Consol Pennsylvania Coal Co. LLC v. Dept of Environmental Protection

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Consol Pennsylvania Coal :
Company LLC, :
:
Petitioner :
:
v. : No. 112 C.D. 2017
: Submitted: May 19, 2017
Department of Environmental :
Protection, :
:
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: August 2, 2017
Consol Pennsylvania Coal Company, LLC (Consol) petitions for
review of the order of the Environmental Hearing Board (EHB) granting in part the
petition for supersedeas of the Center for Coalfield Justice and the Sierra Club
(collectively, Intervenors) prohibiting Consol from conducting longwall mining
within 100 feet of any portion of the Kent Run stream. We dismiss the appeal.
Since 1985, Consol has conducted longwall mining1 in the Bailey
Mine Complex in Greene and Washington Counties. In 2007, it sought to expand
1
As this Court has explained:
“Longwall system” is defined as “a method of coal mining in
which the working face extends entirely across the seam, the work
proceeds either away from or toward the main shaft, and the roof is
(Footnote continued on next page…)
its mining into the Bailey Mine Eastern Expansion Area consisting of five longwall
panels numbered 1L through 5L. In May 2014, through Permit Revision No. 180,
the Department of Environmental Protection (DEP) authorized longwall mining in
panels 1L through 5L, but not beneath the Polen Run and the Kent Run streams. In
February 2015, DEP issued Permit Revision No. 189, which authorized mining
beneath Polen Run in the 1L and 2L panels, but did not authorize mining under
Kent Run. Intervenors have appealed the issuance of Permit Revision Nos. 180
and 189, which have been consolidated for disposition before the EHB.
(continued…)
allowed to cave in behind the workers.” The technique removes
coal from a panel which may be from 400 to 1,000 feet along the
face, and from 1,000 to 10,000 feet long without leaving pillars to
support the mine roof as was done in the conventional room-and-
pillar mining method. It is a highly mechanized system consisting
of three principal components: a shearer or plow which cuts the
coal as it moves across the face; a chain-type armored face
conveyor to remove the coal from the face once it is cut; and a
system of self-advancing hydraulic roof supports which support the
roof as the shearer makes its cut and then allows the roof to
collapse behind the mining.
The longwall method is generally favored by the industry
because it results in an extremely high recovery rate at a relatively
low cost. It also requires fewer employees than the room-and-
pillar method and is considered to be relatively safer. Moreover,
longwall mining is an accepted method of underground mining
which was contemplated by both federal and state mining
regulations. However, the major drawback to the longwall method
is that as practiced today, it causes subsidence of the surface
overlying and in the vicinity of the panel, and often results in the
loss of or damage to natural water sources.
People United to Save Homes v. Department of Environmental Protection, 789 A.2d 319, 323
(Pa. Cmwlth. 2001) (citations and footnote omitted).
2
`` In February 2016, Consol sought a permit to conduct longwall mining
beneath Polen Run and Kent Run in the 3L panel. In December 2016, the DEP
issued Permit Revision No. 204 authorizing the mining, but requiring Consol to
implement an approved stream restoration plan to address any impacts to the
streams resulting from its longwall mining. Permit Revision No. 204 also includes
Special Condition 97 which precludes Consol from conducting longwall mining
under or adjacent to Kent Run until it obtains written access from the Department
of Conservation and Natural Resources (DCNR) to perform stream mitigation
work authorized by the DEP. Intervenors appealed Permit Revision No. 204 and
Consol appealed the inclusion of Special Condition 97 in Permit Revision No. 204
to the EHB.
Intervenors filed an application for supersedeas to halt longwall
mining under Polen Run and Kent Run. After hearing, the EHB issued the order
granting supersedeas in part precluding longwall mining beneath and within 100
feet of Kent Run in the 3L panel; the issue as to Polen Run became moot because
Consol had completed longwall mining beneath Polen Run prior to the time that
the petition for supersedeas could be heard by the EHB. Consol then filed the
instant appeal2 asking this Court to reverse the EHB’s order granting partial
2
Generally, orders granting supersedeas are interlocutory and are not appealable to this
Court. Knish v. Workmen’s Compensation Appeal Board (Jerome Enterprises), 536 A.2d 856,
857-58 (Pa. Cmwlth.), appeal quashed, 553 A.2d 971 (Pa. 1988). However, Consol asserts that
the EHB’s order granting supersedeas is a collateral order that may be appealed. See Pa. R.A.P.
313(a) (“An appeal may be taken as of right from a collateral order of an administrative agency .
. . .”); Pa. R.A.P. 313(b) (“A collateral order is an order separable from and collateral to the main
cause of action where the right involved is too important to be denied review and the question
presented is such that if review is postponed until final judgment in the case, the claim will be
irreparably lost.”); Spanier v. Freeh, 95 A.3d 342, 345 (Pa. Super. 2014) (“Among other
exceptions, the appeal of a grant of a motion to stay civil proceedings is appealable and within
our jurisdiction if it satisfies the collateral order doctrine pursuant to Pa. R.A.P. 313. See Melvin
(Footnote continued on next page…)
3
supersedeas, to reinstate Permit Revision No. 204 as issued, and to grant other just
and reasonable relief.
However, on May 12, 2017, Consol filed a Status Report in which it
states that it has executed a second amendment to the September 21, 2001
Operations Agreement with the DCNR which expressly satisfies Special Condition
97 and which provides that Consol will forego longwall mining beneath Kent Run
in the 3L panel.
As noted above, Permit Revision No. 204 authorized longwall mining
beneath Polen Run and Kent Run in the 3L panel, but supersedeas as to Polen Run
was moot because Consol had completed longwall mining under Polen Run in the
3L panel in December 2016. Reproduced Record (R.R.) at 2625a-2626a, 3408a.
Because Consol has now agreed to forego all longwall mining beneath Kent Run in
the 3L panel as authorized under Permit Revision No. 204, we cannot grant Consol
the requested relief with respect to the EHB’s supersedeas order.
“The general rule with respect to the issue of mootness is that an
actual case or controversy must exist at all stages of appellate review.” Pagnotta v.
Pennsylvania Interscholastic Athletic Association, Inc., 681 A.2d 235, 237 (Pa
Cmwlth. 1996), appeal denied, 693 A.2d 968 (Pa. 1997). “[W]here ‘[i]ntervening
changes in the factual matrix of a pending case’ occur which eliminate an actual
(continued…)
v. Doe, [836 A.2d 42, 46 (Pa. 2003)]; Ben v. Schwartz, [729 A.2d 547, 550 (Pa. 1999)].”).
However, we need not decide whether this appeal is a collateral appeal properly before this Court
because we dismiss the appeal on other grounds. See, e.g., Flynn–Scarcella v. Pocono Mountain
School District, 745 A.2d 117, 119 (Pa. Cmwlth. 2000) (“Generally, the courts of this
Commonwealth may not exercise jurisdiction to decide issues that do not determine the
resolution of an actual case or controversy.”).
4
controversy and make it impossible for the court to grant the requested relief, the
case will be dismissed as moot.” Id. (citation omitted). It is undisputed that the
longwall mining authorized by Permit Revision No. 204 cannot be conducted
either by Consol’s agreement or completion of the work. As a result, the appeal of
the EHB’s order granting supersedeas is moot.3
Accordingly, the above-captioned appeal is dismissed as moot.
MICHAEL H. WOJCIK, Judge
3
As this Court has explained, “[a]lthough the parties have not argued mootness, we may
raise it sua sponte.” Utility Workers Union of America, Local 69 v. Public Utility Commission,
859 A.2d 847, 849 (Pa. Cmwlth. 2004) (citation omitted). Moreover, we reject Consol’s
assertion that the instant appeal is not moot because review of such a supersedeas order will
evade review. Consol’s voluntary amendment to the September 21, 2001 Operations Agreement
rendered the instant appeal moot.
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Consol Pennsylvania Coal :
Company LLC, :
:
Petitioner :
:
v. : No. 112 C.D. 2017
:
Department of Environmental :
Protection, :
:
Respondent :
ORDER
AND NOW, this 2nd day of August, 2017, the above-captioned appeal
is DISMISSED.
__________________________________
MICHAEL H. WOJCIK, Judge