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TRACEY MINING COMPANY ET AL. v. COMMONWEALTH PENNSYLVANIA ET AL. (07/15/88)

decided: July 15, 1988.

TRACEY MINING COMPANY ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS



Original Jurisdiction Appeal in the case of Tracey Mining Company, Twelve Vein Coal Company, G. B. Mining Coal Company, T.A.G. Coal Company, M & R Coal Company, Burnside Mining Company, Greenwood Mining, F & S Coal Company, Rothermel Coal Company, Burnrite Coal Company and Post Coal Company No. 2 v. Commonwealth of Pennsylvania, Department of Environmental Resources and Roger Hornberger, Acting Mine Manager, Bureau of Mining and Reclamation, and the Pennsylvania Environmental Hearing Board.

COUNSEL

Eugene E. Dice, for petitioners.

Amy L. Putnam, Assistant Counsel, for respondent, Department of Environmental Resources.

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

Author: Mcginley

[ 117 Pa. Commw. Page 629]

The Commonwealth of Pennsylvania, Department of Environmental Resources (DER) has filed preliminary objections to a Petition for Review seeking injunctive relief filed under our original equity jurisdiction by twelve anthracite deep mine coal operators (Petitioners).

[ 117 Pa. Commw. Page 630]

A request for a preliminary injunction was denied by this Court by Memorandum and Order dated December 10, 1987 and Petitioners have appealed that determination to the Pennsylvania Supreme Court. Specifically, Petitioners, all small anthracite deep mine coal operators, seek to enjoin the DER from enforcing certain regulations promulgated pursuant to the Surface Mining Conservation and Reclamation Act (SMCRA);*fn1 the Clean Streams Law;*fn2 the Coal Refuse Disposal Act;*fn3 the Bituminous Mine Subsidence and Land Conservation Act of 1966;*fn4 and The Administrative Code of 1929.*fn5 Petitioners allege in Count I of their Petition for Review that the DER has enacted a regulatory program which exceeds and therefore violates the statutory provisions of both the state and federal versions of the SMCRA.*fn6 In Count II, Petitioners similarly allege that the DER violated the state SMCRA and state Clean Streams Law*fn7 by enacting new regulations and therefore

[ 117 Pa. Commw. Page 631]

    failing to preserve existing Pennsylvania law. In Count III, Petitioners allege that the DER in promulgating the challenged regulations, failed to consider the difference between bituminous and anthracite mining, therefore violating 4.2(g) of the state SMCRA.*fn8 Petitioners have withdrawn count IV. In Count V, Petitioners allege that the civil penalty provisions*fn9 do not provide for a jury trial and therefore violate the Seventh Amendment to the United States Constitution. Also, Petitioners allege that the Environmental Hearing Board (EHB) does not have the power to overturn state statutes, therefore Petitioners are denied an adequate administrative remedy. The DER preliminarily objects to this Court's jurisdiction to hear and decide the Petition for Review arguing that Petitioners have failed to exhaust their administrative remedies by challenging the aforementioned statutes and regulations before the EHB where several appeals by certain petitioners of penalty assessments are pending. The DER also preliminarily objects on the ground that Petitioners have failed to state a claim upon which relief can be granted.

In response to DER's preliminary objections Petitioners first contend that their situation is factually identical to the situation in Arsenal Coal Company v. Commonwealth Department of Environmental Resources, 505 Pa. 198, 477 A.2d 1333 (1984) wherein our Supreme

[ 117 Pa. Commw. Page 632]

Court held that Commonwealth Court did have equity jurisdiction to resolve a pre-enforcement challenge to a regulatory scheme promulgated by the Environmental Quality Board applicable to the anthracite industry. Specifically, in Arsenal, the Court found that the statutorily provided administrative remedies available to the anthracite industry to test the regulations were inadequate because that avenue of review would involve ...


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