On January 25, 2024, the Environmental Hearing Board denied a motion by the Lackawanna Energy Center natural gas-fired power plant to dismiss the portion of the Borough of Jessup’s appeal of a DEP Air Quality Permit saying the permit is inconsistent with the local Conditional Use Decision and Host Municipality Agreement.  [Docket: 2023-068]

The Board allowed the appeal to continue on its merits.

On August 31, 2023, the Borough of Jessup in Lackawanna County appealed the Title V Air Quality Permit for the natural gas-fired power plant operated by the Lackawanna Energy Center, LLC in part on the grounds the permit was inconsistent with with the Air Quality Plan Approval issued by DEP and the Host Municipality Agreement and Land Use Conditional Use Decision adopted by the Borough. 

Among other provisions in the 2016 Conditional Use Decision, it required the operation of the Lackawanna Energy Center to “conform to all representations made” by the Center in its application and at all public hearings, and these conditions.

Among other provisions, the Host Municipality Agreement required the Center to “abide by all final and non-appealable conditions of the conditional use permit approval issued by the Borough.”

On January 25, the Environmental Hearing Board denied the permitee’s motion to dismiss certain objections raised in the Borough’s appeal related to the Conditional Use Decision and the Host Municipality Agreement in DEP’s issuance of the Title V Air Permit.

The permitee contended the EHB had no jurisdiction to consider these objections.  DEP filed a memoranda in support of the Lackawanna Center’s motion to dismiss.

The EHB concluded-- “The Department considered the zoning matters [Conditional Use Decision and the Host Municipality Agreement] during its permit review, so it is appropriate for the Board to evaluate on appeal.”

The Board noted “The Department tells us that it referenced the Conditional Use Decision at least 19 times in the Department’s response to public comments document.  That fact alone is enough to warrant denial of the motion to dismiss.”

“LEC and the Department say we must dismiss these objections because the Borough has not sufficiently detailed how the Title V permit is “inconsistent” with the Conditional Use Decision, and because the Borough has not identified “any legally significant inconsistency” between the permit and the Conditional Use Decision.

“However, these arguments have more to do with whether there is adequate support for a claim, not whether the Board can entertain a claim at all on its face. An evaluation of the merits is not something that comes into play in deciding a motion to dismiss.”

The Board also pointed out discovery in this appeal is far from over.

“In Protect PT, supra, (Opinion and Order, June 29, 2023), we denied a motion to dismiss that argued that certain claims pertaining to the use of PFAS were speculative in an appeal of unconventional gas well permits.

“We found the motion to dismiss was premature because discovery was continuing: “We cannot simply assume in the context of a motion to dismiss that an appellant’s claims are speculative where discovery is still ongoing.”

“The same is true here. LEC and the Department do not provide any legal support for the notion that we should be dismissing an appellant’s objections before the completion of discovery because those objections are allegedly too vague.”

Click Here for a copy of the opinion.

Click Here for documents related to this case.

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[Posted: January 27, 2024]

1/29/2024