No. 17 E.D. Appeal Docket, 1983, Appeal from the Order of the Commonwealth Court, dated January 13, 1983, and docketed at No. 1937 C.D. 1982, 71 Pa. Commonwealth Ct. 187;
Larsen, Flaherty, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., files a dissenting opinion. Nix, C.j., and McDermott, J., do not participate in the consideration or decision of this case.
This is an appeal from an opinion and order of the Commonwealth Court*fn1 sustaining the preliminary objections of appellee Department of Environmental Resources (Department) to a Petition for Review in the Nature of a Complaint in Equity filed by fifty-five anthracite coal mine operators and producers (Appellants), engaged in the business of mining and selling anthracite coal, and subject to licensure and regulation by the Department of Environmental Resources. The petition names as respondents the Department and its Secretary.
Following the adoption by the Environmental Quality Board of a comprehensive recodification of regulations governing the anthracite industry, and prior to enforcement of the regulations against any of the Appellants, this action was initiated invoking the original jurisdiction of the Commonwealth Court, 42 Pa.C.S.A. § 761(a)(1), seeking preliminary and permanent injunctions enjoining the Department
from implementing or enforcing the regulations, appearing at 25 Pa.Code, Chapters 86 and 88, initially published at 10 Pa.Bull. 4789 et seq. (December 20, 1980), and 12 Pa.Bull. 2473 et seq. (July 31, 1982), and approved by the United States Department of Interior, Office of Surface Mining on July 12, 1982. Appellants claim that the regulatory enactment is invalid as having been adopted in violation of act of the General Assembly of this Commonwealth specifically limiting the rulemaking power of the Environmental Quality Board with regard to the regulation of anthracite mining, Act of October 10, 1980, P.L. 835, No. 155, amending the Surface Mining Conservation and Reclamation Act, Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. § 1396.1 et seq.
The Commonwealth Court dismissed Appellants' petition on the basis that Appellants failed to exhaust available administrative remedies, whereupon direct appeal to this Court was taken. We reverse.
This case arises from the enactment by the United States Congress on August 3, 1977 of the Surface Mining Control and Reclamation Act of 1977, Pub.L. 95-87, Title I, § 101, 91 Stat. 447, 30 U.S.C. §§ 1201 et seq. (federal Act), requiring states regulating coal mining activities to conform to minimum procedural and substantive requirements set forth in that Act and in regulations promulgated by the Department of Interior, Office of Surface Mining, pursuant to it.
The requirements established by the federal Surface Mining Act are comprehensive. However, in accord with the legislative view that the anthracite industry was then adequately regulated on the state level, Congressional Record, H-23774 (July 14, 1974), the Act specifically exempts the regulation of anthracite mining, in four specific areas, from the federal requirements and permits the state to continue with the state program in those areas in existence on the effective date of enactment of the federal Act, August 3, 1977. Accordingly, Section 529(a) of the federal Act mandates that the current state regulatory program be
adopted by the Secretary of the Interior as the regulatory program applicable to the specific state:
(a) The Secretary is hereby authorized to and shall issue separate regulations according to time schedules established in this chapter for anthracite coal surface mines, if such mines are regulated by environmental protection standards of the State in which they are located. Such alternative regulations shall adopt, in each instance, the environmental protection provisions of the State regulatory program in existence on [the date of enactment of this Act] August 3, 1977, in lieu of sections 1265 and 1266 of this title. Provisions of sections 1259 and 1269 of this title are applicable except for specified bond limits and period of revegetation responsibility. All other provisions of this Act apply and the regulation issued by the Secretary of Interior for each State anthracite regulatory program shall so reflect: Provided, however, That upon amendment of a State's regulatory program for anthracite mining or regulations thereunder in force in lieu of the above-cited sections of this chapter, the Secretary shall issue such additional regulations as necessary to meet the purposes of this chapter.
Section 529(a), 30 U.S.C. § 1279(a) (emphasis supplied). The federal provisions which may thus be superseded by the correlative provisions of the Pennsylvania anthracite regulatory program in effect on August 3, 1977 are: the environmental protection performance standards of Section 515, 30 U.S.C. § 1265, the standards directed to the surface effects of underground coal mining operations, Section 516, 30 U.S.C. § 1266, the performance bond limits of Section 509, 30 U.S.C. § 1259, and the period of revegetation responsibility of Section 519, 30 U.S.C. § 1269.
All other provisions of the federal Act are applicable to and binding on the states.*fn2 States desiring to maintain
primary jurisdiction over the enforcement of the requirements, as opposed to federal jurisdiction over enforcement, were to prepare and submit, for the approval by the United States Office of Surface Mining, the state regulatory program intended to be enforced by the state. Section 503(a), 30 U.S.C. § 1253(a). Compliance with the federal program would result in approval of application for the reposal in the state of primary jurisdiction for enforcement, Section 503(b), 30 U.S.C.A. § 1253(b), and until the state obtains approval of its program, amended to meet those non-superseded federal provisions, enforcement of the Act remains in the federal Office of Surface Mining, Section 504(a), 30 U.S.C. § 1254(a).
Against this background, in 1980 the General Assembly of the Commonwealth of Pennsylvania amended four acts governing the environmental law*fn3 as it relates to the mining industry within the Commonwealth, including the state
Surface Mining Conservation and Reclamation Act, supra.*fn4 While the federal Act, by Section 505(b), 30 U.S.C. § 1255(b), permits the state regulatory authority to make more stringent the state law in effect on August 3, 1977, the General Assembly of this Commonwealth enacted a limitation on the power of the Environmental Quality Board to amend the Pennsylvania regulatory program of the anthracite industry in existence on August 3, 1977. The 1980 amendment to the Surface Mining Conservation and Reclamation Act, supra, 52 P.S. § 1396.1 et seq., provides, inter alia:
Section 16. To the full extent provided by section 529 of the Surface Mining Control and Reclamation Act of 1977 (Public Law 95-87) [30 U.S.C.A. § 1279], the surface mining of anthracite shall continue to be ...