           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Consol Pennsylvania Coal Company,              :
LLC,                                           :
                       Petitioner              :
                                               :
              v.                               :
                                               :
Department of Environmental                    :
Protection,                                    :    No. 351 C.D. 2015
                       Respondent              :    Argued: November 16, 2015


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge
              HONORABLE MARY HANNAH LEAVITT, Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge


OPINION BY
PRESIDENT JUDGE PELLEGRINI                                  FILED: December 15, 2015


              Consol Pennsylvania Coal Company, LLC (Consol) petitions for
review of the order of the Environmental Hearing Board (Board) granting the
Department of Environmental Protection’s (Department) motion to dismiss as
moot Consol’s appeal from the Department’s issuance of a permit revision. For
the reasons that follow, we affirm the Board’s order.


                                               I.
              In connection with its operation of an underground bituminous coal
mine formerly known as the Bailey Mine1 in Greene County, Pennsylvania, Consol

       1
         Although the mine is now known as the Harvey Mine, it will be referred to as the Bailey
Mine as it was known as at all times relevant to this action.
applied to the Department for a permit revision seeking to conduct longwall
mining activities on 2,438.54 acres not covered by the initial permit.


                                         A.
             The permit application is governed by requirements developed by the
Department, including standards under the Department’s Module 8 regarding
“Hydrology / Baseline Biology” to ensure that streams which may be undermined
by applicants’ proposed mining activities are not adversely affected. (Reproduced
Record [R.R.] at 188a.) “Adverse effect” is a term of art meaning “mining induced
changes that may impair surface water quality.” (Id. at 85a.) With regard to
streams, such impairment includes loss of flow, more than 12% reduction in the
average biological score of a stream reach based on a comparison of pre- and post-
mining biological scores, and reductions in the length of certain intermittent or
perennial streams.


             Section 8.9 of the Module concerns “Potential Areas of Flow Loss
within the Stream” and instructs as follows:

             b. Using Form 8.8B, (Stream Delineation and
             Bioassessment Summary), include baseline information
             on fish and macroinvertebrate communities sufficient to
             delineate stream segments that qualify as “biologically
             diverse”, “biologically variable”, and point of first use
             based on the criteria and procedures outlined in
             Appendix A of the Technical Guidance Document “563-
             2000-655”.

             c. Provide an assessment of the condition of the
             macroinvertebrate community in each stream augment
             identified as “biologically diverse” in item b above, using
             Form 8.8C (Quantitative Multi-Habitat Bioassessment Of

                                          2
             Diverse Community) and 8.8D (Biometric And Total
             Biological Score Summary). Each assessment should
             consist of Form 8.8C documenting the results of each
             sampling event (minimum of two) and Form 8.8D
             documenting biometric calculations and calculation of
             the “Mean Total Biological Score.”           (Additional
             information on performing aquatic life use assessment is
             found in the Technical Guidance Document 563-2000-
             655.)


(R.R. at 202a.)2     Section 8.10 of Module 8 imposes substantially similar
requirements with regard to streams having gradients of 2% or less that will
undergo subsidence as a result of mining and therefore may result in pooling.


             Further, the Department’s Bureau of Mining Programs issued
Technical Guidance Document 563-2000-655, entitled “Surface Water Protection –
Underground Bituminous Coal Mining Operations” (Guide) to assist the Bureau’s
staff in reviewing underground mining applications and to “provide[ ] guidance to
the regulated community regarding how to comply with existing legal
requirements.”    (Id. at 84a.)   To this extent, the Guide provides procedures
governing “the Department’s manner of interpreting the existing legal
requirements applicable to surface water protection, and its recommended
approach for mine operators to comply with these existing requirements, in the
context of impacts on streams…caused by underground mining operations.” (Id. at
89a.)



        2
          None of the applicable regulations define the terms “biologically diverse” or
“biologically variable.”




                                          3
             Appendix B to the Guide discusses the Department’s Low Gradient
Stream Assessment Protocol which governs the sampling of biologically diverse
stream segments. Under the protocol, pre-mining sampling is performed to “assess
a stream’s level of use of attainment” and yields an aquatic life use attainment
score (biological score) that can be compared with post-mining samplings from the
same biological monitoring point to “assess the magnitude of mining-induced
change.” (Id. at 113a.)


             Among other requirements, the Guide mandates that the following
data be included in applications:

             (A) Delineation of all biologically diverse and
             biologically variable segments which are likely to
             experience mining induced changes during the five-year
             term of the permit.

             (B) At least 12 months of flow data for each stream
             that may be susceptible to mining induced flow loss
             within the first two years of the permit term.

             (C) At least one total biological score for each stream
             reach that is likely to experience mining induced flow
             loss or pooling within the first two years of the permit
             term.

             (D) At least one Wolman Pebble Count for each stream
             reach that is likely to experience mining induced pooling
             within the first two years of the permit term.

             (E) The identification of wetlands in areas that will be
             subsided or undermined at depths of less than 100 feet
             during the five-year term of the permit.




                                        4
(Id. at 106a107a.) The Guide cautions, “Permits that are issued with incomplete
sets of pre-mining data pursuant to…this section will normally include conditions
requiring permittees to complete data collection prior to the time a stream or
wetland is susceptible to mining induced changes.” (Id. at 107a.)


                                         B.
             Following Consol’s submission of its application for a permit
revision, the Department advised Consol by letter dated January 13, 2014, that its
application contained numerous deficiencies, including its failure to identify nine
stream segments for which biological monitoring points and biological data were
required. On January 23, 2014, Joel C. Folman, a Water Pollutant Biologist in the
Department’s District Mining Office, performed a site inspection of the expanded
mining area, after which he determined that information regarding four of the nine
missing segments should be included in the application.


             Accordingly, in February 2014, the Department issued a revised
permit granting Consol’s request to conduct longwall mining activities in the
expanded area subject to Special Condition No. 77, which stated: “The company
shall submit two Biological Monitoring (Appendix B) scores within 16 percent in
accordance to [the Guide]” with respect to the subject streams. (Id. at 13a.)


             By letter dated March 5, 2014, Consol satisfied Special Condition No.
77, submitting the required pre-mining biological data for the subject streams.
Nonetheless, on March 24, 2014, Consol filed an appeal asserting the following
grounds:



                                         5
       [Consol] is aggrieved by, objects to and appeals
from the Department’s action because the action is
arbitrary, capricious, contrary to law and constitutes an
abuse of discretion, in that, inter alia:

              (a) The imposition of Special Condition 77
is arbitrary, capricious, an abuse of discretion and
contrary to law;

            (b) The imposition of Special Condition 77
improperly modified a previously agreed to monitoring
plan and was unreasonably inserted as a Special
Condition shortly prior to revising [Consol]’s permit;

             (c) Special Condition 77 was imposed
without a factual or scientific basis;

            (d) Special Condition 77 imposes costly and
unnecessary monitoring requirements;

            (e) There exists no lawful basis for imposing
Special Condition 77;

             (f) The stream segments covered by Special
Condition 77 are not perennial for purposes of
Subchapter F of Chapter 89 of 25 Pa. Code and the
Department thus lacks the regulatory authority to impose
said condition;

              (g) By relying upon Technical Guidance
Document 563-2000-655, Surface Water Protection—
Underground Bituminous Coal Mining Operations, to
justify the imposition of Special Condition 77 the
Department has improperly imposed binding norms and
regulatory requirements through a guidance document in
violation of statutory rulemaking procedures; and

             (h) The Department’s pervasive use and
reliance on Technical Guidance Document 563-2000-
655,     Surface    Water    Protection—Underground
Bituminous Coal Mining Operations in establishing what
information permit applicants must submit and in the
Department’s review of applications for underground

                           6
               coal mining permits is arbitrary, capricious and contrary
               to law because the Department has imposed binding
               norms and regulatory requirements through a guidance
               document in violation of statutory rulemaking
               procedures.


(Id. at 3a.)


                                                C.
               On April 4, 2014, the Department issued another permit revision
removing Special Condition No. 77. It then filed a motion to dismiss Consol’s
appeal as moot, claiming that because the special condition which was the subject
of the appeal was removed, there existed no case or controversy for the Board to
adjudicate.


               In support of its motion, the Department submitted the affidavit of
Biologist Folman, who stated that he regularly conducts technical reviews of
permit applications for underground coal mines, conducts stream surveys, monitors
stream conditions, reviews wetland mitigation pans, and delineates wetlands.
Biologist Folman further attested that after Consol submitted the pre-mining
biological scores for the subject streams, “no further pre-mining biological data
was required or requested for those streams” and that the condition “did not require
Consol to submit any biological scores to establish post-mining stream conditions.”
(Id. at 31a.) Because Consol satisfied Special Condition No. 77, the Department
removed it through a subsequent permit revision. (Id. at 40a.)3

       3
        Intervenor, Center for Coalfield Justice, also filed a brief in support of the Department’s
motion to dismiss which raised substantially the same arguments as the Department raised.



                                                7
                In response, Consol contended that its appeal was not rendered moot
by the April 2014 revision because: (1) it still had potential future obligations
pursuant to Special Condition No. 77 insofar as the Department determines that the
subject streams suffered adverse effects as a result of its mining activities and
consequently requires it to collect post-mining biological data to compare with the
pre-mining data; (2) its appeal was premised on various grounds unrelated to
Special Condition No. 77; and (3) even if the removal of Special Condition No. 77
did moot the appeal, exceptions to the mootness doctrine apply. Alternatively,
Consol sought leave to file an amended notice of appeal under 25 Pa. Code
§1021.53(b).4


                In support of its opposition, Consol submitted the affidavit of Jaculyn
Duke, its Permitting Supervisor for its Pennsylvania Coal Operations, who stated
that Consol complied with Special Condition No. 77 “under protest” incurring
substantial monetary costs “so that it could ultimately receive the requested Permit
Revision 173.” (Id. at 131a.) According to Supervisor Duke, “notwithstanding the
removal of Special Condition No. 77 from the Bailey Permit, [Consol] is still

       4
           Regarding amendments to appeals:

                        After the 20-day period for amendment as of right, the
                Board, upon motion by the appellant or complainant, may grant
                leave for further amendment of the appeal or complaint. This
                leave may be granted if no undue prejudice will result to the
                opposing parties. The burden of proving that no undue prejudice
                will result to the opposing parties is on the party requesting the
                amendment.

25 Pa. Code §1021.53(b).




                                                8
subject to potential future obligations pursuant to the inclusion of additional
monitoring requirements required by Special Condition No. 77” because should the
Department determine that any of the subject streams were adversely impacted by
Consol’s mining activities, it “can impose post-mining biological monitoring
obligations on [Consol] using the data that [Consol] was required to collect
pursuant to Special Condition No. 77.” (Id. at 132a.)


              Consol also submitted a transcript of Biologist Folman’s deposition
during which he testified that he reviews permit applications submitted to the
Department for compliance with Module 8. In conjunction with his review of
Consol’s application, he performed a site inspection at which time he determined
that Consol’s application was insufficient because it failed to include biological
monitoring points for the subject streams.              To rectify the deficiency, the
Department imposed Special Condition No. 77.


              In response to a question regarding what would happen if, after
mining activities occurred, it were suspected that one of the subject streams had
been adversely impacted, Biologist Folman responded that he would compare
testing results for that stream to the results of a control stream.5 For those that
were required to be monitored as per Special Condition No. 77 and which were
impacted by mining activities, “[Consol] would be required to augment the flow
temporarily and go in and do repairs.” (Id. at 157a.) Further, under the Guide,

       5
        The Guide defines a “control stream” as a “stream that has not been affected by mining
induced changes and that is used as a reference for determining whether changes in a stream
being undermined are mining induced.” (Id. at 85a.)




                                              9
Consol would be required to do additional post-mining or post-restoration
biomonitoring under those streams. Biologist Folman conceded that had Consol
not complied with Special Condition No. 77, it would not have been permitted to
conduct longwall mining activities in the expanded area. He explained that after
Consol complied with the condition, it was struck as per standard Departmental
policy.


             Additionally, Consol relied upon several discovery responses it
received from the Department, including the following explanation of the
Department’s factual and scientific basis for Special Condition No. 77:

             In order to protect the hydrologic balance, provide
             adequate pre-mining hydrologic information and assure
             that fish, wildlife and related environmental values are
             protected from the adverse effects of [Consol]’s mining,
             [Consol] must sample, monitor and provide a pre-mining
             biological score within the diverse stream sections in
             order to accurately determine if streams have recovered
             to their pre-mining conditions after mining has
             occurred….”


(Id. at 264a) (emphasis added).


             Although the Department denied a request for admission stating that it
imposed a “continuing requirement” upon Consol to conduct biological monitoring
at the locations identified in Special Condition No. 77, its explanation stated that
Consol “will only be required to conduct biological monitoring at those locations
in the future if its mining results in the loss of flow or if the uses of the streams are
impaired.” (Id. at 289a.) Further, in response to a request for admission inquiring


                                           10
whether the same outcome would result even though Special Condition No. 77 was
struck, the Department provided the same explanation.


                                        II.
            Upon consideration of the evidence presented, the Board issued a
majority opinion granting the Department’s motion to dismiss, reasoning that
seven of the eight grounds stated in the notice of appeal were moot because they
concerned the timing of factual and scientific basis for cost of implementing and
the legal and regulatory basis for Special Condition No. 77:

            Consol’s contention that, notwithstanding its compliance
            with the condition and the subsequent removal of the
            condition from the permit, it may “still [be] subject to
            potential future obligations pursuant to the inclusion of
            additional monitoring requirements required by Special
            Condition No. 77” is clearly speculative, and ultimately
            inconsistent with the plain language of Special Condition
            77. (Consol’s Opp’n Br. Ex. B ¶ 23 (emphasis added).)
            Special Condition 77 required that Consol “shall submit”
            two Biological Monitoring scores in accordance with the
            Guid[e] for each of four stream segments “prior to the
            commencement of longwall mining.” (Notice of Appeal
            Ex. A (emphasis added).) The plain language of Special
            Condition 77 imposed only pre-mining obligations. That
            fact is not changed by speculation that the Department
            may compare the pre-mining information Consol
            submitted in response to Special Condition 77 to post-
            mining data obtained from Consol, or any other source.
            Consol acknowledges that it submitted the necessary
            information before filing its appeal. It has already
            complied with all obligations imposed by Special
            Condition 77.




                                        11
(2/12/15 Board Opinion and Order on Department’s Motion to Dismiss, at 11)
(internal footnote omitted). The Board further explained that even if these bases of
appeal were meritorious, it was unable to provide relief to Consol because it
already complied with the condition.


            To the extent Consol objected to the Department’s reliance on the
Guide, the Board explained that Consol failed to identify any manner in which the
Guide was used with regard to the Department’s issuance of the revised permit,
other than in the imposition of Special Condition No. 77 for which the appeal was
moot, and it declined to address in an abstract context the Department’s general
use of the Guide in reviewing permit applications for underground coal mining.


            Moreover, the Board determined that no exceptions to the mootness
doctrine applied because: Consol may challenge the propriety of any post-mining
requirements implemented at a later date when such an appeal is ripe; to the extent
the conduct complained of is capable of repetition but evades review, it evades
review only because Consol complied with Special Condition No. 77; and the
appeal does not constitute a matter of great public importance since the
Department did not take any enforcement action against Consol since Consol
willingly complied with Module 8 when it filed its applications.


            Finally, the Board denied Consol’s alternative request for leave to
amend its notice of appeal under 25 Pa. Code §1021.53(b) because it failed to
address the nature of its proposed amendment, the basis for permitting amendment
at that stage of the litigation, or how the amended appeal would differ from the



                                        12
instant appeal. Regardless, the Board concluded without explicating that Consol’s
motion was procedurally improper, finding that “Consol’s request to amend is
simply an attempt to pull its appeal back from the brink of mootness.” (Id. at 19).6
Subsequently, Consol filed a petition for reconsideration which was denied on the
basis that Consol failed to show a compelling or persuasive reason for the grant of
reconsideration pursuant to 25 Pa. Code §1021.152(a)7 determining that Consol

        6
          In a concurring opinion in which Judge Michelle Coleman joined, Judge Richard
Mather, Sr. wrote separately to question the Department’s decision to issue the revised permit
containing Special Condition No. 77, reasoning that: “It is well established that the Department
should not issue a permit before it completes its technical review of all required and necessary
materials in a permit application.” (2/12/15 Board Opinion and Order on Department’s Motion
to Dismiss, at 22.)

        On the other hand, Judge Bernard Labuskes, Jr. authored a dissenting opinion in which
Chief Judge Renwand joined, finding that the appeal should not have been dismissed for
mootness because a factual issue existed regarding the future impact Special Condition No. 77
will have on Consol. Specifically, the dissent explained:

                 It is true that there is nothing in these averments to suggest that
                 there is a 100 percent chance of a future impact. However, that is
                 too strict of a standard in deciding whether prudence compels us to
                 dismiss a case as moot in the context of a motion to dismiss. It is
                 no stretch at all for me to envision that Consol’s concern of
                 possible future effects is quite credible and Special Condition 77
                 will in effect have created future obligations that would not have
                 otherwise existed. It is certainly possible that nothing will ever
                 come from Special Condition 77. However, if that were the
                 standard for judging mootness, I suspect that many of the appeals
                 filed before the Board would be moot ab initio. Here, it is quite
                 possible that the Department’s action could have a lingering effect.
                 This possibility, far from remote, counsels in favor of erring on the
                 side of preserving Consol’s appeal rights.

(Id. at 30.)

        7
            The Board’s Regulations provide that:

(Footnote continued on next page…)

                                                 13
simply disagreed with the Board’s order and sought to reargue its case.8 This
appeal followed.9




(continued…)

              (a) …Reconsideration is within the discretion of the Board and will
              be granted only for compelling and persuasive reasons. These
              reasons may include the following:

                     (1) The final order rests on a legal ground or a factual
              finding which has not been proposed by any party.

                      (2) The crucial facts set forth in the petition:

                              (i) Are inconsistent with the findings of the Board.

                             (ii) Are such as would justify a reversal of the
              Board’s decision.

                            (iii) Could not have been presented earlier to the
              Board with the exercise of due diligence.

25 Pa. Code 1021.152(a)(1)(2).

       8
         Again, Chief Judge Renwand and Judge Labuskes dissented from the Board’s denial of
Consol’s petition for reconsideration because “Consol’s petition illuminates the fact that the
majority’s decision on the motion to dismiss ‘rests on a legal ground or a factual finding which
has not been proposed by any party.’” (2/12/15 Board Opinion and Order on Department’s
Motion to Dismiss, at 10.)

       9
         In reviewing decisions by the Board, we are limited to determining whether the Board
committed an error of law, violated constitutional rights, or whether substantial evidence
supports its findings of fact. Joseph J. Brunner, Inc. v. Department of Environmental Protection,
869 A.2d 1172, 1173 n. 2 (Pa. Cmwlth.), appeal denied, 885 A.2d 44 (Pa. 2005).




                                                14
                                       III.
                                        A.
            Consol first contends that the Board erred in rejecting as speculative
Consol’s averments that the Department could and would use the pre-mining
biological data collected pursuant to Special Condition No. 77 to Consol’s
detriment by comparing it with post-mining data, and based upon that comparison,
mandating reparative measures.     By doing so, Consol argues that the Board
improperly shifted the burden to it to establish that post-mining obligations would
arise.


            The Department’s motion to dismiss was adjudicated pursuant to 25
Pa. Code §1021.94, providing in pertinent part:

            (e) An affidavit or other document relied upon in support
            of a dispositive motion or response, that is not already a
            part of the record, shall be filed at the same time as the
            motion or response or it will not be considered by the
            Board in ruling thereon.

            (f) When a dispositive motion is made and supported as
            provided in this rule, an adverse party may not rest upon
            mere allegations or denials of the adverse party’s
            pleading or its notice of appeal, but the adverse party’s
            response must set forth specific issues of fact or law
            showing there is a genuine issue for hearing. If the
            adverse party fails to adequately respond, the dispositive
            motion may be granted against the adverse party.


25 Pa. Code § 1021.94(e)(f).




                                        15
            In accordance with this Regulation, both the Department and Consol
relied upon documents outside of the pleadings, bringing the motion to dismiss
within the purview of 25 Pa. Code §1021.94(f). Consol was not entitled to “rest
upon mere allegations or denials” once the Department supported its claim that the
appeal was moot with credible evidence. At this point, the burden shifted to
Consol to show that a genuine issue existed. The Board was not required to accept
and did not accept Consol’s general averments that harm would result.
Accordingly, there is no merit in Consol’s argument that the Department’s motion
should have been dismissed based upon Consol’s statement of facts alone.


                                        B.
            Next, Consol argues that the Board erred in determining that its appeal
was rendered moot by its satisfaction of and the Department’s subsequent removal
of Special Condition No. 77.


            1.     The Scope of the Appeal Before the Board
            In this regard, Consol claims that its appeal before the Board was not
limited to the imposition of Special Condition No. 77 but challenges:

            the timing of the imposition of the Special Condition 77,
            the regulatory authority (or lack thereof) for imposition
            of Special Condition 77, the Department’s use and
            reliance upon the [Guide] to impose binding norms and
            regulatory requirements on [Consol], and the
            Department’s pervasive use of the [Guide] in the
            permitting process.




                                        16
(Br. for Petitioner, at 30.) Notwithstanding the Special Condition 77, Consol
contends that these issues remain ripe for adjudication.


             The action from which Consol appealed was the Department’s
issuance of the revised permit granting Consol’s application subject to Special
Condition No. 77. And once it was removed by the Department, the relief it
requested in its appeal was obtained.      While Consol allegedly challenges the
Department’s general use of and reliance on the Guide, Consol has not asserted
with any specificity how or why the Department’s use of the Guide is
unauthorized.   In any event, the Guide was only used to purportedly impose
Special Condition No. 77, and once it was removed, Consol was no longer
purportedly aggrieved by the Department’s use of the Guide in reviewing its
permit application.


             Moreover, a plain reading of Consol’s notice of appeal to the Board
supports the same conclusion. Of the eight bases asserted, the first seven of them
expressly challenge the condition on various grounds.        The eighth ground,
challenging the Department’s reliance on the Guide for determining and evaluating
the contents of permit applications clearly pertains only to Special Condition No.
77, as no other bases have been asserted and since the revised application was
granted in all other respects. Therefore, should we find that Consol’s compliance
with Special Condition No. 77 and the Department’s subsequent withdrawal of it
moots the appeal, there remain no independent bases of review.




                                         17
             2.    Relief Available to Consol
             Consol also asserts that the Board erred in concluding that it could
provide no relief to Consol because the Board could reverse the Department’s
determination that the subject streams qualify as “perennial” or “perennial-diverse”
and, therefore, that they are subject to the pre-mining biological monitoring
requirements. Further, Consol suggests that if the Board renders such a finding, it
could preclude the Department from using this data for comparison purposes in the
future.


             Generally, “[t]he Court will dismiss an appeal as moot unless an
actual case or controversy exists at all stages of the judicial or administrative
process.” Horsehead Resource Development Co. v. Department of Environmental
Protection, 780 A.2d 856, 858 (Pa. Cmwlth. 2001) (en banc), appeal denied, 796
A.2d 987 (Pa. 2002). “[T]he existence of a case or controversy requires a real and
not a hypothetical legal controversy and one that affects another in a concrete
manner so as to provide a factual predicate for reasoned adjudication, with
sufficiently adverse parties to sharpen the issues for judicial resolution.” City of
Philadelphia v. Southeastern Pennsylvania Transportation Authority (SEPTA), 937
A.2d 1176, 1179 (Pa. Cmwlth. 2007) (en banc). The key inquiry in determining
whether a case is moot is whether the court or agency will be able to grant
effective relief and whether the litigant has been deprived of the necessary stake in
the outcome of the litigation. Al Hamilton Contracting Co. v. Department of
Environmental Resources, 494 A.2d 516, 518 (Pa. Cmwlth. 1985).




                                         18
            In support of its position, Consol cites Al Hamilton Contracting Co., a
case in which the Department inspected a company’s operations and found that an
underdrain was plugged with silt and other debris. Following the inspection, the
Department directed the company to clean the drain as provided in the inspection
report. A subsequent inspection revealed that the underdrain was still plugged and,
consequently, an abatement order mandating that the company clean the drain was
issued. The next inspection revealed that the company complied with the initial
directive and the abatement order. Nonetheless, the company filed an appeal from
the abatement order, contending that it lacked a factual basis and was arbitrary and
capricious, among other grounds. However, noting that the order had been fully
complied with and finding that it could grant no relief to the company, the Board
dismissed the appeal as moot.


            On appeal, this Court affirmed the ruling that in and of itself, the
company’s challenge to the order was moot, reasoning:

            While sums of money may have been expended, the
            clean up is now complete. Had [the company] seriously
            questioned the propriety of the abatement order it could
            have requested a stay pursuant to [Department]
            regulation 21.76, 25 Pa. Code § 21.76. This it failed to
            do. Thus, it took the clean-up action at its own risk that
            such action would not, in fact, be found to be legally
            required. The fact that [the company] was deprived of
            property without a hearing because of its compliance
            with the abatement order does not justify ignoring the
            fact that the appeal is moot with respect to the injury of
            expenditure of time and money to achieve compliance
            with the abatement order.




                                        19
Id. at 518. Likewise, we rejected the company’s argument that its appeal was not
moot because a civil penalty had been assessed against it, determining that a
separate cause of action enabled the company to challenge whether a violation
actually occurred and the amount of the penalty, thus depriving it of a stake in the
current litigation.


              Nonetheless, the company highlighted that in assessing future civil
penalties, the Department considers prior violations and that by denying the
company an opportunity to litigate the propriety of the underlying abatement order,
the Department subjected the company to the enhanced penalty provision in 25 Pa.
Code §86.194.         To this extent, we agreed with the company’s claim that it
maintained a stake in the litigation.


              However Al Hamilton Contracting Co. is inapplicable here because
Consol is not faced with an abatement order that can be used against it
cumulatively in the future to assess penalties. Indeed, Consol has not yet been
confronted with an order requiring it to undergo any actions due to the adverse
effects its longwall drilling has caused the subject stream segments. The only
requirements the Department imposed on Consol were those in Special Condition
No. 77, which has been withdrawn and, therefore, “no longer exists.” Horsehead
Resource Development Co. v. Department of Environmental Protection, 780 A.2d
856, 858 (Pa. Cmwlth. 2001) (en banc) (citing with approval the Board’s position),
appeal denied, 796 A.2d 987 (Pa. 2002). As such, “the Board cannot provide
meaningful relief with regard to it.” Id.




                                            20
            Moreover, the Board is authorized only to exercise the powers which
have been expressly conferred upon it by statute or provided by necessary
implication. Pequea Township v. Herr, 716 A.2d 678 (Pa. Cmwlth. 1998). In this
regard, Section 4 of the Environmental Hearing Board Act provides:

            (a) General rule.--The board has the power and duty to
            hold hearings and issue adjudications under 2 Pa.C.S. Ch.
            5 Subch. A (relating to practice and procedure of
            Commonwealth agencies) on orders, permits, licenses or
            decisions of the department.

            (b) Powers continued.--The board shall continue to
            exercise the powers to hold hearings and issue
            adjudications which (powers) were vested in agencies
            listed in section 1901-A of the act of April 9, 1929 (P.L.
            177, No. 175), known as The Administrative Code of
            1929.


Act of July 13, 1988, P.L. 530, 35 P.S. §7514(a)(b).             Aside from this
authorization, the Board does not have equitable powers and cannot enjoin the
Department from taking action which it has not yet taken. See Pequea Township,
716 A.2d at 686. In other words, the Board’s power is limited to adjudicating
actual orders or decisions of the Department, not anticipatory ones.


            To the extent Consol points to the future harm that may result from
the Department’s use of the pre-mining biological data it supplied, Consol is not
without a remedy. In the event the Department does use the data for comparison
purposes with post-mining data from the same biological points, determines that
those comparisons yield differences beyond the maximum allowances, and




                                        21
consequently, requires Consol to undertake additional monitoring, testing or
reparative measures, Consol may appeal the Department’s order at that time.


             In this respect, we find the instant case akin to Horsehead Resource
Development Co. v. Department of Environmental Protection, 780 A.2d 856 (Pa.
Cmwlth. 2001) (en banc), 796 A.2d 987 (Pa. 2002). In this case, a producer
marketed a mineral aggregate as a sub-base in road construction. The producer
and Department entered a consent decree in a federal district court establishing a
protocol for the producer to apply for Department concurrence as to the status of
the aggregate for proposed uses, and the producer sought concurrence regarding
use of the aggregate for road building.       However, the Department found the
application deficient, and the producer requested numerous extensions, after which
the Department granted an indefinite extension. The producer did not file any
further documents.


             Subsequently, after learning that the producer sold the aggregate to
two purchasers for the purposes of road building, the Department issued
compliance orders to the purchasers, directing them to cease use of the product on
the basis that it constituted “waste” under the Solid Waste Management Act, Act of
July 7, 1980, P.L. 380, as amended, 35 P.S. §§6018.1016018.100, and to submit
plans regarding removal of the component. Both purchasers appealed, as did the
producer. Ultimately, the first purchaser complied with the order, and the second
entered into a consent decree with the Department resulting in the Department’s
rescission of the orders and the purchasers’ withdrawal of their appeals.




                                         22
             The Department filed a motion to dismiss the producer’s appeal,
claiming that because the Department withdrew its compliance orders, the Board
could no longer provide relief to the producer and, therefore, that the issue was
moot. Alternately, the producer argued that it remained aggrieved because the
orders negatively impacted its ability to market its aggregate.


             The Board explained that its power to grant relief was not negated by
the Department’s withdrawal of its compliance orders because the producer’s
“interest in the outcome remained, and the Board could decide whether the
[Department] abused its discretion in issuing the compliance orders in the first
place.” Horsehead Resource Development Co., 780 A.2d at 85758. However,
the Board noted that the producer also filed an administrative proceedings request
for a beneficial use determination by the Department with respect to the aggregate.
As such, the Board reasoned that although it had jurisdiction to determine the
marketability of the aggregate within the scope of the company’s appeal, it would
benefit from the Department’s “exercise of its greater expertise initially in setting
forth the scientific issues to resolve the question of marketability” and, therefore,
would abstain from deciding the matter because a simultaneous administrative
proceeding was pending. Id. at 858. The Board emphasized that it would entertain
an appeal from the Department’s ruling, though.


             On appeal, this Court affirmed the Board’s ruling, finding the appeal
moot because “[t]he Board could not have ordered any relief in regard to the
rescinded orders” as per the test under Al Hamilton Contracting Co.               Id.
Moreover, we continued:



                                         23
             the fact remains that under the circumstances of this
             particular case [the producer] has available to it a
             procedure for securing a reviewable determination of the
             status of [the aggregate]. Under the terms of the pre-
             existing consent decree, to which [the producer] freely
             agreed in the federal proceeding and which must be given
             full faith and credit in state courts…[the producer] may,
             and in fact is required to, complete the coproduct
             submission to [the Department].              A negative
             determination would be subject to appeal to the Board,
             and the Board’s determination would be subject to
             review by this Court….

Id. at 85960.


             The concept that the Department action no longer exists because it
was withdrawn applies with equal force here. Indeed, to find that Consol will be
harmed, we must assume that Consol will adversely affect the subject stream
segments beyond the extent permitted, that the Department will order post-mining
biological data, compare the pre- and post-mining biological scores, detect an
excessive change, and order Consol to take action. Doing so requires us to engage
in pure conjecture, an invitation we reject.


                                          C.
             Moreover, Consol contends that even if the instant appeal is moot, the
Board erred in finding that none of the exceptions to the mootness doctrine apply.
Even where an appeal is technically moot, “where the conduct complained of is
capable of repetition yet likely to evade review, where the case involves issues
important to the public interest or where a party will suffer some detriment without
the court’s decision,” a court may proceed to address the merits of a claim. Sierra



                                          24
Club v. Pennsylvania Public Utility Commission, 702 A.2d 1131, 1134 (Pa.
Cmwlth. 1997) (en banc), aff’d, 731 A.2d 133 (Pa. 1999).


             To come within the purview of the first exception, the appellant must
establish that: (1) “the duration of the challenged action is too short to be fully
litigated prior to its cessation or expiration”; and (2) “there is a reasonable
expectation that the same complaining party will be subjected to the same action
again.” Philadelphia Public School Notebook v. School District of Philadelphia,
49 A.3d 445, 449 (Pa. Cmwlth. 2012). In this case, Consol argues that “the next
time [it] submits a permit application or permit revision application that involves
mining under a stream, there is nothing to prevent the Department from requiring
biological monitoring in a future longwall mining application” and that the
Department may wait to impose such requirements until the eleventh hour. (Br. for
Petitioner, at 4041.) Essentially, Consol argues that the Department will impose a
dubious special condition at the last moment, making it impractical for a permit
applicant to appeal because of the financial pressure to begin mining operations.


             Regardless, because the biological data has not yet been employed by
the Department to require any future action, the imposition of Special Condition
No. 77 does not evade review. As discussed above, the basis (or lack thereof) for
the condition and the timing of its imposition may be challenged if and when the
Department takes further action.     Moreover, should Consol be subjected to a
similar condition again in the future, it can secure instant adjudication by appealing
the condition immediately rather than first complying with it to ensure that the
condition is not withdrawn. As such, Consol has failed to demonstrate that the



                                         25
Department’s action satisfies the elements of the first exception to the mootness
doctrine.


             Nonetheless, Consol argues that this Court should adjudicate its
appeal because it involves a matter of great public importance. Essentially, the
crux of Consol’s argument is that the Department exceeded its authority by
imposing Special Condition No. 77 in reliance on the Guide. This argument does
not implicate a matter of great public importance. After all, Special Condition No.
77 was handcrafted by the Department to address the deficiencies that were unique
to Consol’s application for a permit revision, insofar as the Department found that
Consol failed to address four stream segments in its application. Special Condition
No. 77, around which this appeal is based, is a unique condition applying only to
Consol and does not implicate concerns of great public importance.


             Finally, Consol asserts that it will suffer a detriment in the absence of
this Court’s ruling on its appeal because “the Department can later use the data that
it impermissibly required [Consol] to collect in crafting and imposing post-mining
requirements” thereby imposing further costs on Consol. (Br. for Petitioner, at 43.)
As explained above, should the Department actually impose future requirements
with regard to the pre-mining data Consol supplied, Consol may appeal the
Department’s order at that time, thereby allowing it to seek review when the issue
is ripe. As such, Consol has not established that it will suffer a detriment if it is
forced to wait until it suffers an actual harm to seek review.




                                          26
                                        D.
            Consol alleges that the Board’s order and opinion deny Consol its
constitutionally protected right of due process to seek judicial review because it
had no reasonable choice but to satisfy Special Condition No. 77 because,
otherwise, its mining efforts would have been substantially delayed, resulting in
possible damage to its equipment, potentially requiring the termination of its 435-
member workforce and rendering it unable to meet its contractual obligations.


            While those factors were taken into consideration by Consol in not
challenging Special Condition No. 77, these difficulties are not so unlike those
faced by every litigant. Indeed, every appeal takes time to resolve, and during the
adjudication process, the parties are often uncertain of their respective rights and
obligations pending a final decision. While Consol had competing interests at
play—namely, a workforce to compensate, contractual obligations to fulfill,
equipment to maintain, and work to begin so as not to suffer from lost profits on
the one hand versus allegedly unauthorized conditions to challenge on the other
hand—the decision as to how to prioritize those interests rested exclusively with
Consol. Obviously, it could have purchased new equipment, terminated its work
force, foregone certain profits, and paid liquidated damages for any resultant
breaches of contract had it desired to appeal the Department’s imposition of
Special Condition No. 77 immediately.        We do not question the wisdom of
Consol’s decision in this regard but only emphasize that just because Consol was
forced to make a choice with regard to litigation strategy does not mean that it was
deprived of its due process rights.    While procedural due process guarantees
“adequate notice, the opportunity to be heard, and the chance to defend oneself



                                        27
before a fair and impartial tribunal having jurisdiction over the case,”
Commonwealth v. Turner, 80 A.3d 754, 764 (Pa. 2013), it does not guarantee a
party’s right to have its cake and eat it, too.


                 In its brief, Consol forewent any analysis of the elements of
procedural due process,10 instead relying upon legal conclusions that it was denied
a meaningful opportunity to seek review and redress of governmental action.
However, what it ignores is if and when its appeal ripens, it will be afforded such
an opportunity.


                                                 E.
                 Alternatively, Consol asserts that the Board erred in denying its
request for leave to amend its notice of appeal, which was contained within its
response to the Department’s motion to dismiss and not filed separately. Noting
that the Department did not object to its request, Consol argues that the Board
should have overlooked its technical deficiencies in accordance with 25 Pa. Code
§1021.411 and granted it leave to file an amended notice of appeal.

       10
           The Fourteenth Amendment provides in pertinent part, “nor shall any State deprive any
person of life, liberty, or property without due process of law….” U.S. Const. amend. XIV, §1.
Pennsylvania courts “examine procedural due process questions in two steps: the first asks
whether there is a life, liberty, or property interest that the state has interfered with; and the
second examines whether the procedures attendant to that deprivation were constitutionally
sufficient.” Turner, 80 A.3d at 764.

       11
            Regarding the construction and application of rules:

                 The rules in this chapter shall be liberally construed to secure the
                 just, speedy and inexpensive determination of every appeal or
                 proceeding in which they are applicable. The Board at every stage
(Footnote continued on next page…)

                                                 28
              In urging this Court to apply 25 Pa. Code §1021.4, Consol overlooks
the express language of 25 Pa. Code §1021.53(b), providing that leave to amend an
appeal may be granted only if “no undue prejudice will result to the opposing
parties” and that the burden of proving the same rests upon the party requesting
amendment. 25 Pa. Code §1021.53(b). Regardless of its technical deficiencies,
Consol’s request for leave to amend contained a substantive deficiency insofar as it
failed to provide any facts or averments demonstrating that the requested relief
would not result in prejudice to the Department. Although the Department may
not have formally opposed the request,12 Consol and not the Department bore the
burden of establishing a lack of prejudice, and it failed to satisfy its burden in this
regard. 25 Pa. Code §1021.53(b).


              Accordingly, we affirm the Board’s order dismissing Consol’s appeal
as moot.




                                              DAN PELLEGRINI, President Judge


(continued…)

              of an appeal or proceeding may disregard any error or defect of
              procedure which does not affect the substantial rights of the
              parties.

25 Pa. Code §1021.4.

       12
         It is questionable whether the Department was required to oppose the request since the
request was not presented in a separate motion and, therefore, a response was not necessary
under 25 Pa. Code §1021.91.



                                              29
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Consol Pennsylvania Coal Company,      :
LLC,                                   :
                       Petitioner      :
                                       :
            v.                         :
                                       :
Department of Environmental            :
Protection,                            :
                       Respondent      :   No. 351 C.D. 2015




                                  ORDER


            AND NOW, this 15th       day of December, 2015, the order of the
Environmental Hearing Board in the above-captioned case is affirmed.




                                       DAN PELLEGRINI, President Judge
