Appeal from the Order of the Environmental Hearing Board in case of In the Matter of Reese Brothers Coal & Clay Co. v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 79-076-W.
Carl A. Belin, Jr., Belin, Belin & Naddeo, for petitioner.
Douglas R. Blazey, with him Gary Waxman, Assistant Attorney General, for respondent.
Judges Mencer, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Craig. Judge Williams, Jr. dissents.
[ 54 Pa. Commw. Page 202]
This petition to review a decision of the Environmental Hearing Board (EHB), presented by Reese Brothers Coal & Clay Company (Reese), seeks a mining permit from the Pennsylvania Department of Environmental Resources (DER) without Reese submitting a written consent of the landowner (current administrative
[ 54 Pa. Commw. Page 203]
form entitled "Supplemental C") under Section 4(a)(2)(I) of the Surface Mining Conservation and Reclamation Act*fn1 which as amended by Act No. 133 of 1963*fn2 and Act No. 147 of 1971,*fn3 reads:
Except where leases in existence on the effective date of this amending act do not so provide or permit, the application for a permit shall include, upon a form prepared and furnished by the department, the written consent of the landowner to entry upon any land to be effected by the operation by the operator or by the Commonwealth or any of its authorized agents within a period of five years after the operation is completed or abandoned for the purpose of reclamation, planting, and inspection or for the construction of any such mine drainage treatment facilities as may be deemed necessary by the secretary for the prevention of stream pollution from mine drainage. (Emphasis added.)
Because Reese holds under a lease first made, for fire clay only, in 1912, whereby the landowner granted the coal mining rights by a supplemental lease in 1919, Reese claims to have a lease which was "in existence" on or before January 1, 1964, the effective date of the 1963 amendment, and therefore also before January 1 of 1972, the effective date of the 1971 amendment.*fn4
[ 54 Pa. Commw. Page 204]
The EHB here adopted a formal conclusion agreeing that leases in existence before January 1, 1972 are exempt, stating that the "Surface Mining Conservation and Reclamation Act . . . specifically exempts from its coverage, leases in existence prior to January 1, 1972, the effective date of Act 147 of 1971, P.L. 554."*fn5
Indeed, that view has constituted DER's own administrative interpretation until recently. As the EHB decision also stated:
DER has not required a consent form, known as Supplemental 'C', to be signed by the lessor on prior applications where there was a lease which predated the effective date of Act 147 of 1972, P.L. 554, i.e., January 1, 1972. Based on a revision in its interpretation of the Supplemental 'C' requirement, sometime in 1979, DER began to deny permit applications which did not contain the lessor's signature consenting to re-entry of the premises by the operator for reclamation purposes for five years after termination of operations.
If the statutory section were ambiguous, that history of administrative interpretation by DER would have weight in resolving the ambiguity.*fn6 However, because we agree with the EHB that the language is not ambiguous, DER's long-standing administrative ...