Consol Pennsylvania Coal Co. v. Department of Environmental Protection , 2015 Pa. Commw. LEXIS 544 ( 2015 )


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  •            IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Consol Pennsylvania Coal Company,              :
    LLC,                                           :
    Petitioner              :
    :
    v.                               :
    :
    Department of Environmental                    :
    Protection,                                    :    No. 351 C.D. 2015
    Respondent              :    Argued: November 16, 2015
    BEFORE:       HONORABLE DAN PELLEGRINI, President Judge
    HONORABLE MARY HANNAH LEAVITT, Judge
    HONORABLE PATRICIA A. McCULLOUGH, Judge
    OPINION BY
    PRESIDENT JUDGE PELLEGRINI                                  FILED: December 15, 2015
    Consol Pennsylvania Coal Company, LLC (Consol) petitions for
    review of the order of the Environmental Hearing Board (Board) granting the
    Department of Environmental Protection’s (Department) motion to dismiss as
    moot Consol’s appeal from the Department’s issuance of a permit revision. For
    the reasons that follow, we affirm the Board’s order.
    I.
    In connection with its operation of an underground bituminous coal
    mine formerly known as the Bailey Mine1 in Greene County, Pennsylvania, Consol
    1
    Although the mine is now known as the Harvey Mine, it will be referred to as the Bailey
    Mine as it was known as at all times relevant to this action.
    applied to the Department for a permit revision seeking to conduct longwall
    mining activities on 2,438.54 acres not covered by the initial permit.
    A.
    The permit application is governed by requirements developed by the
    Department, including standards under the Department’s Module 8 regarding
    “Hydrology / Baseline Biology” to ensure that streams which may be undermined
    by applicants’ proposed mining activities are not adversely affected. (Reproduced
    Record [R.R.] at 188a.) “Adverse effect” is a term of art meaning “mining induced
    changes that may impair surface water quality.” (Id. at 85a.) With regard to
    streams, such impairment includes loss of flow, more than 12% reduction in the
    average biological score of a stream reach based on a comparison of pre- and post-
    mining biological scores, and reductions in the length of certain intermittent or
    perennial streams.
    Section 8.9 of the Module concerns “Potential Areas of Flow Loss
    within the Stream” and instructs as follows:
    b. Using Form 8.8B, (Stream Delineation and
    Bioassessment Summary), include baseline information
    on fish and macroinvertebrate communities sufficient to
    delineate stream segments that qualify as “biologically
    diverse”, “biologically variable”, and point of first use
    based on the criteria and procedures outlined in
    Appendix A of the Technical Guidance Document “563-
    2000-655”.
    c. Provide an assessment of the condition of the
    macroinvertebrate community in each stream augment
    identified as “biologically diverse” in item b above, using
    Form 8.8C (Quantitative Multi-Habitat Bioassessment Of
    2
    Diverse Community) and 8.8D (Biometric And Total
    Biological Score Summary). Each assessment should
    consist of Form 8.8C documenting the results of each
    sampling event (minimum of two) and Form 8.8D
    documenting biometric calculations and calculation of
    the “Mean Total Biological Score.”           (Additional
    information on performing aquatic life use assessment is
    found in the Technical Guidance Document 563-2000-
    655.)
    (R.R. at 202a.)2     Section 8.10 of Module 8 imposes substantially similar
    requirements with regard to streams having gradients of 2% or less that will
    undergo subsidence as a result of mining and therefore may result in pooling.
    Further, the Department’s Bureau of Mining Programs issued
    Technical Guidance Document 563-2000-655, entitled “Surface Water Protection –
    Underground Bituminous Coal Mining Operations” (Guide) to assist the Bureau’s
    staff in reviewing underground mining applications and to “provide[ ] guidance to
    the regulated community regarding how to comply with existing legal
    requirements.”    (Id. at 84a.)   To this extent, the Guide provides procedures
    governing “the Department’s manner of interpreting the existing legal
    requirements applicable to surface water protection, and its recommended
    approach for mine operators to comply with these existing requirements, in the
    context of impacts on streams…caused by underground mining operations.” (Id. at
    89a.)
    2
    None of the applicable regulations define the terms “biologically diverse” or
    “biologically variable.”
    3
    Appendix B to the Guide discusses the Department’s Low Gradient
    Stream Assessment Protocol which governs the sampling of biologically diverse
    stream segments. Under the protocol, pre-mining sampling is performed to “assess
    a stream’s level of use of attainment” and yields an aquatic life use attainment
    score (biological score) that can be compared with post-mining samplings from the
    same biological monitoring point to “assess the magnitude of mining-induced
    change.” (Id. at 113a.)
    Among other requirements, the Guide mandates that the following
    data be included in applications:
    (A) Delineation of all biologically diverse and
    biologically variable segments which are likely to
    experience mining induced changes during the five-year
    term of the permit.
    (B) At least 12 months of flow data for each stream
    that may be susceptible to mining induced flow loss
    within the first two years of the permit term.
    (C) At least one total biological score for each stream
    reach that is likely to experience mining induced flow
    loss or pooling within the first two years of the permit
    term.
    (D) At least one Wolman Pebble Count for each stream
    reach that is likely to experience mining induced pooling
    within the first two years of the permit term.
    (E) The identification of wetlands in areas that will be
    subsided or undermined at depths of less than 100 feet
    during the five-year term of the permit.
    4
    (Id. at 106a107a.) The Guide cautions, “Permits that are issued with incomplete
    sets of pre-mining data pursuant to…this section will normally include conditions
    requiring permittees to complete data collection prior to the time a stream or
    wetland is susceptible to mining induced changes.” (Id. at 107a.)
    B.
    Following Consol’s submission of its application for a permit
    revision, the Department advised Consol by letter dated January 13, 2014, that its
    application contained numerous deficiencies, including its failure to identify nine
    stream segments for which biological monitoring points and biological data were
    required. On January 23, 2014, Joel C. Folman, a Water Pollutant Biologist in the
    Department’s District Mining Office, performed a site inspection of the expanded
    mining area, after which he determined that information regarding four of the nine
    missing segments should be included in the application.
    Accordingly, in February 2014, the Department issued a revised
    permit granting Consol’s request to conduct longwall mining activities in the
    expanded area subject to Special Condition No. 77, which stated: “The company
    shall submit two Biological Monitoring (Appendix B) scores within 16 percent in
    accordance to [the Guide]” with respect to the subject streams. (Id. at 13a.)
    By letter dated March 5, 2014, Consol satisfied Special Condition No.
    77, submitting the required pre-mining biological data for the subject streams.
    Nonetheless, on March 24, 2014, Consol filed an appeal asserting the following
    grounds:
    5
    [Consol] is aggrieved by, objects to and appeals
    from the Department’s action because the action is
    arbitrary, capricious, contrary to law and constitutes an
    abuse of discretion, in that, inter alia:
    (a) The imposition of Special Condition 77
    is arbitrary, capricious, an abuse of discretion and
    contrary to law;
    (b) The imposition of Special Condition 77
    improperly modified a previously agreed to monitoring
    plan and was unreasonably inserted as a Special
    Condition shortly prior to revising [Consol]’s permit;
    (c) Special Condition 77 was imposed
    without a factual or scientific basis;
    (d) Special Condition 77 imposes costly and
    unnecessary monitoring requirements;
    (e) There exists no lawful basis for imposing
    Special Condition 77;
    (f) The stream segments covered by Special
    Condition 77 are not perennial for purposes of
    Subchapter F of Chapter 89 of 25 Pa. Code and the
    Department thus lacks the regulatory authority to impose
    said condition;
    (g) By relying upon Technical Guidance
    Document 563-2000-655, Surface Water Protection—
    Underground Bituminous Coal Mining Operations, to
    justify the imposition of Special Condition 77 the
    Department has improperly imposed binding norms and
    regulatory requirements through a guidance document in
    violation of statutory rulemaking procedures; and
    (h) The Department’s pervasive use and
    reliance on Technical Guidance Document 563-2000-
    655,     Surface    Water    Protection—Underground
    Bituminous Coal Mining Operations in establishing what
    information permit applicants must submit and in the
    Department’s review of applications for underground
    6
    coal mining permits is arbitrary, capricious and contrary
    to law because the Department has imposed binding
    norms and regulatory requirements through a guidance
    document in violation of statutory rulemaking
    procedures.
    (Id. at 3a.)
    C.
    On April 4, 2014, the Department issued another permit revision
    removing Special Condition No. 77. It then filed a motion to dismiss Consol’s
    appeal as moot, claiming that because the special condition which was the subject
    of the appeal was removed, there existed no case or controversy for the Board to
    adjudicate.
    In support of its motion, the Department submitted the affidavit of
    Biologist Folman, who stated that he regularly conducts technical reviews of
    permit applications for underground coal mines, conducts stream surveys, monitors
    stream conditions, reviews wetland mitigation pans, and delineates wetlands.
    Biologist Folman further attested that after Consol submitted the pre-mining
    biological scores for the subject streams, “no further pre-mining biological data
    was required or requested for those streams” and that the condition “did not require
    Consol to submit any biological scores to establish post-mining stream conditions.”
    (Id. at 31a.) Because Consol satisfied Special Condition No. 77, the Department
    removed it through a subsequent permit revision. (Id. at 40a.)3
    3
    Intervenor, Center for Coalfield Justice, also filed a brief in support of the Department’s
    motion to dismiss which raised substantially the same arguments as the Department raised.
    7
    In response, Consol contended that its appeal was not rendered moot
    by the April 2014 revision because: (1) it still had potential future obligations
    pursuant to Special Condition No. 77 insofar as the Department determines that the
    subject streams suffered adverse effects as a result of its mining activities and
    consequently requires it to collect post-mining biological data to compare with the
    pre-mining data; (2) its appeal was premised on various grounds unrelated to
    Special Condition No. 77; and (3) even if the removal of Special Condition No. 77
    did moot the appeal, exceptions to the mootness doctrine apply. Alternatively,
    Consol sought leave to file an amended notice of appeal under 
    25 Pa. Code §1021.53
    (b).4
    In support of its opposition, Consol submitted the affidavit of Jaculyn
    Duke, its Permitting Supervisor for its Pennsylvania Coal Operations, who stated
    that Consol complied with Special Condition No. 77 “under protest” incurring
    substantial monetary costs “so that it could ultimately receive the requested Permit
    Revision 173.” (Id. at 131a.) According to Supervisor Duke, “notwithstanding the
    removal of Special Condition No. 77 from the Bailey Permit, [Consol] is still
    4
    Regarding amendments to appeals:
    After the 20-day period for amendment as of right, the
    Board, upon motion by the appellant or complainant, may grant
    leave for further amendment of the appeal or complaint. This
    leave may be granted if no undue prejudice will result to the
    opposing parties. The burden of proving that no undue prejudice
    will result to the opposing parties is on the party requesting the
    amendment.
    
    25 Pa. Code §1021.53
    (b).
    8
    subject to potential future obligations pursuant to the inclusion of additional
    monitoring requirements required by Special Condition No. 77” because should the
    Department determine that any of the subject streams were adversely impacted by
    Consol’s mining activities, it “can impose post-mining biological monitoring
    obligations on [Consol] using the data that [Consol] was required to collect
    pursuant to Special Condition No. 77.” (Id. at 132a.)
    Consol also submitted a transcript of Biologist Folman’s deposition
    during which he testified that he reviews permit applications submitted to the
    Department for compliance with Module 8. In conjunction with his review of
    Consol’s application, he performed a site inspection at which time he determined
    that Consol’s application was insufficient because it failed to include biological
    monitoring points for the subject streams.              To rectify the deficiency, the
    Department imposed Special Condition No. 77.
    In response to a question regarding what would happen if, after
    mining activities occurred, it were suspected that one of the subject streams had
    been adversely impacted, Biologist Folman responded that he would compare
    testing results for that stream to the results of a control stream.5 For those that
    were required to be monitored as per Special Condition No. 77 and which were
    impacted by mining activities, “[Consol] would be required to augment the flow
    temporarily and go in and do repairs.” (Id. at 157a.) Further, under the Guide,
    5
    The Guide defines a “control stream” as a “stream that has not been affected by mining
    induced changes and that is used as a reference for determining whether changes in a stream
    being undermined are mining induced.” (Id. at 85a.)
    9
    Consol would be required to do additional post-mining or post-restoration
    biomonitoring under those streams. Biologist Folman conceded that had Consol
    not complied with Special Condition No. 77, it would not have been permitted to
    conduct longwall mining activities in the expanded area. He explained that after
    Consol complied with the condition, it was struck as per standard Departmental
    policy.
    Additionally, Consol relied upon several discovery responses it
    received from the Department, including the following explanation of the
    Department’s factual and scientific basis for Special Condition No. 77:
    In order to protect the hydrologic balance, provide
    adequate pre-mining hydrologic information and assure
    that fish, wildlife and related environmental values are
    protected from the adverse effects of [Consol]’s mining,
    [Consol] must sample, monitor and provide a pre-mining
    biological score within the diverse stream sections in
    order to accurately determine if streams have recovered
    to their pre-mining conditions after mining has
    occurred….”
    (Id. at 264a) (emphasis added).
    Although the Department denied a request for admission stating that it
    imposed a “continuing requirement” upon Consol to conduct biological monitoring
    at the locations identified in Special Condition No. 77, its explanation stated that
    Consol “will only be required to conduct biological monitoring at those locations
    in the future if its mining results in the loss of flow or if the uses of the streams are
    impaired.” (Id. at 289a.) Further, in response to a request for admission inquiring
    10
    whether the same outcome would result even though Special Condition No. 77 was
    struck, the Department provided the same explanation.
    II.
    Upon consideration of the evidence presented, the Board issued a
    majority opinion granting the Department’s motion to dismiss, reasoning that
    seven of the eight grounds stated in the notice of appeal were moot because they
    concerned the timing of factual and scientific basis for cost of implementing and
    the legal and regulatory basis for Special Condition No. 77:
    Consol’s contention that, notwithstanding its compliance
    with the condition and the subsequent removal of the
    condition from the permit, it may “still [be] subject to
    potential future obligations pursuant to the inclusion of
    additional monitoring requirements required by Special
    Condition No. 77” is clearly speculative, and ultimately
    inconsistent with the plain language of Special Condition
    77. (Consol’s Opp’n Br. Ex. B ¶ 23 (emphasis added).)
    Special Condition 77 required that Consol “shall submit”
    two Biological Monitoring scores in accordance with the
    Guid[e] for each of four stream segments “prior to the
    commencement of longwall mining.” (Notice of Appeal
    Ex. A (emphasis added).) The plain language of Special
    Condition 77 imposed only pre-mining obligations. That
    fact is not changed by speculation that the Department
    may compare the pre-mining information Consol
    submitted in response to Special Condition 77 to post-
    mining data obtained from Consol, or any other source.
    Consol acknowledges that it submitted the necessary
    information before filing its appeal. It has already
    complied with all obligations imposed by Special
    Condition 77.
    11
    (2/12/15 Board Opinion and Order on Department’s Motion to Dismiss, at 11)
    (internal footnote omitted). The Board further explained that even if these bases of
    appeal were meritorious, it was unable to provide relief to Consol because it
    already complied with the condition.
    To the extent Consol objected to the Department’s reliance on the
    Guide, the Board explained that Consol failed to identify any manner in which the
    Guide was used with regard to the Department’s issuance of the revised permit,
    other than in the imposition of Special Condition No. 77 for which the appeal was
    moot, and it declined to address in an abstract context the Department’s general
    use of the Guide in reviewing permit applications for underground coal mining.
    Moreover, the Board determined that no exceptions to the mootness
    doctrine applied because: Consol may challenge the propriety of any post-mining
    requirements implemented at a later date when such an appeal is ripe; to the extent
    the conduct complained of is capable of repetition but evades review, it evades
    review only because Consol complied with Special Condition No. 77; and the
    appeal does not constitute a matter of great public importance since the
    Department did not take any enforcement action against Consol since Consol
    willingly complied with Module 8 when it filed its applications.
    Finally, the Board denied Consol’s alternative request for leave to
    amend its notice of appeal under 
    25 Pa. Code §1021.53
    (b) because it failed to
    address the nature of its proposed amendment, the basis for permitting amendment
    at that stage of the litigation, or how the amended appeal would differ from the
    12
    instant appeal. Regardless, the Board concluded without explicating that Consol’s
    motion was procedurally improper, finding that “Consol’s request to amend is
    simply an attempt to pull its appeal back from the brink of mootness.” (Id. at 19).6
    Subsequently, Consol filed a petition for reconsideration which was denied on the
    basis that Consol failed to show a compelling or persuasive reason for the grant of
    reconsideration pursuant to 
    25 Pa. Code §1021.152
    (a)7 determining that Consol
    6
    In a concurring opinion in which Judge Michelle Coleman joined, Judge Richard
    Mather, Sr. wrote separately to question the Department’s decision to issue the revised permit
    containing Special Condition No. 77, reasoning that: “It is well established that the Department
    should not issue a permit before it completes its technical review of all required and necessary
    materials in a permit application.” (2/12/15 Board Opinion and Order on Department’s Motion
    to Dismiss, at 22.)
    On the other hand, Judge Bernard Labuskes, Jr. authored a dissenting opinion in which
    Chief Judge Renwand joined, finding that the appeal should not have been dismissed for
    mootness because a factual issue existed regarding the future impact Special Condition No. 77
    will have on Consol. Specifically, the dissent explained:
    It is true that there is nothing in these averments to suggest that
    there is a 100 percent chance of a future impact. However, that is
    too strict of a standard in deciding whether prudence compels us to
    dismiss a case as moot in the context of a motion to dismiss. It is
    no stretch at all for me to envision that Consol’s concern of
    possible future effects is quite credible and Special Condition 77
    will in effect have created future obligations that would not have
    otherwise existed. It is certainly possible that nothing will ever
    come from Special Condition 77. However, if that were the
    standard for judging mootness, I suspect that many of the appeals
    filed before the Board would be moot ab initio. Here, it is quite
    possible that the Department’s action could have a lingering effect.
    This possibility, far from remote, counsels in favor of erring on the
    side of preserving Consol’s appeal rights.
    (Id. at 30.)
    7
    The Board’s Regulations provide that:
    (Footnote continued on next page…)
    13
    simply disagreed with the Board’s order and sought to reargue its case.8 This
    appeal followed.9
    (continued…)
    (a) …Reconsideration is within the discretion of the Board and will
    be granted only for compelling and persuasive reasons. These
    reasons may include the following:
    (1) The final order rests on a legal ground or a factual
    finding which has not been proposed by any party.
    (2) The crucial facts set forth in the petition:
    (i) Are inconsistent with the findings of the Board.
    (ii) Are such as would justify a reversal of the
    Board’s decision.
    (iii) Could not have been presented earlier to the
    Board with the exercise of due diligence.
    25 Pa. Code 1021.152(a)(1)(2).
    8
    Again, Chief Judge Renwand and Judge Labuskes dissented from the Board’s denial of
    Consol’s petition for reconsideration because “Consol’s petition illuminates the fact that the
    majority’s decision on the motion to dismiss ‘rests on a legal ground or a factual finding which
    has not been proposed by any party.’” (2/12/15 Board Opinion and Order on Department’s
    Motion to Dismiss, at 10.)
    9
    In reviewing decisions by the Board, we are limited to determining whether the Board
    committed an error of law, violated constitutional rights, or whether substantial evidence
    supports its findings of fact. Joseph J. Brunner, Inc. v. Department of Environmental Protection,
    
    869 A.2d 1172
    , 1173 n. 2 (Pa. Cmwlth.), appeal denied, 
    885 A.2d 44
     (Pa. 2005).
    14
    III.
    A.
    Consol first contends that the Board erred in rejecting as speculative
    Consol’s averments that the Department could and would use the pre-mining
    biological data collected pursuant to Special Condition No. 77 to Consol’s
    detriment by comparing it with post-mining data, and based upon that comparison,
    mandating reparative measures.     By doing so, Consol argues that the Board
    improperly shifted the burden to it to establish that post-mining obligations would
    arise.
    The Department’s motion to dismiss was adjudicated pursuant to 
    25 Pa. Code §1021.94
    , providing in pertinent part:
    (e) An affidavit or other document relied upon in support
    of a dispositive motion or response, that is not already a
    part of the record, shall be filed at the same time as the
    motion or response or it will not be considered by the
    Board in ruling thereon.
    (f) When a dispositive motion is made and supported as
    provided in this rule, an adverse party may not rest upon
    mere allegations or denials of the adverse party’s
    pleading or its notice of appeal, but the adverse party’s
    response must set forth specific issues of fact or law
    showing there is a genuine issue for hearing. If the
    adverse party fails to adequately respond, the dispositive
    motion may be granted against the adverse party.
    
    25 Pa. Code § 1021.94
    (e)(f).
    15
    In accordance with this Regulation, both the Department and Consol
    relied upon documents outside of the pleadings, bringing the motion to dismiss
    within the purview of 
    25 Pa. Code §1021.94
    (f). Consol was not entitled to “rest
    upon mere allegations or denials” once the Department supported its claim that the
    appeal was moot with credible evidence. At this point, the burden shifted to
    Consol to show that a genuine issue existed. The Board was not required to accept
    and did not accept Consol’s general averments that harm would result.
    Accordingly, there is no merit in Consol’s argument that the Department’s motion
    should have been dismissed based upon Consol’s statement of facts alone.
    B.
    Next, Consol argues that the Board erred in determining that its appeal
    was rendered moot by its satisfaction of and the Department’s subsequent removal
    of Special Condition No. 77.
    1.     The Scope of the Appeal Before the Board
    In this regard, Consol claims that its appeal before the Board was not
    limited to the imposition of Special Condition No. 77 but challenges:
    the timing of the imposition of the Special Condition 77,
    the regulatory authority (or lack thereof) for imposition
    of Special Condition 77, the Department’s use and
    reliance upon the [Guide] to impose binding norms and
    regulatory requirements on [Consol], and the
    Department’s pervasive use of the [Guide] in the
    permitting process.
    16
    (Br. for Petitioner, at 30.) Notwithstanding the Special Condition 77, Consol
    contends that these issues remain ripe for adjudication.
    The action from which Consol appealed was the Department’s
    issuance of the revised permit granting Consol’s application subject to Special
    Condition No. 77. And once it was removed by the Department, the relief it
    requested in its appeal was obtained.      While Consol allegedly challenges the
    Department’s general use of and reliance on the Guide, Consol has not asserted
    with any specificity how or why the Department’s use of the Guide is
    unauthorized.   In any event, the Guide was only used to purportedly impose
    Special Condition No. 77, and once it was removed, Consol was no longer
    purportedly aggrieved by the Department’s use of the Guide in reviewing its
    permit application.
    Moreover, a plain reading of Consol’s notice of appeal to the Board
    supports the same conclusion. Of the eight bases asserted, the first seven of them
    expressly challenge the condition on various grounds.        The eighth ground,
    challenging the Department’s reliance on the Guide for determining and evaluating
    the contents of permit applications clearly pertains only to Special Condition No.
    77, as no other bases have been asserted and since the revised application was
    granted in all other respects. Therefore, should we find that Consol’s compliance
    with Special Condition No. 77 and the Department’s subsequent withdrawal of it
    moots the appeal, there remain no independent bases of review.
    17
    2.    Relief Available to Consol
    Consol also asserts that the Board erred in concluding that it could
    provide no relief to Consol because the Board could reverse the Department’s
    determination that the subject streams qualify as “perennial” or “perennial-diverse”
    and, therefore, that they are subject to the pre-mining biological monitoring
    requirements. Further, Consol suggests that if the Board renders such a finding, it
    could preclude the Department from using this data for comparison purposes in the
    future.
    Generally, “[t]he Court will dismiss an appeal as moot unless an
    actual case or controversy exists at all stages of the judicial or administrative
    process.” Horsehead Resource Development Co. v. Department of Environmental
    Protection, 
    780 A.2d 856
    , 858 (Pa. Cmwlth. 2001) (en banc), appeal denied, 
    796 A.2d 987
     (Pa. 2002). “[T]he 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, with
    sufficiently adverse parties to sharpen the issues for judicial resolution.” City of
    Philadelphia v. Southeastern Pennsylvania Transportation Authority (SEPTA), 
    937 A.2d 1176
    , 1179 (Pa. Cmwlth. 2007) (en banc). 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. Al Hamilton Contracting Co. v. Department of
    Environmental Resources, 
    494 A.2d 516
    , 518 (Pa. Cmwlth. 1985).
    18
    In support of its position, Consol cites Al Hamilton Contracting Co., a
    case in which the Department inspected a company’s operations and found that an
    underdrain was plugged with silt and other debris. Following the inspection, the
    Department directed the company to clean the drain as provided in the inspection
    report. A subsequent inspection revealed that the underdrain was still plugged and,
    consequently, an abatement order mandating that the company clean the drain was
    issued. The next inspection revealed that the company complied with the initial
    directive and the abatement order. Nonetheless, the company filed an appeal from
    the abatement order, contending that it lacked a factual basis and was arbitrary and
    capricious, among other grounds. However, noting that the order had been fully
    complied with and finding that it could grant no relief to the company, the Board
    dismissed the appeal as moot.
    On appeal, this Court affirmed the ruling that in and of itself, the
    company’s challenge to the order was moot, reasoning:
    While sums of money may have been expended, the
    clean up is now complete. Had [the company] seriously
    questioned the propriety of the abatement order it could
    have requested a stay pursuant to [Department]
    regulation 21.76, 
    25 Pa. Code § 21.76
    . This it failed to
    do. Thus, it took the clean-up action at its own risk that
    such action would not, in fact, be found to be legally
    required. The fact that [the company] was deprived of
    property without a hearing because of its compliance
    with the abatement order does not justify ignoring the
    fact that the appeal is moot with respect to the injury of
    expenditure of time and money to achieve compliance
    with the abatement order.
    19
    
    Id. at 518
    . Likewise, we rejected the company’s argument that its appeal was not
    moot because a civil penalty had been assessed against it, determining that a
    separate cause of action enabled the company to challenge whether a violation
    actually occurred and the amount of the penalty, thus depriving it of a stake in the
    current litigation.
    Nonetheless, the company highlighted that in assessing future civil
    penalties, the Department considers prior violations and that by denying the
    company an opportunity to litigate the propriety of the underlying abatement order,
    the Department subjected the company to the enhanced penalty provision in 
    25 Pa. Code §86.194
    .         To this extent, we agreed with the company’s claim that it
    maintained a stake in the litigation.
    However Al Hamilton Contracting Co. is inapplicable here because
    Consol is not faced with an abatement order that can be used against it
    cumulatively in the future to assess penalties. Indeed, Consol has not yet been
    confronted with an order requiring it to undergo any actions due to the adverse
    effects its longwall drilling has caused the subject stream segments. The only
    requirements the Department imposed on Consol were those in Special Condition
    No. 77, which has been withdrawn and, therefore, “no longer exists.” Horsehead
    Resource Development Co. v. Department of Environmental Protection, 
    780 A.2d 856
    , 858 (Pa. Cmwlth. 2001) (en banc) (citing with approval the Board’s position),
    appeal denied, 
    796 A.2d 987
     (Pa. 2002). As such, “the Board cannot provide
    meaningful relief with regard to it.” 
    Id.
    20
    Moreover, the Board is authorized only to exercise the powers which
    have been expressly conferred upon it by statute or provided by necessary
    implication. Pequea Township v. Herr, 
    716 A.2d 678
     (Pa. Cmwlth. 1998). In this
    regard, Section 4 of the Environmental Hearing Board Act provides:
    (a) General rule.--The board has the power and duty to
    hold hearings and issue adjudications under 2 Pa.C.S. Ch.
    5 Subch. A (relating to practice and procedure of
    Commonwealth agencies) on orders, permits, licenses or
    decisions of the department.
    (b) Powers continued.--The board shall continue to
    exercise the powers to hold hearings and issue
    adjudications which (powers) were vested in agencies
    listed in section 1901-A of the act of April 9, 1929 (P.L.
    177, No. 175), known as The Administrative Code of
    1929.
    Act of July 13, 1988, P.L. 530, 35 P.S. §7514(a)(b).             Aside from this
    authorization, the Board does not have equitable powers and cannot enjoin the
    Department from taking action which it has not yet taken. See Pequea Township,
    
    716 A.2d at 686
    . In other words, the Board’s power is limited to adjudicating
    actual orders or decisions of the Department, not anticipatory ones.
    To the extent Consol points to the future harm that may result from
    the Department’s use of the pre-mining biological data it supplied, Consol is not
    without a remedy. In the event the Department does use the data for comparison
    purposes with post-mining data from the same biological points, determines that
    those comparisons yield differences beyond the maximum allowances, and
    21
    consequently, requires Consol to undertake additional monitoring, testing or
    reparative measures, Consol may appeal the Department’s order at that time.
    In this respect, we find the instant case akin to Horsehead Resource
    Development Co. v. Department of Environmental Protection, 
    780 A.2d 856
     (Pa.
    Cmwlth. 2001) (en banc), 
    796 A.2d 987
     (Pa. 2002). In this case, a producer
    marketed a mineral aggregate as a sub-base in road construction. The producer
    and Department entered a consent decree in a federal district court establishing a
    protocol for the producer to apply for Department concurrence as to the status of
    the aggregate for proposed uses, and the producer sought concurrence regarding
    use of the aggregate for road building.       However, the Department found the
    application deficient, and the producer requested numerous extensions, after which
    the Department granted an indefinite extension. The producer did not file any
    further documents.
    Subsequently, after learning that the producer sold the aggregate to
    two purchasers for the purposes of road building, the Department issued
    compliance orders to the purchasers, directing them to cease use of the product on
    the basis that it constituted “waste” under the Solid Waste Management Act, Act of
    July 7, 1980, P.L. 380, as amended, 35 P.S. §§6018.1016018.100, and to submit
    plans regarding removal of the component. Both purchasers appealed, as did the
    producer. Ultimately, the first purchaser complied with the order, and the second
    entered into a consent decree with the Department resulting in the Department’s
    rescission of the orders and the purchasers’ withdrawal of their appeals.
    22
    The Department filed a motion to dismiss the producer’s appeal,
    claiming that because the Department withdrew its compliance orders, the Board
    could no longer provide relief to the producer and, therefore, that the issue was
    moot. Alternately, the producer argued that it remained aggrieved because the
    orders negatively impacted its ability to market its aggregate.
    The Board explained that its power to grant relief was not negated by
    the Department’s withdrawal of its compliance orders because the producer’s
    “interest in the outcome remained, and the Board could decide whether the
    [Department] abused its discretion in issuing the compliance orders in the first
    place.” Horsehead Resource Development Co., 
    780 A.2d at
    85758. However,
    the Board noted that the producer also filed an administrative proceedings request
    for a beneficial use determination by the Department with respect to the aggregate.
    As such, the Board reasoned that although it had jurisdiction to determine the
    marketability of the aggregate within the scope of the company’s appeal, it would
    benefit from the Department’s “exercise of its greater expertise initially in setting
    forth the scientific issues to resolve the question of marketability” and, therefore,
    would abstain from deciding the matter because a simultaneous administrative
    proceeding was pending. 
    Id. at 858
    . The Board emphasized that it would entertain
    an appeal from the Department’s ruling, though.
    On appeal, this Court affirmed the Board’s ruling, finding the appeal
    moot because “[t]he Board could not have ordered any relief in regard to the
    rescinded orders” as per the test under Al Hamilton Contracting Co.               
    Id.
    Moreover, we continued:
    23
    the fact remains that under the circumstances of this
    particular case [the producer] has available to it a
    procedure for securing a reviewable determination of the
    status of [the aggregate]. Under the terms of the pre-
    existing consent decree, to which [the producer] freely
    agreed in the federal proceeding and which must be given
    full faith and credit in state courts…[the producer] may,
    and in fact is required to, complete the coproduct
    submission to [the Department].              A negative
    determination would be subject to appeal to the Board,
    and the Board’s determination would be subject to
    review by this Court….
    
    Id.
     at 85960.
    The concept that the Department action no longer exists because it
    was withdrawn applies with equal force here. Indeed, to find that Consol will be
    harmed, we must assume that Consol will adversely affect the subject stream
    segments beyond the extent permitted, that the Department will order post-mining
    biological data, compare the pre- and post-mining biological scores, detect an
    excessive change, and order Consol to take action. Doing so requires us to engage
    in pure conjecture, an invitation we reject.
    C.
    Moreover, Consol contends that even if the instant appeal is moot, the
    Board erred in finding that none of the exceptions to the mootness doctrine apply.
    Even where an appeal is technically moot, “where the conduct complained of is
    capable of repetition yet likely to evade review, where the case involves issues
    important to the public interest or where a party will suffer some detriment without
    the court’s decision,” a court may proceed to address the merits of a claim. Sierra
    24
    Club v. Pennsylvania Public Utility Commission, 
    702 A.2d 1131
    , 1134 (Pa.
    Cmwlth. 1997) (en banc), aff’d, 
    731 A.2d 133
     (Pa. 1999).
    To come within the purview of the first exception, the appellant must
    establish that: (1) “the duration of the challenged action is too short to be fully
    litigated prior to its cessation or expiration”; and (2) “there is a reasonable
    expectation that the same complaining party will be subjected to the same action
    again.” Philadelphia Public School Notebook v. School District of Philadelphia,
    
    49 A.3d 445
    , 449 (Pa. Cmwlth. 2012). In this case, Consol argues that “the next
    time [it] submits a permit application or permit revision application that involves
    mining under a stream, there is nothing to prevent the Department from requiring
    biological monitoring in a future longwall mining application” and that the
    Department may wait to impose such requirements until the eleventh hour. (Br. for
    Petitioner, at 4041.) Essentially, Consol argues that the Department will impose a
    dubious special condition at the last moment, making it impractical for a permit
    applicant to appeal because of the financial pressure to begin mining operations.
    Regardless, because the biological data has not yet been employed by
    the Department to require any future action, the imposition of Special Condition
    No. 77 does not evade review. As discussed above, the basis (or lack thereof) for
    the condition and the timing of its imposition may be challenged if and when the
    Department takes further action.     Moreover, should Consol be subjected to a
    similar condition again in the future, it can secure instant adjudication by appealing
    the condition immediately rather than first complying with it to ensure that the
    condition is not withdrawn. As such, Consol has failed to demonstrate that the
    25
    Department’s action satisfies the elements of the first exception to the mootness
    doctrine.
    Nonetheless, Consol argues that this Court should adjudicate its
    appeal because it involves a matter of great public importance. Essentially, the
    crux of Consol’s argument is that the Department exceeded its authority by
    imposing Special Condition No. 77 in reliance on the Guide. This argument does
    not implicate a matter of great public importance. After all, Special Condition No.
    77 was handcrafted by the Department to address the deficiencies that were unique
    to Consol’s application for a permit revision, insofar as the Department found that
    Consol failed to address four stream segments in its application. Special Condition
    No. 77, around which this appeal is based, is a unique condition applying only to
    Consol and does not implicate concerns of great public importance.
    Finally, Consol asserts that it will suffer a detriment in the absence of
    this Court’s ruling on its appeal because “the Department can later use the data that
    it impermissibly required [Consol] to collect in crafting and imposing post-mining
    requirements” thereby imposing further costs on Consol. (Br. for Petitioner, at 43.)
    As explained above, should the Department actually impose future requirements
    with regard to the pre-mining data Consol supplied, Consol may appeal the
    Department’s order at that time, thereby allowing it to seek review when the issue
    is ripe. As such, Consol has not established that it will suffer a detriment if it is
    forced to wait until it suffers an actual harm to seek review.
    26
    D.
    Consol alleges that the Board’s order and opinion deny Consol its
    constitutionally protected right of due process to seek judicial review because it
    had no reasonable choice but to satisfy Special Condition No. 77 because,
    otherwise, its mining efforts would have been substantially delayed, resulting in
    possible damage to its equipment, potentially requiring the termination of its 435-
    member workforce and rendering it unable to meet its contractual obligations.
    While those factors were taken into consideration by Consol in not
    challenging Special Condition No. 77, these difficulties are not so unlike those
    faced by every litigant. Indeed, every appeal takes time to resolve, and during the
    adjudication process, the parties are often uncertain of their respective rights and
    obligations pending a final decision. While Consol had competing interests at
    play—namely, a workforce to compensate, contractual obligations to fulfill,
    equipment to maintain, and work to begin so as not to suffer from lost profits on
    the one hand versus allegedly unauthorized conditions to challenge on the other
    hand—the decision as to how to prioritize those interests rested exclusively with
    Consol. Obviously, it could have purchased new equipment, terminated its work
    force, foregone certain profits, and paid liquidated damages for any resultant
    breaches of contract had it desired to appeal the Department’s imposition of
    Special Condition No. 77 immediately.        We do not question the wisdom of
    Consol’s decision in this regard but only emphasize that just because Consol was
    forced to make a choice with regard to litigation strategy does not mean that it was
    deprived of its due process rights.    While procedural due process guarantees
    “adequate notice, the opportunity to be heard, and the chance to defend oneself
    27
    before a fair and impartial tribunal having jurisdiction over the case,”
    Commonwealth v. Turner, 
    80 A.3d 754
    , 764 (Pa. 2013), it does not guarantee a
    party’s right to have its cake and eat it, too.
    In its brief, Consol forewent any analysis of the elements of
    procedural due process,10 instead relying upon legal conclusions that it was denied
    a meaningful opportunity to seek review and redress of governmental action.
    However, what it ignores is if and when its appeal ripens, it will be afforded such
    an opportunity.
    E.
    Alternatively, Consol asserts that the Board erred in denying its
    request for leave to amend its notice of appeal, which was contained within its
    response to the Department’s motion to dismiss and not filed separately. Noting
    that the Department did not object to its request, Consol argues that the Board
    should have overlooked its technical deficiencies in accordance with 
    25 Pa. Code §1021.411
     and granted it leave to file an amended notice of appeal.
    10
    The Fourteenth Amendment provides in pertinent part, “nor shall any State deprive any
    person of life, liberty, or property without due process of law….” U.S. Const. amend. XIV, §1.
    Pennsylvania courts “examine procedural due process questions in two steps: the first asks
    whether there is a life, liberty, or property interest that the state has interfered with; and the
    second examines whether the procedures attendant to that deprivation were constitutionally
    sufficient.” Turner, 80 A.3d at 764.
    11
    Regarding the construction and application of rules:
    The rules in this chapter shall be liberally construed to secure the
    just, speedy and inexpensive determination of every appeal or
    proceeding in which they are applicable. The Board at every stage
    (Footnote continued on next page…)
    28
    In urging this Court to apply 
    25 Pa. Code §1021.4
    , Consol overlooks
    the express language of 
    25 Pa. Code §1021.53
    (b), providing that leave to amend an
    appeal may be granted only if “no undue prejudice will result to the opposing
    parties” and that the burden of proving the same rests upon the party requesting
    amendment. 
    25 Pa. Code §1021.53
    (b). Regardless of its technical deficiencies,
    Consol’s request for leave to amend contained a substantive deficiency insofar as it
    failed to provide any facts or averments demonstrating that the requested relief
    would not result in prejudice to the Department. Although the Department may
    not have formally opposed the request,12 Consol and not the Department bore the
    burden of establishing a lack of prejudice, and it failed to satisfy its burden in this
    regard. 
    25 Pa. Code §1021.53
    (b).
    Accordingly, we affirm the Board’s order dismissing Consol’s appeal
    as moot.
    DAN PELLEGRINI, President Judge
    (continued…)
    of an appeal or proceeding may disregard any error or defect of
    procedure which does not affect the substantial rights of the
    parties.
    
    25 Pa. Code §1021.4
    .
    12
    It is questionable whether the Department was required to oppose the request since the
    request was not presented in a separate motion and, therefore, a response was not necessary
    under 
    25 Pa. Code §1021.91
    .
    29
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Consol Pennsylvania Coal Company,      :
    LLC,                                   :
    Petitioner      :
    :
    v.                         :
    :
    Department of Environmental            :
    Protection,                            :
    Respondent      :   No. 351 C.D. 2015
    ORDER
    AND NOW, this 15th       day of December, 2015, the order of the
    Environmental Hearing Board in the above-captioned case is affirmed.
    DAN PELLEGRINI, President Judge