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COMMONWEALTH v. BARNES & TUCKER COMPANY (04/16/73)

decided: April 16, 1973.

COMMONWEALTH
v.
BARNES & TUCKER COMPANY



Original jurisdiction in case of Commonwealth of Pennsylvania v. Barnes & Tucker Company.

COUNSEL

Stanley R. Wolfe, Special Assistant Attorney General, with him Richard B. Springer, Assistant Attorney General and K. W. James Rochow, Assistant Attorney General, for plaintiff.

Cloyd R. Mellott, with him C. Arthur Wilson, Jr., Richard C. Seamans, John R. Kenrick, Frank A. Sinon, Eckert, Seamans, Cherin & Mellott and Rhoads, Sinon & Reader, for defendant.

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

Author: Bowman

[ 9 Pa. Commw. Page 3]

By complaint in equity the Commonwealth seeks a mandatory injunction requiring Barnes & Tucker Company (B & T), a Pennsylvania corporation, to treat acid mine drainage discharging from Lancashire Mine No. 15 so long as such discharge does not meet minimum water quality standards, and which substandard quality of the discharge is expected to continue for the foreseeable future. B & T, the last operator of Mine 15, denies any legal responsibility for the discharge or its treatment under any one or more of the legal theories advanced by the Commonwealth in support of the relief sought.

Twelve days of hearings have produced a record of over 1400 pages of testimony and more than 250 exhibits, which record in turn has produced almost 200 requests for findings of fact and conclusions of law by the Commonwealth and over 300 on the part of B & T.

[ 9 Pa. Commw. Page 4]

By agreement of counsel and leave of court the case has been argued on the facts and the law before the court en banc and assigned to the Chancellor for adjudication.

In narrative form we shall set forth the history, background and events out of which this litigation arose and which is deemed essential to the legal issues raised. This narrative will encompass the majority of undisputed and common facts requested to be found by both parties. Facts essential to the legal issues which are in serious dispute as between the parties on grounds of relevancy, or of materiality or which are the subject of conflicting evidence will be specifically treated.*fn*

Location and History of Mine No. 15

Mine No. 15, a bituminous deep coal mine, is located in the "B" or Lower Kittanning seam of coal in an area of Cambria County and Indiana County, Pennsylvania, known as the Barnesboro Basin. The Barnesboro Basin is an area bounded on the east by the Laurel Hill Anticline, on the west by the Nolo Anticline, on the south by unmined coal, and on the north by the West Branch of the Susquehanna River. The Laurel Hill Anticline and the Nolo Anticline represent the highest points of the Basin in terms of elevation. The lowest portion of the Basin which lies between those two anticlines is known as the Barnesboro Syncline. At the southerly end of the Basin, the Barnesboro Syncline is in unmined coal. From that point, it progresses eastwardly to a mined area in a mine known as the

[ 9 Pa. Commw. Page 5]

Colver Mine and then northwardly into Mine No. 15. It then progresses through the length of Mine No. 15 into a mine known as Springfield No. 4 and then out the northern end of the Basin. Most of the area of Mine No. 15 is located in the Barnesboro Syncline and is located in the lowest portion of the Barnesboro Basin. It contains approximately 6,600 acres.

The driftmouth of Mine No. 15 is located near Bakerton on the West Branch of the Susquehanna River at an elevation of approximately 1,531 feet. A drift opening in a mine is an opening which is made at a point where the coal seam in which the mine is located outcrops at or near the surface of the ground.

From the point where the driftmouth of Mine No. 15 is located at the outcrop of the "B" seam of coal near the West Branch of the Susquehanna River, the "B" seam of coal slopes downward in a southwesterly direction.

The earliest mining in Mine No. 15 was in the year 1915 and was done in the northeasterly section of the mine at or near where the "B" seam of coal outcrops near the West Branch of the Susquehanna River. From that point, the mining in Mine No. 15 was done to the dip, that is, from the highest point of elevation in the mine at the outcrop down the slope of the "B" seam in a southwesterly direction to the lowest area of the mine which is at an elevation of approximately 1,230 feet.

Mine No. 15 was first operated by the Watkins Coal Co. under the name "Watkins No. 3." In 1916, the operation of the mine was taken over by the Watkins Coal Mining Co., and the mine was operated by that company under the name "Watkins No. 3" through the year 1922. In the year 1923, the operation of the mine was taken over by the Pennsylvania Coal and Coke Corp., which operated the mine under the name "Pennsylvania

[ 9 Pa. Commw. Page 6]

No. 18." The mine was idle during the years 1924 and 1925. In 1926, the mine began to be operated by the Barnes Coal Co., which continued to operate the mine through the year 1938. In 1939, B & T acquired the assets of Barnes Coal Co. and took over the operation of Mine No. 15.

During the entire period of its operation, the total amount of coal produced from Mine No. 15 was 29,010,131 tons. Of that total production, 25,388,414 tons were produced prior to January 1, 1966, and 3,621,717 tons were produced after January 1, 1966. The annual production of coal from the mine beginning with the year 1960 is as follows:

Annual Tons

Year of Production

1960 824,923

1961 861,051

1962 1,164,885

1963 1,581,043

1964 1,697,283

1965 1,747,435

1966 1,464,946

1967 1,056,759

1968 886,726

1969 213,286

The portion of Mine No. 15 known as the breakout area is located on the West Branch of the Susquehanna River at a point where the "B" seam of coal is within approximately fifty feet of the surface of the land.

During the final four years of operation of Mine No. 15 (1966-1969) 3,621,717 tons of coal were mined having a net sale value at $18,198,631 and resulting in a pretax profit of $2,777,608.

Less than 10% of the total area of Mine No. 15 was mined after January 1, 1966 and the area mined after

[ 9 Pa. Commw. Page 7]

    that date was in the southwesterly part of the mine and was at an elevation 100 feet to 215 feet lower than the coal elevation at the breakout area, with the majority of such mining having at least 150 feet to 200 feet below the coal elevation at the breakout area. Less than 40% of the area of Mine No. 15 that was mined after January 1, 1966 was mined after October 1, 1967.

If the area of Mine No. 15 mined after January 1, 1966 had not been so mined, the breakout of mine water which occurred in the summer of 1970 along the West Branch of the Susquehanna River near its driftmouth would still have occurred.

Coal was last removed from Mine No. 15 on May 10, 1969. Sealing procedures and removal of equipment were completed at later dates.

On May 10, 1969, there was still mineable coal in certain areas of Mine No. 15, but B & T ceased operation of the mine for the reason that it could not economically afford to pump and treat the water that it would have had to pump from the mine to continue to operate the mine.

There is no intention on the part of B & T to reopen Mine No. 15 or to resume the operation of that mine.

After May 10, 1969, B & T proceeded to complete the construction of bulkhead seals between Mine No. 15 and Mine No. 24-B and to seal the other openings in Mine No. 15.

The construction of the bulkheads between Mine No. 24-B and Mine No. 15 and the sealing of Mine No. 15 by B & T were done in accordance with the requirements of the Department of Mines and Mineral Industries of the Commonwealth in effect at the time the construction and sealing were done. Concrete seals

[ 9 Pa. Commw. Page 8]

    were not used as provided for by special condition of a permit hereinafter referred to.

The driftmouth of Mine No. 15 was sealed with a type of seal known as an air seal which comported with requirements of the Department of Mines and Mineral Industries. An air seal is a seal which will allow water to flow out of a mine but at the same time will prevent the entry of air through the seal into the mine.

Until January, 1971, the agency of the Commonwealth responsible for the regulation and control of the sealing of coal mines was the Department of Mines and Mineral Industries. Since then, the responsibility has been vested in the Department of Environmental Resources.

Some time prior to September 24, 1969, B & T filed a closing or abandoned mine map of Mine No. 15 with the Department of Mines and Mineral Industries in Harrisburg. On this map, the notation appears -- "Abandoned May 10, 1969." That notation was written on that map by Everett Pennington, then an employee of the Department of Mines and Mineral Industries whose responsibilities included receiving and filing "abandoned" bituminous mine maps.

The Certificate and Permit History of Mine No. 15

Prior to the Act of May 8, 1945, P.L. 435, amending the so-called Pure Streams Act of June 22, 1937, P.L. 1987, 35 P.S. § 691.1 et seq., the statutory law of Pennsylvania did not require the operator of a coal mine to obtain a certificate or permit with respect to the discharge of mine waters into the streams of the Commonwealth.

After the 1945 Act became effective and implemented, a "Certificate of Approval of Mine Drainage" was

[ 9 Pa. Commw. Page 9]

    issued by the Sanitary Water Board to B & T for Mine No. 15, which certificate was dated July 22, 1948 and bore the number 892. By this certificate the Board approved a plan of mine drainage and disposal whereby discharge from the mine would be pumped at three pumping stations and discharged into the West Branch of the Susquehanna River without any requirement of treatment or provision for post-mining discharge. It did, however, contain the following condition:

"When in the opinion of the Board, because of changes in the volume or character of the drainage or the time or manner of disposing of it, or the changed use or condition of the receiving stream, the herein approved disposal of mine drainage ceases to be satisfactory to the Board, then upon notice by the Board, the right herein granted to discharge such drainage shall cease and become null and void and, within the time specified by the Board, the Owner, Operator or Lessee shall adopt such remedial measures as, in the opinion of the Board, will be satisfactory."

Based upon an application of B & T dated January 5, 1960, on March 25, 1960, a new permit for mine drainage and industrial waste disposal was issued by the Board for Mine No. 15. Under this permit, bearing the number 14326 (sometimes referred to as 19124-M, apparently because the application was assigned that number), the Board approved a change of plan of mine drainage for Mine No. 15 whereby the drainage would be pumped from the mine at the Duman pumping station located at the southwest end of the mine at its lowest elevation point and discharged into Crooked Run, a tributary of Elk Creek, which flowed to the North Branch of Black Lick Creek and then to the Conemaugh River, being headwaters of the Allegheny River. There was no requirement in this permit for the treatment of the mine drainage nor any provision

[ 9 Pa. Commw. Page 10]

    for post-mining discharge. This permit superseded Certificate No. 892.

On September 15, 1964, B & T filed an application for a new mine drainage permit for Mine No. 15 and for two new coal mines which were being opened by it, one of which was Lancashire Mine No. 24-B in the "B" seam of coal; and the second of which was Lancashire Mine No. 24-D in the "D", or Lower Freeport, seam of coal. The proposed plan of drainage for Mine No. 15 was the same as that which had previously been covered by Permit No. 14326, that is, to pump the water from the mine at the Duman pumping station. In addition, B & T proposed to drain water from Mine Nos. 24-B and 24-D into Mine No. 15 for pumping and discharge at the Duman pumping station.

As disclosed by the application, substantial drainage from this complex of mines was anticipated to be 6.5 million gallons per day and water quality varied from an expected alkaline state as to drainage from Mine No. 24-D to that of high acid and iron content in the other areas of the mining complex.

On December 21, 1964, a new permit bearing No. 564M5 (also sometimes referred to as 564M005) was issued by the Board to B & T approving the plan of proposed mine drainage as submitted. There was no requirement in this permit that the drainage be treated nor was there any provision for post-mining discharge or the treatment thereof. This permit superseded permit No. 14326. However, under legislation then in effect (1945 amendments) treatment of the discharge would have been required had the streams into which the discharge was to flow not been "unclean" streams.

We here note parenthetically that the actions of the parties as to permit No. 564M5 before and after the effective date of the 1965 amendments to The Clean

[ 9 Pa. Commw. Page 11]

Streams Law*fn1 and the issuance of a new permit to B & T under the new legislation (permit No. 567M035, infra) are matters of great dispute and controversy as between the parties and directly bear upon the statutory law to be considered as governing this case.

The certificate and permit history continues by specific findings of fact.

1. On May 25, 1966, pursuant to Section 315(d) of the 1965 amendments to The Clean Streams Law, B & T, on a form furnished by the Commonwealth, applied for an extension of time to operate under its mine drainage permit No. 564M5 which, as then in effect, covered Mines Nos. 15, 24-B and 24-D. As previously noted, while substantial drainage from the mining complex was anticipated and provided for by a pumping facility at Duman Dam, and the quality of drainage was generally of high acid and iron content, no requirement for treatment of the drainage had been imposed nor provision made for post-mining discharge.

2. Representations made in the body of the May 25, 1966 application and an attached "Summary Report" recognized continued high volume of discharge from the mining complex and its high acid and iron content. It was further represented that the discharge was to be treated and there were set forth two alternative plans for treatment and a time schedule for completion of treatment facilities.

[ 9 Pa. Commw. Page 123]

. By letter dated November 2, 1966, the Board granted an extension of permit No. 564M5 to November 1, 1968, ". . . to complete mining operations covered by your Permit . . . subject to the following stipulations:

"1. That you abide by Conditions numbered 3, 4, 6, 7 & 27 of the 'Standard Conditions Accompanying Permits Authorizing The Operation of Coal Mines' as adopted by the Sanitary Water Board on January 19, 1966, which shall be attached to and made a part of your Permit No. 564M005.

"2. That you report to the Regional Sanitary Engineer giving the status of your abatement project, at the times set forth in Item 18 of your Application for an Extension of Time."

4. On November 8, 1966, B & T formally accepted and agreed ". . . to abide by the special added conditions incorporated into and made a part of . . ." permit No. 564M5.

5. The special conditions of possible relevancy referred to are:

"Three: No silt, coal mine solids, rock, debris, dirt and clay shall be washed, conveyed or otherwise deposited into the waters of the Commonwealth.

"Six: The permittee shall notify the reporting agency by certified mail that he has completed operations within fifteen (15) days after mining is completed.

"Seven: Whenever, because of an accident or otherwise, a discharge not allowed by the permit occurs, the permittee shall immediately telephone the reporting agency to report such incident and shall promptly take such steps as are necessary to halt the unauthorized discharge."

6. On the form supplied by the Commonwealth for an extension of time for a pre -1965 amendment permit

[ 9 Pa. Commw. Page 13]

    is an item (No. 18) for a schedule of completion of certain steps including "Final Plans and Application" to which B & T responded by indicating the date of March, 1967.

7. By letter dated March 13, 1967, B & T acknowledged its responsibility under the time extension granted with respect to permit No. 564M005 to ". . . submit final plans and application for new mine drainage permit . . . during March 1967" but because of needed additional pilot plan studies, further time was needed to September, 1967.

8. On or about October 17, 1967, B & T filed an application for a mine drainage permit on a form prescribed for post -1965 amendment permits which application pertained to both Mines Nos. 15 and 24. On March 22, 1968, permit No. 567M035 was issued in response to this application subject to terms and conditions hereinafter set forth.

9. As part of its application resulting in issuance of permit No. 567M035 there was attached an engineering report to which was later added an addendum estimating the volume of drainage from both mines. It was also disclosed for the first time that the closing of Mine No. 15 was contemplated and it estimated a substantially reduced drainage after construction of bulkheads and the inundation of Mine No. 15 upon cessation of mining in that mine. The report, however, represented the contemplated construction of a treatment system for mine drainage to meet minimum water quality standards and related subjects of pumping capacity, storage basins, methods of treatment and sludge removal and disposal.

10. Permit No. 567M035, as issued, was subjected to certain designated standard conditions and contained the specific proviso that B & T comply with ". . . all representations regarding operation, construction,

[ 9 Pa. Commw. Page 14]

    maintenance and closing procedures as well as all other matters set forth in [its] application and its supporting documents." Pertinent standard conditions incorporated into the permit were:

"(6) 'The permittee shall notify the reporting agency [Department of Health] by certified mail that he has completed operations within fifteen (15) days after mining is completed.'

"(7) 'Whenever, because of an accident or otherwise, a discharge not allowed by the permit occurs, the permittee shall immediately telephone the reporting agency to report such incident and shall promptly take such steps as are necessary to halt the unauthorized discharge.'

"(8) 'The permittee shall fully comply with the mine closure procedures set forth in the plan for drainage in an expeditious manner after mining has been completed.'

"(10) 'The permittee shall at no time discharge to the waters of the Commonwealth mine drainage from any source the pH of which is less than 6.0, or greater than 9.0.'

"(11) 'The permittee shall at no time discharge to the waters of the Commonwealth mine drainage from any source containing a concentration of iron in excess of 7 milligrams per liter.'

"(12) 'The permittee at no time shall discharge to the waters of the Commonwealth mine drainage from any source the acid content, of which . . . exceeds its alkaline content. . . .'

"(27) 'Monthly operation reports shall be submitted to the Board through the reporting agency on forms supplied by the agency. Such reports shall be submitted promptly after the end of each month.'"

11. On May 6, 1968 (approximately six weeks after issuance of permit No. 567M035), B & T by letter to

[ 9 Pa. Commw. Page 15]

    the Department sought a further extension of time to operate under permit No. 564M5 from November 1968 (the expiration date of the first extension granted to that permit) to April 1969. In this letter B & T represented it was in the process of isolating and sealing Mine No. 15 under supervision of the Department of Mines and Mineral Industries and upon completion and the inundating of the mine discharge from that mine at Duman Dam (and another discharge point under another permit not here relevant) would be completely eliminated until some future time when pumping would be resumed incident to mining of the "D" seam.

12. These plans represent a departure from the closure and drainage plans submitted by B & T in conjunction with its application for permit No. 567M035 in that the former contemplated and provided for high volume drainage and its treatment prior to closure of Mine No. 15 and reduced drainage and treatment at Duman Dam after closure of Mine No. 15, presumably from Mine No. 24 also covered by that permit.

13. Prior to granting the further extension sought with respect to permit No. 564M5 and in response to a departmental request, B & T submitted a map of the Mine No. 15 "B" seam and other information which represented in part that "[t]here will be no water pumped from this inundated area of the 'B' seam (Lower Kittanning), and all access points to this mine will be sealed with concrete. This includes portals, boreholes, shafts, etc. which will be completely isolated and there will be no sampling points. . . . Any water pumped to the surface . . . will be that which will be developed in the 'D' seam. . . ."

14. This reply letter of B & T referenced its request, the department inquiry and its reply to permit No. 567M035 (post-1965 amendment permit) rather than to permit No. 564M5.

[ 9 Pa. Commw. Page 1615]

. By letter dated July 18, 1968, the Board advised B & T that it was granted a further extension of time to April 30, 1969, to complete mining operations covered by permit No. 564M5 subject to the same special conditions as imposed with respect to the first extension (F.F. 5). An acceptance form enclosed with the letter was accepted by B & T.

16. By letter of April 14, 1969, B & T requested a third extension of time from April 30, 1969, to May 20, 1969, of permit No. 564M5, assigning as the reason for the request a coal strike in the area.

17. By letter dated April 30, 1969, the Board granted the requested further extension for discharge from Mine No. 15 covered by permit No. 564M5 subject to the same conditions as imposed incident to the first extension granted and restated in the second extension. An acceptance form identical to those accepted by B & T with respect to the prior two extensions was enclosed but never accepted and returned to the Board by B & T.

18. By interoffice memo within B & T, it was suggested that the acceptance form not be returned or be delayed in return to suit the convenience of B & T and the closing of Mine No. 15.

19. The last two extensions of permit No. 564M5 were sought by B & T and granted by the Board after application for permit No. 567M035 had been made by B & T and issued by the Board.

20. The last two extensions of time granted by the Board as to permit No. 564M5 were issued by the Board with knowledge that B & T was in the process of discontinuing the operation of Mine No. 15 upon completion of the program of isolating, sealing and inundating that mine as disclosed in the various documents submitted, and that there would be no anticipated

[ 9 Pa. Commw. Page 17]

    discharge at the Duman Dam discharge point when the ...


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