8 Pa. Commw. 622 | Pa. Commw. Ct. | 1973
Lead Opinion
Opinion by
These appeals are taken from an order of the Environmental Hearing Board quashing appellants’ ap
Appellants, Grant R. Wright Coal Co. (Wright) and Willowbrook Mining Co. (Willowbrook), each received written notices from the Department of Environmental Resources (Department) that they were violating certain provisions of the Surface Mining Conservation and Reclamation Act, Act of May 31, 1945, P. L. 1198, as amended by the Act of November 30, 1971, P. L. 554, 52 P.S. §1396.1, et seq. Wright and Willow-brook appealed this notice of violation to the Environmental Hearing Board, where the Department’s motions to quash were granted.
Appellant, Sunbeam Coal Corporation (Sunbeam), made application to conduct mining operations within 300 feet of an occupied dwelling. The Department, by letter, refused to hold a hearing, and took no other action on the application on the basis that the owner of the dwelling had refused to permit the mining. This determination was appealed to the Enviromental Hearing Board. Shortly after that appeal was filed, the Department informed Sunbeam by letter that a hearing would be held on the application despite the lack of permission from the owner of the dwelling. Thereupon the Department filed a motion to quash Sunbeam’s appeal which was granted by the Board.
As to appellants Wright and Willowbrook, the order quashing the appeals must be affirmed if it is determined that the notices of violations were not appeal-able orders of the Department.
The instant notices were sent pursuant to Section 4.3 of the Surface Mining Conservation and Reclamation Act, 52 P.S. §1396.4e: “Any mine conservation inspector shall have the right to enter upon and inspect all surface mining operations for the purpose of determining conditions of health or safety and for compliance with the provisions of this act, and all rules and
Initially, the notices could not be considered “adjudications” within the meaning of the Administrative Agency Law, Act of June 4, 1945, P. L. 1388, as amended, 71 P.S. §1710.1, et seq., so as to require a hearing and permit an appeal in accordance with that act. “Adjudication” is defined in Section 2 of the Administrative Agency Law, 71 P.S. §1710.2: “(a) ‘Adjudication’ means any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities or obligations of any or all of the parties to the proceeding in which the adjudication is made, but shall not mean any final order, decree, decision, determination or ruling based upon a proceeding before a court, or which involves 'the seizure or forfeiture of property, or which involves paroles, pardons or releases from mental institutions.”
Nor can the notices be considered “actions” of the Department under Section 1921-A of the Administrative Code, Act of April 9, 1929, P. L. 177, as amended, 71 P.S. §510.21, which provides: “(c) Anything in any
Clearly, therefore, the notices here were not adjudications or actions which require hearings and engender review by administrative boards or courts of record. The supplemental brief filed by appellants indicates that the Department refused to renew their mining permits for 1973, based in part upon the violations alleged in the notices now before us. This action of the Department, however, is not the basis of these appeals.
The order quashing appellant Sunbeam’s appeal must likewise be affirmed, although on different grounds. The pertinent statutory provision, Section 4.2(c) of the Surface Mining Conservation and Reclamation Act, 52 P.S. §1396.4b(e), provides: “Prom the effective date of this act, as amended hereby, no opera
It is apparent that the original letter of the Department denying Sunbeam a hearing on its application to mine within 300 feet of an occupied dwelling house was a decision affecting the possible use of Sunbeam’s property, and thus must be considered an action of the Department as defined by the regulation previously quoted. Nevertheless, when the Department subsequently granted a hearing to Sunbeam on this matter, the pending appeal to the Board became moot. The Department’s motion to quash was properly granted.
Accordingly, we enter the following
Order
Now, May 4, 1973, the order of the Environmental Hearing Board, quashing the above appeals, is affirmed.
Concurrence Opinion
Concurring Opinion by
I agree with the majority’s analysis of the law and the results under the facts of this case. However, I believe I must register a caveat for the reason that I am concerned that the Department of Environmental Resources (DER) may use this case as precedent for imposing future hardships on coal operators.
It appears to me that the modus operandi of DER is to utilize the notice sent to the coal operator as a fmt accompli in the establishment of a basis for the refusal of the issuance of a future license or the reissuance of an annual license.