decided: August 13, 1986.
BENJAMIN COAL COMPANY, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, NICHOLAS DEBENEDICTIS, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENVIRONMENTAL RESOURCES; AND ALL OTHERS ACTING ON THEIR BEHALF, RESPONDENTS
Original Jurisdiction in the case of Benjamin Coal Company v. Commonwealth of Pennsylvania, Department of Environmental Resources, Nicholas DeBenedictis, in his capacity as Secretary of the Department of Environmental Resources; and all others acting on their behalf.
Stephen C. Braverman, with him, John M. Elliott and Charles E. Gutshall, Of Counsel: Baskin, Flaherty, Elliott & Mannino, P.C., for petitioner.
Richard P. Mather, Assistant Counsel, for respondents.
Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Craig.
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During 1983 and 1984, the Benjamin Coal Company obtained numerous surety bonds from the Union Indemnity Insurance Company of New York, and filed them with the Department of Environmental Resources (DER), as required by section 4(d) of the Pennsylvania Surface Mining Conservation and Reclamation Act.*fn1
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By letter dated September 18, 1985, DER notified Benjamin that the New York Supreme Court, on July 16, 1985, had directed the Superintendent of Insurance for the State of New York to take over and liquidate Union Indemnity. In that letter, DER ordered Benjamin to replace within ninety days the approximately $2,000,000 surety bond coverage which the latter had obtained from Union Indemnity. DER stated that, "[f]ailure to replace bond(s) will result in suspension or revocation of the permit(s) and such other compliance as deemed necessary."
DER issued that order under 25 Pa. Code § 86.165(b), which provides:
If a surety company who had provided surety bonds, . . . fails in business, enters into bankruptcy or liquidation, or has its license suspended or revoked, the Department will issue a notice of violation to the permittee requiring that all affected permits be rebonded according to the requirements of this subchapter and, if the permittee fails to correct the violation within 90 days of such notice, the Department will issue a cessation order for all of the permittee's permit areas and thereafter take such action as may be appropriate.
Benjamin has filed a petition for review of DER's September 18 order,*fn2 contending that, within our original
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jurisdiction, § 761 of the Judicial Code, 42 Pa. C.S. § 761, we may permanently enjoin DER from enforcing 25 Pa. Code § 86.165(b) against Benjamin.
DER requests that we sustain its preliminary objections to that petition questioning our jurisdiction.
DER first contends that, because it has not yet taken any action requiring Benjamin to replace the bonds, no justiciable case or controversy presently exists. However, the Supreme Court has stated that a challenge to industry regulations is justiciable in advance of enforcement where the effect of that regulation is "direct and immediate." Arsenal Coal Co. v. Pennsylvania Department of Environmental Resources, 505 Pa. 198, 209, 477 A.2d 1333, 1339 (1984).
In its petition for review, Benjamin has alleged that, if the court permits DER to enforce the challenged regulation, Benjamin's ability to continue in business will be directly and immediately affected; specifically, "[i]t will be forced to cease operations, default on its contractual obligations and lay off its employees. It will be unable to complete its reclamation obligations."
We must accept as true all well-pleaded facts and reasonable inferences which may be deduced therefrom in determining the legal sufficiency of preliminary objections. Insurance Adjustment Bureau v. Insurance Commissioner for the Commonwealth of Pennsylvania, 86 Pa. Commonwealth Ct. 491, 485 A.2d 858 (1984). Because Benjamin has alleged direct and immediate harm, it has presented a justiciable controversy to this court.
Berger v. Pennsylvania Department of Environmental Resources, 42 Pa. Commonwealth Ct. 206, 400 A.2d 905 (1979), cited by DER, is inapposite to the present case. There, the appellant landowners sought a predecision review of the procedure by which DER was evaluating an application for a permit to construct and operate
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a sanitary landfill. We sustained DER's preliminary objection that the petition for review was premature because DER's refusal to consider the factors suggested by the appellants did not constitute an appealable determination.*fn3 However, DER here has clearly announced its intention to enforce the regulation as to Benjamin if the company fails to provide replacement bonds within ninety days of DER's September 18 letter.
DER's second contention is that, before filing its petition for review, Benjamin failed to exhaust its administrative remedies. We agree.
In Arsenal, 505 Pa. at 208, 477 A.2d at 1338, the Supreme Court stated that, although the Commonwealth Court may, in its original jurisdiction, conduct a pre-enforcement review of the validity of an agency-promulgated regulation, nevertheless "a court of equity . . . must refrain from exercising its jurisdiction when there exists an adequate statutory remedy."
Under the facts of Arsenal, the court concluded that piecemeal application and enforcement of the challenged regulation to the plaintiffs, fifty-five coal mine operators and producers, would result in ongoing uncertainty in day-to-day business operations in clear contravention of legislative intent.
However, in the present case, we conclude that an adequate statutory remedy does exist. Under section 1921-A of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 510-21,
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Benjamin may appeal to the Environmental Hearing Board and simultaneously seek a supersedeas, which, if granted by the board, would preclude DER from enforcing the challenged regulation before Benjamin has had the opportunity of challenging its validity and application to Benjamin.
That section specifically provides:
(a) The Environmental Hearing Board shall have the power and its duties shall be to hold hearings and issue adjudications under the provisions of . . . the 'Administrative Agency Law,' on any order, permit, license or decision of the Department of Environmental Resources.
(c) Anything in any law to the contrary notwithstanding, any action of the Department of Environmental Resources may be taken initially without regards to the Administrative Agency Law, but no such action of the department adversely affecting any person shall be final as to such person until such person has had the opportunity to appeal such action to the Environmental Hearing Board ; provided, however, that any such action shall be final as to any person who has not perfected his appeal in the manner hereinafter specified.
(d) An appeal taken to the Environmental Hearing Board from a decision of the Department of Environmental Resources shall not act as a supersedeas, but, upon cause shown and where the circumstances require it, the department and/or the board shall have the power to grant a supersedeas. (Emphasis added.)
71 P.S. § 510.21.
Because we conclude that Benjamin has failed to exhaust its administrative remedies, we do not address
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DER's third preliminary objection that Benjamin has failed to state a cause of action against DER in its petition for review.*fn4
Benjamin's petition for review is dismissed. Accordingly, the outstanding order, dated December 20, 1985, which granted the preliminary injunction, as amended by order dated December 24, 1985, is dissolved.
Now, August 13, 1986, the preliminary objection of the Department of Environmental Resources challenging the Commonwealth Court's original jurisdiction is sustained and the petition for review filed by Benjamin Coal Company is dismissed, and the outstanding order, dated December 20, 1985, which granted the preliminary injunction, as amended by order dated December 24, 1985, is dissolved.
Preliminary objections sustained. Petition dismissed. Preliminary injunction dissolved.