R.R. Feudale v. DEP
R.R. Feudale v. DEP - 1905 C.D. 2016
| Pa. Commw. Ct. | Jul 17, 2017Background
- Aqua Pennsylvania applied for an NPDES permit in May 2012 to replace a waterline; application amended in Feb. 2013 to increase land disturbance to 30.2 acres. Department issued the permit April 11, 2013; a corrected permit addressing acreage was issued Feb. 2016.
- Feudale opposed the project’s location and environmental impacts and filed a civil complaint and preliminary injunction in Northumberland County Court of Common Pleas on May 23, 2014; the matter was transferred to Commonwealth Court.
- Commonwealth Court sustained preliminary objections, holding Feudale failed to exhaust administrative remedies and that his complaint did not state claims under the History Code or the Environmental Rights Amendment (Feudale I); the Pennsylvania Supreme Court affirmed.
- Feudale petitioned the Environmental Hearing Board on July 22, 2016 for leave to appeal the 2013 NPDES permit nunc pro tunc, asserting misleading public notices and seeking to restore public confidence.
- The Board denied the nunc pro tunc petition, finding Feudale failed to show extraordinary circumstances (fraud, administrative breakdown, or non‑negligent circumstances), did not file within a short time after notice, and failed to show lack of prejudice to respondents.
- Commonwealth Court affirmed, concluding Feudale’s choice to file a civil action (and later appeals) did not excuse the missed administrative appeal deadline and that his transfer/venue arguments were waived or inapplicable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board abused discretion by denying leave to appeal the NPDES permit nunc pro tunc | Feudale: equitable grounds — he pursued litigation in the courts (including appeals) and was misled by public notices, so nunc pro tunc relief is justified | Dept./Aqua: Feudale had multiple opportunities and actual/constructive notice; no extraordinary circumstances justified delay | Denied — petitioner failed to prove extraordinary circumstances; nunc pro tunc relief was properly denied |
| Whether filing a civil action in common pleas (and its transfer) excused the failure to timely appeal the permit | Feudale: his filing in common pleas and expectation of transfer under 42 Pa.C.S. § 5103 justified delay | Respondents: civil action asserted claims against Aqua, not an appeal of the permit; transfers and venue rules do not extend appeal deadlines | Rejected — argument waived on appeal and substantively inapplicable because the complaint was not an appeal of the permit |
| Whether pursuing appeals through Commonwealth Court and Supreme Court tolled the Board’s 30‑day appeal deadline | Feudale: pursuing Feudale I and seeking higher‑court review created circumstances justifying late appeal; his petition to Board preceded U.S. Supreme Court filing deadline | Dept./Aqua: appellate litigation did not extend administrative appeal deadline; no legal authority to toll deadline | Rejected — litigation in other tribunals did not extend or toll the Board’s deadline |
| Whether delay prejudiced Dept./Aqua such that nunc pro tunc should be denied despite other factors | Feudale: asserted minimal or no material prejudice | Dept./Aqua: long reliance on permit and risk of diminished witness availability and evidence loss | Held Dept./Aqua likely prejudiced; Board reasonably concluded prejudice existed or at least that absence of prejudice was not shown |
Key Cases Cited
- Feudale v. Aqua Pennsylvania, Inc., 122 A.3d 462 (Pa. Cmwlth. 2015) (commonwealth court decision sustaining preliminary objections for failure to exhaust administrative remedies)
- Feudale v. Aqua Pennsylvania, Inc., 135 A.3d 580 (Pa. 2016) (Pennsylvania Supreme Court affirming Commonwealth Court)
- C.E. v. Department of Public Welfare, 97 A.3d 828 (Pa. Cmwlth. 2014) (articulating three‑part test for nunc pro tunc appeals)
- Consolidation Pennsylvania Coal Co., LLC v. Department of Environmental Protection, 129 A.3d 28 (Pa. Cmwlth. 2015) (standard of review for Environmental Hearing Board decisions)
- Commonwealth v. Walter, 119 A.3d 255 (Pa. 2015) (issues raised for the first time in a reply brief are waived)