Constitution Drive Partners, L.P. v. DEP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Constitution Drive Partners, L.P., :

Petitioner :

: No. 643 C.D. 2019

v. :

: Argued: June 9, 2020

Department of Environmental :

Protection, :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge1

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION BY

JUDGE McCULLOUGH FILED: March 5, 2021

Constitution Drive Partners, L.P. (Constitution Drive) petitions for review

from the April 26, 2019 order and adjudication of the Environmental Hearing Board

(Board), declaring that the 2007 and 2010 amendments (2007 Amendment and 2010

Amendment, respectively, the Amendments, collectively) to a 2005 prospective

purchaser agreement (2005 PPA) between Constitution Drive and the Department of

Environmental Protection (Department) were null and void. Specifically, the Board

concluded that the Amendments were arbitrary and capricious pursuant to section 1113

of the Hazardous Sites Cleanup Act (HSCA),2 35 P.S. §6020.1113.3

1

This case was assigned to the opinion writer before January 4, 2021, when Judge Brobson

became President Judge.

2

Act of October 18, 1988, P.L. 756, as amended, 35 P.S. §§6020.101-6020.1305.

(Footnote continued on next page…)

In part, section 1113 of the HSCA states that “[w]hen a settlement is

proposed in any proceeding brought under this act, notice of the proposed settlement

shall be sent to all known responsible persons and published in the Pennsylvania

Bulletin and in a newspaper of general circulation in the area of the release.” 35 P.S.

§6020.1113.4 Section 1113 of the HSCA also provides that a proposed settlement may

be set aside as void if the Board finds that it is “arbitrary and capricious on the basis of

the administrative record.” Id. Here, the Department did not publish and open for

comments the 2007 Amendment and 2010 Amendment until the spring and early

summer of 2017, and the Amendments did not become final until the Department

issued its response to the comments in January 2018. The predominant legal issue is

whether the Board erred in determining that “[t]he Amendments were never properly

noticed and made final in accordance with [s]ection 1113 of the HSCA and are,

3

The Delaware Riverkeeper Network, and Maya van Rossum, the Delaware Riverkeeper

(Riverkeeper), appealed the Amendments to the Board and are participating as intervenors in this

appeal.

4

In full, section 1113 of the HSCA, titled “Notice of proposed settlement,” provides as

follows:

When a settlement is proposed in any proceeding brought under this

act, notice of the proposed settlement shall be sent to all known

responsible persons and published in the Pennsylvania Bulletin and in

a newspaper of general circulation in the area of the release. The notice

shall include the terms of the settlement and the manner of submitting

written comments during a 60-day public comment period. The

settlement shall become final upon the filing of the [D]epartment’s

response to the significant written comments. The notice, the written

comments and the [D]epartment’s response shall constitute the written

record upon which the settlement will be reviewed. A person adversely

affected by the settlement may file an appeal to the [B]oard. The

settlement shall be upheld unless it is found to be arbitrary and

capricious on the basis of the administrative record.

35 P.S. §6020.1113.

2

therefore, void because the Department’s attempt to notice and finalize the

Amendments in 2018 were inadequate, untimely[,] and failed to identify and account

for the changed circumstances and conditions at the [s]ite.” (Board’s Conclusion of

Law (C.O.L.) No. 6.)

Upon review, we conclude that the Department’s significant delay—eight

years, on average—in publishing notice of and finalizing the 2007 Amendment and the

2010 Amendment, in and of itself, does not render the Amendments arbitrary and

capricious. Instead, the delay only served to postpone the date on which the

Amendments became final for purposes of section 1113 of the HSCA. Nonetheless,

we conclude that the changed circumstances that occurred at the site during this delay,

and the fact that the Amendments failed to account for them, coupled with the resulting

effect of depriving the public of the opportunity to provide meaningful comment on the

Amendments, constituted a sufficient basis for the Board to declare the Amendments

arbitrary and capricious and a legal nullity. Accordingly, we will affirm the Board.

Background

The facts and procedural history of this case are summarized as follows:

[The Riverkeeper has] appealed the Amendments to the 2005

PPA entered into by [the Department] and [Constitution

Drive]. The 2005 PPA was executed on March 17, 2005, in

the form of a consent order and agreement [CO&A] and

addressed an abandoned steel tube manufacturing facility

located in East Whiteland Township, Chester County, known

as the Bishop Tube HSCA Site (“Site”). The Site has a

history of contamination with hazardous waste, primarily

trichloroethene (“TCE”). Constitution Drive bought the

contaminated property originally with the intent of

redeveloping it for commercial purposes. Pursuant to the

2005 PPA, Constitution Drive agreed by March 1, 2009, to

undertake an investigation and/or remediation of soils at the

3

Site necessary to demonstrate attainment with a

nonresidential statewide health standard or site-specific

standard . . . in accordance with a remedial action work plan

that was attached and incorporated into the PPA. In

exchange for Constitution Drive’s work relating to the

existing contamination at the site, the Department entered

into a covenant not to sue Constitution Drive and agreed that

Constitution Drive was afforded contribution protection

pursuant to [the] HSCA . . . .

The 2005 PPA was amended twice, the first time on January

22, 2007, and the second time on June 4, 2010. The 2007

Amendment “amended and restated” Constitution Drive’s

remedial obligations established under the 2005 PPA. The

2007 Amendment mostly concerned the installation of an air

sparging/soil vapor extraction system (“AS/SVE system”),

which was intended to expedite the remediation of soils and

groundwater at the Site. Among other things, Constitution

Drive was required to operate the system for 60 days under

certain specifications while removing an average of ten

pounds of volatile organic compounds (VOCs) per day in

order to complete its remedial obligations. After

Constitution Drive had fulfilled these obligations, it would

be released of its remedial obligations at the Site and the

Department would then assume operation of the AS/SVE

system. Unfortunately, the AS/SVE system never worked as

planned and Constitution Drive could not get it to meet the

agreed-upon performance standards.

The Department and Constitution Drive then entered into a

second amendment to the 2005 PPA in June 2010 that again

“amended and restated” Constitution Drive’s remedial

obligations. Under the 2010 Amendment, Constitution Drive

was to repair the AS/SVE system and get it to operate

continuously without incident for 72 hours (a significantly

shorter time than the 30-day startup period and 60-day

operational period called for under the 2007 Amendment).

Constitution Drive was also required to pay the Department

$30,000, repair a road, and install some security fencing.

Constitution Drive completed its remedial obligations under

the 2010 Amendment, and in December 2010, the

Department released Constitution Drive from all further

4

remedial obligations established in the 2005 PPA and the

Amendments.

A number of additional events involving Constitution Drive

have taken place at the Site after the remedial tasks were

completed and the Department’s release letter was issued in

December 2010. In June 2011, the Department discovered

that a contractor for Constitution Drive had damaged the

AS/SVE system and rendered it inoperable. In July 2011, the

Department requested that Constitution Drive repair the

AS/SVE system. Constitution Drive and the Department

appear to have conducted discussions regarding the

continuing necessity and viability of the AS/SVE system but,

as of January 2014, the AS/SVE system had not been

repaired. In a January 2014 letter, the Department declared

the covenant not to sue to be void because of Constitution

Drive’s failure to repair the AS/SVE system. The covenant

not to sue was important to Constitution Drive and its efforts

to redevelop the Site and formed part of the consideration for

the 2005 PPA and the Amendments. Constitution Drive

appealed the January 2014 letter to the Board, but the Board

ruled that the letter was not an appealable action by the

Department. Also, in 2014, East Whiteland Township

changed the zoning at the Site from industrial to residential

at the request of Constitution Drive, which decided to pursue

a residential development at the Site after being unsuccessful

in redeveloping it for commercial purposes. Finally, in

2016/2017, the Department reviewed and commented on a

new remediation workplan for the Site proposed by

Constitution Drive that provided for targeted soil excavation

that Constitution Drive claimed would reduce or eliminate

the risk of exposure to the compounds of concern for the

future occupants. In addition to these post-2010 actions

involving Constitution Drive, there also were other

remediation activities and [the] Department[’s] actions at the

Site that did not directly involve Constitution Drive based on

documents included in the administrative record.

* * *

Although the Amendments were drafted and signed in 2007

and 2010, due to what the Department[,] without any record

support[,] terms an “inadvertent administrative oversight,”

5

the notice required under [s]ection 1113 was not published

for either the 2007 Amendment or the 2010 Amendment until

2017, seven and ten years after the fact. A notice for both of

the Amendments was published in the Pennsylvania Bulletin

on April 1, 2017, and notice was published in The Daily

Local News on March 18, April 1, April 29, and June 14,

2017. In response to the Department’s notice, extensive

comments were submitted, including by the Riverkeeper,

East Whiteland Township, local residents, and potentially

responsible parties [(PRPs)]. The Department issued its

response to those comments on January 26, 2018.

Accordingly, even though Constitution Drive and the

Department [had already undertaken] performance pursuant

to the 2007 and 2010 Amendments, the Amendments did not

legally become final until the Department issued its comment

response document in January 2018.

(Board’s decision at 18-19) (internal citations omitted).

On February 21, 2018, the Riverkeeper filed an appeal with the Board

challenging the Amendments. After conducting a conference and issuing orders

pertaining to case management and discovery requests, the parties agreed upon the

contents of the administrative record, and the Board accepted that record as the basis

for its review.

At the conclusion of its review of the record and consideration of the

arguments and written submissions of the parties, the Board issued its April 26, 2019

order and adjudication. In its adjudication, the Board first stated that it “ha[d] not

previously addressed the issue presented in this case by the Riverkeeper’s claim of

untimely and inadequate notice of a HSCA settlement agreement.” Id. at 23.

Acknowledging that the Department “identified” Chirico v. Department of

Environmental Protection (Pennsylvania Environmental Hearing Board, 2002 EHB 25,

No. 2001-048-MG, filed January 28, 2002),5 “as the only prior case in which the Board

5

The Board’s decision in Chirico is available at:

(Footnote continued on next page…)

6

has considered a challenge to a similar agreement,” and the Department cited that case

as controlling authority, the Board disagreed, finding that “[t]he facts in Chirico

regarding the Department’s actions in finalizing the agreement under [s]ection 1113 of

[the] HSCA are completely different.” (Board’s decision at 23.) In distinguishing its

decision in Chirico, the Board stated:

In Chirico, the agreement was entered into on May 24, 2000,

and notice of the agreement was published in the

Pennsylvania Bulletin a month later on June 24, 2000. There

is nothing in the Board’s opinion in Chirico to suggest that

the challengers raised inadequate wording in the public

notice as an issue in the case. Further, there is no indication

that any significant changes took place at the site in Chirico

in the one month of time that elapsed between the execution

of the agreement and the publication of the required notice in

the Pennsylvania Bulletin.

(Board’s decision at 23-24.)

The Board also considered other cases, namely those that “have involved

challenges to permitting actions by the Department and have raised both untimely

notice and inadequate notice issues.” Id. at 24. However, the Board stated that it was

“not convinced that these permitting cases are a good analog for [the] current case

because of their different and distinct notice requirements when compared to those in

[s]ection 1113.” Id.

The Board continued:

[T]he Riverkeeper’s notice arguments have merit under the

relevant HSCA statute and the unique facts present in this

case. The notice and public comment process play a key role

in HSCA settlements under the terms of [s]ection 1113 of

[the] HSCA. The legislature expressly provided that a

settlement agreement is not final until certain enumerated

http://ehb.courtapps.com/content/adjudications/Adjudications&Opinions-2002-Vol%201%20(pp.1-

334).pdf (last visited February 23, 2021).

7

steps are completed including: (1) notice is sent to all

responsible parties and published in the Pennsylvania

Bulletin and a local newspaper; (2) a 60-day window for

public comment is completed; and (3) the Department

responds to the significant written comments. Consistent

with the central role that the notice and comment procedures

created by the legislature play in HSCA settlements, we

conclude that the Department is required to provide a timely

and meaningful notice and comment process in order to

finalize HSCA settlements under [s]ection 1113. The steps

taken by the Department in this case were woefully

inadequate in satisfying this requirement.

(Board’s decision at 24-25.)

After providing this commentary, the Board concluded:

[T]he Department’s egregiously late public notice is a clear

violation of the requirement that notice of a HSCA settlement

be published when it is proposed. There is no reasonable

reading of the [s]ection 1113 language that allows for

publication seven and ten years later and the Department’s

excuse—that there was an “inadvertent administrative

oversight”—finds no support in the administrative record

and in any event is hardly a legitimate excuse. This is not a

case where the required notice was a few weeks or even a

few months late, a circumstance where any impact from the

late notice might be negligible and/or readily mitigated by

subsequent publication. The Department’s action initially

placed the public, and now places the Board, in a bizarre

situation of evaluating the propriety of the Department

finalizing the Amendments to the 2005 PPA years removed

from the execution of those Amendments with Constitution

Drive. The lapse in time presents obvious challenges for the

public’s ability to provide timely and meaningful comment

on the Amendments.

(Board’s decision at 25.)

In addition, the Board found that “[t]he problems created by the

unacceptably late publication of the notice [were] compounded . . . by the shortcomings

in the content of the notice and how it fail[ed] to address the changed circumstances at

8

the Site between 2010 and 2017.” Id. at 25. The Board then engaged in a discussion of

those circumstances, namely with respect to issues regarding the AS/SVE system and

the fact that zoning of the Site had changed from industrial to residential in 2014:

The Riverkeeper’s comment says that the AS/SVE system

“will not protect the public health, safety and welfare and the

natural resources of this Commonwealth from the short-term

and[ ]long-term effects of the release of hazardous

substances and contaminants into the environment from the .

. . [S]ite.” The AS/SVE system, of course, was not part of

the 2005 PPA and only became part of the remediation

during the 2007 Amendment. The Department deals with

this comment in its response by saying the actions taken

pursuant to the 2005 PPA and the Amendments are just an

interim response and a final response action is forthcoming .

. . . However, this is a bit of a dodge that is not particularly

helpful in evaluating whether the Amendments should have

been finalized by the Department. The AS/SVE system was

almost a complete failure and appears to have not materially

advanced the cleanup of the [S]ite, yet the Department seems

unwilling to acknowledge this reality . . . . The Amendments

are premised on basic assumptions that have not existed for

years.

* * *

One commenter noted that “[n]owhere in the 2007

[Amendment] did the parties address whether these

remediation measures were appropriate for property that

would later be rezoned for residential use.” . . . [T]he

Department [did not] make any mention in the comment

response document of the ongoing discussions between itself

and Constitution Drive regarding the 2016/2017

Remediation Scope of Work for Targeted Soil Excavation

that appears related to the zoning change and revised

development plans. While zoning decisions themselves are

largely outside of the Department’s authority, that is not to

say that zoning decisions do not influence the cleanup for the

[S]ite. The 2007 Amendment makes clear that remediation

must be consistent with the Site’s intended use after

redevelopment. . . . The Department could have changed the

9

Amendments in light of its understanding of the proposed use

of the property in 2018. The Department never explains why,

based on its understanding of the zoning now, and the

apparent ongoing efforts surrounding the 2016/2017

Remediation Scope of Work, these Amendments are still

appropriate to finalize. The Department cannot . . . respond[]

to the public comments it did receive as though nothing had

changed at the Site or relative to the provisions of the

Amendments since 2010.

Id. at 26-30. Ultimately, the Board found that, in light of the information that the

Department provided in the notice in the Pennsylvania Bulletin and The Daily Local

News, “the notice [would be] wholly unhelpful to anyone who was not paying close

attention to the developments over the course of the last decade.” Id. at 26.

Next, the Board determined that “[t]he Department’s response to [the]

comments [was] at times [] frustrating.” Id. Notably, the Board found that “the

Department repeatedly trie[d] to minimize the importance of the Amendments by

assuring the commenters that further investigation and cleanup is needed and a final

response action will come someday.” Id. at 27. Based on the overall nature and

substantive content of the Department’s response, the Board believed that “[t]he

Department [went] through the motions but [did] not earnestly address some of the

comments, and its response almost treats it as a foregone conclusion that the

Amendments would be finalized, without modification or further consideration.” Id.

at 28. Moreover, and in a similar vein, the Board determined that “[t]he Department’s

response to extensive comments about the change in zoning of the . . . [S]ite from

industrial to residential [was] unsatisfying.” Id. In this regard, the Board reviewed and

discussed some of the Department’s comments and stated: “There is very little support

in the administrative record to show that the Department gave serious consideration to

the change in zoning from industrial to residential.” Id. at 29.

10

Accordingly, for these reasons, the Board sustained the appeal of the

Riverkeeper. The Board concluded that “[t]he Department’s action to finalize the

Amendments in the face of the unique circumstances of this case [was] arbitrary and

capricious” and declared that “the 2007 Amendment and the 2010 Amendment [were]

void.” Id. at 30.

Discussion

On appeal,6 Constitution Drive contends that the Board erred in

concluding that the Amendments were arbitrary and capricious. As an overarching

theme, Constitution Drive asserts that “the Department complied with the requirements

of [the] HSCA and presented a reasoned explanation for its decision to finalize the

2007 and 2010 Amendments.” (Constitution Drive’s Br. at 15.) Constitution Drive

breaks down its thesis into three separate arguments.

In its first contention, Constitution Drive asserts that, “[a]lthough the

Department failed to provide public notice of the 2007 and 2010 Amendments at the

time that they were entered, the agency cured that failure when it published public

notice in 2017 and opened the Amendments to public comment.” (Constitution Drive’s

Br. at 15-16.) For support, Constitution Drive places heavy reliance on Groce v.

Department of Environmental Protection, 921 A.2d 567 (Pa. Cmwlth. 2007).

Constitution Drive further states that “it is [] important to note that no development

occurred at the [] Site between the date the Amendments were entered and the date that

6

“Our appellate review of the [Board’s] adjudications is limited to determining whether the

[Board] committed an error of law, [whether it] violated constitutional rights, or whether its material

findings of fact are supported by substantial evidence. On issues of law, our standard of review is de

novo and our scope of review is plenary.” Sunoco Partners Marketing and Terminals, L.P. v. Clean

Air Council, 219 A.3d 280, 286 n.17 (Pa. Cmwlth. 2019) (internal citation omitted).

11

the Department published notice of the Amendments.” (Constitution Drive’s Br. at

21.)

For its part, the Department argues that it acted within its authority and

discretion when it entered into the Amendments and furthered the purpose of the

HSCA. In particular, the Department contends that the intent of—and reasons

underlying—the Amendments were to successfully remove source contamination from

the subsurface of the Site, which directly furthered the HSCA’s goal to “protect public

health and safety and the environment.” (Department’s Br. at 15.) The Department

thus maintains that the Amendments were not arbitrary or capricious because its

decisions to enter into the Amendments were based on rational reasons.

Further, the Department argues that the Board’s “holding fundamentally

misapplie[d] the standard of review set forth in the language of [s]ection 1113 and

overlook[ed] the fact that the obligations imposed on [Constitution Drive] by the two

Amendments had already been fulfilled years earlier.” (Department’s Br. at 20.) In

asserting that the Board misapplied the arbitrary and capricious standard, the

Department posits: “Nowhere does the Riverkeeper contend that the Amendments

themselves were arbitrary and capricious at the time they were entered.” Id. (emphasis

in original). Rather, the Department argues, “both the Riverkeeper and Board cloud

the issue of whether the settlements . . . were reasonable and instead focus on the

Department’s procedural mistake in failing to publish notice at the time the

Amendments were signed.” Id.

Here, the Board based its decision on section 1113 of the HSCA and, as

such, we begin with an examination of that statute. Titled “Notice of proposed

settlement,” section 1113 of the HSCA provides as follows:

When a settlement is proposed in any proceeding brought

under this act, notice of the proposed settlement shall be sent

12

to all known responsible persons and published in the

Pennsylvania Bulletin and in a newspaper of general

circulation in the area of the release. The notice shall include

the terms of the settlement and the manner of submitting

written comments during a 60-day public comment period.

The settlement shall become final upon the filing of the

[D]epartment’s response to the significant written comments.

The notice, the written comments and the [D]epartment’s

response shall constitute the written record upon which the

settlement will be reviewed. A person adversely affected by

the settlement may file an appeal to the [B]oard. The

settlement shall be upheld unless it is found to be arbitrary

and capricious on the basis of the administrative record.

35 P.S. §6020.1113.

It is a well-settled maxim that where the words of a statute are clear and

free from ambiguity, the legislative intent is to be gleaned from those very words, and

the plain language is not to be disregarded under the pretext of pursuing its spirit.

Pennsylvania Financial Responsibility Assigned Claims Plan v. English, 664 A.2d 84,

87 (Pa. 1995); Coretsky v. Board of Commissioners of Butler Township, 555 A.2d 72,

74 (Pa. 1989). Viewing the plain language of the statute in a commonsense fashion,

we agree with the Board that there are three requisites that need to be satisfied before

a settlement agreement can be deemed final and/or valid: (1) notice must be sent to all

responsible parties and published in the Pennsylvania Bulletin and a local newspaper;

(2) a 60-day window for public comments must be provided; and (3) the Department

must issue a response to the written comments.

Regarding the first requisite, i.e., notice, the phrases in section 1113 of the

HSCA, “[w]hen a settlement is proposed” and “notice of the proposed settlement,”

clearly envision that the terms and conditions of the settlement agreement have been

memorialized in writing. In unambiguous words, the statute makes plain that the notice

requirements are intended to provide the public with the opportunity to comment upon

the settlement agreement at a point when the settlement agreement is merely a

13

“proposal” and not set in stone. The language of section 1113 also leaves no room for

doubt that the terms and obligations of a settlement agreement do not take effect or

become final until the comment period has passed, at which point the settlement

agreement is subject to an appeal by an aggrieved party to the Board. While the

Department argues that “the obligations imposed on [Constitution Drive] by the two

Amendments had already been fulfilled years earlier,” (Department’s Br. at 20), this

contention effectively bypasses the procedure for attaining finality in section 1113 of

the HSCA and reduces the statute to a mass of superfluous words. Stated differently,

the entire mechanism of section 1113 would be defeated if the duties and obligations

of a settlement agreement could be completed before the settlement agreement goes

through the notice, comment, and response phases and becomes final, valid, and

effective for purposes of section 1113.

Moreover, even if the terms and conditions of the Amendments were

“reasonable,” as the Department asserts, this is beside the point because the

reasonableness of a settlement agreement cannot serve as a substitute for the

requirement that proper notice be made to the public. Indeed, notice to the public is

designed to permit the public to contest and challenge whether the settlement

agreement is in fact reasonable. Here, the 2005 PPA complied with the procedure in

section 1113 of the HSCA; however, the 2007 Amendment and the 2010 Amendment

altered the “work obligations” of Constitution Drive and thereby modified the 2005

PPA. (Board’s Findings of Fact (F.F.) Nos. 22-39.) Notably, in exchange for

Constitution Drive’s assumption of remediation duties, “the Department in the 2005

PPA covenanted not to sue Constitution Drive for any claims relating to the historic

contamination at the Site” and “provided . . . that Constitution Drive was entitled to

14

contribution protection pursuant to [s]ection 705 of [the] HSCA, 35 P.S. §6020.705.”

(Board’s F.F. Nos. 33-34.)

Presumably, the Department believed that, due to evolving circumstances,

the 2005 PPA had to be changed and that these changes were substantive and

material—so much that the 2005 PPA needed to be formally amended through the

Amendments. In its adjudication, the Board found that Paragraph 3 of the 2005 PPA

imposed remediation duties on Constitution Drive; “[t]he 2007 Amendment ‘amended

and restated’ Paragraph 3 of the 2005 PPA in several key respects”; and “[t]he 2010

Amendment [also] ‘amended and restated’ Paragraph 3 of the 2005 PPA in several key

respects.” (Board’s F.F. Nos. 18, 26, 36.) Notably, Constitution Drive and the

Department do not challenge these findings on the ground that they are not supported

by substantial evidence, and it is well-settled that “[u]ndisputed findings of fact are

binding on this Court.” West Perry School District v. Pennsylvania Labor Relations

Board and West Perry Educational Support Personnel Association, PSEA/NEA, 752

A.2d 461, 465 n.5 (Pa. Cmwlth. 2000).

Nonetheless, in an apparent attempt to downplay or minimize the effect

of these findings, Constitution Drive argues that it is significant “that no development

occurred at the [] Site between the date the Amendments were entered and the date that

the Department published notice of the Amendments.” (Constitution Drive’s Br. at

21.) However, this argument overlooks or disregards the fact that remediation had

occurred during this timeframe; the Amendments altered the duties of Constitution

Drive with respect to remediation; and remediation (not development) was the primary

subject matter of the 2005 PPA and the Amendments. Consequently, at the end of the

day, the 2007 Amendment and 2010 Amendment resulted in a different settlement

15

agreement for purposes of section 1113 of the HSCA, and each Amendment required

its own notice to the public and opportunity for comment.

By its very nature, the concept of “notice” and “comment” entail a

“meaningful opportunity to be heard,” and an opportunity to be heard can only be

“meaningful” if the public is afforded “a fair opportunity” to challenge and make

comments to the Amendments. See Snyder Brothers, Inc. v. Pennsylvania Public

Utility Commission (Pa. Cmwlth., No. 1043 C.D. 2015, filed February 6, 2020)

(unreported), slip op. at 11.7 Here, the Department did not provide notice of either the

2007 Amendment or the 2010 Amendment to the public until it published notice in the

Pennsylvania Bulletin, 47 Pa.B. 1902 (2017), on April 1, 2017. This is extremely

troubling for two primary reasons.

First, because both the 2007 Amendment and the 2010 Amendment were

published at the same time, the public was necessarily divested of an opportunity to

submit comments and lodge a timely challenge to the 2007 Amendment, in and of itself.

If the public had had the opportunity to do so, it is possible that the Board would have

determined that the 2007 Amendment was null and void, which could have

fundamentally changed the course and posture of this case, e.g., resulting in the 2010

Amendment being unnecessary or unfeasible, and, potentially, transforming the entire

outcome of these proceedings. The simple fact that the public lost this opportunity is

what matters and, standing alone, the deprivation of that opportunity unquestionably

flouts the commands of section 1113 of the HSCA. After all, the statute

unconditionally grants the public the legal rights to notice and comment. It does not,

7

We cite Snyder Brothers, Inc., an unreported decision, for its persuasive value in accordance

with section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code

§69.414(a).

16

however, qualify the exercise of those rights based upon a percentage evaluation of the

public’s likelihood of success on the merits.

Second, despite the fact that the Amendments were conjoined for

published notice in the Pennsylvania Bulletin, the Department and Constitution Drive

entered into the 2007 Amendment on January 22, 2007, and the 2010 Amendment on

June 4, 2010. (Board’s F.F. Nos. 25, 34.) By the time the public received notice of the

Amendments on April 1, 2017, and the Department issued its comment response and

finalized the Amendments on January 26, 2018, Constitution Drive was already

performing (or had completely performed) the modified and remodified obligations

and duties contained in the Amendments. Stated differently, when the Department

issued notice to the public on April 1, 2017, the public did not receive “notice of [a]

proposed settlement,” as required by section 1113 of the HSCA. Instead, the public

obtained notice of settlement agreements that the Department and Constitution Drive

previously put into motion and, for all practical intents and purposes, that were already

considered to be valid, final, and binding.

Conceptually, the sole functional purpose of section 1113 of the HSCA is

to allow the public to comment on a proposed settlement agreement and, based on the

comments and the Department’s response, to later mount a challenge before the Board,

seeking to have the settlement agreement set aside. The entire principle and rationale

embodied within and comprising section 1113 would be eviscerated if the public issued

comments at a point when the parties to a settlement agreement have performed (or

have taken prefatory measures to perform) the accompanying obligations and duties.

An absurd result would also occur because, in the event the Board was to set aside an

agreement in these circumstances, the parties would have assumed and undertaken

duties and obligations that they never should have. And, since it is likely that what has

17

been done—in terms of remediation—cannot be undone, but even if it is determined

that it can be undone, a legal dilemma will almost inevitably ensue between the parties

to the settlement agreement with respect to issues such as fault, who is responsible for

incurred expenses, and how and through what means corrective measures will be

implemented.

In its adjudication, the Board briefly discussed, and adequately

distinguished, its decision in Chirico, which in any event is not binding on this Court.

Pennsylvania Trout v. Department of Environmental Protection, 863 A.2d 93, 107 (Pa.

Cmwlth. 2004). But utilizing that case as a general guidepost, this Court notes that the

Board correctly stated that, unlike the situation presented here, in Chirico, “the

agreement was entered into on May 24, 2000”; the “notice of the agreement was

published in the Pennsylvania Bulletin a month later on June 24, 2000”; and “there

[was] no indication that any significant changes took place at the site . . . in the one

month of time that elapsed between the execution of the agreement and the publication

of the required notice in the Pennsylvania Bulletin.” (Board’s decision at 23-24.)

While delay between a proposed settlement and published notice to the public, alone,

is not enough to set aside a settlement agreement, we are nonetheless confident that, in

the specific and unique context of this case, the delay of approximately eight years is

more than troublesome. This is because, within the period that comprises the delay,

there have been substantial changes not only at the Site itself, but also with respect to

the obligations of the parties in the Amendments vis-à-vis the 2005 PPA, and, also, the

2007 Amendment vis-à-vis the 2010 Amendment. On this note, we conclude that

changes in factual circumstances from the original 2005 PPA onward, combined with

changes in the corresponding obligations of the parties throughout this matter, were a

18

sufficient foundation upon which the Board could determine that the Amendments

were arbitrary and capricious.

Placing full reliance on Groce, Constitution Drive asserts that the

Department cured its noncompliance with section 1113 of the HSCA when it

eventually followed the statutory procedure in 2017 and 2018 and, thus, the

Amendments are valid. However, Groce is a permitting case, and the Board dismissed

such cases as unpersuasive, finding that they are not “a good analog for [the] current

case because of their different and distinct notice requirements when compared to those

in [s]ection 1113.” (Board’s decision at 24.) In any event, in Groce, “[a]fter the

[Department] realized that its initial notice failed to include the degree of increment

consumption for [the permittee], it promptly corrected this defect by sending out a

supplemental notice which afforded the public and the [petitioner] an opportunity for

effective public participation.” 921 A.2d at 580. In Groce, the period of time that

passed from the published notice to the amended notice was from December 17, 2005,

to January 14, 2006 (approximately one month), and the defect that was cured was a

numerical omission that was filled in with the appropriate number that designates the

allowable increments for pollutants under the applicable statute. Here, by way of stark

contrast, the 2007 Amendment was published 10 years later and the 2010 Amendment

was published 7 years later; the changes reflected in the Amendments were substantive

in nature and related to affirmative representations governing Constitution Drive’s

obligations at remediation; and, finally, as mentioned above, the public was deprived

of the opportunity to lodge comments to the Amendments in a fair, effective, and fully-

informed manner. Given the very character of these deficiencies, they are ones that

cannot be “cured,” and, therefore, we conclude that Groce is distinguishable on its

facts.

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Nevertheless, since the Amendments violated the express dictates of

section 1113 of the HSCA, it is irrelevant whether the Department pursued a course of

conduct in accordance with the general intent and spirit of the HSCA. Rather, the

proper inquiry is whether the Board erred in determining that the Amendments were

“arbitrary and capricious on the basis of the administrative record.” 35 P.S.

§6020.1113. Our precedent states as a general rule that something “is arbitrary and

capricious where it is unsupportable on any rational basis because there is no evidence

upon which [it] may be logically based.” Cary v. Bureau of Professional and

Occupational Affairs, State Board of Medicine, 153 A.3d 1205, 1210 (Pa. Cmwlth.

2017) (en banc) (internal citation omitted).

Here, the Department has not proffered any rational reason or articulated

a supportable and logical basis explaining why the Amendments were effectively

converted into finalized settlement agreements, and the parties undertook performance

of their duties pursuant to those agreements, when section 1113 clearly mandates that

a “proposed” settlement agreement must first undergo publication, comment, and

response, before it can attain the formal status of being final and binding. See Black’s

Law Dictionary 238 (9th ed. 2009) (defining “capricious,” in part, as being an order or

decree that is “contrary to . . . established rules of law”); cf. Ngou v. Schweiker, 535 F.

Supp. 1214, 1216-17 (D.D.C. 1982) (concluding that a federal agency’s delay in

publishing notice and public comment, along with the agency’s decision to change

benefits in the meantime, constituted arbitrary and capricious administrative action).

Contrary to the Department’s argument, it does not matter how broad its statutory

authority and/or discretion is with respect to entering into settlement agreements,

because section 1113 of the HSCA circumscribes that authority and/or discretion by

mandating that the Amendments shall not be arbitrary and capricious. Succinctly put,

20

the essential requirements of section 1113 were not satisfied in this case, and, in

essence, the Amendments were unilaterally implemented on their own accord, in

obvious contravention of the statute. By any person’s measure, there is no

rationalization as to why the Amendments were publicized at a point when the terms

of the Amendments no longer adequately accounted for the changed circumstances at

the Site, and in the process, deprived the public of the opportunity to provide

meaningful comment on the Amendments.

For the above-stated reason, and having concluded that Constitution Drive

and/or the Department have failed to establish that the Board erred in declaring that the

Amendments were void as arbitrary and capricious, we affirm the Board. Due to our

disposition, we need not address the arguments of Constitution Drive and the

Department pertaining to the content and sufficiency of the Department’s publicized

notice to the public or the adequacy of the Department’s response to the public’s

comments.

Accordingly, we affirm the Board’s order.

________________________________

PATRICIA A. McCULLOUGH, Judge

21

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Constitution Drive Partners, L.P., :

Petitioner :

: No. 643 C.D. 2019

v. :

:

Department of Environmental :

Protection, :

Respondent :

ORDER

AND NOW, this 5th day of March, 2021, the April 26, 2019 order of

the Environmental Hearing Board is hereby affirmed.

________________________________

PATRICIA A. McCULLOUGH, Judge