Appeal from Order of the Environmental Hearing Board in case of United States Steel Corporation v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket, No. 73-447-B.
David McNeil Olds, with him Harley N. Trice, II, and Reed, Smith, Shaw & McClay, for appellant.
Thomas M. Burke, Special Assistant Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.
[ 17 Pa. Commw. Page 595]
This is an appeal from an order of the Environmental Hearing Board which affirmed an order of the Department of Environmental Resources directing appellant to prepare a plan and timetable to abate a subsurface fire. The Department's order from which the appeal was taken was issued without a hearing pursuant to the provisions of Section 1917-A of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 510-17 (Supp. 1974-1975). On appeal, the Environmental Hearing Board held a hearing.
Few things are clear in this record which was no fault of the very competent Hearing Examiner or of the
[ 17 Pa. Commw. Page 596]
very able counsel for both parties. The issue in a real sense is who will be under a duty to expend the time, effort, and money to determine what the facts are. It is not without significance that the Department's order merely orders appellant to prepare a plan and timetable to abate the subsurface fire. That order, by implication, recognizes that at this time it is not known from the record who will be responsible for putting out the fire or whether it should be permitted to "burn itself out." Appellee has not pointed out to us nor has our research revealed any authority for the Department of Environmental Resources or the Environmental Hearing Board to order a party who has not been shown to be responsible for the abatement of a nuisance to prepare a plan for its abatement that will be used by one responsible in the hope that the preparation of the plan will reveal who is responsible.
Specifically, this record supports a finding that there is a subsurface fire. It is stipulated that it was not started by the appellant. It was started by a fire in a dump in a cut of a strip mine. The strip mine was not owned nor had it ever been operated by appellant. In the appellee's testimony, there are contradictions as to in which stripping, done by different individuals at different times, the fire started.
Finding of Fact No. 5 states:
"5. U.S. Steel did not start or cause the fire. It was probably started when trash and debris, dumped on one of the old airholes, caught or was set on fire and fell, while burning, into the mine cavity."
One searches this record in vain to find one word of evidence or even speculation that this is how the fire started. This finding is completely inconsistent with Finding of Fact No. 4 which probably finds, supported by competent evidence, that this fire started "along the outcrop and was ...