The opinion of the court was delivered by: Judge Cohn Jubelirer
Submitted: October 17, 2008
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.
This case involves application of The Bituminous Mine Subsidence and Land Conservation Act (Act).*fn1 Maple Creek Mining, Inc. (Maple Creek) petitions for review of the February 19, 2008 order (2008 Order) of the Environmental Hearing Board (Board), which denied its Motion for Approval of an Alternate Financial Vehicle (Motion) and directed it to pay individual Respondents, Fred W. Lang, Joyce E. Schuping, Delores Helquist, and Sherry Wisman (brothers and sisters who are collectively referred to as Landowners), $406,125.36, representing the present value of the increased operating and maintenance costs for a pond owned by Landowners (Lang Pond), within twenty days of the order. Maple Creek challenges the conclusion that it is required to make a lump-sum payment, and also argues that the Board erred by not applying the financial vehicle it proposed. Landowners and the Department of Environmental Protection (Department) argue that Maple Creek failed to file its Motion in a timely manner.
Review of the procedural history of this case is crucial for understanding the exact issues before this Court. The Board's 2008 Order denying Maple Creek's Motion is premised on another order of the Board, dated January 12, 2006 (2006 Order), which was issued following an adjudication of claims brought by Maple Creek and Landowners. The claims brought by Maple Creek and Landowners related to damage that Maple Creek's mining activities caused to Lang Pond in August 1999. The Board's adjudication accompanying the 2006 Order established remediation efforts that Maple Creek needed to implement and required Maple Creek to maintain a specific water level on Lang Pond. Toward this end, the Board directed Maple Creek to: pay Landowners $406,125.36 (which represented the present value of the annualized increased operation and maintenance costs for Lang Pond, as calculated by the Board); or, alternatively, submit to the Board, within thirty days of the date of the order, an alternative financial vehicle for payment of the maintenance and upkeep costs.*fn2
Both Maple Creek and Landowners appealed the 2006 Order. Maple Creek did not initially file its Motion in response to the Board's 2006 Order but, instead, on February 6, 2006, filed a Petition to Amend the Board's 2006 Order as Final (Petition to Amend the 2006 Order) and a Petition to Stay. Maple Creek argued that the amendment was necessary because:
resolution of... what is the proper "multiplier" now will substantially enhance the ultimate termination of this dispute simply because until the proper "multiplier" is known, Maple Creek submits it is not possible to finally decide on what the proper mechanism should be to "secure" that such an amount is available-simply put, the proper mechanism for funding a mechanism with a principal of, e.g., $900,000 or $150,000, will be substantially different than an appropriate mechanism funding a much larger principal, such as $400,000 or greater."
(Maple Creek Memorandum in Support of Petition to Amend the 2006 Order at 4.) Maple Creek further argued "[t]hat the Landowners contend that the principal amount to be 'funded' is almost twice what the Board has determined clearly dictates that the multiplier issue should be resolved before any further attention is paid to the issue of a 'funding mechanism.'" (Maple Creek Memorandum in Support of Petition to Amend the 2006 Order at 4 n.2.) Pursuant to the Petition to Amend the 2006 Order, the Board amended its order to certify the order for permissive appeal. Additionally, both the Board and this Court issued orders staying the proceedings before the Board during the pendency of the appeal.*fn3
Maple Creek and Landowners raised a variety of issues before this Court in their respective appeals of the Board's 2006 Order.*fn4 Consistent with Maple Creek's Memorandum in Support of its Petition to Amend, most of these issues related in some manner to the Board's determination of what multiplier to apply when calculating the present value of the ongoing maintenance and operation costs. This Court decided these issues in its memorandum opinion in Maple Creek Mining, Inc. v. Lang, Nos. 650 and 693 C.D. 2006, slip op. (Pa. Cmwlth., filed December 28, 2006). In relevant part, we concluded that:
[W]e first note that a mine operator whose mining operations have impacted a private or public water supply "shall restore or replace the affected supply with an alternate source which adequately services in quantity and quality the premining uses of the supply or any reasonably foreseeable uses of the supply." 52 P.S. § 1406.5a(a)(1).*fn5 Additionally, a mine operator must provide a "permanent alternate source where the contamination, diminution or interruption does not abate within three years of the date on which the supply was adversely affected." 52 P.S. § 1406.5b(b)(2) (emphasis added). The regulations provide that "the operator shall provide for the permanent payment of the increased operating and maintenance costs of the restored or replaced supply." 25 Pa. Code § 89.145a(f)(5)(ii).
Maple Creek argues that substantial evidence supports the conclusion that it has fulfilled its statutory and regulatory responsibilities. It argues that the record shows that the water supply "has been temporarily established through minimal augmentation and will be permanently re-established within the next 8-10 years." (Maple Creek's Br. at 20.) Both its expert, William Wright, and the Department's expert agree that streams naturally heal to premining flows. Maple Creek also argues that the operator is only responsible for the increased O&M costs until Landowners' needs are met and, so, the Department should create a mechanism to return the unused increased O&M costs. Accordingly, Maple Creek claims the Board erred in imposing costs in perpetuity.
The Department argues that the issue was waived because Maple Creek failed to raise it in their post-hearing briefs. We agree that the issue was waived. 25 Pa. Code § 1021.131(c) (provi[di]ng that "[a]n issue which is not argued in a post[-]hearing brief [before the Board] may be waived.")
Even if not waived, statutory and regulatory provisions, as well as precedent, that Maple Creek fails to mention, undermine its argument. Section 5.2(b)(2) of the Act requires a "permanent alternate source" of water, in a case such as this one, where the diminution has not abated within three years. Similarly, the regulations require the mining operator to provide for the permanent payment of any increase in operating and maintenance costs. 25 Pa. Code § 89.145a. Additionally, our Court, in Carlson Mining Company v. Department of Environmental Resources, 639 A.2d 1332, 1336-37 (Pa. Cmwlth. 1994), applied a similar provision in the Surface Mining Conservation and Reclamation Act to require the operator to, in perpetuity, pay the increased maintenance costs.
This issue ends up being one of credibility and substantial evidence, and, as correctly pointed out by the Department, the Board's ...