HORSEHEAD RESOURCE DEVELOPMENT v. DEP

• Decision Date: 18 July 2001
• Citation: 780 A.2d 856
• Parties: HORSEHEAD RESOURCE DEVELOPMENT COMPANY, INC., Petitioner, v. PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent.
• Court: Pennsylvania Commonwealth Court

780 A.2d 856

HORSEHEAD RESOURCE DEVELOPMENT COMPANY, INC., Petitioner, v. PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent.

Commonwealth Court of Pennsylvania.

Argued December 6, 2000.

Decided July 18, 2001.

John P. Krill, Jr., Harrisburg, for petitioner.

Fayling Leung, Wilkes-Barre, for respondent.

Before DOYLE, President Judge, COLINS, McGINLEY, SMITH, PELLEGRINI, FLAHERTY and LEADBETTER, Judges. SMITH, Judge.

Horsehead Resource Development Company, Inc. (Petitioner) petitions for review of an order of the Environmental Hearing Board (Board) that (1) granted a motion by the Department of Environmental Protection (DEP) to dismiss an appeal filed by Petitioner after DEP withdrew compliance orders against two other parties and they withdrew their appeals and (2) denied Petitioner's motion to reschedule a hearing on the merits of its appeal, which requested a ruling on the issue of the status of a material that Petitioner sells for road building applications. Petitioner questions whether an administrative board that has been given the statutory power and duty to hear appeals of administrative agency orders may refuse to hear an appeal on the basis of the administrative board's "discretionary abstention." DEP's counter-statement of the questions involved includes whether Petitioner's appeal should be dismissed as moot.

Petitioner produces a mineral aggregate known as "iron-rich material" (IRM), which it has marketed for various applications, including as a subbase in road building. A consent decree entered November 13, 1995 in Federal District Court established a protocol for Petitioner to apply for DEP concurrence as to the status of IRM for particular proposed uses, which procedure Petitioner followed in regard to several other uses of IRM. Petitioner filed a request with DEP for a concurrence that IRM used as a subbase in road construction is an unregulated product or coproduct, which Petitioner may market freely. DEP sent Petitioner a "deficiency letter" in regard to this request pursuant to terms of the consent decree. After Petitioner requested several extensions for responding, DEP finally agreed to extend the time for responding indefinitely, and Petitioner never filed anything further. Nevertheless, in late 1996 DEP learned that IRM had been used by Tuthill Corporation d/b/a Blue Mountain Ski Area (Blue Mountain) and Towamensing Township (Township) for road paving projects.

On December 4, 1996, DEP issued compliance orders under the Solid Waste Management Act (SWMA), Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§ 6018.101—6018.1003, to Blue Mountain and the Township directing them to cease using IRM, which had been sold to them by Petitioner, and to submit plans for the removal of IRM that had been used, based upon DEP's position that IRM was a "waste" subject to regulation under the SWMA. Blue Mountain and the Township appealed those compliance orders to the Board. Petitioner also appealed, considering itself to be aggrieved by the potential negative impact on its ability to market IRM. The Township complied to DEP's satisfaction, and DEP rescinded the compliance order as to the Township, which withdrew its appeal. Blue Mountain and DEP entered into a consent decree; DEP rescinded that compliance order, and Blue Mountain withdrew its appeal. Petitioner did not settle, and DEP moved to dismiss on the grounds that appeal of the compliance orders was now moot and that the Board lacked jurisdiction because the orders had been withdrawn and the Board could no longer afford effective relief to Petitioner.

The Board stated that once jurisdiction attaches, a tribunal is not divested of it by the ordinary occurrence of subsequent events and that jurisdiction is the power of a tribunal to enter upon an inquiry, rather than a question of whether the tribunal may grant relief in a particular case. Get Set Organization v. Philadelphia Federation of Teachers, Local No. 3, 446 Pa. 174, 286 A.2d 633 (1971). Further, it stated that its power to grant relief was not negated by DEP's withdrawal of the compliance orders; Petitioner's interest in the outcome remained, and the Board could decide whether DEP abused its discretion in issuing the compliance orders in the first place. Nevertheless, the Board noted that Petitioner had filed administrative proceedings requesting a beneficial use determination for IRM from DEP.

Analogizing to cases where federal courts abstained from deciding matters where there were ongoing state court or administrative proceedings, the Board stated that it had jurisdiction to determine the marketability of IRM within the scope of Petitioner's appeal; however, the Board would benefit from DEP's exercise of its greater expertise initially in setting forth the scientific issues to resolve the question of marketability. Petitioner would be free to appeal from an adverse ruling by DEP. The Court's review of the Board's order is limited to determining whether there was a constitutional violation or an error of law and whether the findings are supported by substantial evidence. Westinghouse Electric Corp. v. Pennsylvania Department of Environmental Protection, 745 A.2d 1277 (Pa.Cmwlth.2000).

The Court turns first to DEP's contention that this case should be dismissed as moot. The Court will dismiss an appeal as moot unless an actual case or controversy exists at all stages of the judicial or administrative process. Cytemp Specialty Steel Div., Cyclops Corp. v. Pennsylvania Public Utility Commission, 128 Pa.Cmwlth. 349, 563 A.2d 593 (1989). Exceptions have been made to this principle where conduct complained of is capable of repetition yet likely to evade judicial review, where the case involves issues of great public importance or where one party will suffer a detriment without the court's decision. Id. DEP and Petitioner both cite Al Hamilton Contracting Co. v. Department of Environmental Resources, 90 Pa.Cmwlth. 228, 494 A.2d 516 (1985), where the Court stated that the appropriate inquiry in determining whether a case is moot is whether a litigant has been deprived of the necessary stake in the outcome or whether the court or agency will be able to grant effective relief. In that case a...