decided: September 24, 1986.
RALPH M. BLOOM, JR., PETITIONER
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT
Appeal from the Order of the Environmental Hearing Board, in case of Ralph Bloom, Jr. v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 84-145-G.
Eugene E. Dice, for petitioner.
Diana J. Stares, Assistant Counsel, for respondent.
Judges Rogers and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Rogers dissents.
[ 101 Pa. Commw. Page 9]
Ralph M. Bloom, Jr. (petitioner) here requests a review of the order of the Environmental Hearing Board (Board) which dismissed his appeal from an order of the Department of Environmental Resources (Department).
The petitioner owns and operates a one-man underground coal mine in Somerset County. He has operated his mine since 1968 under a permit issued by the Department's predecessor. Pursuant, however, to the Clean Streams Law (CSL)*fn1 and the Surface Mining
[ 101 Pa. Commw. Page 10]
Conservation and Reclamation Act (Pa. SMA),*fn2 the Department issued a compliance order to the petitioner in April 1984, directing him to immediately cease his mining activities and to refrain from operating his mine until he had submitted a complete "repermitting" application.*fn3 This order also specified that, if the repermitting application was not received within sixty days, the petitioner would have to submit a reclamation plan within ninety days of the order.
[ 101 Pa. Commw. Page 11]
The Board denied the petitioner's request for supersedeas and subsequently issued the order here concerned. This Court, however, granted the petitioner's supersedeas application and, consequently, he is currently operating his mine pursuant to the 1968 permit.
On review, the petitioner presents several inter-related questions. In order, however, to resolve the ultimate question in this case, i.e., whether or not his coal mine must be repermitted, we must answer two basic questions: 1) whether or not the 1980 amendments to the CSL and the Pa. SMA and the regulations promulgated thereunder were intended to apply to small coal mining operations such as the petitioner's, and 2) whether or not the petitioner's mining operation is exempted from the repermitting requirements of the CSL by virtue of Section 315(l) of the CSL.
In regard to the first question, the petitioner argues that, because a federal court had held*fn4 that the requirements of the Federal Coal Mine Health and Safety Act of 1969*fn5 do not apply to his mine, the presence of identical definitional provisions in the Federal Surface Mining Control and Reclamation Act of 1977 (federal SMA)*fn6 precludes application of the federal SMA and the CSL and Pa. SMA to his operation. Inasmuch as the Department's compliance order does not reference the federal SMA, we express no opinion as to the applicability of that statute in the present case. We cannot agree with the petitioner, however, that the state statutes are inapplicable here.
[ 101 Pa. Commw. Page 12]
It is true, of course, that, in order to obtain primary jurisdiction (primacy) over coal mining operations within Pennsylvania from the federal government, the Commonwealth was required to meet certain minimum standards contained in the federal SMA.*fn7 Accordingly, the Commonwealth amended, inter alia, the CSL and the Pa. SMA.*fn8 Pursuant to these amendments, the Environmental Quality Board (EQB)*fn9 promulgated new regulations in 1982 (primacy regulations), which pertinently provide that:
[n]o persons may conduct coal mining activities except under permits issued pursuant to this chapter and in compliance with the terms and conditions of the permit and the requirements of this chapter, Chapter 87 (relating to surface mining of coal), Chapter 88 (relating to anthracite coal), Chapter 89 (relating to underground mining of coal and coal preparation facilities), and Chapter 90 (relating to coal refuse disposal), and the statutes pursuant to which they were promulgated.
25 Pa. Code § 86.13 (emphasis added).
The petitioner acknowledges that, to gain primacy, the Commonwealth only had to meet the minimum requirements of the federal SMA. And we note that
[ 101 Pa. Commw. Page 13]
Section 315(a) of the CSL pertinently provides that "[n]o person or municipality shall operate a mine . . . unless such operation . . . is authorized by the rules and regulations of the [D]department or such person or municipality has first obtained a permit from the [D]department." 35 P.S. § 691.315(a).*fn10 When read together, Section 315(a) and 25 Pa. Code § 86.13 clearly express a legislative and regulatory intent to require all ongoing, as well as any future coal mining activities,*fn11 to be conducted only under permits issued pursuant to the primacy regulations. Moreover, where, as in the instant case, the federal government has erected minimum standards regarding a joint federal-state program, a participating state is free to enact higher standards of its own. See Novak v. Unemployment Compensation Board Page 14} of Review, 73 Pa. Commonwealth Ct. 148, 457 A.2d 610 (1983). The petitioner's mining operation is bound, therefore, by Pennsylvania's more demanding statutory and regulatory provisions subjecting, without exception, all coal mining operations within the Commonwealth to the repermitting requirements of the primacy regulations.*fn12
The petitioner alternatively contends that he is exempted from the repermitting requirements of the CSL by virtue of subsection (l) of Section 315 of that statute, which provides:
The requirements of this section shall not apply to lands on which mining operations are being conducted on August 3, 1977, or under a permit issued pursuant to the Act, or where substantial legal and financial commitments as they are defined under § 522 of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. § 1201 et seq.), in such operation were in existence prior to January 4, 1977.
35 P.S. § 691.315(l) (emphasis added). The petitioner argues that, because his mine was in operation before August 1977, the use of the word "section" in subsection (l) indicates that the repermitting provisions of Section 315 do not apply to his mine.
The Department responds that subsection (l) applies on its face only to the matter of designating land areas as being unsuitable for mining and does not create an exception to the repermitting requirements.
We agree with the Department on this matter, because subsection (l) is directed to specified lands, not to
[ 101 Pa. Commw. Page 15]
mining operations. It would be, we believe, contrary to logic to exempt land from the repermitting requirements, which are designed to control certain activities conducted on the land, i.e., mining operations. We further believe, therefore, that the only logical reading of subsection (l) is in conjunction with subsections (h), (i), (j), (k), (m) and (n) of Section 315, all of which are concerned with the identification and designation of land areas as being unsuitable for mining and the protection of such lands from mining. We conclude, therefore, that the petitioner's mine is not exempt from Section 315's repermitting requirements by virtue of subsection (l).*fn13
Accordingly, we hold that, in order to continue to legally operate his coal mine, the petitioner must comply with the primacy repermitting procedures as ordered by the Department*fn14 and we will, therefore, affirm the order of the Board.
And Now, this 24th day of September, 1986, the order of the Environmental Hearing Board in the above-captioned matter is affirmed.
Judge Rogers dissents.