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Consol Pennsylvania Coal v. Department of Environmental Protection

June 30, 2011

CONSOL PENNSYLVANIA COAL COMPANY, LLC, PETITIONER
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
RESPONDENT



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Argued: April 5, 2011

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE LEAVITT

Consol Pennsylvania Coal Company, LLC petitions this Court to review an adjudication of the Environmental Hearing Board granting, in part, the appeal of Kenneth and Kim Jones from the Department of Environmental Protection's determination that their 2004 water loss complaint did not include two springs located on their property. The Board held that the Department's investigation should have included an inquiry into whether Consol was responsible for water loss in the two springs. Because the Board erred in finding that the Joneses' water loss claim for the springs was timely, we reverse.

The Joneses own a farm in Greene County consisting of two parcels of land identified for tax purposes as Lot 118A and Lot 118. The Joneses' home is located on Lot 118A, which is 1.5 acres in size. Lot 118 sits directly across the road and consists of approximately 62 acres of timberland, pasture, and a barn.

When the Joneses purchased the parcels in 1993, the only developed water source was a well on Lot 118A. The Joneses developed two springs on Lot 118 and use them to provide their animals with water. The spring developed in 1995 is called the "bathtub spring," which, as its name implies, consists of an old cast iron bathtub placed into the ground and fed from a spring by a plastic pipe. Another spring, developed in 2001 or 2002, is known as the "half-barrel spring," which is a half-barrel placed in the ground and fed by a small plastic pipe. The Board designated the bathtub spring as S2 and the half-barrel spring as S1.

The Bailey Mine is a large underground mine in Greene County that was developed to remove coal from the Pittsburgh coal seam. Consol holds the permit to Bailey Mine. In June 1996, Consol conducted a groundwater inventory of the Joneses' property because it sought to expand Bailey Mine's operations to coal located under the Joneses' farm. The only water source identified in Consol's inventory was the well on Lot 118A. In 2003, Consol retained Moody and Associates to conduct a pre-mining survey of the Joneses' property. Moody conducted pump tests of the original well on Lot 118A and a second well that had been drilled on Lot 118A in 2002. Moody neither identified nor inquired about any water sources on Lot 118.

In February 2004, the Joneses began experiencing a water loss in their wells and notified the Department and Consol. Consol arranged for water to be regularly trucked into the Joneses' farm until July 2006, at which time the Joneses' residence and barn were connected to the public water supply. Reproduced Record at 140a (R.R. ___). The Department investigated and determined that Consol was responsible for the water loss in the Joneses' wells.

In October 2007, the Joneses met with Consol to negotiate payment for their costs associated with the connection to the public water supply. The Joneses also inquired about being reimbursed for the costs associated with their loss of water from the S1 and S2 springs. Consol responded that it was only responsible for the costs associated with the loss of water from the wells because that was the only loss identified in the Joneses' 2004 water loss claim. Further, because more than two years had elapsed since the Joneses had experienced a loss of water from their springs, Consol believed the claim for loss of water from the springs was untimely.

The Joneses informed the Department that Consol refused to compensate them for the loss of water in the springs. In November 2007, the Department sent a letter to the Joneses advising them that because the S1 and S2 springs were never identified as existing prior to the commencement of mining operations, it did not have authority to resolve the Joneses' complaint. The Department treated the Joneses' 2007 claim as a separate water loss claim. The Joneses appealed Consol's denial of their water loss claim to the Board, and Consol intervened. A hearing was held on January 12, 2009.

The relevant testimony can be summarized as follows. Mrs. Jones testified that prior to Consol's pre-mining survey in 2003, the Joneses gave Consol permission to enter upon their land and identify all water sources; she believed that the springs had been identified in that survey. Mrs. Jones testified that when the Joneses lost water on February 12, 2004, she contacted the Department by telephone. A representative from the Department informed Mrs. Jones that she needed to contact Consol, and she did so.

Joseph Matyus, a geologic specialist in the Department's California District Mining Office, testified about his investigation of the Joneses' February 2004 water loss claim. Matyus recalled that Mrs. Jones mentioned the springs to him when he investigated the claim in January 2006. However, he did not believe the springs were relevant to his investigation because the complaint form given to him by Consol only identified a water loss in the Joneses' wells, and his records did not identify the existence of any springs.

The Department also offered the testimony of Joe Szunyog, a geologist at the California District Mining Office, who was assigned to investigate the springs. Szunyog authored the November 2008 letter stating the Department did not have authority to hold Consol liable for the water loss in the springs. Szunyog testified that he reached that determination because the springs were not documented as existing or used prior to mining and because there was no premining data on the springs.

Don Teter, a project engineer at Consol, testified. Teter testified that he spoke with Mrs. Jones on February 12, 2004, about the water loss claim. He recalled Mrs. Jones stating that the Joneses were experiencing a water loss and that their well had gone dry. Teter did not recall her mentioning that any other water supplies were also experiencing a water loss. He noted that typically landowners specify each water source that is experiencing a loss. Teter testified that he did not ask Mrs. Jones about any unidentified water sources because he believed the Joneses, as ...


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