Opinion
2022-072-B
06-29-2023
PROTECT PT v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and APEX ENERGY (PA) LLC, Permittee
DEP, General Law Division: Attention: Maria Tolentino For the Commonwealth of PA, DEP: Forrest M. Smith, Esquire Richard P. Bielawa, Esquire For Appellant: Jennifer Clark, Esquire Tim Fitchett, Esquire For Permittee: Megan S. Haines, Esquire Casey Snyder, Esquire
DEP, General Law Division: Attention: Maria Tolentino
For the Commonwealth of PA, DEP: Forrest M. Smith, Esquire Richard P. Bielawa, Esquire
For Appellant: Jennifer Clark, Esquire Tim Fitchett, Esquire
For Permittee: Megan S. Haines, Esquire Casey Snyder, Esquire
OPINION AND ORDER ON PERMITTEE'S MOTION FOR PARTIAL DISMISSAL
STEVEN C. BECKMAN CHIEF JUDGE AND CHAIRPERSON
Synopsis
The Board denies the permittee's motion to dismiss objections in the notice of appeal claiming that the Department of Environmental Protection failed to properly consider PFAS when issuing two unconventional gas well permits. Where discovery is ongoing, it is premature to rule on whether the claims are speculative. Further, we disagree with the assertion that the objections seek relief that is beyond the scope of the Board's authority. As to the assertion that a ruling on these claims may have an impact beyond the parties to this case, this argument may be made in many matters before the Board and is not a basis for dismissing the objections.
OPINION
Background
This matter involves an appeal filed with the Environmental Hearing Board (Board) by Protect PT. Protect PT challenges the issuance of two gas well permits by the Department of Environmental Protection (Department) to Apex Energy (PA) LLC (Apex). The permits authorize the drilling of unconventional gas wells known as the Drakulic 1H and Drakulic 7H wells in Penn Township, Westmoreland County. According to the notice of appeal, Protect PT "is a grassroots nonprofit organization…formed in December 2014 to ensure the safety, security and quality of life for people in Penn Township, Trafford and surrounding areas from unconventional natural gas development." (Notice of Appeal, para. 7.)
At the joint request of the parties, the prehearing deadlines in this matter were extended on April 28, 2023. Discovery is set to end on August 30, 2023. Expert reports must be produced by Protect PT on or before July 31, 2023 and by Apex and the Department on or before August 30, 2023. The deadline for filing dispositive motions is September 29, 2023.
On March 28, 2023, Apex filed a Motion for Partial Dismissal seeking to dismiss the following two claims set forth in Protect PT's notice of appeal:
27. The Department is aware that hydraulic fracturing releases PFAS, PFOAS, and related chemicals into the environment and, therefore, the Department is permitting the release of PFAS, PFOAS, and related chemicals in issuing the Well Permits.
67. Protect PT objects to the Department's approval of the Well Permits because the Well Permits allow the introduction of PFAS, PFOAS, and related chemicals into the environment through hydraulic fracturing, which do not break down and which are known to cause deleterious health effects, without properly limiting or regulating their use, in violation of the Department's responsibilities under Article I, Section 27 of the Pennsylvania Constitution.
(Notice of Appeal, para. 27 and 67.)
The Department filed a Memorandum of Law in support of Apex's motion on April 11, 2023, pursuant to 25 Pa. Code § 1021.94(b). In accordance with the timeframes set forth in the Board's rules, Protect PT filed a response in opposition to the motion on May 11, 2023, and Apex filed its reply on May 25, 2023. This matter is ripe for disposition.
Standard of Review
A motion to dismiss is appropriate where a party objects to the Board hearing an appeal due to a lack of jurisdiction, an issue of justiciability, or another preliminary concern. Hopkins v. DEP, 2022 EHB 103, 104. The Board evaluates a motion to dismiss in the light most favorable to the nonmoving party. Scott v. DEP, EHB Docket No. 2022-075-B, slip op. at 2 (Opinion and Order on Motion to Dismiss issued May 15, 2023); Muth v. DEP, 2022 EHB 262, 264. A motion to dismiss or for partial dismissal may be granted only where the matter is free from doubt and the moving party is entitled to judgment as a matter of law. Scott, slip op. at 2; Downingtown Area Regional Authority v. DEP, 2022 EHB 153, 155 (citing Burrows v. DEP, 2009 EHB 20, 22; Bartholomew v. DEP, 2019 EHB 515, 517); Hopkins, 2022 EHB at 104. For the purpose of resolving a motion to dismiss, rather than combing through the parties' filings for factual disputes, the Board simply accepts the non-moving party's version of events as true. Downington, 2022 EHB at 155.
Discussion
Apex seeks to dismiss Protect PT's claims that the issuance of the permits allows the release of PFAS, PFOA and related chemicals into the environment in violation of Article I, Section 27 of the Pennsylvania Constitution (the PFAS claims). PFAS are per- and polyfluoroalkyl substances. U.S. Environmental Protection Agency (EPA), PFAS Explained, https://www.epa.gov/pfas/pfas-explained. According to EPA, "PFAS are widely used, long lasting chemicals, components of which break down very slowly over time . . . There are thousands of PFAS chemicals, and they are found in many different consumer, commercial, and industrial products." Id. PFOA refers to perfluorooctanoic acid. Centers for Disease Control and Prevention, Perfluorooctanoic Acid Fact Sheet, https://www.cdc.gov/biomonitoring/pfoa_factsheet.html. PFOA is generally considered a subset of PFAS. EPA, Fact Sheet: EPA's Proposal to Limit
PFAS in Drinking Water, March 2023 https://www.epa.gov/system/files/documents/2023-04/Fact%20Sheet_PFAS_NPWDR_Final_4.4.23.pdf.
Apex makes the following legal arguments in support of its motion to dismiss the PFAS claims: 1) the Board lacks the authority to promulgate PFAS regulations or to compel the Department to promulgate such regulations; 2) the PFAS claims are based on speculation; 3) the PFAS claims are burdensome and it would be prejudicial to require Apex to defend against these claims in light of their alleged deficiencies; 4) the PFAS claims are not simply a challenge to the permits at issue here but an improper attack on the oil and gas industry as a whole. The Department joins in Apex's argument that the PFAS claims are speculative and prejudicial. It further sets forth its view of Article I, Section 27 and its application to this matter.
The Board's Authority to Adjudicate the PFAS Claims
Objection 67 of the notice of appeal asserts that the well permits allow the introduction of PFAS, PFOA and related chemicals into the environment through hydraulic fracturing "without properly limiting or regulating their use, in violation of the Department's responsibilities under Article I, Section 27 of the Pennsylvania Constitution." (Notice of Appeal, para. 67.) Apex argues that, by raising this objection, Protect PT is seeking an order from the Board that would regulate PFAS use. Apex asserts that the Board does not have the power to grant this relief since it has no authority to promulgate regulations on behalf of the Department nor does it have the authority to order the Department to adopt regulations. See Candela v. DEP, 2001 EHB 263, 266 (The authority to promulgate regulations on behalf of the Department rests solely with the Environmental Quality Board).
We do not read Protect PT's appeal as asking the Board to either promulgate regulations or order the Department to promulgate regulations. Nor does Protect PT agree that this is the relief it is seeking. In its response to the motion, Protect PT asserts that it is asking the Board to adjudicate whether the Department's action of issuing the well permits violated Article I, Section 27 of the Pennsylvania Constitution and, if so, it asks the Board either to vacate the permits or to impose terms and conditions in the permits. This, it argues the Board has the power to do, citing Warren Sand & Gravel Co., Inc. v. Department of Environmental Resources, 341 A.2d 556, 565-66 (Pa. Cmwlth. 1975) (Where the Department acts with discretionary authority, the Board may substitute its discretion for that of the Department.)
However, Apex argues as a practical matter if the Board finds that the Department improperly issued the permits because the Department failed to regulate PFAS in oil and gas operations, then:
the Board would be compelled to either (1) adopt a legal standard for or prohibition of PFAS use in unconventional oil and gas operations, or (2) find that DEP was required to regulate or prohibit PFAS in issuing the Permits, which would have the practical effect of ordering DEP to begin the regulatory process.
(Permittee's Reply, p. 2.)
We disagree with Apex's assessment of what the Board is being asked to do in this appeal. Our role here is to determine whether the Department's action in issuing the permits is in accordance with the law and supported by the facts of this case. As explained in Winegardner v. DEP, 2002 EHB 790, 792-93 "Our role is necessarily circumscribed by the Departmental action that has been appealed. 35 P.S. 7514. . .Our responsibility is limited to reviewing the propriety of that action." (Emphasis in original) (quoted in Lawson v. DEP, 2018 EHB 513, 517). With regard to the PFAS claims, the question before the Board is straightforward: Did the Department act contrary to Article I, Section 27 in issuing the permits? This is an issue that is within the Board's jurisdiction to adjudicate. New Hanover Township v. DEP, 2020 EHB 124, 189-90 (citing The Delaware Riverkeeper Network v. DEP, 2018 EHB 447, 493; Center for Coalfield Justice v. DEP, 2017 EHB 799, 855-62; Friends of Lackawanna v. DEP, 2017 EHB 1123, 1160-62). The Board's standard for assessing Article I, Section 27 challenges is the following:
We first must determine whether the Department has considered the environmental effects of its action and whether the Department correctly determined that its action will not result in the unreasonable degradation, diminution, depletion or deterioration of the environment. Next, we must determine whether the Department has satisfied its trustee duties by acting with prudence, loyalty and impartiality with respect to the beneficiaries of the natural resources impacted by the Department decision.Delaware Riverkeeper, 2018 EHB at 493.
If this matter proceeds to summary judgment motions or a hearing, the Board will apply this standard to the record established by the parties regarding PFAS and the Department's permitting decision. See Section 4 of the Environmental Hearing Board Act, Act of July 13, 1988, P.L. 530, as amended, 35 P.S. §§ 7511- 7516, at § 7514 (The Board has the power and duty to hold hearings and issue adjudications on orders, permits, licenses and decisions of the Department). If the Department elects to promulgate regulations after the Board issues its ruling, that is a matter that is up to the Department. Our role is simply to determine whether the Department's permitting decision should be upheld under the facts and law pertinent to this case.
Whether the PFAS Claims are Speculative
Apex asserts that the PFAS claims are speculative and cannot succeed on the merits. It challenges the claims for failing to specify details such as: 1) which PFAS will be released, 2) whether the PFAS will present harm or a risk to the environment; 3) whether the PFAS will travel and, if so, the potential routes. The Department concurs with Apex's contention that the claims are speculative, and it argues that Protect PT cannot rely on the Environmental Rights Amendment to legitimize speculative claims.
Both Apex and the Department point to decisions in which the Board has ruled against a third-party appellant when the Board has found their claims to be speculative: For example, in Benner Township v. DEP, 2019 EHB 594, 633, the Board held, "An appellant must prove by a preponderance of the evidence that the problems it alleges are likely to occur." In Delaware Riverkeeper, supra, the Board denied third-party appeals of six unconventional gas well permits. One of the arguments made in that case was that the issuance of the permits violated the Department's responsibilities under Article I, Section 27. In explaining the standard of review to be applied, the Board held, "The party challenging the permit issuance may not simply raise an issue and then speculate that all types of unforeseen calamities may occur." 2018 EHB at 473 (citing United Refining Co. v. DEP, 2016 EHB 442, 448, aff'd, 163 A.3d 1125 (Pa. Cmwlth. 2017) (citing Shuey v. DEP, 2005 EHB 657, 711)).
Finally, both Apex and the Department cite Stocker v. DEP, 2022 EHB 351, which involved a challenge by a third-party appellant to the Department's approval of a township's revision to its Act 537 plan. One of the arguments made by the appellant was that the Department failed to account for the presence of PFAS which would be exacerbated by the installation of sewer lines approved under the plan. In rejecting the appellant's claim, the Board held:
Stocker presented no evidence that there is likely to be any contamination to Spring Creek, either during the installation of the sewer lines, or from a discharge to Spring Creek from the Authority's sewage treatment plant. Nor has he sought to quantify any such contamination. At this point, it is merely supposition and speculation. An appellant bearing the burden of proof cannot simply point to the existence of PFAS, without more, and treat it as a foregone conclusion that all activity in an area with PFAS should be put on indefinite hold.Id. at 370.
However, as Protect PT points out, the decisions relied upon by Apex and the Department are adjudications that were issued by the Board after a hearing on the merits and based on a fully developed record. Here, the parties are still engaged in discovery. According to Protect PT it anticipates deposing individuals regarding the use of PFAS and is awaiting responses to interrogatories and requests for production of documents. We cannot simply assume in the context of a motion to dismiss that an appellant's claims are speculative where discovery is still ongoing. This is especially true when considering the standard for granting a motion to dismiss. As noted earlier, a motion to dismiss may only be granted where a matter is free from doubt and the moving party is clearly entitled to judgment as a matter of law. Scott, slip op. at 2; Downingtown, 2022 EHB at 155; Hopkins, 2022 EHB at 104. Moreover, the motion must be viewed in the light most favorable to the non-moving party. Id. Viewing this matter in the light most favorable to Protect PT as the non-moving party, we cannot say with any degree of certainty that the claims are speculative at this stage of the proceeding.
Apex's motion and the Department's memorandum ask us to evaluate the strength and merits of the PFAS claims. However, that is not the purpose of a motion to dismiss. As discussed in Consol Pennsylvania Coal Co. v. DEP, 2015 EHB 48, 54:
A motion to dismiss is typically appropriate where a party objects to the Board hearing an appeal because of a lack of jurisdiction, some issue of justiciability, or another preliminary concern . . . In contrast, a motion for summary judgment requests that the Board make a ruling specifically regarding the merits of the appeal. . . .
A motion to dismiss generally does not involve an evaluation of the merits or strength of the appellant's claims; rather, "the operative question is: even assuming everything the non-moving party states is true, can - or should - the Board hear the appeal?" Id. at 55. Granting Apex's motion to dismiss the PFAS claims as speculative at this stage of proceeding would be premature. On that basis we reject this argument.
Prejudice
Both Apex and the Department argue that allowing the PFAS claims to go forward would be burdensome and prejudicial. Apex acknowledges that burden alone is not a legal basis for dismissing the PFAS claims, but asserts it adds additional weight to its argument that the PFAS claims should be dismissed based on other alleged deficiencies. However, because we have rejected Apex and the Department's legal arguments for dismissing the PFAS claims in the context of the motion to dismiss, there is no basis for finding prejudice to Apex or the Department.
Apex points out that the Board recently refused to allow Protect PT to raise similar PFAS claims in another matter on the basis that it would result in undue prejudice to the opposing parties. In Protect PT v. DEP and Olympus Energy, LLC, EHB Docket No. 2022-037-B (Opinion and Order on Motion for Leave to Amend Notice of Appeal issued February 13, 2023), the Board denied Protect PT's motion for leave to amend its notice of appeal to add PFAS claims nearly identical to the claims raised in the instant matter. However, in that case the appeal had been filed in June 2022 and Protect PT sought to amend its appeal to add the PFAS claims in January 2023, six months after the appeal had been filed and near the completion of the discovery period (which had been extended at the request of the parties). The Board denied the motion to amend the appeal to add the PFAS claims, finding that it would be prejudicial to the Department and permittee at that late stage of the proceeding because it would have required a lengthy extension to the discovery period and delayed the scheduling of a hearing.
That reasoning is not applicable here. First, the timing is different in both cases. In the earlier Protect PT appeal the appellant sought to add the PFAS claims six months into the appeal. Here, the claims have been made in the notice of appeal. Second, the standards for evaluating a motion to amend an appeal and a motion to dismiss are very different. When evaluating a motion to amend an appeal, leave may be granted "if no undue prejudice will result to the opposing parties." 25 Pa. Code § 1021.53(b). In the earlier case, the burden was on Protect PT to show that no prejudice would result to the opposing parties. Here, the motion to dismiss must be viewed in the light most favorable to Protect PT, as the non-moving party. When viewed in the light most favorable to Protect PT, we find no prejudice.
PFAS Claims and the Oil and Gas Industry
Finally, Apex argues that Protect PT's PFAS claims are not simply a challenge to the permits at issue in this appeal but, rather, they are an attack on the entire oil and gas industry. It points to the specific language of Objection 27 in the notice of appeal which avers that "hydraulic fracturing releases PFAS, PFOAS, and related chemicals into the environment." According to Apex, Protect PT's objection is not specific to this case but seeks a ruling impacting the entire oil and gas industry. Apex further argues that because PFAS are widely used substances, Protect PT's claims may be seen as extending to industries even beyond oil and gas.
As to Apex's argument that a ruling on the PFAS claims could have implications beyond this case, this is an argument that can be made in many cases before the Board. The Board's decisions routinely have broad applicability, and any ruling has the potential to reach beyond the immediate parties in a case. This is not a basis to avoid exercising our statutory duty to hear appeals of actions taken by the Department.
Therefore, we issue the following Order:
ORDER
AND NOW, this 29th day of June, 2023, it is hereby ordered that Apex's Motion for Partial Dismissal is denied for the reasons set forth herein.