*2 LARSEN, FLAHERTY, Bеfore HUTCHINSON, ZAPPA- PAPADAKOS, LA and JJ. *3 THE
OPINION OF COURT FLAHERTY, Justice.
This appeal is an from an opinion and order of the sustaining Commonwealth Court1 the preliminary objec- tions of appellee Department of Environmental Resources (Department) to a Petition for in Review the Nature of a in Complaint Equity filed by fifty-five anthracite coal mine
operators and producers (Appellants), engaged the busi- coal, ness of and mining selling anthracite subject and licensure and regulation by the of Environmen- tal Resources. petition The names as respondents the Department and its Secretary.
Following adoption by the Environmental Quality Board of a comprehensive recodification of regulations gov- erning the anthracite industry, prior and to enforcement of against any of the Appellants, this action invoking was initiated the original jurisdiction of the Com- Court, 42 761(a)(1), monwealth Pa.C.S.A. seeking prelimi- and nary permanent injunctions enjoining the Department Comm., Resources, Dept. 1. Arsenal Coal Co. et al. v. (1983). 71 Pa. Commonwealth Ct.
201 appearing enforcing regulations, or implementing Pa.Code, and at Chapters initially published at 25 (Dеcember 20, 1980), and Pa.Bull. seq. 4789 et Pa.Bull. 31, 1982), approved the United by and (July 2473 et seq. Interior, Mining on Department Office Surface States regulatory enact- Appellants claim July act having adopted as violation ment invalid been Assembly specifically of this Commonwealth the General rulemaking power Quality of the Environmental limiting mining, of anthracite regard Board with 10, 1980, amending P.L. No. Act of October and Reclamation Act Mining Conservation Surface amended, 1396.1 et P.L. May seq. petition dismissed Appellants’
The Commonwealth Court failed exhaust available Appеllants on the basis that remedies, appeal to this whereupon direct administrative We Court was taken. reverse. the United
This case arises from the enactment States Control Congress 1977 of Surface 95-87, I, Title and Reclamation Act Pub.L. §§ Act), (federal requir- seq.
91 Stat. 30 U.S.C. et mining states to conform to ing regulating coal activities procedural set forth requirements minimum substantive Act regulations promulgated by Depart- in that Interior, Mining, pursuant ment of Office to it. of Surface requirements established federal Surface Min- However, in ing comprehensive. Act are accord with the *4 legislative industry view that the anthracite was then level, on state adequately regulated Congressional the Record, 14, 1974), (July H-23774 the Act ex- specifically in four mining, the of anthracite empts regulation specific areas, permits federal and the state requirements the in continue those areas in exist- program with state date of enactment of the federal ence the effective 529(a) of the August 1977. Section federal Accordingly, state regulatory program Act mandates that the current be adopted by Secretаry of the Interior as the regulatory program applicable specific state: (a) Secretary hereby The authorized to and shall issue separate regulations according to time schedules estab- in chapter mines, lished this for anthracite coal if surface regulated such mines are protection environmental standards of in they the State which are located. Such instance, in regulations adopt, alternative shall each protection provisions environmental regu- State of in existence on date latory program enactment [the of this in lieu August sections 1265 and Act] title. Provisions of sections 1259 and 1269 of this title are applicable except specified bond limits for period revegetation and All other responsibility. provisions apply this Act and the issued Secretary of Interior for each regula- State anthracite Provided, however, so tory program shall reflect: That upon amendment of a regulatory program State’s regulations anthracite or mining thereunder force lieu of the chapter, above-cited sections of this the Secre- tary regulations shall issue such additional as necessary purposes to meet the of this chapter. § 529(a), 1279(a) (emphasis
Section supplied). U.S.C. federal thus provisions may superseded by which be provisions regu- correlative anthracite latory program effect on 1977 are: the envi- protection ronmental performance standards of Section § 1265, 30 U.S.C. the standards directed to the surface effects underground mining operations, coal Section § 1266, performance U.S.C. limits of bond Section § period 30 U.S.C. and the re- rеvegetation sponsibility of Section 30 U.S.C.
All other provisions applicable federal are Act on the binding desiring states.2 States to maintain Among remaining provisions apparently of the federal Act bind- ing industry, along on the anthracite with the federal thereto, (Section requirements related are: Permit 30 U.S.C. 1256), (Section 1257), application requirements 30 U.S.C. § (Section 1258), plan requirements reclamation 30 U.S.C.
203 require- the enforcement of the over primary jurisdiction enforcement, ments, jurisdiction to federal over opposed as submit, approval and for the the United were to prepare pro- Mining, regulatory of Surface state States Office 503(a), gram intended to be enforced state. Section § 1253(a). program 30 with federal Compliance U.S.C. for in the approval reposal application would result enforcement, for Section primary jurisdiction state § 503(b), 1253(b), and until state obtains 30 U.S.C.A. approval non-super- program, of its amended meet those Act remains provisions, seded federal enforcement 504(a), 30 Mining, the federal Office Section Surface § 1254(a). U.S.C. background, Assembly in 1980 the
Against General four acts the Commonwealth of amended min as it governing the environmental law3 relates Commonwealth, ing the state industry including within 509, (Section performance requirements operations 30 bond for those 1259). procedures for U.S.C. The Act establishes criteria and § also 1260), permit (Section permit approval or denial 30 U.S.C. § (Section 1261), public public notice and revisions hearings 30 U.S.C. § 1263), (Section permit applications and 30 U.S.C. § permit applications by regulatory as well decisions on state authorities 1264). (Section appeаls as from such 30 U.S.C.§ decisions (Section provisions inspections monitoring Act contains for and (Section 518, 1267), penalties 30 U.S.C. U.S.C. civil and criminal § release of (Section 1268), performance U.S.C. bonds § 1269), (Section 1270), U.S.C. enforcement § citizen suits (Section (Section 1271), judicial review 30 U.S.C. and administrative and 1275-76). 525 and 30 U.S.C. The Act also establishes §§ procedures designation of for criteria and mining, areas as unsuitable (Section 1272). 30 U.S.C.§ administratively law Commonwealth is The environmental of this regulated by separate Quality Board three bodies. The Environmental formulate, primary purpose power adopt has its and and regula- promulgate rules and which become the rules Resources, Department 71 P.S. 510- tions of 20(b), enforcing duty regulations. has the The third which then body, Hearing empowered the Environmental orders, permits, licenses of Environ- and decisions 510-21(a). Resources in its role. 71 P.S. § mental enforcement Conservation Surface supra.4 Reclamation *6 Act, by 505(b), While federal 30 Section U.S.C. § 1255(b), the state permits authority to regulatory make state stringent 3, 1977, more in effect on August law Assembly the General of this Commonwealth enacted a limitatiоn on the power Quality Board Pennsylvania to amend the of regulatory program the an August 3, thracite in existence industry on 1977. The 1980 amendment to Mining the Surface Conservation and Recla § Act, 52 supra, mation P.S. 1396.1 et seq., provides, inter alia: provided
Section 16. To the extent section 529 by full Mining Control and Act Reclamation of Surface of , § (Public 95-87) 1977 Law U.S.C.A. the sur- 1279], [30 mining governed anthracite shall continue to be face of 3, Pennsylvania law in on August effect Section
It is it is hereby determined that in the inter- public est to secure primary jurisdiction for ..., and that the General should amend this Assembly in approval act order to the Pennsylvania pro- obtain gram by the United States Interior. It is the intent preserve this act to existing Pennsylva- nia law to possible. the maximum extent §§ 10, 1980, 835, 155, 17, Act of P.L. No. October 16 52 § 1396.1, P.S. historical (Supp.1983). note 4. The other three amended in are: acts The Bituminous Mine 27, April Subsidence and Land Conservation Act Act of Law, seq., P.L. No. 52 P.S. 1406.1 et Clean Streams Act of n June amended, No. seq., P.L. as 35 P.S. 691.1 et Act, Disposal September and the Coal Refuse Control Act of amended, seq. P.L. No. 30.51 et These acts identically amended were to thе Surface Conservation and legislative goal Reclamation Act insofar as the restatement obtaining primary jurisdiction regulation operations over of coal in provision legislative oversight promulgation the state with over the Quality regulations necessary solely the Environmental Board of to primary jurisdiction. obtain intent this enactment is to maintain law The clear anthracite regulating mining in effect regula- the four areas which state anthracite relating to 529(a) law, federal of the feder- Section supersedes tion § 1279(a), рermit revision supra, al 30 U.S.C. but on the states provisions binding federal remaining meet the securing pri- accommodating goal the concurrent thus mining of anthracite over mary jurisdiction Assembly provid- Accordingly, General Pennsylvania.5 enact, Quality power ed for the Environmental basis, to secure regulations necessary emergency on an primary jurisdiction: primary jurisdiction In to maintain
Section 15. order *7 mining Pennsylvania pursuant coal over surface Board shall have Act], Quality the Environmental [federal to on an emer- authority adopt regulations initial ____ Provided, however, 30 days within basis gency ..., the Environ- [securing] primary jurisdiction after ... regulations repropose mental Board shall Quality basis, regula- shall adopted emergency on an submit and House Environmental Resources tions to the Senate of the Gen- Management Mines and Committees Energy comments, and shall for their and Assembly eral grant such public hearings days schedule within 90 after purpose hearing public for the primary jurisdiction any appropriate comment on revisions. the Environ- prior
At least 30 to consideration days any or any regulations mental Board оf revised Quality act those initial regulations under this other than new emergency on an basis regulations promulgated [i.e. the depart- necessary primary jurisdiction], secure addition, saving providing Assembly clause the General enacted a In invalidating part any action all or that in the event of federal court corresponding provision the federal primary jurisdiction program is invalid and the enacted to secure pre-existing Act of October state of the law is to be enforced. note, 1396.1, Act 52 P.S. historical section § P.L. Thus, regulation affеcting legislature the intent of the to oversee quo industry the status the anthracite and to maintain 1977 is clear. ment shall submit such to the Senate Environ- mental Resources House Mines and Energy Manage- ment Committees of the General for their re- Assembly view and comment. 10, 1980,
Act of October P.L. No. 52 P.S. § 1396.1,historical note. The Environmental Quality Board is, therefore, to necessary enact what is primary obtain jurisdiction, subject legislative to subsequent oversight 30 days following approval of the program by Secretary of Interior; regulations required not for primary jurisdic- tion are subject legislative preliminary oversight by the requirement proposed regulations such be first sub- appropriate mitted to the committees the General Assem- bly. This is a clear limitation of the general power of the formulate, Board to Quality adopt promulgate such rules and regulations as it determine may are required proper for the performance of the work of the Department of Environmental Resources set forth in Sec- 1920-A(b) tion Administrative Code of Act of April 510~20(b).
The issue underlying Appellants’ petition for injunctive reliеf therefore question raises the of whether the Environ- mental Quality Board promulgating comprehensive appearing Chapters 86 and 88 of the Pennsyl- Code, vania supra, applicable to the anthracite industry, *8 has exceeded this limitation.
The question Court, however, immediate presented to this is whether a court of equity may properly exercise its jurisdiction to resolve the instant pre-enforcement challenge validity regulatory a scheme grounded a claim that the regulations were in excess promulgated statutory authority by which the regulatory agency is em- powered to enact regulations. such pre-enforcement
The relief sought by is clear- Appellants preserved a ly remedy by as Agency Administrative The scope judicial Law. in agency matters is by established Section 703 of the Administrative Agency
207 Law, A, Chapter Subchapter April Act of P.L. 202, No. 53:
§ Scope of review
(a) rule. —A party proceeded General who before a agency particular Commonwealth under the terms of a precluded shall not be questioning the statute from the statute in the validity appeal, party but such may upon appeal not raise other not any question raised the agency (notwithstanding before the fact competent not be to such agency may question) resolve unless the court upon allowed due cause shown.
(b) Equitable provided at law remedy relief.—The (a) subsection shall not manner any impair right equitable to existing, and such relief heretofore right equitable hereby continued notwith- relief (a). standing provisions subsection (emphasis Pa.C.S.A. Prior supplied). the new Statutes, codification of Purdon’s provision appeared at § 1710.42, Law, P.S. Agency Administrative Act of amended, 4, 1945, June P.L. repealed by Act of April 2(a). P.L. No. equitable relief available at the time of original its enactment which Pennsylva (b) Western subsection preserves is set forth in Hospital Lichliter, nia v. 382, 291-393, 340 Pa. 17 A.2d cu per (1941), 211-212 in which this Court affirmed riam on the .opinion below of the court of common pleas citing the established remedy equity prevent enforcement of a regulation if the regulatory body has exceeded its authority enjoining agen an administrative cy exercising powers not conferred it or upon uncon conferred. stitutionally
Mоre recent cases invoking
power
of equity have
arisen
original
within the
jurisdiction
Commonwealth
Hospital
Bachman,
Association v.
See, e.g.,
Court.
40 Pa.
sub
(1979),
Commonwealth Ct.
face Conservation to the 1396.4, (b), contemplates resort P.S. subsection action, Department Board Hearing upon Environmental 1921-A of the Administrative is reflected Section which 510-21: 71 P.S. supra, Code shall (a) Hearing pow- Board have The Environmental and issue hearings shall to hold er and its duties be Agency “Administrative under the ... adjudications Law,” order, or decision any permit, licеnse Resources. Environmental Department of contrary notwithstanding, (c) any law Anything Re- of Environmental any action of regard to the initially taken without may sources be Law, no such action of the Agency but Administrative shall affecting person be adversely any [Department] person until such has had person final as to such Environmental such action to the opportunity appeal however, that such action Board; any provided, Hearing perfected has not his person final as to who any shall be specified. in the manner hereinaftеr appeal §§ 510-21(a) (c) Pre-en- (emphasis supplied). review, however, is not within the author- clearly forcement suggestion Hearing any ity of
209 contrary only upon to the can be founded a strained and unrealistic construction of the of the language Code. There appears no reference to in the to rule power hearing board validity regulations promulgated adopted on the by the Quality Environmental Board advance of the enforce application ment and of the litigants; it is within the context of an from only appeal upon Environmental Resources action the application the illegal 703(a) allegedly regulation, contemplated by Section Law, of the 2 Agency supra, Administrative Pa.C.S.A. § 703(a), that the an enjoys ancillary power to rule on validity regulations, Comm., U.S. Corp. Steel v. Dept. Resources, 65 Pa. Commonwealth (1982); 442 Ct. A.2d 7 Corp. St. Joe Minerals v. Goddard, 14 Pa. Commonwealth Ct.
(1974). Court held that this opportunity Commonwealth upon piecemeal application and enforcement of the
challenged regulations is an adequate remedy.6 We disа- gree. challenged regulations upon
Where the effect of the
immediate,
the industry regulated
hardship
is direct and
thus
suffices to
of the
presented
justiciability
establish
challenge
advance of enforcement. See Abbott Labora
Gardner,
tories v.
387
87
18 L.Ed.2d
U.S.
S.Ct.
(1967)
681
v.
grounds,
other
Sand
modified
Califano
ers,
(1977);
430 U.S.
We believe that the asserted impact of the regula tions in the instant case is sufficiently direct and immediate to render appropriate review; issue for judicial lengthy process which the validity of the regulations will on a be addressed basis of application to the litigant would in ongoing result uncertainty day to day business *11 operations of an industry which the General Assembly clearly intended to protect unnecessary upheaval.
Appellants may comply refuse to and test the regulations for by appealing, example, a denial of permit operate, to or release, a denial of or by bond defending actions imposing sanctions for non-compliance. 1396.4(b). This proposed avenue of review is beset with penalties and impediments to the operation of the anthracite industry it rendering inadequate as a satisfactory to alternative the equitable action initiated under the original jurisdiction of Commonwealth Court.
The alternative to challenging regulation the through noncompliance is to to regulations. submit the We cannot say that the of such burden a course is other than substan- tial, accepting, as we must on a motion to dismiss on the pleadings, allegations the complaint the as true. Appel- lants have that the alleged regulations the require expendi- which, ture of sums comply substantial to not while immedi- calculable, ately will substantially impair the cash flow of all Appellants. Whether or not allegation true, this it is clear if Appellants that elect to comply judicial await validity determination of in subsequent piecemeal litigation, process costly would be and inefficient. The Department urges that the threat of enforcement proceedings for non-compliance with a judicially untested regulation is unrealistic for the power the Department to be in applying regulations flexible power and its of en- lessens the likelihood requirements certain waive course, accept argument We, cannot forcement. it that will ultimate- representation by mere its can not defeat power waiver flexible and exercise ly be hardship. of immediate assertion Appellants’ inadequacy of the available in Accordingly, view invalidity regu- claim of Appellants’ means which Quality the Environmental promulgated by lations statutory administrative be addressed within will Code, we hold that the Administrative provisions declining its erred exercise Court Commonwealth dismissing Appellants’ petition. equitable jurisdiction and Remanded.7 Reversed hearing expedited on its Department, its motion for an objections, proрer order to a preliminary asserted that in conduct inspect petition, would hearing Appellants’ the court have to on the challenged regulations, approximately every each and one subsection, have length. section or the court would pages in For each regulation requirement a for that exists to ask first whether there would have to ask whether there federal Act. The court then regulations. If requirement in the federal exists a for regulations in counterpart the state finds federal the court no inquire have as to the question, the court would then (which As 30 C.F.R. Part 820 law in existence on anthracite) concerning general al- contains the federal indicates, legedly requirements court would have to look at *12 (13) chapters Depart- statutes at least 33 at least thirteen state regulat- regulations, August of which existed on ment all way. mining in some If there was no ascer- ed anthracite activities question, requirement for the and no tainable 1977 state regulation, requirement have to for that the court would then federal regulation. decide whether to void that existing by the scenario that the method which This assumes validly completely accomplished. was state of the law was recodified one, legal may question, purely thus a whether
There arise by changes contemplated legislature emergency were to have been regulations, existing accomplished with within the framework require- as necessitated to meet federal amendments and deletion by apparently in comprehensive It was ments and not recodification. presented side-by-side argument Appellants pursuit of this a regulatiоns comparison of and the recodified 1982 requirements imposed regulations, inquiry enact- without other however, question, basis is one which is resoluble on the ments. legislative language legal of the amend- construction ments. ZAPPALA, J., files a dissenting opinion.
NIX, C.J., and McDERMOTT,J., do not participate in the consideration or decision of this case.
ZAPPALA, Justice, dissenting.
I dissent. The Appellant’s basic claim is that the chal- lenged regulations differ from regulations in effect when the federal Surface Control and Reclamation Act of 95-87, I, Pub.L. Title 91 Stat. 30 U.S.C. § 1201 (SMCRA) et seq. went into effect. Because the Pennsylvania Surface Mining Conservation and Reclamation Act, as amended Act of October P.L. No. 1396.1 et seq., requires that anthracite mining governed be to the maximum extent possible by the law existing at the time the federal act effect, went into Appellants argue that the challenged regulations are inval- id.
The SMCRA establishes as a law, matter of federal regulations applicable to mining, including anthracite min- ing, except provided in Section 529. That section allows option regulation, state as distinct from state en- forcement, in оnly four protection areas —environmental performance standards, standards for surface effects of underground mining, performance limits, bond and periods of revegetation. In all other areas the federal apply. Section 529 reads
(a) The Secretary is hereby authorized to and shall issue separate regulations according to time schedules established in the Act for anthracite mines, coal surface if such mines are regulated by environmental protection standards of the State which they are located. Such alternative regulations shall adopt, instance, in each Assuming question posed that the negative, above is resolved in the presented by then the scenario becomes relevant. We fully task, recognize complexity but caution that extensive pre-hearing stipulation parties between the propriety as to the *13 regulations required by certain provisions other of either federal or regulations state applicable statutes and or acts will required be to focus the review. the environmental protection рrovisions the State of regulatory program in existence at the date enact- of ment this Act in lieu sections 515 and 516. Provi- of of J¡.19 sions sections 509 and are applicable except of specified respon- bond limits and period revegetation sibility. All other and the provisions apply this Act regulation issued of Interior Secretary for each State anthracite regulatory program shall so reflect: Pro- vided, however, upon That amendment of a regu- State’s latory program for anthracite mining regulations or thereunder forсe in lieu of the above-cited sections of the Secretary regula- shall issue such additional tions as necessary to meet the of this purposes Act. added). 30 U.S.C. 1279 (emphasis Appellee, Department Resources, of Environmental argues that the program regulations here challenged was developed in conjunction with the Office of Surface of the Interior in order to assure that Pennsylvania’s regulations were sufficient under SMCRA and ten other federal acts govern which the field.
It is not clear from the face of that they change Pennsylvania law from it in August what was whether, law, 1977. Nor is it clear if they change do change such unnecessary parts was under those state, SMCRA apply which or under other any federal law. Neither do the Appellants give any specific reasoning support particular regula- a conclusion that tions are for any Appellants invalid of these reasons. The present a only generalized attack on the entire regulatory program, alleging merely that it differs from the former regulations.
Granted that to the extent any particular might excеed the it statutory authorization would be inval- id, under these circumstances I think is it unwise as a matter of judicial policy to allow the Appellants proceed on a bare assertion that program as a whole invalid. The Appellants present should specific reasons as to each invalid, regulation, demonstrating it is to the Environ- why *14 Hearing mental function it is to De- whose partment applied specific action based cases. I affirm the Opinion would Order Com- holding. monwealth Court so
478 A.2d 447 COMMONWEALTH v. ROSS,
Samuel Petitioner. Supreme Pennsylvania. Court
March 1984.
Petition Denied June 1984. Petition dismissed to Petitioner’s prejudice rights without under the Act. Hearing Post-Conviction COMPANY, Maryland Corporation, Appellee, AMOCO OIL a
v. , Ralph Snyder, Appellants E. and Ruth SNYDER L. Frank R. Crash.
Supreme Pennsylvania. Court of
Argued March Decided June