The Pennsylvania Environmental Hearing Board (“Board”) recently clarified to some extent the scope of final, appealable actions under the Pennsylvania Land Recycling and Environmental Remediation Standards Act (“Act 2”). In Neville Chemical Company v. Commonwealth of Pennsylvania Department of Environmental Protection, EHB Docket No. 2002-170-R (Consolidated), the Department ordered Neville to take various steps to remediate contamination allegedly resulting from Neville's operation of a chemical facility. Pursuant to Act 2, Neville submitted a Notice of Intent to Remediate the site, as well as a proposed conceptual clean-up plan. The Department denied the conceptual plan. Neville appealed the denial to the Board, and the Department moved to dismiss the appeal on the ground that the denial of the conceptual plan had no impact on Neville's rights or obligations, and therefore was not a final, appealable action under the Environmental Hearing Board Act, or the Board's rules or regulations. The Department argued that, although a clean-up plan is required by Act 2, a conceptual clean-up plan is not a required report and, therefore, the Department contended that an appeal would be appropriate only if the Department made a decision on a final clean-up plan, which had not yet been submitted by Neville.

Conversely, Neville argued that Act 2 does not limit appealability to only those documents specifically required by the Act, and that the Department's denial of the revised conceptual plan does affect its rights since the denial determines whether Neville will proceed with the project.

Section 308 of Act 2, entitled “Appealable Actions,” refers to decisions by the Department involving reports and evaluations required under Chapter 3 shall be considered appealable actions under the Environmental Hearing Board Act. The Department's interpretation of Section 308 is that only Department decisions made on reports and evaluations enumerated in Chapter 3 may be considered final, appealable actions. The Board, however, agreed with Neville that the legislative intent of Act 2 is not to limit appealable actions to these reports, because if this were the intent, Section 308 would have read, “ only decisions by the Department involving the reports and evaluations required under this Chapter shall be considered appealable actions. . . .” The Board cites strong indication from the Legislature that decisions at each level of the Act 2 process are appealable and that following the Department's argument would seriously limit the appealability of Department decisions. Thus, the Board used a classic “substance over form” argument to reach its decision. Where the purpose of DEP's denial letter was to require Neville to take immediate action, i.e., modify its conceptual clean-up plan and take steps to prevent contamination, the denial letter is “imperative, not advisory . . . it is not just descriptive, it is prescriptive.” Neville Chemical Company v. DEP, Opinion and Order on Motion to Dismiss at p. 8.

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Paul Bruder is a member of Rhoads & Sinon’s Environmental Law and Litigation Practice Group. If you have any questions about this issue, or if you need legal assistance in any area of environmental law, you can contact Mr. Bruder via email at pbruder@rhoads-sinon.com, or by telephone at 717-233-5731.

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