Opinion
2022-054-B 2022-046-B
05-23-2023
BRIAN TELEGRAPHIS v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and WASHINGTON COUNTY LAND RESOURCES INC., Permittee
OPINION AND ORDER ON APPELLANT'S MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND ON THE DEPARTMENT'S AND PERMITTE'S MOTIONS FOR SUMMARY JUDGMENT
STEVEN C. BECKMAN Chief Judge and Chairperson
Synopsis
The Board denies the Motions for Partial Summary Judgment filed by the Appellant and further denies the Department's and Permittee's Motions for Summary Judgment where there are disputed material facts of record concerning the nature of the underground hours worked and whether those operations conducted constituted underground mining operations in accordance with the regulatory definition resulting in no party having a clear case for summary judgment.
OPINION
Background
Brian Telegraphis ("Mr. Telegraphis") owns and resides in his home located at 1570 Walters Street, Monongahela, PA 15063 ("the Dwelling"). The Dwelling is partially located above the Maple Creek Mine, an inactive bituminous coal mine. The Maple Creek Mine was operated by Maple Creek Mining, Inc. from 1995 to 2021, and is currently operated by its successor, Washington County Land Resources, Inc ("Permittee"). The Department received a subsidence damage claim from Mr. Telegraphis on January 11, 2022 ("Claim"). On June 27, 2022, Mr. Telegraphis filed a Notice of Appeal with the Environmental Hearing Board ("the Board") alleging that the Department failed to issue a timely determination on his Claim. On July 28, 2022, the Department issued its determination after completing its investigation of Mr. Telegraphis' Claim and concluded that his Claim was not supported because the Dwelling was not covered under the provisions of the Bituminous Mine Subsidence & Land Conservation Act ("the Act"). Mr. Telegraphis filed his second Notice of Appeal on August 3, 2022, after the Department denied his Claim. The Board consolidated Mr. Telegraphis' two appeals on August 4, 2022, under Docket No. 2022-054-B.
Mr. Telegraphis also filed a Mine Subsidence Insurance Fund Damage Claim Notice with the Department under his Mine Subsidence Insurance policy. The Mine Subsidence Insurance Fund supported Mr. Telegraphis' Mine Insurance claim and paid Mr. Telegraphis $400,000, the limit of his insurance policy.
On October 26, 2022, Mr. Telegraphis filed a Motion for Partial Summary Judgment and to Limit (Narrow) Issues and a Brief in Support thereto, and subsequently filed a Second Motion for Partial Summary Judgment and to Limit (Narrow) Issues on November 11, 2022 (collectively, the "Motions for Partial Summary Judgment"). The Department and the Permittee both filed their Responses to the Motions for Partial Summary Judgment on December 14, 2022, and contemporaneously filed their own respective Motions for Summary Judgment that same day. Mr. Telegraphis did not file a reply brief to either the Department's or the Permittee's Responses to his Motions for Partial Summary Judgment.
Prior to his Motions for Partial Summary Judgment, Mr. Telegraphis filed a Petition to Limit Issues on October 21, 2022. Mr. Telegraphis filed a Motion to Withdraw and/or Discontinue the Petition on January 4, 2023, which the Board granted.
Mr. Telegraphis filed a Motion to Withdraw and/or Discontinue Two Issues Raised in Appeal ("Motion to Discontinue Issues") on December 20, 2022, that essentially requested the Board to discontinue the two issues that he raised in his first Notice of Appeal. Neither the Department nor the Permittee opposed Mr. Telegraphis' request to withdraw the issues set forth in his Motion to Discontinue Issues. The Board granted the Motion to Discontinue Issues on January 5, 2023.
Mr. Telegraphis filed his Responses and Briefs in Opposition to both the Department's and Permittee's Motions for Summary Judgment on January 5, 2023, followed by Amendments to his Briefs. The Department and the Permittee submitted their Reply Briefs in Support of their respective Motions for Summary Judgment on January 20, 2023. All three of the parties have now moved for summary judgment on the issue of whether Mr. Telegraphis' Dwelling is covered under the Act. The Department and the Permittee assert that mining finished in May 2003 and Mr. Telegraphis' home was not built until October 2003, at the earliest. They argue that the only structures that qualify for relief from subsidence damage under the Act are those that were in place at the time that coal was being extracted from the mine. Mr. Telegraphis argues that the Act and the corresponding regulations impose no temporal limitation on when a dwelling must have been constructed in order to be eligible for relief, and that activity at the mine continued after his Dwelling was constructed.
Standard of Review
In order to prevail on a motion for summary judgment, the moving party must show that there is no genuine issue of material fact in dispute and that they are entitled to judgment as a matter of law on the basis of the record, including the pleadings, depositions, answers to interrogatories, and other related documents. Pa.R.Civ.P. 1035.1-1035.2; Clearfield Cnty. v. DEP, 2021 EHB 144, 146; Camp Rattlesnake v. DEP, 2020 EHB 375, 376. In evaluating whether summary judgment is appropriate, the Board views the record in the light most favorable to the non-moving party. Sunoco Pipeline, L.P. v. DEP, 2021 EHB 43, 45; Stedge v. DEP, 2015 EHB 31, 33. All doubts as to whether genuine issues of material fact remain must be resolved against the moving party. Eighty-Four Mining Co. v. DEP, 2019 EHB 585, 587 (citing Clean Air Council v. DEP, 2013 EHB 404, 406). Summary judgment is granted only in the clearest of cases, and usually only in cases where a limited set of material facts are truly undisputed and a clear and concise question of law is presented. Liberty Twp. v. DEP, 2022 EHB 324, 326; Sludge Free UMBT v. DEP, 2015 EHB 469, 471; Citizens Advocates United to Safeguard the Environment v. DEP, 2007 EHB 101, 106.
Discussion
The Bituminous Mine Subsidence & Land Conservation Act ("the Act") provides a legal mechanism for persons suffering subsidence damage to structures on their property as a result of "underground mining operations" to have that damage repaired by the coal mine operator or receive compensation from the operator for the damage. For "dwellings" like the Telegraphis home, the Act provides:
Whenever underground mining operations conducted under this act cause damage to any of the following surface buildings overlying or in the proximity of the mine: ….
(3) dwellings used for human habitation and permanently affixed appurtenant structures or improvements…
…
the operator of such coal mine shall repair such damage or compensate the owner of such building for the reasonable cost of its repair or the reasonable cost of its replacement where the damage is irreparable.52 P.S. § 1406.5d(a) (emphasis added). The corresponding regulation in Chapter 89 contains similar language:
Repair of damage to structures.
(1) Repair or compensation for damage to certain structures. Whenever underground mining operations conducted on or after August 21, 1994, cause damage to any of the structures listed in subparagraphs (i)-(v), the operator responsible for extracting the coal shall promptly and fully rehabilitate, restore, replace or compensate the owner for material damage to the structures resulting from the subsidence unless the operator demonstrates to the Department's satisfaction that one of the provisions of § 89.144a (relating to subsidence control: relief from responsibility) relieves the operator of responsibility. ….
(iii) Dwellings which are used for human habitation and permanently affixed appurtenant structures or improvements.…25 Pa. Code § 89.142a(f) (emphasis added).
We have excluded from our quotation the remaining portion of 52 P.S. § 1406.5d(a)(3), which was superseded in 2004 by the federal Office of Surface Mining. See 30 CFR § 938.13 (superseding "[t]he portion of section 5.4(a)(3) (52 P.S. 1406.5d(a)(3)) of BMSLCA that states, 'in place on the effective date of this section or on the date of first publication of the application for a Mine Activity Permit or a five-year renewal thereof for the operations in question and within the boundary of the entire mine as depicted in said application'). See also 69 FR 71553 (Dec. 9, 2004).
The argument of the Department and the Permittee can be broken down into essentially two parts. First, they argue that the Act and the regulations require a structure to be "in place at the time of mining" to be eligible for a claim for subsidence damage. Next, they assert that "underground mining," or coal extraction, ended at the Maple Creek Mine on May 9, 2003 and the Dwelling was not built until October 2003 at the earliest. Therefore, they conclude, since the Dwelling was not "in place" until after "underground mining" concluded, the Dwelling is ineligible for coverage.
However, the Act and regulations clearly use the term "underground mining operations" rather than "underground mining" in discussing the causation of subsidence damages. The terms "underground mining" and "underground mining operations" are defined in the Chapter 89 regulations. Much like the Department and Permittee use the term in their filings, "underground mining" is narrowly defined as "[t]he extraction of coal in an underground mine." 25 Pa. Code § 89.5(a). "Underground mining operations," on the other hand, is defined more broadly and encompasses a more extensive range of activities beyond simply the extraction of coal: "Underground construction, operation and reclamation of shafts, adits, support facilities located underground, in situ processing and underground mining, hauling, storage and blasting." Id.
In his response to the Department's and Permittee's motions, Mr. Telegraphis points to Exhibit 11 attached to the affidavit of Michael Bodnar that was filed in support of the Department's motion for summary judgment. Exhibit 11 is a copy of a report from the Mine Safety and Health Administration that shows the coal production by year for the Maple Creek Mine. However, in addition to coal production, the report also lists the number of hours worked at the mine broken down into three categories: (1) underground; (2) surface at underground; and (3) office workers at mine site. The report shows that 94,230 hours were worked underground in 2004, and 17,101 hours were worked underground in 2005. Thus, more than 100,000 hours of work was conducted underground at the Maple Creek Mine in the two years after the Dwelling was constructed.
We note that there exists some factual dispute as to the exact time that Mr. Telegraphis' Dwelling was constructed. The Department states in their undisputed material facts that the Dwelling was constructed no earlier than October 2003 which Mr. Telegraphis admits in his response thereto. However, the Permittee states that the Dwelling was constructed in 2004 and provides numerous citations to its deposition of Mr. Telegraphis in support of that assertion.
No party fully explains the nature of the hours worked underground at the Maple Creek Mine in 2004 and 2005. The Department and Permittee tell us that it was not mining, i.e. coal extraction but nothing else. Mr. Telegraphis, for his part, seems to contend that the underground hours worked, as indicated by Exhibit 11, establishes that "mining" was taking place after his Dwelling was built. Neither statement by the parties is very helpful to the Board in resolving the multiple requests for summary judgment. While there is some evidence of record that coal extraction may have ceased in May 2003, that does not mean that "underground mining operations" relevant to Mr. Telegraphis' Claim were not taking place after that date. It seems entirely possible that at least some of the 100,000+ hours of underground work listed in Exhibit 11 could fall under the definition of "underground mining operations" set forth in Chapter 89. We simply cannot say for sure one way or the other because we do not have any evidence, for example, from any employees at the mine who could attest to what was happening underground at the mine after the extraction of coal had ceased, or any more detailed records explaining how those hours were spent underground. Further, if we accept the Department's and the Permittee's assertion that coal extraction ended in May 2003, we have no records concerning underground mining operations in the remainder of 2003. Accordingly, even if we assume at this juncture that the Department and Permittee are correct in their position that a structure must be "in place" at a certain point relative to activities in the mine, those activities that can trigger liability for subsidence damage is broader than strictly "underground mining" and there are disputed issues of material fact regarding whether "underground mining operations" occurred after Mr. Telegraphis' Dwelling was constructed.
The Department argues that activities other than coal extraction are not relevant, but we disagree. The Department argues that other regulatory provisions, like the one requiring an operator to conduct a pre-mining survey, 25 Pa. Code § 89.142a(b)(1), and the one prohibiting underground mining near certain structures, 25 Pa. Code § 89.142a(c)(1), show that coal extraction "is the logical and most likely activity in an underground mine to cause subsidence damage and thus is the only relevant activity in a mine for determining whether a dwelling is in place at the time of mining." (Department's Reply Brief at 8.) However, simply because some regulatory provisions may focus on coal extraction, that does not necessarily support the position that an operator's liability is limited to only repairing or compensating a structure damaged by subsidence from coal extraction, as opposed to subsidence from other underground mining operations. For instance, a pre-mining survey might be relevant to relieving an operator from responsibility for subsidence damage, but a landowner can still prevail in its claim if it shows "by a preponderance of evidence, that the damage resulted from the operator's underground mining operations." 25 Pa. Code § 89.144a(b) (emphasis added). Even if we assume that the Department is correct that coal extraction is the "most likely activity" to cause subsidence, the fact remains that the Act and regulations plainly allow for compensation for subsidence from underground mining operations that are not limited to coal extraction.
The Department nevertheless maintains that it has determined that the underground mining that eventually caused the subsidence that damaged Mr. Telegraphis' Dwelling occurred in 1999 and all other mining operations are irrelevant. It appears the Department bases its conclusion that the subsidence damage to Mr. Telegraphis' home was caused by mining that took place in 1999 because that was when underground mining nearest to the Dwelling occurred. The Department's position is that the only mining work that matters when deciding a subsidence claim is coal extraction, and, seems to further narrow its position by only considering the nearest mining as the relevant factor for purposes of causation, which ended prior to the Dwelling's construction. The problem with that position is that coal extraction, let alone "nearest coal extraction," is simply not what the statute and the regulations state. The operable question here concerns "underground mining operations." We think the question of causation of subsidence damage is a highly fact-intensive inquiry that is best left to a hearing on the merits, particularly after learning what, if any, "underground mining operations" actually occurred in the Maple Creek Mine following the end of coal extraction and where it occurred underground. In addition, we also look forward to testimony addressing the terms "underground mining" and "underground mining operations" and how the Department interprets those terms.
The arguments that Mr. Telegraphis sets forth in his Motions for Partial Summary Judgment are squarely counter to the Department's and Permittee's stance, arguing that the Act and the regulations do not require a structure to be "in place at the time of mining" to be eligible for a claim for subsidence damage. As stated above, we do not reach a decision as to the lawfulness of the Department's interpretation at this juncture. Mr. Telegraphis' Motions for Partial Summary Judgment are denied here for similar reasons that we deny the Department's and Permittee's Motions. While Mr. Telegraphis points out that underground work continued in 2004 and 2005, he proffers no evidence as to the nature of the underground work. The definition of "underground mining operations" includes specified types of work and Mr. Telegraphis has not made a factual showing, or shown as a matter of law, that the underground work that took place, as indicated by the report, constituted any of the particular types of underground work provided for in the definition. Moving forward, Mr. Telegraphis must develop testimony and produce records and evidence that shows that the underground work that was performed in the mine was within the scope of the definition "underground mining operations" and were the cause of the subsidence damage to his Dwelling if he is to prevail on his claim.
In sum, we cannot determine whether Mr. Telegraphis' Dwelling is eligible for coverage under the Act because the relevant term this Board must focus on per the statute and regulations is "underground mining operations." There is some evidence, as made clear by the Department's Exhibit 11, that underground mining operations may have taken place after coal extraction ceased and after the Dwelling was constructed. The definition of "underground mining operations" constitutes a list of certain activities, and we simply do not know whether any of these defined activities are what took place during the underground work evidenced by the Exhibit 11 report. We know there is some factual evidence that there was some underground work that took place after Mr. Telegraphis' Dwelling was constructed but we have no evidence as to the nature of any of the underground work and whether that underground work involved any of the listed activities within the definition of underground mining operations. Based on the information before us, the possibility exists that underground mining operations took place after the construction of Mr. Telegraphis' Dwelling and those operations could have potentially caused the subsidence damage to the Dwelling. Even if we accept the Department's "in place" interpretation, that would require Mr. Telegraphis' Dwelling be in place during the underground mining operations that ultimately caused the subsidence, the possibility remains that the Dwelling is entitled to coverage under the Act and regulations because underground work continued after the Dwelling was constructed, and, at this point, we do not know the nature of that underground work or the exact cause of the subsidence damage.
We find that there are disputed material facts resulting principally from a lack of information in the record concerning the nature of underground work at the Maple Creek Mine in the time period after coal extraction reportedly ceased. As a result, this case does not qualify as the "clearest of cases" where one or more of the parties is entitled to the granting of a motion for summary judgment. We do not reach the question of interpretation of whether a structure needs to be "in place" at the time of underground mining operations for a claim for subsidence damage to be eligible for coverage under the Act and regulations.
Accordingly, we enter the following order.
ORDER
AND NOW, this 23rd day of May, 2023, upon consideration of the parties' motions for summary judgment, and the responses thereto, it is hereby ORDERED as follows:
1. Mr. Telegraphis' Motions for Partial Summary Judgment are denied.
2. The Department's Motion for Summary Judgment is denied.
3. The Permittee's Motion for Summary Judgment is denied.