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KERRY COAL COMPANY v. COMMONWEALTH PENNSYLVANIA (01/29/81)

decided: January 29, 1981.

KERRY COAL COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



Appeal from the Order of the Environmental Hearing Board in case of Kerry Coal Co. v. Commonwealth of Pennsylvania, Department of Environmental Resources, Nos. 77-083-C and 77-084-C.

COUNSEL

Steven L. Friedman, with him Stephen C. Braverman, Dilworth, Paxson, Kalish, Levy & Kauffman, for petitioner.

Elissa A. Parker, Assistant Attorney General, for respondent.

President Judge Crumlish and Judges Wilkinson, Jr., Mencer, Rogers, Blatt, Craig, MacPhail, Williams, Jr. and Palladino. Opinion by Judge Wilkinson, Jr. Dissenting Opinion by Judge Blatt. Judges Mencer, MacPhail and Williams, Jr. join in this dissent.

Author: Wilkinson

[ 56 Pa. Commw. Page 366]

Petitioner appeals from an order of the Environmental Hearing Board (Board) upholding conditions imposed by respondent Department of Environmental Resources (Department) on petitioner's surface mining operations. We reverse and remand.

On April 15, 1977 petitioner applied to the Department for an amendment to a 1975 mine drainage permit and on June 28, 1977 for a surface mining permit in order to conduct surface mining operations at a proposed site in Lawrence County. The proposed mining site is adjacent to McConnell's Mill State Park. On July 7, 1977 the Department issued the surface mining and mine drainage permits authorizing the surface mining, subject to the condition that it not affect any area within 300 feet of McConnell's Mill State Park unless a variance is first obtained from the Department.

Petitioner filed timely appeals from the imposition of the condition. The board dismissed petitioner's appeals and ruled that Section 4.2(c) of the Surface Mining Conservation and Reclamation Act (Act), Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. § 1396.4b(c), required petitioner to obtain a variance from the Department prior to conducting surface mining operations within 300 feet of McConnell's Mill State Park.*fn1

Section 4.2(c) of the Act, 52 P.S. § 1396.4b(c) provides in pertinent part:

[N]o operator shall open any pit for surface mining operations (other than borrow pits for

[ 56 Pa. Commw. Page 367]

    highway construction purposes) within one hundred feet of the outside line of the right-of-way of any public highway or within three hundred feet of any occupied dwelling house, unless released by the owner thereof, or any public building, school, park or community or institutional building or within one hundred feet of any cemetery, or of the bank of any stream. The secretary may grant operators variances to the distance requirements herein established where he is satisfied that special circumstances warrant such exceptions and that the interest of the public and landowners affected thereby will be adequately protected. (Emphasis supplied.)

In its appeal to this Court, petitioner contends that Section 4.2(c) of the Act does not require petitioner to obtain a variance prior to conducting surface mining operations within 300 feet of McConnell's Mill State Park. Petitioner argues that the word "park" must be read as an adjective modifying the word "building" and ...


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