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DEPARTMENT ENVIRONMENTAL RESOURCES v. LEON E. KOCHER COAL COMPANY (06/08/73)

decided: June 8, 1973.

DEPARTMENT OF ENVIRONMENTAL RESOURCES
v.
LEON E. KOCHER COAL COMPANY, ET AL.



Appeal from the Order of the Environmental Hearing Board in case of In the Matter of Leon E. Kocher Coal Company, No. 72-303.

COUNSEL

Eugene E. Dice, Assistant Attorney General, for appellant.

David F. DeWees, with him Allen Shaffer and Shaffer, Kleiman & DeWees, for appellee.

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

Author: Mencer

[ 9 Pa. Commw. Page 112]

The Leon E. Kocher Coal Company (Kocher), in connection with its mining operations, has utilized two silt ponds or basins since 1953. These ponds are filled, emptied and refilled in cycles of approximately one year.

On May 17, 1972, the Department of Environmental Resources (Department) conducted a visual inspection of the silt pond designated and known as No. 2. On June 9, 1972, the Department issued an order requiring the reduction of the water level in Silt Pond No. 2 and the cessation of the use of the impoundment. Kocher complied with this order but also filed an appeal to the Environmental Hearing Board (Board).

On August 17, 1972, the Department ordered Kocher to discontinue the use of Silt Pond No. 1. This order was also preceded by a visual inspection of the pond by the Department. Kocher, likewise, appealed this order to the Board and obtained a supersedeas, granted on August 25, 1972, which permitted continued use of each pond on condition that a five-foot distance be maintained from the water level to the top of each impoundment.

Following a hearing, the Board issued an adjudication on November 21, 1972 and vacated the Department's order of August 17, 1972, regarding Silt Pond No. 1, and remanded to the Department, for further study and action, that portion of the case relating to Silt Pond No. 2, the conditions of the supersedeas to remain in effect as to Silt Pond No. 2. The Department unsuccessfully sought a reargument before the Board and this appeal followed.

Our scope of review in an appeal from the Board is limited to whether constitutional rights were violated, an error of law was committed, or any necessary finding of fact was not supported by substantial evidence.

[ 9 Pa. Commw. Page 113]

Absent a finding of error in these areas, our role is to affirm the adjudication.

We have carefully examined the record and conclude that here there have been no violations of constitutional rights. We find the adjudication in accord with law and the findings of fact necessary to support it to be supported by substantial evidence. Since we must therefore affirm the Board, we will not consider the question, not raised by the parties, of whether that portion of the Board's order, remanding the ...


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