Appeals from orders of Commonwealth Court, Nos. 261 and 24 C.D. 1970, in cases of Commonwealth of Pennsylvania v. Harmar Coal Company, and Commonwealth of Pennsylvania v. Pittsburgh Coal Company.
Stanley R. Wolfe, Special Assistant Attorney General, with him K. W. James Rochow and William M. Cross, Assistant Attorneys General, and J. Shane Creamer, Attorney General, for Commonwealth, appellant.
Harold R. Schmidt, with him K. Leroy Irvis, Henry McC. Ingram, Edmund M. Craney, Michael W. Balfe, and Rose, Schmidt and Dixon, for appellee.
John D. Killian, Curtin Winsor, and Killian & Gephart, for Pennsylvania Environmental Council, Inc., Pennsylvania Federation of Sportsmen's Clubs, Inc., Pennsylvania State Council of Trout Unlimited and League of Women Voters of Pennsylvania, amici curiae.
Daniel J. Snyder, III, Regional Counsel, with him James J. Seeley, Assistant Regional Counsel, Jacob P. Hart, Director, Enforcement Division, The Environmental Protection Agency, Region III, for United States Environmental Protection Agency, amicus curiae.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Manderino took no part in the consideration or decision of these cases.
These appeals raise vital questions concerning the power of the Commonwealth's Department of Environmental Resources to control and eliminate water pollution. Although the procedural history of each appeal differs, both appeals raise similar legal issues and, therefore, are considered in one opinion.
On March 6, 1970, the Sanitary Water Board of the Commonwealth of Pennsylvania (Board) issued an adjudication and order denying Harmar Coal Company's (Harmar) application for a mine drainage permit approving the discharge of untreated acid mine drainage from the Indianola Mine. The Court of Common Pleas of Dauphin County, on August 20, 1970, reversed the Board's order and directed the Board to issue the permit. Sanitary Water Board v. Harmar Coal Co., 50 Pa. D. & C. 2d 627 (1970). The Board appealed to the Commonwealth Court.
Pittsburgh Coal Company's (Pittsburgh) application for a mine drainage permit for the discharge of untreated acid mine drainage from its Hutchinson Mine was similarly denied by the Board on November 20, 1970. Unlike Harmar, Pittsburgh appealed directly to the Commonwealth Court.
On January 18, 1972, the Commonwealth Court filed separate opinions in both cases.*fn1 In Harmar Coal Co. v. Sanitary Water Board, 4 Pa. Commonwealth Ct. 435, 285 A.2d 898 (1972), the Court adopted the lower court's opinion and affirmed the issuance of the permit. In Pittsburgh Coal Co. v. Sanitary Water Board, 4 Pa. Commonwealth Ct. 407, 286 A.2d 459 (1972), the Court reversed the Board's refusal to issue the permit and directed the Department of Environmental Resources*fn2 to issue the permit as requested. We granted allocaturs.
The factual posture of these cases is set forth in detail in the Commonwealth Court opinions; for our purposes, a brief summary of the facts is sufficient. Adjacent to the Harmar Mine is the abandoned Indianola Mine. Although a coal barrier separates the two
mines, the accumulation of water in the Indianola Mine threatens the Harmar Mine and the safety of its miners: the accumulating water might create sufficient hydrostatic pressure against the barrier to cause it to give way and flood the Harmar Mine. In order to make its mine safe for operation, Harmar must pump 6.48 million gallons per day of untreated acid mine drainage*fn3 from the Indianola Mine and discharge it into the Deer Creek, a tributary of the Allegheny River. Pittsburgh's Hutchinson Mine is the last operating deep mine in a large coal basin. As a result of ground water accumulating in the abandoned mines, a large underground pool has formed in the basin. A barrier of coal separating the Hutchinson mine from the adjacent mines in the basin is unable to protect the Hutchinson Mine from intruding fugitive water as it travels to gravity discharges. In order to operate the mine Pittsburgh must discharge 3.44 million gallons per day of acid mine drainage -- including the 2.17 million gallons that finds it way into the Hutchinson Mine from the basin. In its application for a permit Pittsburgh proposed to treat only the 1.27 million gallons per day of acid mine drainage originating in the Hutchinson Mine. Both Pittsburgh and Harmar admit that the discharge contains iron and acid concentrations in excess of the maximum established by the Board.
The broad question presented is whether the Sanitary Water Board under the Clean Streams Law*fn4 can
require that Harmar treat the discharge of acid mine drainage purged from an adjacent, inactive mine and require that Pittsburgh treat its entire discharge from its Hutchinson Mine even though some of the drainage flows into its mine from adjacent inactive mines.
In order to understand and appreciate what the present Clean Streams Law intended to accomplish, the legislative history of acid mine drainage pollution control is enlightening. Prior to the enactment of the original Clean Streams Law (the Act of June 22, 1937, P. L. 1987), acid mine drainage had been specifically excluded from pollution control. (Purity of Waters Act of April 22, 1905, P. L. 260, § 4, and the Act of June 14, 1923, P. L. 793, § 1). Section 310 of the 1937 Act dealt specifically with acid mine drainage as follows: "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." (Emphasis added.) In the 1945 Amendments Section 310 was
modified by requiring the Board to protect certain clean waters by regulation, but permitted the continuing pollution of already polluted waters. As in the 1937 Act, except for the discharge into certain clean waters, acid mine drainage was to remain exempt from regulation until there was a practical means, in the Board's opinion, for treating the drainage.
In 1965, the Clean Streams Law was revamped. After many years of pollution, the Legislature, obviously prompted by increasing public awareness and technological advancements, articulated a stronger concern for the environment. A section was added which provided:
"Section 4. Findings & Declarations of Policy. -- It is hereby determined by the General Assembly of Pennsylvania and declared as a matter of legislative findings that:
"(1) The Clean Streams Law as presently written has failed to prevent an increase in the miles of polluted water in Pennsylvania.
"(2) The present Clean Streams Law contains special provisions for mine drainage that discriminate against the public interest.
"(3) Mine drainage is the major cause of stream pollution in Pennsylvania, and is doing immense damage to the waters of the Commonwealth.
"(4) Pennsylvania, having more miles of water polluted by mine drainage than any state in the Nation, has an intolerable situation which seriously jeopardizes ...