Kerry Coal Co. v. Commonwealth

425 A.2d 46, 56 Pa. Commw. 364, 15 ERC (BNA) 1758, 1981 Pa. Commw. LEXIS 1096

• Court: Commonwealth Court of Pennsylvania
• Decided: January 29, 1981
• Docket: Appeal, No. 731 C.D. 1979
• Status: Published

Opinions

Opinion by

Judge Wilkinson, Jr.,

Petitioner appeals from an order of the Environmental Hearing Board (Board) upholding conditions imposed by respondent Department of Environmental Resources (Department) on petitioner’s surface mining operations. We reverse and remand.

On April 15, 1977 petitioner applied to the Department for an amendment to a 1975 mine drainage permit and on June 28, 1977 for a surface mining permit in order to conduct surface mining operations at a proposed site in Lawrence County. The proposed mining site is adjacent to McConnell’s Mill State Park. On July 7, 1977 the Department issued the surface mining and mine drainage permits authorizing the surface mining, subject to the condition that it not affect any area within 300 feet of McConnell’s Mill State Park unless a variance is first obtained from the Department.

Petitioner filed timely appeals from the imposition of the condition. The board dismissed petitioner’s appeals and ruled that Section 4.2(c) of the Surface Mining Conservation and Reclamation Act (Act), Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. §1396.4b(c), required petitioner to obtain a variance from the Department prior to conducting surface mining operations within 300 feet of McConnell’s Mill State Park.¹

Section 4.2(c) of the Act, 52 P.S. §1396.4b(c) provides in pertinent part:

[N]o operator shall open any pit for surface mining operations (other than borrow pits for highway construction purposes) within one hundred feet of the outside line of the right-of-way of any public highway or within three hundred feet of any occupied dwelling house, unless released by the owner thereof, or any public building, school, park or community or institutional building or within one hundred feet of any cemetery, or of the bank of any stream. The secretary may grant operators variances to the distance requirements herein established where he is satisfied that special circumstances warrant such exceptions and that the interest of the public and landowners affected thereby will be adequately protected. (Emphasis supplied.)

In its appeal to this Court, petitioner contends that Section 4.2(c) of the Act does not require petitioner to obtain a variance prior to conducting surface mining operations within 300 feet of McConnell’s Mill State Park. Petitioner argues that the word “park” must be read as an adjective modifying the word “building” and that “park buildings” are the subject of the special statutory protection. We agree.

We believe that the legislature has shown its intention in this section to apply the restriction limitation of 100 feet when it refers to property or geographic lines, i.e., right of way of public highway, cemetery, or bank of any stream. On the other hand, the restriction is 300 feet when applied to structures, i.e., occupied dwelling house, any public building, school, park or community or institutional building. It is of further significance that the structures are grouped together. At oral argument counsel for the Department agreed the “community” could only be interpreted as “community building.”

Accordingly, we will enter the following

Order

And Now, January 29, 1981, the order of the Environmental Hearing Board, docketed to No. 77-083-C and 77-084-C, dated March 9, 1979, dismissing the appeals of Kerry Coal Company from the imposition by the Department of Environmental Resources of special conditions in Surface Mining Permit No. 41-36(A) and Mine Drainage Permit No. 3174SM3 (amended), is reversed. The record is remanded to the Environmental Hearing Board for the reissuance of Surface Mining Permit No. 41-36(A) and Mine Drainage Permit No. 3174SM (amended) consistent with this decision.

1 The Department also argues that Section 77.92(a)(5) of the Environmental Quality Board regulations, 25 Pa. Code §77.92(a)(5), prohibits mining within 300 feet of a park. This regulation uses the same language as Section 4.2(c) of the Act and has the same problem of interpretation as that section.