IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Delaware Riverkeeper :

Network and Maya van Rossum, :

The Delaware Riverkeeper, :

Petitioners :

:

v. : No. 1571 C.D. 2017

: ARGUED: June 4, 2018

Department of Environmental :

Protection, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE CEISLER FILED: August 1, 2018

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

Delaware Riverkeeper (Riverkeeper, collectively), petition for review of the 

Pennsylvania Environmental Hearing Board’s (EHB) October 24, 2017 Order

denying Riverkeeper’s Petition for Leave to File Appeal Nunc Pro Tunc (Nunc Pro 

Tunc Petition).1 Through this Nunc Pro Tunc Petition, Riverkeeper requested 

 

1 The Delaware Riverkeeper Network is a non-profit organization 

established in 1988 to protect and restore the Delaware River, its 

associated watershed, tributaries and habitats. The . . . Network is a 

membership organization headquartered in Bristol, Pennsylvania, 

with more than 16,000 members. . . . Maya van Rossum is the 

Delaware Riverkeeper, a full-time, privately funded ombudsman 

who is responsible for the protection of the waterways in the 

Delaware River Watershed.

Nunc Pro Tunc Petition at 1.
2

permission to file what otherwise would have been an untimely challenge to 

Respondent Commonwealth of Pennsylvania, Department of Environmental 

Protection’s (DEP) February 7, 2017 approval of Intervenor PennEast Pipeline 

Company, LLC’s (PPC) Water Quality Certification application. This application

pertained to PPC’s PennEast Pipeline Project (PennEast Project), a natural gas 

pipeline that is slated to traverse portions of Bucks, Carbon, Luzerne, and 

Northampton Counties. Riverkeeper’s Brief at 2-3; Reproduced Record (R.R.) at 

18a. After careful review, we affirm the EHB.

I.

To place this matter in the proper context, we must first examine the interplay 

between state and federal environmental regulatory schemes governing such 

pipelines. By virtue of the Natural Gas Act of 1938 (NGA),2 “Congress [has] 

occupied the field of matters relating to wholesale sales and transportation of natural 

gas in interstate commerce,” thereby almost completely preempting state laws and 

regulations in this area. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 305 

(1988). Consequently, “the Federal Energy Regulatory Commission (‘FERC’) is the 

‘lead agency’ for evaluating interstate [natural gas] pipeline projects. 15 U.S.C. § 

717n(b).” Del. Riverkeeper Network v. Sec’y of Pa. Dep’t of Envtl. Prot. (Orion), 

870 F.3d 171, 174 (3d Cir. 2017). The NGA’s preemptive powers are not absolute, 

however, as the statute includes explicit preemption carve-outs declaring that

[e]xcept as specifically provided in [the NGA], nothing in 

[the NGA] affects the rights of States under-- (1) the 

Coastal Zone Management Act of 1972 (16 U.S.C. 1451 

et seq.); (2) the Clean Air Act (42 U.S.C. 7401 et seq.); or 

(3) the Federal Water Pollution Control Act [(Clean Water 

Act)] (33 U.S.C. 1251 et seq.).

 

2

15 U.S.C. §§ 717-717z.
3

15 U.S.C. § 717b; see Del. Riverkeeper Network v. Sec’y Pa. Dep’t of Envtl. Prot. 

(Leidy Line), 833 F.3d 360, 372 (3d Cir. 2016) (“In other words, the only state action 

over interstate natural gas pipeline facilities that [can] be taken pursuant to federal 

law is state action taken under [these] statutes.”). This exception thus preserves a 

limited regulatory role for state environmental agencies with regard to such 

pipelines, including a permit process necessitated by the Clean Water Act and known

as a “Water Quality Certification.”

Section 401 of the Clean Water Act requires

[a]ny applicant for a Federal license or permit to conduct 

any activity including, but not limited to, the construction 

or operation of facilities, which may result in any 

discharge into the navigable waters, [to] provide the 

licensing or permitting agency a [Water Quality 

C]ertification from the State in which the discharge 

originates or will originate, or, if appropriate, from the 

interstate water pollution control agency having 

jurisdiction over the navigable waters at the point where 

the discharge originates or will originate, that any such 

discharge will comply with the applicable provisions of 

sections 1311, 1312, 1313, 1316, and 1317 of [the Clean 

Water Act, which address effluent discharge and water 

quality levels].

33 U.S.C. § 1341(a)(1). 

A Water Quality Certification confirms that a given 

facility will comply with federal discharge limitations and 

state water quality standards. . . . [T]he Water Quality 

Certification is by default a state permit, and the issuance 

and review of a Water Quality Certification is typically left 

to the states.

Leidy Line, 833 F.3d at 368-69. Once an applicant files a Water Quality Certification 

application, the Clean Water Act gives the relevant state agency (here, the DEP) one 

year from the filing date of the application to return a decision; a failure to do so 

resultsin waiver of the certification requirement. 33 U.S.C. § 1341(a)(1); Leidy Line, 
4

833 F.3d at 369. If an individual or entity disagrees with the DEP’s decision the 

NGA affords the individual or entity the right to petition the United States Court of 

Appeals for the Third Circuit (Third Circuit) for review. See 15 U.S.C. § 717r(d)(1); 

Leidy Line, 833 F.3d at 372 (“[A] state action taken pursuant to the Clean Water Act 

. . . is subject to review exclusively in the Courts of Appeals.”).

Significantly, the question of when exactly that right attaches has not been

completely settled, at least in the context of Pennsylvania’s environmental 

regulatory scheme. This is due to the existence of the EHB, which is “an independent 

quasi-judicial agency” that has the “power and duty to hold hearings and issue 

adjudications . . . on orders, permits, licenses or decisions of the [DEP].” Sections 

3(a) and 4(a) of the Environmental Hearing Board Act, Act of July 13, 1988, P.L. 

530, 35 P.S. §§ 7513(a), 7514(a); Orion, 870 F.3d at 177-78.

When an appeal is taken from DEP to the EHB, the EHB 

is required to conduct a hearing de novo. The EHB is not 

an appellate body with a limited scope of review 

attempting to determine if DEP’s action can be supported 

by the evidence received at DEP’s fact finding hearing. 

Rather, the EHB’s duty is to determine if DEP’s action can 

be sustained or supported by the evidence taken by the 

EHB.

Leatherwood, Inc. v. Dep’t of Envtl. Prot., 819 A.2d 604, 611 (Pa. Cmwlth. 2003) 

(internal citations omitted).

The Third Circuit has yet to decide whether it may exercise jurisdiction over 

a DEP Water Quality Certification-related petition for review where an EHB appeal 

addressing the same matter is still pending; however, it has concluded that a party’s

failure to file a timely appeal with the EHB renders the DEP’s action final and, thus, 

ripe for review by the Third Circuit. See Orion, 870 F.3d at 177-78.
5

In Orion, Riverkeeper had petitioned for review of the DEP’s approval of a 

Water Quality Certification application from Tennessee Gas Pipeline Company 

(Tennessee) for a 12.9-mile-long natural gas pipeline running through Pike and 

Wayne Counties, but did not also challenge that approval via a timely appeal to the 

EHB. Id. at 173-78. Riverkeeper argued, in part, that the NGA prevented the Third 

Circuit from exercising jurisdiction over the petition, because the underlying DEP 

decision was not reviewable until the state-level administrative process had been 

completed, which would not occur until the EHB had issued its own assessment. 

Thus, Riverkeeper sought to have the matter transferred to EHB on this basis. Id. at 

175. The Orion court sidestepped the question of whether the NGA required 

administrative finality, noting that there were other pending cases on the Third 

Circuit’s docket in which that question could be “better resolved.” Id. at 176-78.3

Still, the Third Circuit found that it had jurisdiction over the Orion petition, 

explaining that Riverkeeper’s failure to appeal the DEP’s decision to the EHB 

rendered that decision final and, thus, reviewable by the Third Circuit. Id. at 177-78.

II.

With all of this in mind, we now turn to the current matter. On February 9, 

2016, PPC filed a Water Quality Certification application with the DEP for the 

PennEast Project, which the DEP approved on February 7, 2017. 47 Pa. B. 1218-

1220 (2017); R.R. at 5a, 18a-19a, 25a-27a. DEP published notice of this approval in 

the Pennsylvania Bulletin on February 25, 2017, and included the following 

instruction: 

Any person aggrieved by this action may file a petition for 

review pursuant to Section 19(d) of the [NGA], 15 

 

3 The parties’ briefs do not address whether the Third Circuit has since answered this 

question.
6

U.S.C.A. § 717r(d), with the Office of the Clerk, United 

States Court of Appeals for the Third Circuit, 21400 U.S. 

Courthouse, 601 Market Street, Philadelphia, PA 19106-

1790 within 30 days of publication of this notice, or within 

30 days of receipt of written notice of this action, 

whichever occurs first.

47 Pa. B. 1220 (2017); R.R. at 27a. In response, Riverkeeper petitioned the Third

Circuit on February 28, 2017 for review of the DEP’s approval of PPC’s Water 

Quality Certification application, but, as in Orion, did not elect to appeal this 

approval to the EHB at that time. PPC’s Brief at 5. To date, the Third Circuit has not 

rendered a decision on Riverkeeper’s petition. Id.

On September 19, 2017, more than 6 months after the administrative appeal 

window had closed, Riverkeeper filed its Nunc Pro Tunc Petition with the EHB. 

Therein, Riverkeeper mentioned the Orion decision, without explaining that 

decision’s relevance, and argued that it should be allowed to appeal the DEP’s 

decision nunc pro tunc to the EHB, claiming “good cause” for granting such relief 

existed for two reasons. First, it was misled about its appeal options by the DEP’s 

February 25, 2017 notice, which, in contrast to notices issued in other, similar 

matters, explicitly stated that the proper way to challenge the DEP’s decision 

regarding PPC’s Water Quality Certification application was by petitioning the 

Third Circuit, rather than through an appeal to the EHB. Memorandum of Law in 

Support of Nunc Pro Tunc Petition at 1-4. Second, in petitioning the Third Circuit 

for review, Riverkeeper claimed it was acting “with cognizance of the [United States 

District Court for the Middle District of Pennsylvania’s] decision in Tennessee Gas 

Pipeline Co. v. Delaware Riverkeeper Network [(Northeast Upgrade Project)], 921 
7

F. Supp. 2d 381 (M.D. Pa. 2013).” Id. at 6.

4 Riverkeeper analogized the putatively 

deficient DEP notice to those at issue in California University of Pennsylvania v. 

Zoning Hearing Board, 107 A.3d 241 (Pa. Cmwlth. 2014),

5 and Department of 

Transportation, Bureau of Traffic Safety v. Moore, 554 A.2d 130 (Pa. Cmwlth. 

1988).

6

In these cases, our Court held that the appellants were permitted to file 

 

4

In Northeast Upgrade Project, the District Court found that Section 19(d)(1) of the NGA, 

15 U.S.C. § 717r(d)(1), barred the EHB from reviewing DEP decisions regarding pipeline-related 

permit applications made pursuant or closely related to requirements set forth by the Clean Water 

Act, and opined that, under the NGA, that role was reserved exclusively for the Third Circuit. 921 

F. Supp. 2d at 387-96. On that basis, the District Court issued a preliminary injunction barring the 

EHB from reviewing challenges filed by a number of private environmental protection 

organizations (including Riverkeeper) regarding several permits the DEP had approved for the 

Northeast Upgrade natural gas pipeline project. Id. This decision did not enjoin the EHB from 

entertaining such challenges in other matters and, according to PPC, the District Court dismissed 

the Northeast Upgrade Project case on April 23, 2013. PPC’s Brief at 15-16.

5

In California University of Pennsylvania v. Zoning Hearing Board, we vacated the trial 

court’s dismissal of a statutory appeal filed by California University. We held that there had been 

a breakdown in the judicial process, because the Zoning Hearing Board (ZHB) had erroneously 

informed the University, via the ZHB’s cover letter attached to the copy of the decision that was 

mailed to the University, that the appeal window was open for thirty days after the University’s 

receipt of the decision, rather than from the date of the decision’s mailing. Accordingly, we 

remanded the matter to the trial court, with instructions to hold an evidentiary hearing to determine 

when exactly the University had received the decision and whether, based upon that date and the 

ZHB’s incorrect instructions, the University should be allowed to file a nunc pro tunc appeal. 107 

A.3d at 242-46.

6

In Department of Transportation, Bureau of Traffic Safety v. Moore:

[Moore] received a citation on April 20, 1983 for an invalid registration sticker and 

was fined $44.00. Effective November 15, 1983, his [vehicle] operating privilege 

was suspended for failure to respond to that citation. He contend[ed] that he never 

received notice of this suspension and did not learn of it until he was cited on March 

3, 1986 for failure to stop at a red light. At that time, he was also cited for driving 

while his operating privilege was suspended, in violation of Section 1543 of the 

Vehicle Code, as amended, 75 Pa.C.S. § 1543. 

554 A.2d at 131. 
8

appeals nunc pro tunc because they had received erroneous information from the 

relevant governmental entities, which prevented the appellants from appropriately 

exercising their appellate rights. Memorandum of Law in Support of Nunc Pro Tunc 

Petition at 5-6. In addition, Riverkeeper argued that neither the DEP nor PPC would

be prejudiced by a nunc pro tunc appeal because, even if the appeal had been timely 

filed, the EHB would likely have stayed it until the Third Circuit entered a “ruling 

on its jurisdiction [over] these [kinds of] matters.” Id. at 7.

PPC responded to Riverkeeper’s request on October 3, 2017, opining that 

nunc pro tunc relief was not warranted under the circumstances. According to PPC,

[a]lthough not cited in its [Nunc Pro Tunc Petition], 

Riverkeeper has made clear in multiple filings in various 

court proceedings that its argument that appeal to the EHB 

is proper is based upon the United States Court of Appeals 

for the 

First Circuit’s decision in Berkshire Environmental Action 

Team, Inc. v. Tennessee Gas Pipeline Company, LLC, 851 

F.3d 105 (1st Cir. 2017).[7] The Berkshire decision was 

 

Subsequently, Moore appeared before a magisterial district judge, who told him that his 

operating privileges would be restored if he paid the citation fines, and did not discover that the 

judge had led him astray until the appeal window pertaining to the March 3, 1986 citations had 

closed, when the Department of Transportation notified him that it was suspending his operating 

privileges for six months. Id. On appeal, “[w]e agree[d] with the trial court that incorrect 

information given to the appellee by the district justice [was] sufficient reason to permit [Moore 

to appeal the March 3, 1986 citations] nunc pro tunc.” Id. at 132.

7

In Berkshire, the First Circuit dismissed a petition for review regarding the Massachusetts 

Department of Environmental Protection’s (MassDEP) approval of a pipeline-related Water 

Quality Certification application for lack of jurisdiction. 851 F.3d at 113. The Berkshire court 

reviewed Massachusetts’ administrative process pertaining to such applications, noting that an 

entity or individual may appeal a MassDEP decision regarding such an application, which will 

then result in a de novo hearing in which MassDEP must again review the application. Id. at 111-

13. Because the Berkshire petitioners had filed a timely administrative appeal of MassDEP’s 

application approval, and that appeal was still pending, the First Circuit concluded that there was 

no final agency determination, which thereby deprived it of subject matter jurisdiction. Id.
9

issued on March 15, 2017. At that time, 12 days remained 

in the 30 day period for appeal of the [DEP’s approval of 

PPC’s Water Quality Certification application] to the 

EHB. See 25 Pa. Code § 1021.52(a)(2)(i). Riverkeeper 

was well aware of Berkshire as soon as [that] decision was 

issued, as evidenced by the fact that Riverkeeper and its 

counsel have been citing to and making arguments based 

[up]on it ever since. Yet, Riverkeeper did not appeal . . . 

to the EHB before the deadline and [instead] waited an 

additional six months after Berkshire before seeking leave 

to file an appeal nunc pro tunc.

PPC’s Memorandum of Law in Opposition to Nunc Pro Tunc Petition at 2. 

PPC further highlighted a number of filings by Riverkeeper in other litigation, 

including: 

 A March 21, 2017 response by Riverkeeper to a Third Circuit order issued in 

Orion, in which Riverkeeper briefly discussed Berkshire in a footnote; 

 Riverkeeper’s letter brief submitted to the Third Circuit in Delaware 

Riverkeeper Network, v. Department of Environmental Protection (Atlantic 

Sunrise), Case No. 16-2211, on April 18, 2017, in which Riverkeeper again 

referenced Berkshire and argued that a DEP Water Quality Certification 

decision was not final until either the EHB administrative process has finished 

or a party failed to file a timely appeal with the EHB; 

 Riverkeeper’s July 11, 2017 principal brief in Atlantic Sunrise, in which 

Riverkeeper presented the same arguments as in its earlier submissions;

 

In Orion, “Riverkeeper argue[d] that [the Third Circuit] should follow Berkshire’s holding 

and read a finality requirement into [section 19(d)(1) of the NGA, 15 U.S.C. §717r(d)(1)]. . . [and]

further argue[d] that PA DEP’s order [approving Tennessee’s Water Quality Certification

application for the Orion natural gas pipeline project was] not final because Pennsylvania’s 

administrative scheme is analogous to Massachusetts’s.” 870 F.3d at 176.
10

 Riverkeeper’s April 21, 2017 principal brief in Orion, in which it again cited 

Berkshire and argued that the matter was not ripe for Third Circuit review 

until the EHB had weighed in; and

 Riverkeeper’s May 18, 2017 reply brief in support of its request for a stay of 

proceedings regarding the Third Circuit’s review of the DEP’s PennEast 

Project decision.

8

See PPC’s Memorandum of Law in Opposition to Nunc Pro Tunc Petition at 5-8, 

Exs. A-E. 

In addition, PPC argued that the amount of time that passed between 

publication of both Berkshire and Orion and Riverkeeper’s filing of its Nunc Pro 

Tunc Petition showed that Riverkeeper were not reasonably diligent in seeking 

relief. Id. at 11. Finally, PPC claimed that allowing Riverkeeper to appeal to the EHB 

nunc pro tunc would unfairly prejudice both the DEP and PPC because it would 

further delay progress on the PennEast Project, as both entities had relied on 

Riverkeeper’s decision to only petition the Third Circuit for review. Id. at 11-12.

According to PPC, the parties had fully briefed the Third Circuit petition and the 

matter was ripe for review, but “[n]ow, Riverkeeper seeks to change the rules of the 

game in the ninth inning, as Riverkeeper suddenly realized that [their] failure to file 

an appeal here [with the EHB] could be dispositive on the issue of whether the Third 

Circuit exercises jurisdiction over the [Water Quality Certification approval].” Id. at 

12. In essence, PPC asserted that prejudice would result from allowing a nunc pro 

 

8 Therein, Riverkeeper mentioned the EHB’s ruling, in a separate matter, that DEP’s 

approval of a pipeline-related Water Quality Certification application did not constitute a final 

agency action under the circumstances, argued that “[t]he parallels between the Massachusetts and 

Pennsylvania regulatory regimes are too similar to ignore,” and reiterated its belief that the Third 

Circuit did not have jurisdiction to entertain a petition for review until the EHB has reviewed the 

DEP’s approval of an application and issued its own ruling. PPC’s Memorandum of Law in 

Opposition to Nunc Pro Tunc Petition, Ex. D.
11

tunc appeal, as it would create another regulatory hurdle to the completion of the

PennEast Project. Id. at 11-12.

On October 6, 2017, Riverkeeper responded to PPC’s filing by sending a letter 

to the administrative law judge assigned to the matter, arguing that PPC failed to 

paint a complete and accurate picture of the jurisdictional arguments Riverkeeper 

had made to the Third Circuit in the aforementioned cases. Riverkeeper Letter, 

10/6/17, at 1. Riverkeeper attached copies of two briefs they had filed with the Third 

Circuit regarding their PennEast Project-related petition for review, to ensure that 

the EHB had a “more complete record.” See id. at 1, Exs. A-B.

The DEP filed a response to the Nunc Pro Tunc Petition on October 18, 2017. 

The DEP disagreed with Riverkeeper’s contention that the February 25, 2017 notice 

in the Pennsylvania Bulletin “directed” aggrieved partiesto petition the Third Circuit 

for review, as the notice only said that such parties “may file” a petition. DEP’s 

Memorandum of Law in Opposition to Nunc Pro Tunc Petition at 5-6. In addition, 

DEP maintained that Riverkeeper failed to show that this notice was “contrary to 

law[,]” noted the jurisdictional import of the Leidy Line, Northeast Upgrade Project,

and Orion decisions, distinguished this matter from the California University and 

Moore decisions, and claimed that the notice was “factually accurate and consistent 

with the law.” Id. at 7-8. Finally, the DEP asserted that Riverkeeper’s request for 

relief was untimely, because Riverkeeper did not seek leave to file a nunc pro tunc

appeal until nearly three months after they had argued to the Third Circuit that that 

Court could not exercise jurisdiction over their challenge to the PennEast Project 

until the EHB had weighed in, and more than seven months after the DEP’s approval 

of PPC’s Water Quality Certification application. Id. at 8-9.
12

On October 24, 2017, the EHB denied Riverkeeper’s Nunc Pro Tunc Petition. 

The EHB noted that our case law allows for nunc pro tunc appeals where “a wouldbe appellant reasonably relies to its detriment upon incorrect information from a 

governmental authority regarding the need or manner to appeal[,]” and 

acknowledged that the language of the February 25, 2017 DEP notice “was 

misleading or, at best, incomplete.” EHB Opinion, 10/24/17, at 3. Nonetheless, the 

EHB held that Riverkeeper was not entitled to nunc pro tunc relief. EHB Opinion, 

10/24/17, at 1-4. The EHB had 

difficulty accepting the Riverkeeper’s representation that 

[they] actually relied on the [Pennsylvania] Bulletin notice 

because extremely able counsel for the Riverkeeper has 

filed simultaneous appeals with this Board and the Third 

Circuit in at least one other pipeline case, Lancaster 

Against Pipelines, et al. v. DEP, EHB Docket No. 2016-

075-L.

Id. at 3. In addition, even assuming such reliance, the EHB 

question[ed] whether that reliance was reasonable given 

the uncertainty in the law about the appropriate forum for 

an appeal of a [Section] 401 [of the Clean Water Act] 

certification, an uncertainty about which the Riverkeeper 

was fully aware given [their] filings in the Third Circuit 

matter. The Riverkeeper [have] actually argued for months 

in the Third Circuit case that jurisdiction lies with this 

Board, yet [they] did not until this late date take the 

relatively simple step of filing an EHB appeal to preserve 

[their] rights. The Riverkeeper could very easily have filed 

simultaneous appeals before the Third Circuit and this 

Board. There was certainly no downside to doing so, given 

the minimal expense and effort associated with filing an 

EHB appeal.

Id. Finally, the EHB found that Riverkeeper had “quite clearly failed to act with due 

diligence to preserve [their] rights” by waiting until 205 days after the DEP’s 

application approval, and until 20 days after Orion was published, to file its Nunc 
13

Pro Tunc Petition, noting that Riverkeeper failed to explain these delays or why the 

Orion decision suddenly prompted them to seek such relief. Id. at 4. This Petition 

for Review followed.

III.

Our review of an EHB decision is limited to determining whether the EHB 

committed errors of law or constitutional violations and whether its decision is 

supported by substantial evidence. Eureka Stone Quarry, Inc. v. Dep’t of Envtl. 

Prot., 957 A.2d 337, 344 (Pa. Cmwlth. 2008).

Substantial evidence is defined as “such relevant evidence 

as a reasonable mind might accept as adequate to support 

a conclusion.” Department of Environmental Resources v. 

Borough of Carlisle, 16 Pa. Cmwlth. 341, 330 A.2d 293, 

298 (1974). An administrative agency has broad discretion 

in the performance of its administrative duties and 

functions and . . . an agency’s exercise of its discretion 

[cannot be invalidated] absent proof of fraud, bad faith, or 

blatant abuse of [that] discretion. Herzog v. Department of 

Environmental Resources, 166 Pa. Cmwlth. 114, 645 A.2d 

1381 (1994). In addition . . . the resolution of conflicts in 

testimony, the credibility of witnesses, and the weight 

given the evidence are within the province of the Board. 

Pawk v. Department of Environmental Resources, 39 Pa. 

Cmwlth. 457, 395 A.2d 692 (1978).

Id.

The EHB may permit a party to file an appeal nunc pro tunc “for good cause 

shown.” 25 Pa. Code § 1021.53a. A nunc pro tunc appeal will be allowed only in 

situations where “(1) the appellant’s notice of appeal was filed late as a result of nonnegligent circumstances, either as they relate to the appellant or the appellant’s 

counsel; (2) the appellant filed the notice of appeal shortly after the expiration date 

[of the appeal window]; and (3) the appellee was not prejudiced by the delay.” Criss 

v. Wise, 781 A.2d 1156, 1159 (Pa. 2001); see also Falcon Oil Co. v. Dep’t of Envtl. 
14

Res., 609 A.2d 876, 878 (Pa. Cmwlth. 1992) (“A nunc pro tunc appeal of an 

administrative action will be allowed only where there is a showing of fraud, 

breakdown in the administrative process or unique and compelling factual 

circumstances establishing a non-negligent failure to file a timely appeal.”). “The 

exception for allowance of an appeal nunc pro tunc in non-negligent circumstances 

is meant to apply only in unique and compelling cases in which the appellant has 

clearly established that she attempted to file an appeal, but unforeseeable and 

unavoidable events precluded her from actually doing so.” Criss, 781 A.2d at 1160.

IV.

Riverkeeper put forth a single question for our consideration: 

Whether a would-be appellant [i.e. Riverkeeper] that was 

directed by [the DEP] to challenge a DEP approval for a 

natural gas pipeline with the United States Court of 

Appeals for the Third Circuit, and which was previously 

enjoined by the United States District Court for the Middle 

District of Pennsylvania [in Northeast Upgrade Project] 

from pursuing an appeal of a DEP approval for a natural 

gas pipeline before the . . . [EHB], has shown good cause 

to file an appeal nunc pro tunc with the EHB.

Riverkeeper’s Brief at 2. In its brief, Riverkeeper rehash the central argument they 

made to the EHB - that they should have been allowed to appeal nunc pro tunc

because the February 25, 2017 DEP notice’s misleading language, combined with

the injunctive effect of Northeast Upgrade Project, constituted “a breakdown in the 

administrative process and/or unique and compelling factual circumstances 

establish[ing] a non-negligent failure by [Riverkeeper] to [file a timely appeal with 

the EHB].” Id. at 12.9

 

9 Curiously, and despite the express language of Northeast Upgrade Project, Riverkeeper

claim in their brief that the District Court’s ruling enjoined Riverkeeper from moving forward with 

their EHB appeal in that matter. Riverkeeper’s Brief at 8; see Northeast Upgrade Project, 921 F.
15

In addition, Riverkeeper note that the EHB properly found the February 25, 

2017 DEP notice to be “misleading or incomplete,” but dispute the rest of the EHB’s 

conclusions for several reasons. Id. at 13-14. First, in at least one other matter

involving DEP approval of a Water Quality Certification application, the parties

challenging the DEP’s decision had never been “the subject of an injunction issued 

by [a] Federal District Court” impacting their ability to have an appeal heard by the 

EHB. Id. at 14. Second, 

contrary to the EHB’s contention, there certainly was a 

“downside” for [Riverkeeper] to file an appeal with the 

EHB. Given that [Riverkeeper] had already been subject 

to an [injunctive] order from the Federal District Court [in 

Northeast Upgrade Project], [Riverkeeper were]

reasonably concerned that an appeal to the EHB could 

result in a claim that [their] appeal would be challenged as 

frivolous. In fact, opposing counsel in another natural gas 

pipeline matter threatened [Riverkeeper] with just such an 

action if [they] filed an appeal with the EHB. . . . [U]ntil 

the Third Circuit ruled in Orion that the failure to appeal 

to the EHB could result in prejudice, [Riverkeeper] had no 

basis for acting contrary to the ruling of the Federal 

District Court [in Northeast Upgrade Project].

Id. at 15. Third, Riverkeeper claim that they acted with reasonable diligence by filing 

the Nunc Pro Tunc Petition 20 days after the Third Circuit issued the Orion decision. 

Riverkeeper argues that there is no firm guidance or fixed standard regarding how 

much time a party has to file a Nunc Pro Tunc Petition, other than by implication 

through the 30-day appeal window in the EHB’s regulations, and that “[r]equiring 

[Riverkeeper] to guess as to what shorter time frame will or will not preclude [their 

 

Supp. 2d at 382 (“Tennessee Gas Pipeline Company LLC (‘TGPC’) filed an Amended Complaint 

. . . and Amended Motion for Emergency Preliminary Injunction . . . on January 8, 2013 seeking, 

inter alia, a declaratory judgment that the [NGA] preempted [the EHB] from reviewing permits 

that the [DEP] had issued to TGPC as required by the Federal Energy Regulatory Commission’s 

(‘FERC’) Order dated May 29, 2012. . . . [T]he Court will grant TGPC’s Motion for Preliminary 

Injunction.”).
16

request for relief] would be arbitrary, capricious and a violation of their due process 

rights.” Id. at 16. Finally, Riverkeeper assert that neither the DEP nor PPC would 

be prejudiced by allowing a nunc pro tunc appeal, because the EHB would likely 

have stayed any appeal “pending the Third Circuit Court[’s] ruling on its jurisdiction 

in this matter.” Id. at 17.

Unsurprisingly, PPC opposes Riverkeeper’s Petition for Review. PPC points 

out that Northeast Upgrade Project was an entirely separate matter involving a 

completely different pipeline project, as well as a completely separate pipeline 

company, and that the preliminary injunction issued in that action enjoined the EHB, 

not Riverkeeper, and thus had no injunctive effect upon either the EHB or 

Riverkeeper in this case. PPC’s Brief at 14-16. In addition, PPC argues that the 

EHB’s factual findings were supported by substantial evidence. Id. at 16-22. Finally, 

PPC again claims that both it and the DEP would be prejudiced by a nunc pro tunc

appeal to the EHB because it would result in additional delays to the PennEast 

Project. Id. at 23-24.

The DEP’s arguments on appeal are substantially similar to those advanced 

by PPC, with two significant additions. First, the DEP reiterates that the phrase “may 

file” in the February 25, 2017 DEP notice was not a directive to seek relief 

exclusively in the Third Circuit. DEP’s Brief at 10-11. Second, the DEP discusses 

more fully the import of Orion. According to the DEP, 

Riverkeeper’s characterization of the Third Circuit’s 

ruling in Orion is wrong[,] in that the Riverkeeper can 

point to no language in the decision where the [Third 

Circuit] “ruled that a party could prosecute a challenge of 

the DEP action related to a natural gas pipeline before the 

EHB.” [Riverkeeper’s Brief at 7]. Orion did recognize that 

“finality remains unresolved in this circuit”; however, 

Orion concluded that “finality and how such a requirement 

would interact with Pennsylvania’s administrative scheme 
17

are issues better resolved in [other] cases” [then] pending 

before the [Third Circuit]. Orion, 870 F.3d at 177-178. As 

recognized by the EHB . . . Riverkeeper [have] not shown 

how the Orion decision . . . justifies [Riverkeeper’s] 

failure to file a timely appeal [with the EHB].

Id. at 14.

In their reply brief, Riverkeeper clarify the perceived impact of the Northeast 

Upgrade Project preliminary injunction, stating that “[o]bviously, [Riverkeeper

were] not free to ignore the precedent of a federal court decision to which [they were]

a party.” Riverkeeper’s Reply Brief at 4. Riverkeeper also opines that the fact that 

the EHB was enjoined in that action, rather than Riverkeeper, “is a distinction 

without a difference. The EHB appeal was instituted by [Riverkeeper]. [Riverkeeper

were] sued as . . . defendant[s] in the federal district court. The result of the 

Tennessee Gas Pipeline prohibited [Riverkeeper] from pursuing [their] claims 

before the EHB.” Id. Riverkeeper further expands on the preliminary injunction 

issue in a footnote, stating 

[the] DEP and [PPC] also erroneously argue that 

[Riverkeeper claim they are] presently subject to a federal 

court injunction. [PPC] goes so far as to claim that 

[Riverkeeper’s] argument “makes it appear” as though the 

Middle District decision was an order in a proceeding 

involving the [PPC] Water Quality Certification. [PPC] 

Brief [at] 14. Neither of these arguments [is] accurate. As 

[Riverkeeper] clearly stated, the injunction had been 

issued by the federal court in a prior action - i.e. the 

[Northeast Upgrade Project] matter. The point of 

[Riverkeeper’s] argument is not that [they are] presently 

subject to the injunction but that [they] reasonably relied 

on the ruling of the federal district court and DEP’s clear 

instructions to file [their] appeal only in the Third Circuit 

Court of Appeals, until the Third Circuit issued its Orion

decision.

Id. at 4 n.2.
18

V.

After careful review,

10 we conclude that the EHB did not err or abuse its

discretion in denying Riverkeeper’s Nunc Pro Tunc Petition. Riverkeeper were

never enjoined, in this case or any other, from appealing DEP’s approval of a Water 

Quality Certification application to the EHB. Thus, Riverkeeper’s argument that 

they acted “with cognizance” of the Northeast Upgrade Project decision, 

Riverkeeper’s Brief at 12, which imposed a subsequently dissolved preliminary 

injunction against the EHB regarding an entirely separate pipeline matter, is 

unpersuasive. In addition, the Third Circuit has not, thus far, ruled that it has 

exclusive authority to entertain such challenges or that the NGA preempts the EHB 

from playing a role in the review process. Therefore, Riverkeeper were not precluded 

from filing an EHB appeal within the standard 30-day appeal window following the 

DEP’s approval of PPC’s application. 

Moreover, as the EHB noted in its opinion, Riverkeeper possess considerable

knowledge and experience regarding challenges to DEP approvals of such 

applications, by virtue of Riverkeeper’s conduct and involvement in other, similar

matters, thereby diminishing the likelihood that Riverkeeper were actually misled 

by the allegedly incomplete information in the DEP’s February 25, 2017 notice.

Thus, this case is distinguishable from both California University and Moore, due to 

the uncontroverted evidence in those cases that the parties seeking nunc pro tunc

 

10 We note that Riverkeeper has waived one of its proffered claims by failing to raise it 

before the EHB—namely, that it was entitled to nunc pro tunc relief because it was justifiably 

concerned that an EHB appeal would be deemed frivolous and result in the imposition of sanctions. 

See Pa. R.A.P. 1551(a); Arnold v. Workers’ Comp. Appeal Bd. (Lacour Painting, Inc.), 110 A.3d 

1063, 1071 (Pa. Cmwlth. 2015) (citations omitted) (“Our courts permit a litigant to make new 

arguments on appeal in support of a preserved issue . . . but do not permit a party to advance an 

entirely new and different theory of relief for the first time on appeal.”); Wert v. Dep’t of Transp., 

821 A.2d 182, 186 (Pa. Cmwlth. 2003).
19

relief had received inaccurate guidance from governmental entities regarding their

appellate rights and had relied on that information to their detriment. Finally, 

Riverkeeper never explained to the EHB precisely why, nearly seven months after

the DEP’s approval of PPC’s application, Orion suddenly prompted it to decide that 

a nunc pro tunc administrative appeal was the correct course of action. 

Therefore, we agree with the EHB that Riverkeeper had no legal justification 

for failing to file a timely appeal with the EHB. We conclude that the EHB did not 

abuse its discretion in finding that Riverkeeper had shown neither that they relied on 

the misleading February 25, 2017 DEP notice nor that they acted diligently to 

preserve their appellate rights. Consequently, because Riverkeeper failed to establish 

“good cause” to permit the filing of an appeal nunc pro tunc with the EHB, we affirm 

the EHB’s October 24, 2017 Order.

__________________________________

ELLEN CEISLER, Judge

Judge Fizzano Cannon did not participate in the decision of this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Delaware Riverkeeper :

Network and Maya van Rossum, :

The Delaware Riverkeeper, :

Petitioners :

:

v. : No. 1571 C.D. 2017

:

Department of Environmental :

Protection, :

Respondent :

O R D E R

AND NOW, this 1

st day of August, 2018, the Order of the Pennsylvania 

Environmental Hearing Board, dated October 24, 2017, is hereby AFFIRMED.

__________________________________

ELLEN CEISLER, Judge