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Energy

Steptoe & Johnson PLLC: Pennsylvania Supreme Court Narrowly Interprets Preemption in Surface Mining Act

By David L. Hotchkiss

The Pennsylvania Supreme Court has unanimously ruled in a decision which narrowly interprets the preemption provision of the Surface Mining Conservation and Reclamation Act of November 30, 1971.

On November 23, 2011, the Court decided Hoffman Mining Co. v. Zoning Hearing Board [enhanced version available to lexis.com subscribers.] After the effective date of the Surface Mining Act, Adams Township, Cambria County, adopted a Zoning Ordinance which permitted mining in a district known as the Conservancy (S) District only by special exception. The zoning ordinance required "[a]ll mining, excavating and blasting activities" in the district to maintain a setback of at least 1000 feet from all residential structures.

Plaintiff Hoffman filed an application with the Zoning Hearing Board for a special exception to conduct surface mining. Hoffman also requested a variance from the 1000 foot setback, asking that it be reduced to 300 feet asserting that 88 percent, or approximately $8,000,000 in value of the coal, lay within 1000 feet of residences in the village. Hoffman asserted that the setback requirement was preempted by the Surface Mining Act, which only provides that no surface mining operations are permitted within 300 feet of any occupied dwelling. 52 P.S. SS 1396.4b(c).

The Zoning Hearing Board found to be credible testimony which was received from the residents concerning hazards which would result from surface mining including dust and debris descending on the village, danger to children from open holding ponds and a risk of respiratory problems.

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David Hotchkiss focuses his practice on Pennsylvania litigation directed to serving clients in the oil and gas industry, and also on the performance of oil and gas real estate title work.

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