PA Environment Digest Blog: Commonwealth Court Affirms EHB Ruling Sen. Muth Lacks Standing To Appeal A DEP Permit For Eureka Resources Oil & Gas Wastewater Treatment Facility

On April 16, Commonwealth Court issued an opinion affirming a decision by the Environmental Hearing Board that Sen. Katie Muth (D-Chester) did not have legal standing to appeal a DEP permit for the Eureka Resources, LLC oil and gas wastewater treatment facility in Dimock Township, Susquehanna County.

In 2022, the Environmental Hearing Board ruled first on June 3 on a motion to dismiss the appeal, then again on November 9 on a motion for summary judgment that Sen. Muth lacked standing.[EHB Docket No. 2022015] Read more here.

Sen. Muth brought the initial appeal “on behalf of all Pennsylvania residents based on her status as a Pennsylvania State Senator and as a “trustee” under Article I, Section 27 of the Pennsylvania Constitution, otherwise known as the Environmental Rights Amendment, and on behalf of residents who live and work in Dimock Township and Susquehanna County and who use and enjoy the land and waterways in the vicinity of the proposed facility, under a theory of “representational standing.””

“She further alleged that she has individual standing in her own right to appeal the issuance of the Permit because she has spent time personally and professionally in Dimock Township where the proposed facility will be located, and that the issuance of the Permit will harm her because it will allow the discharge of “radioactive and other wastes into the waters of the Commonwealth, that will flow into the Chesapeake Bay Watershed, the Delaware River Basin, and the Susquehanna River Basin and surrounding areas in which she resides, works, and recreates.””

The Environmental Hearing Board concluded-- “that Petitioner failed to demonstrate that she has the requisite contact with the area to demonstrate that she has a direct interest in the outcome of the appeal – essentially because of the lack of detail in her allegations and her failure to come forward with any record evidence sufficient to demonstrate how she was aggrieved by the DEP’s issuance of the Permit to Eureka. The EHB noted that Petitioner provided no information whatsoever regarding her use of the water resources in the Dimock area.”

Commonwealth Court’s opinion concluded-- “The EHB simply did not find Petitioner’s evidence to be sufficient to establish standing to bring the underlying appeal because her alleged connection to the discharge was too remote and unsubstantiated.

“We discern no abuse of discretion or error of law. Petitioner has failed to create a genuine issue of material fact in support of her allegation that she has personally suffered any injury as the result of Eureka’s alleged unlawful discharge of pollutants into Burdick Creek.

“Accordingly, we must agree with the EHB that Petitioner failed to provide sufficient evidence that would allow a reasonable factfinder to conclude that she has standing to appeal the Permit”

Click Here for a copy of the Commonwealth Court opinion.

The Board’s and Commonwealth Court decisions on standing for elected officials is similar to federal court decisions involving Pennsylvania Senate Republican efforts to block the Delaware River Basin Commission’s moratorium on oil and gas fracking in the Delaware Watershed. Read more here.

In July 2021, the Federal District Court in Philadelphia ruled the Senators did not have standing to bring the case and threw out their lawsuit against the Commission because they did not prove they had been injured by the fracking ban. Read more here.

Resource Links:

-- Hearing Board Denies Sen. Muth Standing As A Legislator To Appeal DEP Permit For Eureka Resources Oil & Gas Wastewater Treatment Plant in Susquehanna County [PaEN]

-- Former Employees Of Eureka Resources Oil & Gas Wastewater Treatment Company Ask For Criminal Investigation Of Eureka And An Audit Of DEP Over Alleged Workplace, Environmental Violations [PaEN]

PA Oil & Gas Industry Public Notice Dashboards:

-- PA Oil & Gas Weekly Compliance Dashboard - April 13 to 19 - Oil & Gas Well Owners Actively, Repeatedly Ignoring DEP Notices Of Violation; 12 Abandoned Wells [PaEN]

-- Attorney General Henry Files Charges Against Shell Falcon Pipeline For Failure To Report Drilling Issues That Caused Industrial Waste, Potential for Water Pollution [PaEN]

-- PA Oil & Gas Industrial Facilities: Permit Notices, Opportunities To Comment - April 20 [PaEN]

-- DEP Posted 74 Pages Of Permit-Related Notices In April 20 PA Bulletin [PaEN]