Liberty Twp. v. Commonwealth

1

LIBERTY TOWNSHIP and CEASRA v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and TRI-COUNTY LANDFILL, Permittee

No. 2021-007-L

Commonwealth of Pennsylvania Environmental Hearing Board

March 30, 2023

For Appellants: Lisa Johnson, Esquire, Marc T. Valentine Esquire.

For Permittee: Alan Miller, Esquire, Jake S. Oresick, Esquire Brian Lipkin, Esquire.

OPINION AND ORDER ON MOTIONS TO RECUSE/DISQUALIFY/REASSIGN BOARD MEMBER

Bernard A. Labuskes, Jr., Board Member and Judge.

Synopsis

The Board denies a motion to recuse/disqualify a Board Member from presiding over or participating in the adjudication of the appeal because, among other things, the motion only alleges that the Board Member will be a witness in unrelated matters, and the Board Member made adverse rulings against one of the Appellants' attorneys and her clients in those unrelated matters. Involvement or actions in unrelated matters does not require recusal in this matter. There is no other indication that the Board Member will be incapable of acting with impartiality in this appeal.

OPINION

This appeal involves the issuance of a major permit modification to Tri-County Landfill ("Tri-County") by the Department of Environmental Protection (the "Department"). The permit authorizes Tri-County to operate a municipal waste landfill in Liberty Township and Pine Township, Mercer County within the boundary of an inactive landfill that was operated by Tri-County from 1950 to 1990. The appeal of the permit was filed on January 27 2021by Liberty Township, William C. Pritchard and Lisa L Pritchard, and Citizens Environmental Association of Slippery Rock Area, Inc. ("CEASRA"). There have been more than 160 docket entries since the appeal was filed in January 2021. The filings reflect that there have been changes in the list of appellants over the course of the last two years, such that Liberty Township and CEASRA are the only two remaining appellants (hereinafter "Appellants"). This appeal was transferred to Board Member and Judge Bernard A. Labuskes, Jr. ("Board Member Labuskes") for primary handling on February 3, 2023. The hearing on the merits is set to begin on April 5 in Pittsburgh.

The Appellants have filed what they variously refer to as a motion to disqualify or a motion to recuse Board Member Labuskes from presiding over or participating in the adjudication of this appeal.^[1] The Appellants base their motion solely on the Code of Judicial Conduct. It must be said at the outset, however, that the Code does not apply to the Environmental Hearing Board's Members and Judges. See Code of Judicial Conduct (Application, Paragraphs [1] and [2].) Nevertheless, the Board Members strive for the same level of impartiality as that which is expressed in the Code, so we will address the Appellants' concern notwithstanding the lack of any applicable legal support in their motion.

The Appellants argue in their motion that Board Member Labuskes made adverse rulings, including an award of attorneys' fees, against Lisa Johnson, Esq., one of the attorneys for the Appellants, and her clients in unrelated Board appeals. They note that some of those rulings are under appeal. They do not suggest that those unrelated appeals have any connection to this appeal. They also allege that there are confidential investigations ongoing relating to Attorney Johnson's and Board Member Labuskes's actions in those unrelated appeals. They further allege that Board Member Labuskes "will be called as a witness" in those unrelated appeals and investigations.

The Department opposes the motion. It argues that if adverse rulings were a legitimate cause for recusal, such as the rulings against Attorney Johnson and her clients, no judge would be able to continue to sit. It points out that there is no possibility of Board Member Labuskes being a witness in this appeal. It argues that the motion is time barred because it was not filed at the earliest possible moment. Finally, it argues that recusal now would result in an unreasonable and unnecessary delay of the hearing. Tri-County also opposes the motion. It also argues that adverse rulings are insufficient to establish bias, that the Board Member is not a witness in this appeal, and that the motion has come too late in the proceedings.

Like the Department and Tri-County, we are left to wonder why the motion for recusal was filed as late as it was. Granting the motion would certainly result in further delay of an appeal that has now been pending for more than two years.^[2] Indeed, the permitting process for this project started in the 1990s. Upon the sudden retirement of Board Chairman Renwand, this appeal was assigned to Board Member Labuskes on February 3, 2023. The Appellants waited 41 days after the reassignment to file their motion. In the intervening period, counsel worked collaboratively with the Board's staff to amend the hearing schedule previously established by Chairman Renwand in order to accommodate preexisting schedule conflicts of Board Member Labuskes. Numerous other prehearing motions and responses have been filed. The Appellants did not raise a concern regarding recusal during any of those proceedings.

In analogous situations regarding the judiciary, the Supreme Court of Pennsylvania "requires a party seeking recusal or disqualification to raise the objection at the earliest possible moment, or that party will suffer the consequence of being time barred." League of Women Voters v. Cmwlth., 179 A.3d 1080, 1086 (Pa. 2018) (quoting Lomas v. Kravitz, 170 A.3d 380, 389 (Pa. 2017)); In re Lokuta, 11 A.3d 427, 437 (Pa. 2011); Goodheart v. Casey, 565 A.2d 757, 763 (Pa. 1989) (citing Reilly by Reilly v. SEPTA, 489 A.2d 1291, 1298 (Pa. 1985)); City of Phila. v. Pien, 224 A.3d 71, 86 (Pa. Cmwlth. 2019). The "earliest possible moment" occurs "when the party knows of the facts that form the basis for a motion to recuse." League of Women Voters, 179 A.3d at 1086 (quoting Lomas, 170 A.3d at 390). In Lomas v. Kravitz, the Supreme Court held that the appellants waived their right to seek recusal by waiting 39 days after learning of the potential bias to file their motion. 170 A.3d at 391. Here, the Appellants waited 41 days.

In this matter, the Appellants' counsel was aware of all of the purported factual bases for recusal on February 3, 2023, yet the Appellants waited nearly seven weeks after the reassignment to file their motion, with the hearing to begin on April 5, 2023. We cannot say that the motion is a "calculated attempt to delay the hearing" as alleged by Tri-County and the Department, but their point that delay would in fact inevitably ensue as a result of granting their motion is well taken. There are, however, more substantial reasons for denying the motion.

First, none of the rulings and activity cited by the Appellants as the basis for their concern were taken by Board Member Labuskes individually. See, e.g., Stanley v. DEP, EHB Docket No. 2021-013-L (Opinion and Order on Motion for Sanctions in the Form of Legal Fees, June 7, 2022). All Board Members participated in and contributed to the proceedings in question, including the Opinions and Orders involved. Board Member Labuskes had primary drafting responsibility in the Board appeals, but all Board Members decided the issues following considerable deliberation.

No appeals or proceedings have involved Board Member Labuskes individually. Similarly, in their motion the Appellants allude to "confidential investigations" pertaining to these earlier proceedings. Although it would be inappropriate to get into the merits of any such investigations given confidentiality constraints, the Board is not aware of any investigations involving Board Member Labuskes individually as opposed to the entire Board acting under the direction of its Chairman. It is not clear why the Appellants have singled out Board Member Labuskes. It would obviously be impractical to recuse the entire Environmental Hearing Board.

On that note, the Adjudication of this appeal will require the participation of the full Board. It is not a given that Board Member Labuskes will be in the majority, or if he is, whether he will prepare the first draft of the Adjudication. It is not clear how or why the Appellants believe any alleged bias on the part of Board Member Labuskes would compromise the impartiality of the other Board Members. Further, the Board currently has one vacancy, and Board Chairperson Beckman is recused in this matter for entirely unrelated reasons. Recusal of Board Member Labuskes would leave only two Board Members to work on the case.

Secondly and critically, the Appellants' motion is based upon activity in entirely unrelated proceedings. There is no suggestion that Board Member Labuskes has any personal involvement in this appeal. There is no suggestion that he is likely to be called as a witness in this appeal. The principle that a judge should not preside over and be a witness in the very same proceeding simply does not apply here.^[3]

Furthermore even if the unrelated matters were relevant, we detect no evidence of bias or impartiality in the unrelated matters. More importantly, there are no grounds for believing that Board Member...