Consol Pennsylvania Coal Co. v. Department of Environmental Protection

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