OO on Motion for Issuance of Subpoena

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COMMONWEALTH OF PENNSYLVANIA
ENVIRONMENTAL HEARING BOARD

E-FILED
09/30/2026
PENNSYLVANIA ENVIRONIVENTIA HEARING BOAVO

A.W. LONG COAL COMPANY, INC.
:
:

v.
:

COMMONWEALTH OF PENNSYLVANIA,
:

DEPARTMENT OF ENVIRONMENTAL
:
PROTECTION
:

EHB Docket No. 2025-137-L
(Consolidated with 2026-021-L)
:

Issued: September 30, 2026

# OPINION AND ORDER ON MOTION FOR ISSUANCE OF SUBPOENA

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

## Synopsis

The Board denies a motion for issuance of a subpoena to the Pennsylvania State Police
seeking the deposition of a state trooper and the production of a police report where the appellant
has failed to adequately explain how that material is relevant to the orders that are the subject of
this appeal.

# OPINION

In this consolidated appeal, A.W. Long Coal Company, Inc. ("Long Coal") has appealed a
December 1, 2025 administrative order issued by the Department of Environmental Protection (the
"Department") requiring Long Coal to cease all surface mining activities at its Long #1 Operation
in Morris Township, Clearfield County and to commence reclamation or submit an application for
a surface mining permit. Long Coal has also appealed a subsequent compliance order issued on
February 3, 2026 alleging that Long Coal failed to comply with the December 1, 2025 order and
again requiring Long Coal to commence reclamation at the Long #1 Operation. We consolidated
the two appeals on July 17, 2026. The requirement to begin reclamation or submit a permit
application arises from the Department's June 2025 denial of Long Coal's surface mining permit

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renewal application for the Long #1 Operation. Long Coal did not file an appeal from the permit
renewal denial.

Long Coal seeks to serve a subpoena on the Pennsylvania State Police. The subpoena asks
that a state trooper appear at the law offices of Miller Kistler & Campbell in State College to testify
and to bring with him a May 2025 police report that apparently concerns alleged animosity
between a Department inspector and/or his supervisors and Long Coal and/or its president and
owner.1 In its motion for issuance of the subpoena, Long Coal says it is entitled to the police report
because it shows that the Department inspector was biased against Long Coal or had a conflict of
interest that should have precluded him from being involved in matters concerning Long Coal.
The Department objects based on relevance.

When assessing objections to a subpoena and the appropriateness of a given subpoena more
generally, we must ground that analysis in the proper scope of discovery for the appeal. Much like
subpoenas, discovery before the Board is governed by the Pennsylvania Rules of Civil Procedure.
25 Pa. Code § 1021.102(a). Discovery may be obtained regarding any matter, not privileged, that
is relevant to the subject matter involved in the appeal. Pa.R.Civ.P. 4003.1(a). The information
sought does not need to be ultimately admissible at a hearing, as long as the information appears
reasonably calculated to lead to the discovery of admissible evidence. Pa.R.Civ.P. 4003.1(b).

1 The Department initially brought Long Coal's subpoena to our attention by filing objections to the
proposed subpoena and requesting that the Board sustain its objections. Although the Department did not
title its filing as a "motion," we interpreted its request and proposed order seeking to sustain its objections
as a motion. We issued an Order sustaining the objections after not receiving a response from Long Coal
after 20 days. The day after we issued our Order, Long Coal filed a motion for reconsideration arguing that
the proper procedures for addressing objections to a subpoena were not followed. Long Coal also filed its
motion to overrule the Department's objections to the proposed subpoena and allow the subpoena to be
issued. We issued an Order granting reconsideration over the Department's objection and requiring the
Department to file a response to Long Coal's motion so that we could address the merits of the subpoena.
The Department filed its response on September 8. Although there are various procedural requirements for
subpoenas that are frankly somewhat unclear, the fundamental question that has been put at issue is whether
Long Coal's subpoena is an appropriate use of discovery in this appeal.

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Relevance is the threshold question for determining the scope of discovery. PQ Corp. v. DEP,
2017 EHB 707, 708. The Board is charged with overseeing the discovery process during litigation
and we have broad discretion to ensure that discovery is being conducted appropriately by limiting
or allowing discovery as needed. Yoder v. DEP, EHB Docket No. 2024-097-BP, slip op. at 5
(Opinion and Order on Motion to Compel issued May 29, 2026); Northampton Twp. v. DEP, 2009
EHB 202, 205.

The police report is not the proper subject of discovery because the information is only
sought to support a claim that a Department inspector and/or his supervisors are biased against
Long Coal or its president. It is not sought to show there is some other defect in the orders, such
as improper or untimely reclamation, or the Department got the wrong operator or mine site, for
example. We can assume for our current purposes that the Department personnel bear such ill
will. It does not matter. It does not follow, certainly in any way that has been explained to us, that
the Department erred in issuing the orders under appeal or that the orders should be vacated in
their entirety as requested by Long Coal. The alleged bias does not appear to be relevant to either
the merits of the orders or fashioning any the relief we could offer. Therefore, the police report,
sought for no other purpose, is irrelevant.

As Long Coal correctly states, the orders at issue in this appeal are predicated on the
Department's previous denial of Long Coal's permit renewal application. However, Long Coal
did not appeal that permit renewal denial. As we previously explained,

Our role in this appeal is to determine whether the Department's issuance of the
order[s] was lawful and reasonable. See Carey v. DEP, 2019 EHB 722, 729;
Corsnitz v. DEP, 2018 EHB 174, 187. This appeal does not afford an opportunity
to look back and determine whether the now administratively final permit renewal
denial was lawful and reasonable. New Hope Crushed Stone & Lime Co. v. DEP,
2017 EHB 1005, 1019-20; Winegardner v. DEP, 2002 EHB 790, 793. In this appeal
we essentially take the permit denial as a given and assess whether, now that the
permit has expired, the order under appeal is lawful and reasonable.

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A.W. Long Coal Co. v. DEP, EHB Docket No. 2025-137-L, slip op. at 2 (footnote omitted)
(Opinion and Order on Motion for Partial Dismissal issued June 8, 2026). The merits of the permit
denial are outside the scope of this appeal. Even if the denial was issued in error, it cannot be
remedied in this case. We cannot go back in time and outside the confines of this appeal and
vacate the permit denial or order the Department to issue a permit to Long Coal. The denial is
administratively final and is now beyond challenge due to Long Coal's choice not to appeal it.
Winegardner, 2002 EHB at 793 (the Board's role is circumscribed by the action under appeal; we
cannot use an appeal of one Departmental action as a vehicle for reviewing the propriety of prior
Departmental actions). Long Coal appears to acknowledge this reality because it has not asked us
to reverse the permit denial, and we are informed that it is reclaiming the site.

Given that the validity of the permit denial is beyond dispute as a matter of law, the question
presented in this case is whether the orders were lawful and reasonable in light of that denial. Long
Coal has failed to explain how the inspector's bias could possibly factor into that determination.
The relevancy of such bias is not apparent. See Cabot Oil & Gas Corp. v. DEP, 2016 EHB 20
(granting a protective order and quashing a subpoena on a non-party to the extent it sought to
inquire into the personal animosity between the appellant and the non-party because it was not
relevant to whether or not the Department's order could be upheld); id. at 28 ("neither party
explains how their mutual disdain relates to the basic issue in this case" of whether the criteria for
repair or replacement of a water supply were met).

Long Coal has asked for nothing less than the orders to be vacated in their entirety. In
other words, Long Coal should be allowed to essentially abandon its mine in an unreclaimed
condition because an inspector was biased against it. That is a non sequitur, and it is entirely
inconsistent with the laws regarding surface mining that Long Coal agreed to comply with when

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PENNSYLVANIA ENVIRONVESTIA HEARING BOAWO

it obtained its permit. See 52 P.S. § 1396.4(a) (permit required to surface mine coal); 25 Pa. Code
§ 86.11(a) (no person may operate a surface mine without a permit); 25 Pa. Code § 87.141
(disturbed areas shall be returned to approximate original contour through backfilling and
grading); 25 Pa. Code § 87.158 (permanently ceased surface mining operations shall be backfilled,
closed, or permanently reclaimed); 52 P.S. § 1396.18f (it is unlawful to fail to comply with any
rule, regulation, or order of the Department). If the mining pit must be reclaimed regardless of
any bias, then the bias is irrelevant. To repeat, Long Coal has not challenged any particular aspect
of the orders; it seeks to have the orders vacated in their entirety. The remedy for any improper
bias or conflict of interest of Department personnel is not excusing Long Coal from complying
with its reclamation duties.

Long Coal says the subpoena could support a finding of bias which could in turn affect the
credibility of Department witnesses called to defend the issuance of the orders. Long Coal does
not point to any issue where that credibility might come into play. It does not point to any fact in
dispute regarding Long Coal's duty to reclaim its site as embodied in the orders.

Although we previously advised Long Coal in this appeal that it would need to explain how
its allegations of bias could change our evaluation of the merits of the orders or the relief available
in this case, see A.W. Long Coal Co., supra, slip op. at 3-4, it has once again failed to do so. In
light of that failure, the subpoena of a police officer is not the appropriate subject of discovery and
Long Coal's motion for issuance of the subpoena must be denied.

Accordingly, we issue the Order that follows.

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COMMONWEALTH OF PENNSYLVANIA
ENVIRONMENTAL HEARING BOARD

E-FILED
09/30/2026
PENNSYLVANIA ENVI DNIVESTIA HEARING BOAVE

A.W. LONG COAL COMPANY, INC.
:
:
v.
:

COMMONWEALTH OF PENNSYLVANIA,
:
DEPARTMENT OF ENVIRONMENTAL
:
PROTECTION
:

EHB Docket No. 2025-137-L
(Consolidated with 2026-021-L)
:

# ORDER

AND NOW, this 30th day of September, 2026, it is hereby ordered that the Appellant's
motion for issuance of subpoena is denied.

ENVIRONMENTAL HEARING BOARD

s/ Bernard A. Labuskes, Jr.
BERNARD A. LABUSKES, JR.
Board Member and Judge

DATED: September 30, 2026

c:
DEP, General Law Division:
Attention: Maria Tolentino
(via electronic mail)

For the Commonwealth of PA, DEP:
David N. Smith, Esquire
Daniel R. Schramm, Esquire
(via electronic filing system)

For Appellant:

David S. Gaines, Jr., Esquire

Eric C. Rusnak, Esquire

(via electronic filing system)