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WESTERN HICKORY COAL COMPANY v. COMMONWEALTH PENNSYLVANIA (12/31/84)

decided: December 31, 1984.

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



Appeal from the Order of the Environmental Hearing Board in the case of Western Hickory Coal Company v. Commonwealth of Pennsylvania, Docket No. 82-141-G.

COUNSEL

Bruno A. Muscatello, Stepanian & Muscatello, for petitioner.

Alan S. Miller, with him, Stanley R. Geary, Assistant Counsel, for respondent.

Judges Rogers, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 86 Pa. Commw. Page 563]

This is the appeal of Western Hickory Coal Company (Western Hickory) from an order of the Environmental Hearing Board (EHB) upholding the assessment upon the appellant by the Department of Environmental Resources (DER) of a civil penalty in the amount of $5,000.00.

The DER granted Western Hickory permits to conduct surface mining on sites in Butler County. In July of 1981, Western Hickory's surface mining operations were approaching the boundaries of the areas covered by its permits. On August 18, 1981, it applied to DER for a mining permit for an adjacent site. The permit was not issued until September 29,

[ 86 Pa. Commw. Page 5641981]

and in the meantime, as the EHB found upon substantial evidence adduced at its hearing, the following occurred: on August 29 and 30, 1981, Western Hickory conducted mining operations on the adjacent site without a permit; on September 3, 1981, Western Hickory's president and majority stockholder told a DER mining inspector that Western Hickory was mining the adjacent area without a permit; on September 9, 1981, the same inspector visited the site and observed that Western Hickory was indeed mining an area which he believed was off permit; and on September 11, 1981, after assuring himself by examination of maps and other material in DER files, the inspector caused a DER order that the unlicensed mining cease to issue. At the time the order was issued Western Hickory had mined at least three acres of land not under permit. In May, 1982, DER assessed the $5,000.00 civil penalty upon Western Hickory for mining off permit on September 11, 1981.

The surface mining of land not covered by a permit is forbidden by Section 4 of the Surface Mining Conservation and Reclamation Act (SMCRA), Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. § 1396.4. Section 18.4 of SMCRA, added by Section 13 of the Act of October 10, 1980, P.L. 835, 52 P.S. § 1396.22, provides that for any violation of the Act DER may assess a civil penalty and that if the violation leads to the issuance of a cessation order, as Western Hickory's did, that "a civil penalty shall be assessed." The same section provides that the penalty shall not exceed $5,000.00 per day for each violation.

Western Hickory states two questions. The first owes more to legal theory and semantics than it does to the application of the law to the facts. After making extensive findings of fact based on the record, including a finding that Western Hickory had, contrary to law, mined an area not under permit and

[ 86 Pa. Commw. Page 565]

    that this was with the knowledge of its president and majority stockholder, EHB essentially upheld DER's assessment of the civil penalty and its amount. EHB began its review of DER's order with the phrase "[i]n general, our review of a DER action is to determine whether DER has committed an abuse of discretion or an arbitrary exercise of its duties or functions." EHB then decided that the fixing of the civil penalty at the amount of $5,000.00 was not an abuse of DER's discretion. It rejected out of hand Western Hickory's contention that no penalty at all should have been assessed on the ground that Section 18.4, as we have seen, ...


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