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JOSEPH GEORGE v. COMMONWEALTH PENNSYLVANIA (11/13/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 13, 1986.

JOSEPH GEORGE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT

Appeal from the Order of the Environmental Hearing Board in the case of Joseph George v. Commonwealth of Pennsylvania, Department of Environmental Resources and Consolidation Coal Company, Permittee, Docket No. 84-223-G.

COUNSEL

Patrick McGinley, with him, William M. Baily, Thompson and Baily, for petitioner.

Daniel E. Rogers, Assistant Counsel, with him, Marc A. Roda, Assistant Counsel, for respondent.

President Judge Crumlish, Jr., and Judges Rogers and Barry, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 102 Pa. Commw. Page 88]

Joseph George appeals an Evironmental Hearing Board (Board) order dismissing his appeal and upholding the issuance of a Department of Environmental Resources (Department) subsidence control permit to Consolidation Coal Company (Consol) under the Bituminous Mine Subsidence and Land Conservation Act (Act).*fn1 We affirm in part, vacate in part and remand.

Pursuant to Section 5*fn2 of the Act, the Department issued the permit on June 7, 1984, authorizing Consol to conduct underground "longwall" mining*fn3 of the Pittsburgh coal seam, a portion of which underlies George's property. George's interest in his property includes ownership of a coal seam overlying the Pittsburgh seam and a surface stream and waterfall. The Board dismissed George's appeal without a hearing because it determined that his interest in the surface and subsurface features of the property were unprotected by the Act.

Our scope of review of a Board decision is limited to a determination of whether an error of law has been committed, constitutional rights have been violated or any findings of fact are unsupported by substantial evidence. Einsig v. Pennsylvania Mines Corp., 69 Pa. Commonwealth Ct. 351, 452 A.2d 558 (1982).

George initially contends that the Board erred in its determination that the Department had no duty under

[ 102 Pa. Commw. Page 89]

    the Act to consider the possible effects of subsidence upon his underlying coal seam. We disagree.

In the recent case of Culp v. Consol Pennsylvania Coal Co., 96 Pa. Commonwealth Ct. 94, 506 A.2d 985 (1986), we held that the legislature's use of the term surface lands within the Act constituted a conscious choice specifically not to grant subsurface owners protection under the Act. Inasmuch as the relevant federal regulations reveal no contrary intent,*fn4 we find Culp to be controlling. Thus, we hold that the Board committed no error of law in declining to consider the effects of subsidence upon George's coal seam.*fn5

George further maintains that the Act requires the Department to consider the effects of subsidence on his surface stream and waterfall.*fn6 He specifically contends

[ 102 Pa. Commw. Page 90]

    that the regulations*fn7 promulgated pursuant to the Act compel the Department to require that underground mining activities be planned and conducted so as to prevent damage to or the draining of perennial streams.*fn8 The Department counters that under the federal regulations in effect when the permit was issued, it was not required to consider subsidence effects on a perennial stream unless that stream was alleged to be a significant source of a public water supply.*fn9

We agree that at the time Consol's permit was issued, the OSM had promulgated a revised federal primacy subsidence control program which caused the Commonwealth to suspend its existing regulations.*fn10 Under the revised federal regulations, the prohibition of subsidence damage to surface features did not specifically

[ 102 Pa. Commw. Page 91]

    include perennial streams but did permit regulatory authorities to limit the amount of coal extraction beneath or adjacent to aquifers and other bodies of water which were a significant source of a public water supply. 30 C.F.R. ยง 817.121(d).*fn11 Therefore, we hold that the Department erred in failing to consider whether George's stream was a significant source of public water supply.*fn12 We believe George's failure to allege his stream as a significant source of a public water supply to be a de minimis error.

Accordingly, we affirm the Board's order in part, but vacate the order insofar as it determines that the Department was not required to consider evidence that George's stream was a significant source of a public water supply, and remand this case for such consideration.

Order

The Environmental Hearing Board order, No. 84-223-G dated December 3, 1984, is affirmed in part, vacated in part and remanded for a determination of whether George's stream and waterfall are a significant source of a public water supply.

Jurisdiction relinquished.

Disposition

Affirmed in part, vacated in part and remanded.


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