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decided: January 18, 1972.


Appeal from the Order of the Sanitary Water Board in case of Application of Pittsburgh Coal Company Division of Consolidated Coal Company, Application No. 468M024, Docket No. 69-1.


Harold R. Schmidt, with him Vernon N. Fritchman, Gary H. McQuone, Henry McC. Ingram, Robert S. Barker and Rose, Schmidt & Dixon, for appellant.

Richard B. Springer, Assistant Attorney General, with him William M. Gross, Assistant Attorney General and J. Shane Creamer, Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Mencer and Rogers. Judges Wilkinson, Jr., and Manderino did not participate. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Mencer. Judge Kramer joins in this dissent.

Author: Crumlish

[ 4 Pa. Commw. Page 409]

This appeal is from an order of the Sanitary Water Board of the Commonwealth of Pennsylvania*fn1 entered on November 20, 1970, which refused Pittsburgh Coal Company's application for a mine drainage permit for its operation of the Hutchinson Mine, a bituminous coal mine, located in Westmoreland County, Pennsylvania. The order also commanded Pittsburgh Coal Company (appellant) to cease its operation of that mine by December 21, 1970. We, on December 11, 1970, granted a supersedeas.

The Hutchinson Mine is the last operating deep mine in a large underground coal basin in Westmoreland County, known as the Irwin Basin. Irwin Basin is approximately twenty-one miles long and seven miles wide; it is parabolic or dish-shaped and dips from the north to the south. The northern tip or end is at an elevation of approximately 900 feet and the outside rim or outcrop of the coal seam rises to an elevation of

[ 4 Pa. Commw. Page 410]

    between 900 and 1100 feet. The coal seam is approximately 10 feet in depth and would be geologically described as synclinal, the axis of which runs north-south dividing the parabola in half. Perhaps one could best visualize the Irwin Basin by thinking of a canoe balanced on the bottom of its southern tip with the northerly end protruding upward in a slanted position and the structural material of the canoe representing the coal seam. The Hutchinson Mine is at this southern tip of the basin, at approximately the lowest point in the dip.

Mining has taken place in the Irwin Basin*fn2 since 1852. There have been eighteen major coal mines operating there, all of which are now closed and abandoned. Today, the Irwin Basin is completely mined out, except for the unmined coal in the Hutchinson Mine. Appellant has only been involved in the operation of this mine and has had nothing to do with any other mining operation in the Irwin Basin.

An underground lake or pool, covering 23,780 acres and estimated to contain from 100 to 350 billion gallons of polluted water, has formed in the Irwin Basin as a result of ground water accumulating in the abandoned mines. This pool, which under the Clean Streams Law*fn3 is "water of the Commonwealth,"*fn4 has gravity discharges

[ 4 Pa. Commw. Page 411]

    or natural outflows at three locations to the northwest of the Hutchinson Mine, namely: Irwin, 8.5 million gallons of water per day; Guffey, 5.1 million gallons of water per day; and Marchand, 3.4 million gallons of water per day.

However, the Hutchinson Mine is separated from adjacent abandoned mines in the Irwin Basin by a protective barrier-pillar of coal over 100 feet in thickness, as required by Section 291 of the Act of July 17, 1961, P.L. 659, 52 P.S. § 701-291. This barrier of coal acts as a dam to keep the bulk of the pool from entering appellant's mine. Prior to the time appellant acquired its mine, the barrier of coal between its mine and the Magee Mine to the east was breached by previous mining operations. At the present time, 2.17 million gallons of water per day finds its way through, over and around the coal barrier and through the Magee opening into the Hutchinson Mine.

The issue here is whether appellant is responsible under prevailing law for treatment of this 2.17 million gallons of water per day which must be removed or discharged from the Hutchinson Mine in order to mine the coal therein.

Appellant is at the present time pumping approximately 3.44 million gallons of water per day, including the 2.17 million gallons of water per day coming from the other mines in the Irwin Basin, from the Hutchinson Mine, at two discharge points. Appellant, in its application for a mine drainage permit, proposes to treat only the 1.27 million gallons of water per day originating in the Hutchinson Mine.

This factual background leads us directly to the central issue in this case. Can the Sanitary Water

[ 4 Pa. Commw. Page 412]

Board, under the "Clean Streams Law," require the operator of a deep mine, as a condition to discharge of his own mine drainage, to treat "waters of the Commonwealth" that have flowed or seeped into the operator's active mine from an underground pool formed by independent inactive mines, when that water was polluted before entry into the active deep mine and upon its removal from the active deep mine the level of pollution in the water is not increased? We answer this question in the negative and in so doing reverse the Board's order.

With the object of more clearly delineating the present law of this Commonwealth as it pertains to stream pollution, we consider briefly earlier legislation.

The first relevant legislation in Pennsylvania was the Act of June 22, 1937, P.L. 1987, 35 P.S. §§ 691.1 et seq., the so-called "Pure Streams Law." In Article III of this Act, which dealt with industrial waste, Section 310 excluded acid mine drainage from the operation of the Act and provided: "Section 310. Acid Mine Drainage and Silt. -- The provisions of this article shall not apply to acid mine drainage and silt from coal mines until such time as, in the opinion of the Sanitary Water Board, practical means for the removal of the polluting properties of such drainage shall become known." Also significant was Section 306, which provided: "Section 306. Protection of Clean Waters. -- After the effective date of this act, no municipality or person shall ever discharge, drain or permit to be washed into the clean waters of this State any sewage or industrial waste. 'Clean waters' are hereby defined to mean waters which are, at the effective date of this act, unpolluted and free from any discharge or drainage of sewage, but the Sanitary Water Board may permit discharge into such waters of sewage or industrial waste that has been completely treated." It is evident from the foregoing

[ 4 Pa. Commw. Page 413]

    that the legislative intent, in 1937, was to exempt problems relating to acid mine drainage from the operation of the Pure Streams Act.

The next statutory enactment was the Act of May 8, 1945, P.L. 435, 35 P.S. §§ 691.1 et seq. The 1945 legislation amended the 1937 Act by changing Section 310 to read, in pertinent part, as follows: "It shall be unlawful and a nuisance to discharge, or to permit the discharge, of acid mine drainage (1) into 'clean waters' of the Commonwealth which are being devoted or put to public use at the time of such discharge; or (2) into 'clean waters' of the Commonwealth, unless the Commonwealth, after the Sanitary Water Board has approved plans of drainage pursuant to section three hundred thirteen hereof, and has set a reasonable time not to exceed one year within which such pipes, conduits, drains, tunnels or pumps as may be necessary to receive such acid mine drainage at the point or points where such acid mine drainage is delivered, as provided in this section, shall be constructed and put into operation by the Commonwealth, has failed to construct and put into operation the same within such time. . . ." At the same time, Sections 311 and 312 were added to the statute. Section 311 authorized the Sanitary Water Board to acquire easements and rights of way, by purchase, condemnation or otherwise, and Section 312 set forth the condemnation procedures to be followed.

It is clear from the 1945 amendments that the special problems in the coal industry relating to acid mine drainage were recognized and acknowledged by the General Assembly. Furthermore, Section 311, as it appeared in the 1945 act, demonstrates that the General Assembly was not in any way attempting to clean up previously polluted waters but only to protect waters which were "'clean waters' on or subsequent to the first day of January, one thousand nine hundred forty-four."

[ 4 Pa. Commw. Page 414]

Thus, after the passage of the 1945 amendments, Pennsylvania clean streams legislation prohibited only discharge of acid mine water into ...

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