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Horsehead Resource Development Company, Inc. v. Pennsylvania Dept. of Environmental Protection

The Environmental Hearing Boards order granting the Department of Environmental Protections motion to dismiss petitioners appeal affirmed because when the DEP withdrew its compliance orders, there was no longer any actual case or controversy and the case before the Board was moot.

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ARGUED: December 6, 2000

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.

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