Appeal from PETITION FOR REVIEW
Anthony P. Picadio, Esq.; Gary P. Hunt, Esq., TUCKER, ARENSBERG, P.C., PITTSBURGH, PA. 15222 for PETITIONER.
Marc A. Roda, Esq., Asst. Counsel, Harrisburg, Pa. 17110 for DER.
E. J. Strassburger, Esq., Pittsburgh, Pa. 15222; Daniel E. Rogers, Esq., Pittsburgh, Pa. 15241; Charles J. Avalli, Esq., STRASSBURGER, MCKENNA, MESSERS SHILIBOD AND GUTNICK, Pittsburgh, Pa. 15222 for RESPONDENT.
Before: Joseph T. Doyle, Madaline Palladino, Jacob Kalish, Senior Judge
The Department of Environmental Resources (DER) issued a permit to Console Pennsylvania Coal Company (Consol) to conduct deep mining activities in the Pittsburgh Seam of Coal.*fn1 John F. Culp, III (Culp) owns 400 acres of land above the area covered by Consol's permit. Culp appealed the issuance of the permit, alleging that its issuance was invalid because DER abused its discretion by not requiring Consol to comply with Section 5(e) of the Act, which requires an applicant to demonstrate that it will not endanger the surface land.*fn2 Culp's interest in the 400 acres includes ownership of coal seams that lie above the Pittsburgh seam.
Consol contested Culp's standing to appeal. The Environmental Hearing Board (Board) held that Culp had standing to appeal since the interest he seeks to protect is arguably within the zone of interest sought to be protected or regulated by statute. We agree. His allegations show a substantial, immediate and direct threat. William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975).
The major issue before us is whether DER, in failing to enforce restrictions to protect Culp's coal seam from subsidence, abused its discretion.
In strictly construing the Act on its face, the Board held that the Act's purpose was not to protect subsurface coal seams; rather, its purpose was to protect surface land and structures, such as buildings, residences, or cemeteries.
In Pennsylvania, where a mineral estate has been separated from the surface, the mineral estate must support the superincumbent estate, except where there is some release of the obligation of support. Lennox Coal Co. v. Duncan-Spangler Coal Co., 265 Pa. 572, 109 A. 282 (1920). Section 5(e) of the Act does not create such a release, expressly or by implication. It is even doubtful that such a provision in the Act would be lawful. It is one thing to have the parties mutually agree to such a provision, but quite another to have a person's right to support interfered with by an act of the legislature.
However, in view of the specific provisions of Section 5(e) referring to measures to protect subsidence and maximize stability of mines, in addition to use of the surface land, the interpretation given by the Board is too narrow. Certainly, a reasonable interpretation of maximizing mine stability includes a consideration of a seam of coal sitting on top of a seam that is mined. This interpretation is consistent with Section 5(e) which provides for "the reasonable foreseeable use of surface land." The intent is to preserve this land for future generations. ...