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decided: January 18, 1972.


Appeal from Order of the Court of Common Pleas of Dauphin County, in case of Harmar Coal Company v. Sanitary Water Board, No. 160 Commonwealth Docket, 1970.


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

Harold R. Schmidt, with him Henry McC. Ingram, Robert S. Barker, and Rose, Schmidt & Dixon, 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 436]

On March 6, 1970, the Sanitary Water Board issued an adjudication and order denying Harmar Coal Company's application for a permit approving the discharge of untreated mine water from a mine known as the Indianola Mine. Harmar appealed to the Court of Common Pleas of Dauphin County. Section 41 of the Act of June 4, 1945, P.L. 1388, 71 P.S. § 1710.41; see Detwiler v. Sanitary Water Board, 88 D. & C. 432, 66 Dauph. 104 (1954). On August 20, 1970, that court sustained the appeal and directed the Sanitary Water Board to issue a mine drainage permit for discharges coming from the Indianola Mine. Our brothers Wilkinson and Manderino were specially assigned to the Dauphin County Court and participated in the decision of this case. Judge Wilkinson wrote the opinion for that court.

[ 4 Pa. Commw. Page 437]

On August 20, 1970, the Sanitary Water Board had thirty days within which to appeal from that decision to the Superior Court, Section 45 of said Act (71 P.S. § 1710.45). However, within the thirty-day period, i.e., on September 11, 1970,*fn1 the "Appellate Court Jurisdiction Act of 1970," Act of July 31, 1970, P.L. , No. 223, 17 P.S. §§ 211.101 et seq., became effective. Article V, § 509(a)(4) of that Act (17 P.S. § 211.509(a)(4)), repealed absolutely all of Section 45 of the Act of June 4, 1945, P.L. 1388 (71 P.S. 1710.45). This presented the Sanitary Water Board with the problem of where to file its appeal. We conclude that, under the unusual procedural circumstances of this case, it is proper for us to hear this appeal. The Harmar Coal Company has made no objection and we believe the language of Section 402(3) of the Act of July 31, 1970, P.L. , No. 223 (17 P.S. § 211.402(3)), lends support to this conclusion. Likewise, under the peculiar situation here, an appeal to the Supreme Court would not seem to lie under Sections 202, 203 or 204 of Article II of that Act (17 P.S. §§ 211.202-204).

Harmar Coal Company (appellee) is the owner and operator of a coal mine known as the Harmar Mine, which mine produces high-quality metallurgical coal for use in the steel industry. Immediately adjacent to, and directly to the east and north of, the Harmar Mine is an abandoned mine known as the Indianola Mine. These two mines are separated by a barrier of coal, preventing any passage of water between them.

The Indianola Mine was abandoned by Republic Steel Corporation in 1957. The accumulation of water

[ 4 Pa. Commw. Page 438]

    in the Indianola Mine after Republic Steel Corporation ceased pumping posed a potential threat to the Harmar Mine and its miners. Water in the Indianola Mine might create sufficient hydrostatic pressure against the barrier between the two mines to cause the barrier to give way and thereby allow the Indianola water to inundate the Harmar workings. This possibility was considered a sufficient threat by the Department of Mines and Mineral Industries for it to require that appellee pump the water from the Indianola Mine before it accumulates into an underground lake of a magnitude as to endanger the barrier between the two mines and, more importantly, the miners working in the Harmar Mine.

Consequently, appellee made an agreement with the Northeast Industrial District, Inc., authorizing the pumping of water from the Indianola Mine. Appellee obtained a permit from the Department of Health to discharge the water into Deer Creek and began pumping in 1958. With the further amendment of the Clean Streams Law, Act of June 22, 1937, P.L. 1987, 35 P.S. §§ 691.1 et seq., by the Act of August 23, 1965, P.L. 372, the classification of the waters of the Commonwealth as "clean" and "unclean" in Sections 310-313 was eliminated. The policy of the Commonwealth became not only the protection of the purity of "clean" streams, but also the improvement of "unclean" streams to an unpolluted condition. Therefore, appellee was required to submit an application for a permit under Section 315 of the Act as amended (35 P.S. § 691.315). The present application submitted by appellee sought to obtain permission to pump 6.48 million gallons of mine drainage water per day from the inactive Indianola Mine and discharge it, without treatment, into Deer Creek, a tributary of the Allegheny River. The application was not approved by the Department of Health

[ 4 Pa. Commw. Page 439]

    and appellee requested and received a hearing before the Sanitary Water Board which, on March 6, 1970, issued an adjudication and order disapproving the application and directing appellee to cease operation of the Harmar Mine no later than ninety days from receipt of the order. On April 16, 1970, pursuant to a stipulation of counsel, a supersedeas to the order of March 6, 1970, was granted by the Court of Common Pleas of Dauphin County.

The merits of the adjudication by the Sanitary Water Board were very ably set forth in the opinion of Judge Wilkinson, specially presiding below, in which he reversed the Board. We, therefore, with the addition of one footnote, adopt that opinion as follows:

"This matter is before the Court on an appeal from the Adjudication of the Sanitary Water Board (hereinafter referred to as the Board) disapproving the Application of Harmar Coal Company (hereinafter referred to as the Appellant) for a new Mine Drainage permit at its Indianola discharge located in Indiana Township, Allegheny County, being Application No. 467M064 at Docket No. 68-12.

"The Board in its Adjudication points out that this is a case of first impression. As correctly stated by the Board: 'These questions deal with the extent to which a mine operator should be responsible under the Clean Streams Law for the treatment of mine wastes which the operator pumps from an adjacent inactive mine to protect the operator's active workings.' Adjudication page 2. It might be added that the operator does not own and never operated the adjacent mine.

"While the question is one of first impression to the Board, its enforcement personnel of the Department of Health clearly anticipated this very problem. Indeed, the Department published Guidelines to assist the mine ...

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