Argued: April 17, 2013
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge
PATRICIA A. McCULLOUGH, Judge.
MarkWest Liberty Midstream & Resources, LLC (MarkWest) petitions for review of the July 13, 2012 order of the Environmental Hearing Board (Board) granting in part and denying in part MarkWest's motion for a protective order and the Clean Air Council's (CAC) motion to compel discovery in the matter of Clean Air Council v. Commonwealth of Pennsylvania Department of Environmental Protection and MarkWest Liberty Midstream & Resources, LLC, EHB Docket No. 2011-072-R. We vacate in part and remand to the Board.
MarkWest is a natural gas gathering and processing company with facilities in Washington County, Pennsylvania. Its business is focused on the Marcellus Shale and, in 2010, MarkWest spent approximately $458.7 million to develop its midstream infrastructure in the Marcellus Shale. (Reproduced Record (R.R.) at 257a.)
On September 15, 2010, MarkWest submitted a fourth plan approval application to the Department of Environmental Protection (Department) to install and begin operation of a fractionator tower and additional process heater at MarkWest's Houston Gas Processing Plant in Chartiers Township, Pennsylvania. (R.R. at 286a.) On April 13, 2011, the Department approved the application and issued Plan Approval 63-00936D. (R.R. at 15a.)
CAC appealed the Department's approval to the Board on May 13, 2011, alleging that the Department failed to aggregate MarkWest's Houston Gas Plant with multiple MarkWest compressor stations in Washington County, which would have subjected the fourth plan approval to the requirements of the Pennsylvania Air Pollution Control Act and the federal Clean Air Act.  (R.R. at 1a, 10a-12a.)
During the period from August through October 2011, CAC sent MarkWest discovery requests seeking various categories of documents and information. (R.R. at 367a.) MarkWest objected to the disclosure of many documents on the grounds that they contained trade secrets and/or confidential business information and declined to produce information until an adequate protective order was in place. MarkWest then filed a motion for a protective order, which the Board denied on December 1, 2011. (R.R. at 16a, 83a.)
On December 14, 2011, CAC requested that the Board issue an order compelling MarkWest and the Department to produce all documents responsive to its discovery requests without restrictions. (R.R. at 222a.) In early 2012, MarkWest filed five motions for a protective order regarding five separate categories of claimed trade secrets and/or confidential business information, requesting that the Board enter a protective order restricting CAC's public disclosure, use, and retention of the documents at issue in the first four categories, and permitting non-production of the documents at issue in the fifth category. The five categories were: (1) unredacted versions of MarkWest's letter responses and attachments submitted to the Department regarding the plan approval; (2) operational data; (3) maps and design documents; (4) confidential communications; and (5) gathering and processing agreements and correspondence with its customer Range Resources.
CAC and the Department filed responses to MarkWest's motions; CAC opposed the motions and the Department generally supported the motions. The Board heard oral arguments for CAC's motion to compel and MarkWest's motions for a protective order on February 16, 2012. (R.R. at 1182a.) The Board's chief judge conducted an in-camera review, examining each document at issue. On July 13, 2012, the Board issued an opinion and order partially granting and partially denying CAC's motion to compel and MarkWest's motions for a protective order.
The Board's order: (1) granted MarkWest's motion for a protective order and denied CAC's motion to compel with respect to certain classes of documents, finding that they contained confidential business information and need not be produced; (2) ordered that MarkWest produce other classes of documents to CAC, filed under seal; and (3) ordered that MarkWest produce all other documents not included in sections 1 and 2 to CAC without restriction. (Board's order at 11-14.) The Board stated, "we disagree that many of the documents [MarkWest has] designated as Confidential Business Information should be so classified in the context of this litigation as either (1) not being trade secrets or . . . confidential and (2) even if so qualified the right of [CAC] to access these documents . . . outweighs any alleged harm." (Board's order at 8.) The Board also noted, "[a]s we move closer to a hearing we will consider what documents and testimony, if any, should be shielded from public access." (Board's order at 10.)
On July 23, 2012, MarkWest provided CAC with the documents from section 2 of the Board's order and many of the documents from section 3 of the order. However, MarkWest declined to produce a class of 60 documents (the Documents) and indicated to CAC that it intended to appeal the Board's order with respect to the Documents.
MarkWest now appeals to this Court and requests that we: (1) reverse the Board's order as it relates to the Documents; (2) reverse the order to the extent that it permits CAC's unrestricted disclosure, use, and/or retention of documents produced pursuant to sections 2 and 3 of the order, including the Documents; and (3) remand with instructions to amend the order to require that CAC return or destroy such documents upon final disposition of the matter below, with the exception of those documents which are made public during the proceedings below, by further order of the Board, or by stipulation of the parties.
On December 17, 2012, the Department filed a brief requesting that this Court afford MarkWest the relief it seeks and CAC filed a brief ...