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Harvilchuck v. Department of Environmental Protection

Commonwealth Court of Pennsylvania

June 2, 2015

Laurence Harvilchuck, Petitioner
v.
Department of Environmental Protection, Respondent

 Argued,  May 8, 2015

Appealed from No. 2013-202-M. State Agency: Environmental Hearing Board.

Jordan B. Yeager, Doylestown, for petitioner.

Michael A. Braymer, Assistant Counsel, Meadville, for respondent.

James V. Corbelli, Pittsburgh, for intervenor WPX Energy Appalachia, LLC.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge.

OPINION

Page 369

PELLEGRINI, PRESIDENT JUDGE

Laurence Harvilchuck (Objector) petitions for review of the April 1, 2014 determination of the Environmental Hearing Board (Board) granting the Department of Environmental Protection's (DEP) motion to dismiss Objector's appeal from its issuance of a permit filed by WPX Energy Appalachia, LLC (Permittee) to drill and operate McNamara 39 11H Well (Well) as untimely, as well as denying Objector's request to appeal nunc pro tunc. For the following reasons, we reverse and remand.

I.

Objector had filed an appeal to the Board on January 28, 2013, challenging DEP's decision to issue Permittee the original well drilling permit for the Well (Original Permit). In his notice of appeal answering the inquiry, " On what date and how did you receive notice of DEP's action," Objector stated:

Notice of [DEP's] Action was delivered electronically to [Objector] from [DEP's] eFACTS database by [DEP's] eNOTICE service in an e-mail update mailed on January 1, 2013. Written notice of [DEP's] action was received by [Objector] on January 25, 2013 in response to a written request, dated January 4, 2013, to [DEP] under the Right-To-Know Law (65 P.S. § 67.703) for a copy of the Well Permit.

(Notice of Appeal, EHB Docket No. 2013-015-M.). DEP's eNOTICE system is a notification system designed to provide information about Departmental activities and encourage civic engagement in environmental issues. Pennsylvania's Environment Facility Application Compliance Tracking System (eFACTS) allows individuals to search for authorizations, clients, sites and facilities.

On September 25, 2013, DEP issued Permittee a renewal permit (Renewal Permit) authorizing it to drill and operate the Well. Notice of the issuance of the renewal permit was not published in the Pennsylvania Bulletin. On September 27, 2013, Objector received an automated e-mail generated by DEP's eNOTICE system stating that " [t]he following Permit Applications have changed as of Friday, September 27, 2013[,]" and then listed specific details identifying the Well. On September 30, 2013, Objector received a second automated

Page 370

eNOTICE e-mail informing Objector that " Authorization #995272 [for the Well] has been updated on 9/25/2013." (Reproduced Record (R.R.) at 28a, 44a.) Both the eNOTICE e-mails to Objector identified the Well by its specific Subfacility ID and ...


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