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BENJAMIN COAL COMPANY v. COMMONWEALTH PENNSYLVANIA (08/13/86)

decided: August 13, 1986.

BENJAMIN COAL COMPANY, PETITIONER
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, 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.

COUNSEL

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.

Author: Craig

[ 100 Pa. Commw. Page 2]

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

[ 100 Pa. Commw. Page 3]

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

[ 100 Pa. Commw. Page 4]

    jurisdiction, § 761 of the Judicial Code, 42 Pa. C.S. § 761, we may permanently enjoin DER from enforcing 25 Pa. ...


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