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GINTER COAL COMPANY v. ENVIRONMENTAL HEARING BOARD AND DEPARTMENT ENVIRONMENTAL RESOURCES (06/18/73)

decided: June 18, 1973.

GINTER COAL COMPANY, ET AL.
v.
ENVIRONMENTAL HEARING BOARD AND DEPARTMENT OF ENVIRONMENTAL RESOURCES, INTERVENOR



Appeal from the Order of the Environmental Hearing Board in case of In the Matter of Department of Environmental Resources v. Ginter Coal Company and Timothy Reilly, No. 72-350.

COUNSEL

Norman M. Yoffe, for appellants.

No appearance for appellee.

K. W. James Rochow, Assistant Attorney General, for intervenor.

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

Author: Kramer

[ 9 Pa. Commw. Page 264]

This is an appeal by the Ginter Coal Company and Timothy Reilly (hereinafter referred to as Ginter) from an order of the Environmental Hearing Board (Board) denying an appeal from a September 19, 1972 order of the Department of Environmental Resources, Bureau of Land Protection and Reclamation (DER), directing Ginter to apply for a license under the Surface Mining Conservation and Reclamation Act, Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. § 1396.2 et seq. (hereinafter referred to as SMCR Act). DER's order also contained a "Stop Order" directing Ginter to cease all its operations until it secured "the necessary license, liability insurance and permit."

The sole question presented to this Court is whether Ginter's business operations of removing anthracite coal from culm banks is "surface mining" within the meaning of the SMCR Act. The pertinent facts are not in dispute. Ginter is in the business of recovering anthracite coal from culm banks located on leased property in Schuylkill County. The two culm banks cover about 20 acres each, one approximately 30 feet high, the other approximately 50 feet high. These culm banks consist of deposits of fine particles of coal, rock and other material, representing the residue or waste from coal mining operations many years ago. The culm banks in question are about 25 years old. Ginter commenced its operations approximately eight years ago. Ginter digs into the culm bank with tractor-type, front end loaders which pick up a load of the material, which is then transported between 100 and 500 feet into a processing plant where the coal is separated from the rocks and other debris. The coal is then deposited in railroad hopper cars at the plant site and sent to Ginter's customers. The record shows that Ginter, through its process, realizes from the material about 60 per cent coal

[ 9 Pa. Commw. Page 265]

    and 40 percent residue. Ginter uses water from an unnamed stream nearby, which is pumped into the processing plant, mixed with the residue, and pumped in the form of a slurry to a silt dam where it is deposited. The silt dam is constructed of refuse consisting of slate, rock and some coal. The silt dam is in a location adjacent to the culm banks.

One of the more interesting aspects of the record in this case is that although there is disagreement on whether Ginter's water operation further pollutes the streams in the locality, there is general agreement, even by DER, that the long-range effect of Ginter's operation will be to reduce pollution by virtue of the eventual removal of the culm banks, and thereby benefit the environment in the Commonwealth.

In any event, as the issue was presented to this Court, we are not called upon at this time to make a determination on whether Ginter's operation violates any of the pollution laws or standards. Rather, we are called upon solely to determine whether Ginter's operation is surface mining within the legislative intent of the SMCR Act. This is a case of first impression in that there have been no prior cases brought to the courts requiring a determination of the meaning of "surface mining."

The definition of surface mining is found in Section 3 of the SMCR Act, 52 P.S. § 1396.3, wherein it is stated: "'Surface mining' shall mean the extraction of minerals from the earth or from waste or stock piles or from pits or banks by removing the strata or material which overlies or is above or between them or otherwise exposing and retrieving them from the surface, including but not limited to strip, drift, and auger mining, dredging, quarrying, and leaching, ...


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