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SIERRA CLUB ET AL. v. SANITARY WATER BOARD (09/10/71)

decided: September 10, 1971.

SIERRA CLUB ET AL.
v.
SANITARY WATER BOARD



Appeal from the Adjudication of the Sanitary Water Board (now Department of Environmental Resources) at Docket No. 70-33 in case of In re: Kristianson & Johnson Coal Co., Inc.

COUNSEL

John D. Killian, with him Killian & Gephart, Rolf R. Larsen and Larsen, Murray & O'Neill, for appellants.

Richard B. Springer, Assistant Attorney General, with him Allen B. Zerfoss, Assistant Attorney General, and J. Shane Creamer, Attorney General, for appellee.

David L. Baird, with him Baird, McCamley & Miller, for intervenor, Kristianson and Johnson Coal Company, Inc.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Rogers. Opinion by Judge Mencer.

Author: Mencer

[ 3 Pa. Commw. Page 111]

As the noted legal luminary, Karl Llewellyn, once said, "Law . . . begins when someone takes to doing something someone else does not like." These words seem particularly appropriate in this case which is an appeal from an adjudication of the Sanitary Water Board (Board) which,*fn1 over appellants' objections,

[ 3 Pa. Commw. Page 112]

    granted a permit to Kristianson & Johnson Coal Co., Inc. (K. & J.) for the discharge of industrial waste and mine drainage from a proposed bituminous coal strip mine in Chest Township, Clearfield County, and Chest Township, Cambria County. The mine drainage application, filed on May 25, 1970, pursuant to the then applicable Section 315 of the Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended by the Act of August 23, 1965, P.L. 372, embraced 1,707.19 acres, but the total "land affected"*fn2 by such mining would be 1,273.15 acres of the watershed of Rogues Harbor Run, a tributary of Chest Creek. Rogues Harbor Run is the source of trout fishing enjoyment for many members of the organizations here represented, as well as the source of water supply for the Westover Water Authority, which supplies water for the use of Westover Borough, a community in Clearfield County with an approximate population of 500.

The primary contention of appellants is that the proposed K. & J. strip mine operation will cause sedimentation which will degrade the quality of Rogues Harbor Run as a fishing stream and adversely affect it as a domestic water supply for Westover Borough.

[ 3 Pa. Commw. Page 113]

The plan of operation of K. & J., after being made subject to 26 "Standard Conditions" and six "Special Conditions", was approved by the Department of Mines and Mineral Industries, the reporting agency*fn3 for the Sanitary Water Board. The Board unanimously adopted the favorable recommendation of its reporting agency on July 15, 1970, and approved the issuance of a permit, but because the Board had been advised of the objections of various groups to the granting of a permit, the permit was withheld and hearings followed on August 4, 20, and 21, and September 21 and 22 at which testimony and exhibits were received from K. & J., the protestants, and the Department of Mines and Mineral Industries. On January 18, 1971, the Board issued the adjudication and order appealed from here. Appellants wish us to set aside the Board's decision and to remand the matter to the Board "for further proceedings consistent with the provisions of Act No. 222" (the Act of July 31, 1970, P.L. , No. 222, 35 P.S. ยง 691.1 et seq.).

Intervening appellee, K. & J., filed a Motion to Quash on April 13, 1971, to which an Answer was filed by appellants on April 27, 1971. We conclude that the contentions made in the ...


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