DocketNumber: Appeals, 869 C.D. 1984 and 1136 C.D. 1984
Citation Numbers: 506 A.2d 985, 96 Pa. Commw. 94
Judges: Colins, Craig, Crumlish, Doyle, Kalish, MacPhail, Palladino, Rogers
Filed Date: 3/20/1986
Status: Precedential
Modified Date: 8/26/2023
Opinion by
On May 28, 1985 this Court issued a decision wherein we upheld the determination of the Environ
An operator of a coal mine subject to the provisions of this act shall adopt measures and shall describe to the department in his permit application measures that he will adopt to prevent subsidence causing material damage to the extent technologically and economically feasible, to maximize mine stability, and to maintain the value and reasonable forseeable [sic] use of such surface land. . . .
By our May 28, 1985 Order we remanded the case to the EHB for such a hearing on Consol’s compliance. Subsequent to this determination that Culp had a right to challenge the permit’s issuance, this Court received a timely petition for reconsideration which it granted. After reargument before the Court en Banc on October 9, 1985 and upon reconsidering the matter, we now vacate our order entered May 28,. 1985.
The initial proceedings before the EHB were procedurally complicated, but an understanding of them is necessary. Initially, Culp filed a notice of appeal with the EHB alleging ownership of coal seams underlying Consol’s permitted area and further alleging that the Department of Environmental Resources (Department)
The EHB on March 1, 1984 issued an opinion and order wherein it held that Culp had standing but that the Act was not intended to protect his coal seams. The rationale for the EHB decision was that the Act speaks in terms of structures upon the land, not features within the land. The EHB went on to state that unless Culp could allege a threatened damage to surface structures
Culp then petitioned the EHB for reconsideration. His petition was interlocutory because the March 1, 1984 order was not a complete dismissal of his appeal. The petition was also untimely under the EHBs rules. On April 3, 1984 the EHB issued an opinion and order wherein, in its discretion, it permitted the interlocutory appeal finding exceptional circumstances existed, i.e., that the March 1 order “just about dismissed the appeal.” The EHB stated in the April 3 opinion and order that only by alleging ownership of a structured surface could Culp keep the appeal alive. But Culp in his motion for reconsideration had indicated a willingness to stipulate that the surface was unstructured believing that such stipulation would facilitate a complete and final disposition of the matter by the EHB. Thus, it is apparent that in his motion for reconsideration Culp was pursuing a cause of action based only upon ownership of his superincumbent coal seam.
The sole issue then is whether the Department abused its discretion in granting Consol the subsidence permit without considering Culps interest in his superincumbent coal seams. Put another way, did Culp allege an interest covered by the Act which interest would mandate at least consideration by the Department before it issued a subsidence permit to Consol. If, in feet, Culp has alleged such an interest then the Department committed an error of law in failing to consider that interest and hence abused its discretion in granting the permit to Consol without doing so.
We begin our analysis by examining the purpose of the Act. The legislature in Section 2 of the Act, 52 P.S. §1406.2, has declared:
This act shall be deemed to be an exercise of the police powers of the Commonwealth for the protection of the health, safety and general welfare of the people of the Commonwealth, by providing for the conservation of surface land areas which may be affected in the mining of bituminous coal by methods other than ‘open pit’ or ‘strip’ mining, to aid in the protection of the safety of the public, to enhance the value of such lands for taxation, to aid in the preservation of surface water drainage and public water supplies*100 and generally to improve the use and enjoyment of such lands and to maintain primary jurisdiction over surface coal mining in Pennsylvania.
It can be seen from this Section that the Act was established to (1) conserve land area (2) protect the public (3) enhance the value of surface lands (4) aid in preserving surface water drainage and public water supplies (5) improve the use and enjoyment of surface lands and (6) maintain primary jurisdiction. With these purposes in mind the legislature in Section 3 of the Act, 52 P.S. §1406.3, made the following pertinent policy declarations:
(1.) The protection of surface structures and better land utilization are of utmost importance to Pennsylvania.
(2.) Damage to surface structures and the land supporting them caused by mine subsidence is against the public interest and may adversely affect the health, safety and welfare of our citizens.
(4.) The preservation within the Commonwealth of surface structures and the land supporting them is necessary for the safety and welfare of the people.
(5.) It is the intent of this act to harmonize the protection of surface structures and the land supporting them and the continued growth and development of the bituminous coal industry in the Commonwealth.
It is clear from these Sections that the primary focus of the Act is upon protecting surface structures and the land supporting them for the benefit of the public. Additional support for this premise can be found in Section 4 of the Act, 52 P.S. §1406.4, which protects enumerated surface structures and Section 5(e), here under scrutiny and quoted above, which refers to “such surface land.”
Because we hold today that the Act does not protect subsurface interests, a question may arise as to the protection of the public if the issuance of a permit threatens only subsurface rights and hence such owner is not a party whose interest is entitled to consideration before a permit is issued. We believe that it is within the intendment of the legislature that the Department implement and police the provisions of the Act for the public welfare. Under Section 7(b) of the Act, 52 P.S. §1406.7(b), the Department is given the authority to:
adopt such rules, regulations, standards and procedures as shall be necessary to protect the air, water and land resources of the Commonwealth and the public health and safety from subsidence, prevent public nuisances, and to enable it to carry out the purposes and provisions*102 of this act, including additional requirements for providing maps, plans and public hearings. (Emphasis added.)
To this end the Department has enacted regulation 89.143, 25 Pa. Code §89.143. This regulation, which is entitled “Performance Standards”, establishes standards for underground mining activities. These standards include the requirement that mine operators utilize support techniques which prevent subsidence damage to impoundments and other bodies of water, 25 Pa. Code 89.143(b)(l)(iii), as well as to aquifers and perennial streams, 25 Pa. Code 89.143(b)(l)(iv). This regulation further provides for the protection of utilities including “oil, gas and water wells; oil, gas and coal slurry pipelines; rail lines; electric and telephone lines; and water and sewage lines which pass under, over, or through the permit area. ...” 25 Pa. Code §89.143(c)(1).
It is obvious that this regulation has been established to protect water and land resources (both above and below ground)
Our determination here today, while it does not provide protection for subsurface interests such as Culps, can in no way be seen as detrimental to the protection of the public interest. And while it may be unfortunate that non-surface owners who own interests superincumbent to areas for which permits have been issued pursuant to Section 5(e) have no statutory right to consideration of their personal interests before permits are issued, we believe that the legislature, had it intended that such interests be considered, would have said so. Furthermore, we recognize that one reason for not providing protection for such interests may be because multitudes of relatively small and economically negligible ownership interests, if given the right to consideration under Section 5(e) which provides for due process hearings, could effectively tie up in endless litigation mining operations of substantial size and hence operate to the detriment of the very public the Act seeks to protect.
Having determined that our opinion and order of May 28, 1985 was in error we accordingly vacate it and reinstate the orders of the EHB.
Now, March 20, 1986, the order in the above captioned matters dated May 28, 1985 is hereby vacated and the orders of the EHB are affirmed.
Because the issue of Culps surface ownership has not been preserved we need not address the statements in Consols brief asserting that Culps predecessor in title had conveyed to Consol’s predecessor in title the common law right to support of the surface and strata overlying the seam in question except to state that these allegations have no factual support in the record and hence form no basis for our decision.
We note that Section 7(b) does not specifically restrict the Departments regulatory power to surface land and water when that power is exercised on behalf of the public.