Consol Pennsylvania Coal Co. v. Department of Environmental Protection
129 A.3d 28
| Pa. Commw. Ct. | 2015Background
- Consol sought a permit revision to expand longwall mining of a Greene County underground coal mine; Department review follows Module 8 hydrology/baseline biology requirements and a Department Guidance (Technical Guidance Document 563-2000-655) concerning pre-mining biological sampling.
- The Department found Consol’s application omitted required biological monitoring points for four stream segments and issued the permit with Special Condition No. 77 requiring pre-mining biological monitoring (two scores within 16%).
- Consol submitted the requested pre-mining data under protest, then appealed the imposition of Special Condition No. 77 asserting multiple challenges (arbitrary/improper timing, lack of authority, improper use of guidance to impose binding requirements, etc.).
- After Consol complied, the Department removed Special Condition No. 77 and moved to dismiss Consol’s appeal as moot; the Environmental Hearing Board granted the motion and denied Consol leave to amend its appeal.
- Consol sought reconsideration (denied); the Commonwealth Court reviewed the Board’s mootness dismissal and affirmed the Board’s order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal of Special Condition No. 77 rendered Consol’s appeal moot | Consol argued removal did not moot because Department could later use pre-mining data to impose post-mining obligations; other challenges to timing/authority and Guide use remained live | Dept. argued removal eliminated the challenged Department action; Consol already complied with the condition so there is no live case or controversy | Appeal was moot: condition withdrawn and Consol’s compliance extinguished the only immediate injury; future harms are speculative and review can occur if/when Department takes action |
| Burden on respondent when moving to dismiss with affidavits | Consol asserted Board improperly required it to prove future harm and shifted burden | Dept. relied on 25 Pa. Code §1021.94: once supported by affidavit, adverse party must show genuine issue for hearing | Board properly required Consol to produce specific facts showing a genuine issue; Consol’s general averments were insufficient |
| Applicability of exceptions to mootness (capable of repetition/evading review, public importance, detriment) | Consol argued exceptions applied because Department may impose similar last-minute conditions, Guide use raises public importance, and Consol suffered monetary detriment | Dept. argued exceptions do not apply: no present order exists, future harm speculative, and Consol can appeal any future enforcement action | Exceptions did not apply: action not likely to evade review; not a matter of great public importance here; any detriment is speculative and ripe review remains available later |
| Denial of leave to amend the notice of appeal | Consol requested to amend its appeal to avoid mootness and challenge Guide use; Dept. did not formally object | Board found request substantively deficient and Consol failed to show no undue prejudice to Dept. | Denial affirmed: Consol bore burden to show lack of prejudice and did not do so; procedural posture and timing inappropriate |
Key Cases Cited
- Joseph J. Brunner, Inc. v. Department of Environmental Protection, 869 A.2d 1172 (Pa. Cmwlth. 2005) (standard of review for Board decisions)
- Al Hamilton Contracting Co. v. Department of Environmental Resources, 494 A.2d 516 (Pa. Cmwlth. 1985) (compliance with abatement order can moot appeal absent other stake)
- Horsehead Resource Development Co. v. Department of Environmental Protection, 780 A.2d 856 (Pa. Cmwlth. 2001) (withdrawal of Department action can render appeal moot; availability of other administrative remedies relevant)
- Pequea Township v. Herr, 716 A.2d 678 (Pa. Cmwlth. 1998) (limits on Board’s equitable powers; Board adjudicates actual Department orders)
- City of Philadelphia v. Southeastern Pennsylvania Transportation Authority, 937 A.2d 1176 (Pa. Cmwlth. 2007) (case-or-controversy requirement; mootness principles)
- Sierra Club v. Pennsylvania Public Utility Commission, 702 A.2d 1131 (Pa. Cmwlth. 1997) (exceptions to mootness doctrine described)