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TWELVE VEIN COAL COMPANY v. COMMONWEALTH PENNSYLVANIA (07/21/89)

decided: July 21, 1989.

TWELVE VEIN COAL COMPANY, PETITIONER,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



PETITION FOR REVIEW (ENVIRONMENTAL HEARING BOARD).

COUNSEL

Eugene E. Dice, Harrisburg, for petitioner.

Mary Martha Truschel, Asst. Counsel, Harrisburg, for respondent.

Crumlish, Jr., President Judge, and Craig, Doyle, Barry, Colins, Palladino and Smith, JJ.

Author: Doyle

[ 127 Pa. Commw. Page 431]

Before us for consideration is a petition for review of an order of the Environmental Hearing Board (EHB) filed by Twelve Vein Coal Company (Coal Company). In that order, EHB granted the motion of the Department of Environmental Resources (DER) to dismiss the Coal Company's appeal of a civil penalty assessed by DER against the Coal Company.

On May 21, 1987, DER assessed a three thousand dollar ($3,000.00) civil penalty against the Coal Company for mining without a permit pursuant to Section 18.4 of the Pennsylvania Surface Mining Conservation and Reclamation

[ 127 Pa. Commw. Page 432]

Act*fn1 (SMCRA), 52 P.S. § 1396.22, and Section 605 of the Pennsylvania Clean Streams Law,*fn2 (CSL) 35 P.S. § 691.605. Both of these provisions provide for a right of appeal to EHB from DER's penalty assessment. In order to perfect an appeal pursuant to these sections, however, the party appealing must either forward the amount of the penalty to EHB for placement in an escrow account or post an appeal bond in the amount of the penalty. If it is determined, through administrative or judicial review of the civil penalty assessed, that no violation occurred or the penalty is reduced, DER is required to return the appropriate amount of money to the appellant with accumulated interest. The assessment document received by the Coal Company herein included instructions for filing and perfecting an appeal.

On June 22, 1987, the Coal Company filed an appeal from the civil penalty assessment with EHB. However, the Coal Company failed to perfect its appeal by either forwarding the amount of the penalty or posting an appeal bond in that amount.*fn3 Thereupon, DER filed a motion to dismiss the

[ 127 Pa. Commw. Page 433]

Coal Company's appeal to EHB on the ground that its failure to perfect the appeal deprived EHB of jurisdiction. EHB granted the motion to dismiss by order dated March 15, 1988. This petition for review followed.

The Coal Company is a small anthracite deep mine coal operator. It alleges in its petition for review that it was unable to comply with the statutory appeal procedure requiring that it post an appeal bond or prepay the amount of the civil penalty because of its poor financial condition. Due to this alleged inability to comply with the appeal procedure, the Coal Company was unable to perfect its appeal, which resulted in the dismissal of the appeal by EHB. The Coal Company therefore asserts that it has no legal remedy ...


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