Appeal from the Order of the Department of Environmental Resources in the case of James E. Martin v. Commonwealth of Pennsylvania, Department of Environmental Resources, No. EHB Docket No. 86-567-R.
Eugene E. Dice, for petitioner.
Kenneth T. Bowman, Assistant Counsel, with him, Zelda Curtiss, Assistant Counsel, for respondent.
Judges MacPhail and Smith, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Smith. This decision was reached prior to the resignation of Judge MacPhail.
[ 120 Pa. Commw. Page 264]
Petitioner James E. Martin (Martin) appeals from the April 28, 1987 decision and order of the Environmental Hearing Board (Board) granting the Department of Environmental Resources' (DER) motion to dismiss Martin's appeal of a September 10, 1986 compliance order issued by DER. The decision of the Board is affirmed.
Questions presented for review are whether the Board improperly denied Martin's due process rights in dismissing his appeal without a hearing on the merits and whether the Board abused its discretion in refusing to consider Martin's defenses to the compliance order.
On September 10, 1986, DER issued its compliance order alleging that backfilling equipment needed to complete restoration of the affected surface coal mining site operated by Martin in Kittanning Township, Armstrong County, had been removed by Martin from the mining site. Martin was consequently cited for violation of 25 Pa. Code § 87.141(d).*fn1 The order directed Martin to place backfilling equipment on the site for completion of the restoration and required him to use only operable equipment. Previously, on March 13, 1985, DER forfeited all of Martin's collateral and surety bonds on his property for failure to comply with an October 18, 1983 consent order and agreement between DER and Martin. The consent order required Martin to update erosion and sedimentation controls at the mining site by December 5, 1983.
[ 120 Pa. Commw. Page 265]
Martin appealed the September 10, 1986 compliance order asserting that notwithstanding his compliance with the 1983 consent order and his excused delay under the force majeure clause contained therein, DER illegally failed to renew his mining license.*fn2 Additionally, Martin claimed that the failure by DER to renew his mining license forced him to cease mining, whereupon he was rendered insolvent and unable to maintain the equipment at the mining site.*fn3 DER filed a motion to
[ 120 Pa. Commw. Page 266]
dismiss the appeal contending that Martin's force majeure claim was barred since the applicability of the force majeure clause had been previously adjudicated. The Board determined on April 10, 1986 that because of Martin's violation of the notice requirement, he was not entitled to relief under the force majeure clause of the consent order.*fn4 Following supplemental answer by Martin to the motion to dismiss, the Board, on April 28, 1987, granted DER's motion to dismiss. Martin thereafter appealed to this Court.*fn5
Martin argues here that the Board denied him due process by improperly dismissing the appeal without a hearing on the merits thereby depriving him of an opportunity to establish that DER's illegal conduct forced him from the mining business. Moreover, Martin contends that the Board improperly applied the doctrine of collateral estoppel since the appeal issues pertained to DER's January 4, 1984 non-appealable letter rather than the Board's April 10, 1986 decision. In his answer to the motion to dismiss, Martin alleged, inter alia, that the Board's April 10, 1986 order was not conclusive since the force majeure claims presented to the Board involved different permit areas and different facts. ...