Big \"B\" Mining Co. v. Department of Environmental Resources , 142 Pa. Commw. 215 ( 1991 )

BYER, Judge.

Big B Mining Company, Inc. (Big B) appeals from an order of the Environmental Hearing Board (EHB) which denied Big B’s request for counsel fees and costs which it incurred while successfully challenging the Department of Environmental Resources’ (DER) denial of its application for a surface mining permit.

Big B petitioned to recover the counsel fees and costs pursuant to section 4(b) of the Surface Mining Conservation and Reclamation Act (SMCRA), Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. § 1396.4(b). The EHB declined to award fees and costs, holding that section 4(b) of SMCRA applies only to enforcement actions and not to permit proceedings.¹

Big B argues on appeal² that the EHB erred as a matter of law in its interpretation of section 4(b), because it relied on the congressional intent of section 525(e) of the Federal Service Mining Control and Reclamation Act (Federal SMCRA), P.L. No. 95-87, 91 Stat. 445, 30 U.S.C. §§ 1201-1328 (1982), the federal counterpart of section 4(b) of SMCRA.³ We agree.

Section 4(b) provides:

Any person having an interest which is or may be adversely affected by any action of the department under this section may proceed to lodge an appeal with the environmental hearing board in the manner provided by law____ The environmental hearing board, upon the request of any party, may in its discretion order the payment of costs and attorney’s fees it determines to have been reasonably incurred by such party in proceedings pursuant to this section.

(Emphasis added).

This section of SMCRA contains comprehensive rules and procedures which relate to mining permit applications and bond releases, including provisions for hearings, objections and appeals. This case involved a permit application and DER’s improper denial.

The EHB, in its attempt to comply with the spirit of SMCRA,⁴ looked to the federal law and its underlying congressional intent to interpret the meaning of section 4(b) of SMCRA. This was error.

When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded in the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b).

It is axiomatic that we cannot rely upon congressional or legislative intent when there is no ambiguity in the statute being interpreted. See Marshall v. Port Authority of Allegheny County, 524 Pa. 1, 6, 568 A.2d 931, 934 (1990); Philadelphia Housing Authority v. Commonwealth, Labor Relations Board, 508 Pa. 576, 582, 499 A.2d 294, 297 (1985); Coretsky v. Board of Commissioners, 520 Pa. 513, 517-18, 555 A.2d 72, 74 (1980); Latella v. Unemployment Compensation Board of Review, 74 Pa. Commonwealth Ct. 14, 29-30, 459 A.2d 464, 473 (1983). Because section 4(b) specifically permits counsel fees and costs incurred in proceedings pursuant to that section, it was improper for the EHB to explore the legislative intent of the federal statute.⁵ Under the plain language of the Pennsylvania statute, the EHB may award costs and attorney’s fees in permit proceedings as well as in enforcement proceedings.

We reverse the order of the EHB and remand the case for proceedings consistent with this opinion.

ORDER

We reverse the order of the Environmental Hearing Board and remand the case for proceedings consistent with this opinion.

We relinquish jurisdiction.

1 . EHB member Terrance J. Fitzpatrick filed a concurring opinion that agreed with the result but disagreed with the majority’s reasoning. The concurring opinion stated that there was no blanket preclusion on the recovery of costs in permit proceedings, but that counsel fees only should be awarded when the DER or a third party acted in “bad faith” against the permittee. The concurring opinion asserted that Big B’s petition should be denied because it did not allege that DER acted in bad faith.

2 . In absence of bad faith, fraud, capricious action or abuse of power, reviewing courts will not inquire into the wisdom of the administrative agency’s action or into the details or manner of executing an agency action. Slawek v. Board of Medical Education and Licensure, 526 Pa. 316, 586 A.2d 362 (1991). The test is not whether the order is reasonable but whether it was made "in accordance with law,” or violated some other statute applicable to the case. Id., 526 Pa. at 322, 586 A.2d at 365.

3 . Section 4(b) of SMCRA is modelled upon section 525(e) of Federal SMCRA. Pennsylvania, in an attempt to secure primacy over surface mining, implemented its own regulations which meet all necessary minimum requirements set forth in Federal SMCRA. Section 4(b) is one of these regulations.

4 . Federal SMCRA is based upon a finding of a need to establish "a nationwide program to protect society and the environment from the adverse effects of surface coal mining operation." 30 U.S.C. § 1202(a).

5 . In Croner v. Department of Environmental Resources, 139 Pa.Commonwealth Ct. 43, 589 A.2d 1183 (1991), we held that a challenge to a state regulation, with a federal counterpart, was not a collateral attack on the federal statute, and thus there was no need to apply federal law to the state action.