                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clean Air Council,                              :
                              Appellant         :
                                                :
                      v.                        :
                                                :
County of Allegheny, a political                :
subdivision of the Commonwealth                 :
of Pennsylvania, acting through the             :   No. 515 C.D. 2018
Allegheny County Health Department              :   Argued: October 16, 2018


BEFORE:        HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                         FILED: November 19, 2018

               The Clean Air Council (CAC) appeals from the Allegheny County
Common Pleas Court’s (trial court) February 22, 2018 order dismissing its appeal as
moot. The sole issue before this Court is whether CAC’s appeal from the Allegheny
County Health Department’s (Department) May 25, 2017 Administrative Order is
moot.1 After review, we affirm.


                                          Background
               Title V of the Clean Air Act2 authorizes the Department to issue
operating permits to industrial sources in Allegheny County that are considered
“major source[s]” of air pollution.              Section 70.3(a)(1) of the Environmental

       1
           CAC presents four additional issues concerning the merits of its appeal. However, because
the trial court did not address the merits of CAC’s appeal, but rather dismissed it for mootness, the
merits of CAC’s appeal are not properly before this Court.
         2
           42 U.S.C. §§ 7401-7671q.
Protection Agency’s (EPA) Regulations, 40 C.F.R. § 70.3(a)(1).3 The purpose of a
Title V operating permit is to incorporate into one document all the requirements that
are included in a facility’s existing installation (construction) permits, and any
applicable regulatory requirements. Before issuing a Title V operating permit, the
Department is required to “provide at least 30 days for public comment” on the
proposed Title V operating permit. Section 70.7(h)(4) of the EPA’s Regulations, 40
C.F.R. § 70.7(h)(4). The Department may also schedule a public hearing on the Title
V operating permit. Id.
              The Allegheny Ludlum Corporation’s (Allegheny Ludlum) facility is a
steel mill located in Brackenridge, Pennsylvania. Allegheny Ludlum is a “major
source” of pollution and, therefore, is required under Title V of the Clean Air Act to
have an operating permit. 40 C.F.R. § 70.3(a)(1). On September 30, 2016, the
Department published in the Pittsburgh Post-Gazette a notice for public comment
regarding a draft Title V Operating Permit for Allegheny Ludlum (2016 Draft
Operating Permit). The notice stated that written comments for the 2016 Draft
Operating Permit were due by October 31, 2016, and a public hearing was scheduled
for October 31, 2016. On October 17, 2016, CAC requested that the Department
grant a 90-day extension of the public comment period and move the public hearing
from October 31, 2016 to January 30, 2017. CAC explained the need for the 90-day
extension as follows: “This permit represents the accumulation of many complex
regulatory and technological developments since 1995, when the Title V application

       3
              The Pennsylvania Department of Environmental Protection submitted
              a request on behalf of the [Department] pertaining to operating permit
              programs in the Commonwealth of Pennsylvania. The submission,
              dated November 9, 1998 and amended March 1, 2001, includes a
              request for approval of a partial operating program pursuant to 40
              CFR part 70 for Allegheny County. The [Department’s] partial
              operating permit program is hereby granted full approval effective on
              December 17, 2001.
40 C.F.R. PT.70 App. A, Pennsylvania (b).
                                                2
was submitted. We believe a [90]-day extension is warranted for all interested
parties, to allow them the time to review the documents and provide meaningful
comments on the proposed permit.” Reproduced Record (R.R.) at 273a.
               On October 18, 2016, the Department denied CAC’s request for an
extension of the public comment period. On October 31, 2016, the Department
conducted a public hearing on the 2016 Draft Operating Permit.                       CAC timely
submitted written comments on the 2016 Draft Operating Permit and offered oral
testimony at the public hearing.


                                               Facts
               CAC appealed from the Department’s denial of CAC’s request for the
public comment period extension. On March 2, 2017, a hearing officer held an
evidentiary hearing. On May 25, 2017, the hearing officer issued an Administrative
Order dismissing CAC’s appeal.              On June 4, 2017, CAC appealed from the
Administrative Order to the trial court. Thereafter, the Department revised the 2016
Draft Operating Permit and, on November 15, 2017, published a notice in the
Pittsburgh Post-Gazette for public comment on a Revised Draft Title V Operating
Permit for Allegheny Ludlum (Revised Draft Operating Permit). On February 22,
2018, the trial court dismissed CAC’s appeal as moot because the Department
published a notice for public comment on the Revised Draft Operating Permit on
November 15, 2017. CAC appealed to this Court.4




       4
        “When the trial court does not take additional evidence, our standard of review of a local
agency’s adjudication is limited to determining whether constitutional rights were violated, an error
of law was committed, or the necessary factual findings are supported by substantial evidence.”
Spencer v. City of Reading Charter Bd., 97 A.3d 834, 839 n.5 (Pa. Cmwlth. 2014).
                                                 3
                                Discussion
            Initially,

            [t]he mootness doctrine requires an actual case or
            controversy to exist at all stages.
               It is a well-established principle of law that this Court
               will not decide moot questions. The articulation of the
               mootness doctrine . . . was acknowledged in . . . In re
               Gross, . . . 382 A.2d 116 ([Pa.] 1978) as follows:
                  The problems arise from events occurring after
                  the lawsuit has gotten under way-changes in the
                  facts or in the law-which allegedly deprive the
                  litigant of the necessary stake in the outcome.
                  The mootness doctrine requires that ‘an actual
                  controversy must be extant at all stages of
                  review. . . .’ G. Gunther, Constitutional Law
                  1578 (9th ed. 1975).
               [In re Gross], 382 A.2d at 119. An issue can become
               moot during the pendency of an appeal due to an
               intervening change in the facts of the case or due to an
               intervening change in the applicable law.
            In re Cain, . . . 590 A.2d 291, 292 ([Pa.] 1991).

Dep’t of Envtl. Prot. v. Cromwell Twp., Huntingdon Cty., 32 A.3d 639, 651 (Pa.
2011). Further,

            [the Pennsylvania Supreme] Court has repeatedly
            recognized two exceptions to the mootness doctrine: (1) for
            matters of great public importance and (2) for matters
            capable of repetition, which are likely to elude review.
            Moreover, we have found this exception applicable where a
            case involves an issue that is important to the public interest
            or where a party will suffer some detriment without a court
            decision.

Pilchesky v. Lackawanna Cty., 88 A.3d 954, 964-65 (Pa. 2014) (citation omitted).



                                          4
             CAC argues that the trial court erred by ruling that the appeal from the
Administrative Order was moot because the Department violated the federal Title V
regulations requiring adequate procedures for public participation in the Title V
permit process, and state law prohibiting a binding norm, resulting in a current case
or controversy. The Department rejoins that the trial court properly determined that
the appeal is moot because the Department had revised the 2016 Draft Operating
Permit that was the subject of CAC’s appeal and, in the interim, proffered the
Revised Draft Operating Permit which was published for public comment and, thus,
no actual case or controversy exists.

             Under the mootness doctrine, ‘an actual case or controversy
             must be extant at all stages of review, not merely at the time
             the complaint is filed.’ Pub. Defender’s Office of Venango
             [Cty.] v. Venango [Cty.] Court of Common Pleas, . . . 893
             A.2d 1275, 1279 ([Pa.] 2006) [(quoting Pap’s A.M. v. City
             of Erie, . . . 812 A.2d 591, 599-600 ([Pa.] 2002))]. The
             existence of a case or controversy requires ‘a real and not a
             hypothetical legal controversy and one that affects another
             in a concrete manner so as to provide a factual predicate for
             reasoned adjudication. . . .’ City of Phila[.] v. [Se. Pa.
             Transp. Auth.], 937 A.2d 1176, 1179 (Pa. Cmwlth. 2007).

Harris v. Rendell, 982 A.2d 1030, 1035 (Pa. Cmwlth. 2009), aff’d, 992 A.2d 121 (Pa.
2010). Further,

             [i]t is well settled that the courts ‘do not render decisions in
             the abstract or offer purely advisory opinions.’ Pittsburgh
             Palisades Park, LLC v. Commonwealth, . . . 888 A.2d 655,
             659 ([Pa.] 2005). Judicial intervention ‘is appropriate only
             where the underlying controversy is real and concrete,
             rather than abstract.’ City of Phila[.] v. Commonwealth, . . .
             838 A.2d 566, 577 ([Pa.] 2003).

Harris, 982 A.2d at 1035. “The key inquiry in determining whether a case is moot is
whether the court or agency will be able to grant effective relief and whether the
litigant has been deprived of the necessary stake in the outcome of the litigation.”


                                            5
Consol Pa. Coal Co., LLC v. Dep’t of Envtl. Prot., 129 A.3d 28, 39 (Pa. Cmwlth.
2015).
            Here, CAC appealed from the Department’s decision denying CAC’s
request for a public comment period extension for the 2016 Draft Operating Permit.
The hearing officer issued an Administrative Order dismissing CAC’s appeal. After
CAC appealed therefrom to the trial court, the Department revised the 2016 Draft
Operating Permit, and the Revised Draft Operating Permit was published for public
comment. Thus, for the trial court to rule on whether the Department violated the
federal Title V regulations and state law relative to the 2016 Draft Operating Permit,
would be purely advisory, as the 2016 Draft Operating Permit no longer exists.
Because the trial court could no longer afford CAC relief relative to the 2016 Draft
Operating Permit, the trial court properly determined that the appeal was moot.
            CAC further argues that the second exception to the mootness doctrine
applies because the Department’s noncompliance with federal and state law is
capable of repetition yet likely to evade review. Specifically, CAC contends that the
time period for making a legal challenge to a denial of a request for an extension of
time will easily exceed the short 30-day public comment period, and CAC intends to
make future requests where it believes an extension is appropriate.
            The Department rejoins that although a public comment period may end
after only 30 days pursuant to Department and federal regulations, the litigation
relating to the appeal need not also end. If CAC appeals a future denial of an
extension request, the hearing officer, the trial court or this Court could order an
extension of the comment period beyond the original 30-day comment period.
Specifically, the Department asserts that this case is moot because the Department
revised the 2016 Draft Operating Permit and published the Revised Draft Operating
Permit for public comment, not because the 30-day comment period had expired.
The Department maintains that if it had not published the Revised Draft Operating
                                          6
Permit on November 15, 2017, the trial court or this Court could have reversed the
hearing officer’s order and required republication of the 2016 Draft Operating Permit
for an additional 90-day public comment period.
             This Court has explained:

             The first exception to mootness-that the conduct
             complained of is capable of repetition yet likely to evade
             judicial review-involves two elements: (1) that the duration
             of the challenged action is too short to be fully litigated
             prior to its cessation or expiration; and (2) that there is a
             reasonable expectation that the same complaining party will
             be subjected to the same action again.

Phila. Pub. Sch. Notebook v. Sch. Dist. of Phila., 49 A.3d 445, 449 (Pa. Cmwlth.
2012).    In Philadelphia Public School Notebook, Philadelphia Public School
Notebook (Requester) requested from the Philadelphia School District (District) full
texts of resolutions presented during a School Reform Commission (SRC) planning
meeting. The initial request was denied, but the District eventually provided the full
texts because the resolutions later passed. (There were only two weeks between the
planning meeting and the voting meeting.) Requester appealed from the denial to the
Office of Open Records, which dismissed the appeal as moot because Requester
received the full texts. Requester appealed to the trial court, which determined the
appeal was not moot and Requester was entitled to the full texts. The District
appealed to this Court, which affirmed the trial court. This Court held that

             [t]he first element of the exception is met in this case
             because of the manner in which [the] District and the SRC
             conduct their meetings wherein full text resolutions are
             proposed and considered at a public ‘planning’ meeting, but
             only summaries are provided to the public and the ‘voting’
             meeting follows within only one to two weeks. Thus, the
             time between the ‘planning’ and ‘voting’ meetings is so
             short that this issue would be technically moot before it
             could be litigated. The second element of the mootness
             exception is also met because it is reasonable to expect that
             Requester, whose very purpose is to gather information
                                           7
            about [the] District and the SRC proceedings and has
            argued that he will in fact continue to request the full texts
            of planning meeting resolutions, will continue to do so. We
            conclude that this is the type of issue that is capable of
            repetition yet would continue to evade judicial review;
            therefore, this matter falls within this exception to the
            mootness doctrine.

Id. at 449 (footnote omitted). CAC asserts that the same analysis applies herein.
            However, the trial court in the case sub judice did not determine that
CAC’s appeal was moot because the 30-day comment period for the 2016 Draft
Operating Permit had expired. Rather, the mootness determination was based on
publication of the Revised Draft Operating Permit. In addition, the expiration of the
30-day comment period does not limit the appeal period, as evidenced by the hearing
officer’s appeal hearing which took place on May 25, 2017, a full 7 months after the
expiration of the 30-day comment time period. Clearly, had the 2016 Draft Operating
Permit not been revised and replaced, the trial court would have ruled thereon.
Accordingly, Philadelphia Public School Notebook is inapposite.
            For all of the above reasons, the trial court’s order is affirmed.


                                       ___________________________
                                       ANNE E. COVEY, Judge




                                           8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Clean Air Council,                      :
                          Appellant     :
                                        :
                     v.                 :
                                        :
County of Allegheny, a political        :
subdivision of the Commonwealth         :
of Pennsylvania, acting through the     :   No. 515 C.D. 2018
Allegheny County Health Department      :


                                      ORDER

            AND NOW, this 19th day of November, 2018, the Allegheny County
Common Pleas Court’s February 22, 2018 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
