Consol Pennsylvania Coal Co. LLC v. Dept of Environmental Protection
Consol Pennsylvania Coal Co. LLC v. Dept of Environmental Protection - 112 C.D 2017
| Pa. Commw. Ct. | Aug 2, 2017Background
- Consol Pennsylvania Coal Company sought permits (Permit Revisions Nos. 180, 189, 204) to authorize longwall mining in the Bailey Mine Eastern Expansion, including under Polen Run and Kent Run streams.
- DEP issued Permit Revision No. 204 (Dec. 2016) authorizing longwall mining under Polen Run and Kent Run in panel 3L, conditioned on implementation of a stream restoration plan and Special Condition 97 (requiring DCNR access for mitigation under Kent Run).
- Intervenors (Center for Coalfield Justice and Sierra Club) appealed Permit Revision Nos. 180, 189, and 204 to the Environmental Hearing Board (EHB) and sought supersedeas to stop mining under the streams.
- EHB granted partial supersedeas precluding longwall mining beneath and within 100 feet of Kent Run in panel 3L; the Polen Run issue became moot because Consol had already completed mining beneath Polen Run.
- Consol appealed the EHB’s supersedeas order, but subsequently executed an amendment to its Operations Agreement with DCNR expressly agreeing to forego longwall mining beneath Kent Run in panel 3L, which rendered the requested relief unattainable.
Issues
| Issue | Plaintiff's Argument (Consol) | Defendant's Argument (Intervenors/DEP) | Held |
|---|---|---|---|
| Is the appeal of the EHB’s supersedeas order justiciable or moot? | Appeal remains live; order is collateral and reviewable. | Appeal is moot because Consol has agreed not to mine and/or already completed the work. | Dismissed as moot; no relief can be granted. |
| Is an order granting supersedeas interlocutory or a collateral order appealable here? | Supersedeas order is a collateral order and appealable under Pa. R.A.P. 313. | Generally, supersedeas orders are interlocutory and not appealable. | Court did not decide the collateral-order question; dismissed on other grounds. |
| Does Consol’s voluntary amendment to its Operations Agreement defeat appellate review? | Amendment should not prevent review; otherwise review will be evaded. | Voluntary amendment renders the dispute nonjusticiable; appeal moot. | Amendment rendered the appeal moot; court rejects Consol’s evasion argument. |
| Is the Polen Run supersedeas issue moot because mining there was completed? | Consol challenged supersedeas as to Polen Run. | Mining beneath Polen Run was already completed prior to hearing, making that part moot. | Polen Run issue moot; only Kent Run remained but later foregone by Consol. |
Key Cases Cited
- People United to Save Homes v. Department of Environmental Protection, 789 A.2d 319 (Pa. Cmwlth. 2001) (describing longwall mining impacts and regulatory context)
- Pagnotta v. Pennsylvania Interscholastic Athletic Association, Inc., 681 A.2d 235 (Pa. Cmwlth. 1996) (actual case or controversy required at all appellate stages)
- Knish v. Workmen’s Compensation Appeal Board (Jerome Enterprises), 536 A.2d 856 (Pa. Cmwlth. 1988) (generally interlocutory supersedeas orders are not appealable)
- Utility Workers Union of America, Local 69 v. Public Utility Commission, 859 A.2d 847 (Pa. Cmwlth. 2004) (courts may raise mootness sua sponte)