Black Rock Exploration Co., Inc. v. Department of Environmental Resources
| Decision Date | 14 February 1995 |
| Parties | BLACK ROCK EXPLORATION COMPANY, INC., Petitioner, v. DEPARTMENT OF ENVIRONMENTAL RESOURCES, Respondent. |
| Court | Pennsylvania Commonwealth Court |
Michael Halliday, for petitioner.
Jody Rosenberg, Asst. Counsel, for respondent.
Before PELLEGRINI and FRIEDMAN, JJ., and SILVESTRI, Senior Judge.
Black Rock Exploration Company, Inc. (Black Rock) appeals an order of the Environmental Hearing Board (Board) dismissing its appeal from an assessment of civil penalty issued by the Department of Environmental Resources (DER).
On March 12, 1993, Black Rock, a surface method coal mining company, received notice of an assessment of civil penalty from DER in the amount of three thousand, five hundred dollars ($3,500.00). The assessment notice alleged that Black Rock failed to store a twelve inch (12"') layer of topsoil at one of its mining sites as required by DER regulations. The notice also informed Black Rock that it had the right to appeal the assessment within thirty days to the Board. Regarding the payment of the assessed penalty and the appeals process, the notice specified as follows:
You must pay the civil penalty assessed herein in full within thirty (30) days of receipt of this Assessment, or if you wish to appeal the assessment, you must either forward the amount of the assessment to the Environmental Hearing Board for placement in an escrow account or you must forward an appeal bond to the Board in the amount of the assessment. The appeal, together with the escrow deposit or the appeal bond, must be filed with the Environmental Hearing Board within thirty (30) days of notice of this Assessment of Civil Penalty. THE PROCEDURES FOR APPEALING THIS CIVIL PENALTY ASSESSMENT, AS SET FORTH IN SECTION 18.4 OF THE SURFACE MINING ACT, 52 P.S. § 1396.22, AND SECTION 605(B) OF THE CLEAN STREAMS LAW, 35 P.S. § 691.605(b) MUST BE FOLLOWED OR THE RIGHT TO APPEAL THIS ASSESSMENT OF CIVIL PENALTY WILL BE WAIVED. Copies of the appeal form and the regulations governing practice and procedure before the Board may be obtained from the Board.
(R.R. 7a). (Emphasis in original).
By letter, Black Rock wrote to the Board requesting copies of its Notice of Appeal forms and a copy of the regulations governing practice and procedure before the Board. The Board, on March 25, 1993, when it received Black Rock's letter, docketed a "skeleton appeal" pursuant to 25 Pa.Code § 21.52(c) of its regulations which provides:
(c) An appeal which is perfected under this section but does not otherwise comply with the form and content requirements of § 21.51 will be docketed by the Board as a skeleton appeal. The appellant shall, upon request from the Board, file the required information or suffer dismissal of the appeal.
On March 31, 1993, the Board mailed Black Rock an order stating, in part, as follows:
AND NOW, this 31st day of March, 1993, upon consideration that Appellant Black Rock Exploration Co., Inc. has failed to perfect its appeal in that it has not supplied all of the information required by 25 Pa.Code § 21.51, it is ordered that on or before April 15, 1993, Black Rock Exploration Co., Inc. shall file the following information with the Board ...
(Emphasis added). (R.R. 9a).
The Board, in the order, required Black Rock to file a copy of the action being appealed, the date it received notification of said action, its objections, and an indication of party notification.
On April 15, 1993, Black Rock sent to the Board the information requested in the March 31, 1993 order, as well as, an appeal bond in the amount of $3,500.00. Thereafter, DER filed a motion to dismiss Black Rock's appeal to the Board asserting that Black...
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