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KENT COAL MINING COMPANY v. COMMONWEALTH PENNSYLVANIA (11/15/88)

decided: November 15, 1988.

KENT COAL MINING COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



Appeal from the Order of the Environmental Hearing Board, in the case of Kent Coal Mining Company v. Commonwealth of Pennsylvania, Department of Environmental Resources, EHB Docket No. 86-433-R, issued December 3, 1987.

COUNSEL

Henry McC. Ingram, Rose, Schmidt, Chapman, Duff & Hasley, with him, Thomas C. Reed, Buchanan Ingersoll, P.C., for petitioners.

Katherine S. Dunlop, Assistant Counsel, with her, Barbara H. Brandon, Assistant Counsel, for respondent.

Judges Craig and McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 121 Pa. Commw. Page 150]

Kent Coal Mining Company (Kent Coal or the company) appeals from an order of the Environmental Hearing Board (EHB or the board) that assessed a civil penalty against the company.

The issue is whether the statute that empowered the Department of Environmental Resources (DER or the department) to assess civil penalties in cases such as this modified the doctrine of finality of administrative decisions so as to permit a company to challenge the fact of the violation as well as the amount of the fine in an appeal from the assessment order, even though the company did not timely appeal from the earlier compliance order arising from the same alleged violation.

Kent Coal is a company authorized to conduct surface mining in Pennsylvania. After an inspection of a mine operated by Kent Coal, DER issued Compliance Order 85-E-420-S to Kent Coal on October 11, 1985. The compliance order alleged that Kent Coal had violated 25 Pa. Code § 87.129(19), relating to air blast calibration requirements, because the company's blasting records did not record air blast calibrations for certain

[ 121 Pa. Commw. Page 151]

    blasting activities conducted during September and October of 1985. The compliance order directed Kent Coal to record air blast calibrations and to cause its next five blast detonations to be seismographed by an independent seismograph company. Kent Coal did not appeal from the compliance order at that time.

On November 1, 1985, DER notified Kent Coal that DER was proposing to assess a $420 civil penalty for the alleged violation covered by the compliance order and informed Kent Coal that it could request a conference to discuss the proposed penalty. A conference was held on January 15, 1986. DER issued a final assessment of the civil penalty against Kent Coal for its alleged violation of the air blast calibration requirement on August 4, 1986, at the same docket number as the October compliance order.

Kent Coal appealed to the Environmental Hearing Board from the August 4, 1986, order on August 29, 1986, and deposited the amount of the penalty into an escrow account. In its appeal, Kent Coal challenged both the amount of the civil penalty and the fact of the alleged violation of the air blast calibration requirement.

DER filed a "Motion to Limit Issues" contending that, because Kent Coal had elected not to appeal from the compliance order within thirty days of its issuance, the company was precluded from litigating the issue of whether it had violated the air blast calibration requirement in its appeal from DER's assessment of the civil penalty.

In its answer to DER's motion, Kent Coal argued that section 18.4 of the Surface Mining Conservation and Reclamation Act (SMCRA),*fn1 the section empowering

[ 121 Pa. Commw. Page 152]

DER to assess civil penalties for violations of that Act or of rules, regulations, orders or conditions of permits issued pursuant to that Act, and 25 Pa. Code § 86.202(a), a regulation promulgated to implement section 18.4, expressly entitled the company to challenge whether a violation had occurred at the same time that it challenged the amount of the civil penalty.

EHB granted DER's motion on September 3, 1987, concluding that the statute on which Kent Coal relied was ambiguous and that the interpretation that the company advanced would violate the well established doctrine of finality of ...


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