tunc. A review of the docket shows that the parties have worked closely together for years. Indeed, many of the status reports and the proposed Orders, which were all adopted by the Board, provided that the Appellants would be given notice when the Department was going to modify the NPDES permit and/or the water quality permit.
Notice of the approval of the nutrient management plan appeared in the Pennsylvania Bulletin in June 2022. Simply reading the "hard copy" Pennsylvania Bulletin, which lawyers have done for decades, rather than conducting a word search, would have revealed the issuance of the plan. Additionally, a more robust word search would have likely brought the notice to Appellants' attention. Nevertheless, by my count, the six times the facility was listed in the Pennsylvania Bulletin from 2014 through 2019 the only term used was the "Bivouac Sow Farm" (which was the search term employed by Appellants). Even the renewal application notice for the nutrient management plan in April 2022 still included a reference to Bivouac Sow Farm (but for the first time also referenced Country View Family Farms, LLC).
These facts prove the adage that hindsight is always 20/20. The question before us is whether these facts qualify as extraordinary circumstances that warrant nunc pro tunc relief. Although it is a close question, and my colleagues on the other side set forth a reasonable position, I believe that it was also reasonable for the Appellants to rely on a search that was consistent with the naming convention used in each of the prior publications. The change feels particularly problematic since it is at variance with the terminology used in the April 2022 application notice.
The holding in Harvilchuck v. Department of Environmental Protection, 117 A.3d 368 (Pa. Cmwlth. 2015), supports granting Appellants the relief they have requested. In that case, the Commonwealth Court reversed the Board's dismissal of a late filed appeal where the Appellant had received notice of the Department's action on the permit by eNotice emails and eFacts webpage. "Quite simply, Objector did not have and could not have had sufficient knowledge to appeal the Renewal Permit until he received written notification of DEP's action…." Id. at 373.
The Commonwealth Court's Memorandum & Order in Lester v. Department of Environmental Protection, No. 1778 C.D. 2015 (Pa. Cmwlth. October 30, 2015) is especially instructive. In that case the Board issued an Adjudication which was electronically served on Appellant's counsel. However, even though Appellant's attorney had properly registered for electronic filing in accordance with the Board's requirements, he was not aware of how the email would be forwarded to him. Instead, because the Board's electronic service provider was Thomson Reuters, the parent company of Westlaw and West Publishing, of which the attorney was a customer, he mistakenly thought that the electronic notice of the Adjudication was a solicitation for its online legal research product, Westlaw. Therefore, he deleted it without reading it. When he later learned that the Board had issued its Adjudication several months earlier, he filed an appeal with the Commonwealth Court and asked to proceed nunc pro tunc because the thirty-day appeal period had run.
The Commonwealth Court's Memorandum and Order is available on the Board's electronic docket at Lester v. DEP, Docket No. 2014-025-B, DOCKET SHEET (courtapps.com) docket entry no. 40.
The Commonwealth Court granted the petition to appeal nunc pro tunc. Judge Simpson, writing for the Court, held that the email from Thomson Reuters was "vague and non-descriptive" and the header contained no indication an Adjudication was enclosed. Lester, slip op. at 4. When this was coupled with the fact that the attorney received numerous emails from Thomson Reuters, Judge Simpson held that the attorney was not negligent in deleting the email without reading it and found that "the confusion caused by the Board's email constitutes a non-negligent circumstance warranting relief." Id. at 5.
The Board has since changed the "sender name" of the email notification to clear up any confusion.
I therefore respectfully differ from my colleagues who believe the petition should be denied. I agree with former Chief Judge Krancer in Solebury Township v. DEP, 2003 EHB 208, that notice published in the Pennsylvania Bulletin should be construed "against the party or parties seeking to rely on it. This is especially so where the Department is one of those parties seeking to rely on the notice and it is the party who controls the publication of the notice." Id. at 217.
Moreover, these are consolidated appeals dating back to 2014. I believe the Appellants should be allowed an exception and should be given permission to file their appeal nunc pro tunc and would so order.