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A. P. WEAVER AND SONS v. SANITARY WATER BOARD (12/08/71)

decided: December 8, 1971.

A. P. WEAVER AND SONS
v.
SANITARY WATER BOARD



Appeal from the Order of the Sanitary Water Board in case of Sanitary Water Board v. A. P. Weaver and Sons, No. 69-14, Permit No. 2768 BSM 23.

COUNSEL

Leo M. Stepanian, with him Brydon & Stepanian, for appellant.

Marvin A. Fein, Special Assistant Attorney General, with him Allen B. Zerfoss, Assistant Attorney General, William M. Gross, Assistant Attorney General, and J. Shane Creamer, Attorney General, for appellee.

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

Author: Mencer

[ 3 Pa. Commw. Page 501]

This is an appeal from an adjudication and order of the Sanitary Water Board (Board)*fn1 revoking the mine drainage permit of A. P. Weaver & Sons (appellant) for a bituminous coal open pit mining operation.

A mine drainage permit (No. 2768 BSM 23) was originally approved by the Board on January 6, 1969, for operations by appellant in Shippenville, Elk Township, Clarion County, Pennsylvania. On October 24, 1969, the permit was suspended because of violation of the conditions applicable to the permit based upon analysis of water samples of a spring on the property of Lillian Kiser located in the area adjacent to the mining operations. In the opinion of the Board, these samples indicated pollution of such waters as the result of mining operations. Consequently a hearing was held on November 3, 1969, at appellant's request to consider the Board's action in revoking the permit. Extensive testimony was heard and evidence presented at this hearing, but it was continued to permit the Department of Mines and Mineral Industries to have a geological study made of the area involved. Pending continuance of the hearing, the Board on November 7, 1969, reinstated appellant's permit. On May 5, 1970, the Board continued its hearing after which, on January 18, 1971, the Board by its adjudication and order revoked the permit.

[ 3 Pa. Commw. Page 502]

Appellant entered its appeal from the Board's order on February 4, 1971, and, four days later it petitioned this court for a special allowance of supersedeas. Prior to any hearing on the matter, however, by stipulation of counsel and under order of this court of March 17, 1971, appellant was authorized to continue its mining operations under the same mine drainage permit No. 2768 BSM 23 subject to conditions incorporated in this court's order.

It is necessary to understand that before an operator may commence open pit bituminous coal mining operations two permits are required: (1) a "mine drainage permit" under the "Clean Streams Law", Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.1 et seq.; and (2) a "mining permit" under the "Bituminous Coal Open Pit Mining Conservation Act", Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. § 1396.1 et seq. Appellant's original application for a mine drainage permit was for a "maximum surface area to be affected" of 138.66 acres. But the mining permit (No. 144.14) granted to appellant allowed operations on only 37 of those acres, and it desires to continue mining the remaining 101.66 acres. To do so, appellant, after completing the mining of the first 37 acres under this court's authorization (because of the supersedeas it might well have already completed this first stage), must then submit amendments to the basic mining permit No. 144-14 and satisfy the conditions stated in the supersedeas applicable to mine drainage permit No. 2768 BSM 23. Therefore, as the Board's brief states, "the issue of continued mining operations under mine drainage permit No. 2768 BSM 23 insofar as mining permit No. 144-14 as amended to date is concerned, is essentially moot. In view of Appellant's agreement to construct required facilities to treat existing and future mine drainage under the Court order and his actions to date in so doing, there appear to be no obstacles to

[ 3 Pa. Commw. Page 503]

    the Department reinstating the mine drainage permit and, on proper application, authorizing further mining at the site involved." We must, however, decide this appeal in order either to justify or nullify the conditions which the Board wishes attached to approval of any further mining operations.

Essentially, appellant attacks the adjudication and order of the Board as being arbitrary and not supported by substantial, legally competent and credible evidence. More specifically, although appellant does not deny that the Kiser spring is polluted, it contends that there is no evidence that appellant caused the pollution and that, indeed, there is substantial evidence that the spring was polluted from various other sources before appellant commenced mining operations. Appellant further avers that certain of the Board's ...


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