Appeal from the Order of the Environmental Hearing Board in case of In the Matter of: Harman Coal Company, Docket No. 75-034-C.
Joseph N. Mack, with him Mack and Bonya; Blair S. McMillin ; and Reed, Smith, Shaw & McClay, for petitioner.
Elissa A. Parker, Assistant Attorney General, with her Donald J. Dennison, and Dennison and Mattson, for respondents.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by Judge Rogers.
[ 34 Pa. Commw. Page 611]
The Harman Coal Company (Harman) has filed a petition to review an order of the Pennsylvania Environmental Hearing Board (EHB) affirming the denial by the Pennsylvania Department of Environmental Resources (DER) of Harman's application for a mine drainage permit pursuant to The Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.1 et seq.
Sometime prior to 1974, Harman leased approximately 1000 acres in Warsaw Township, Jefferson County, with the intention of operating a coal surface or strip mine. Harman submitted an application for a mine drainage permit to DER which stated that the total surface area to be affected by the proposed strip mine would be 349 acres and that the expected daily yield of coal would be approximately 200 tons. The application also stated that drainage from the mine would be into an unnamed tributary of the North Fork of Red Bank Creek.
Harman was notified by letter of the DER that its application had been denied. The stated reasons for
[ 34 Pa. Commw. Page 612]
denial were that the low alkalinity and low buffering capacity of the watershed would make it difficult for any acid mine drainage or siltation from strip mining to be absorbed; that any acid mine drainage or siltation would have a serious deleterious effect on the water supply of the Borough of Brookville and on recreational uses of the area; and that the proposed facility would inadmissibly augment existing acid mine drainage on the site emanating from an abandoned strip cut.
Harman filed an appeal from the DER's order to the EHB and the EHB allowed the Borough of Brookville intervention. Thirteen hearings were held before EHB member Joseph L. Cohen. The EHB eventually entered its order affirming the DER's denial of Harman's application for a mine drainage permit. EHB's action was founded on evidence adduced at the hearings which established to EHB's satisfaction that if Harman's application were granted there would exist a "high probability of acid mine drainage being discharged into clean waters in contravention of The Clean Streams Law . . . and regulations thereunder. . . ." Harman filed a timely petition for review of the EHB's order in this Court. We affirm.
Section 301 of The Clean Streams Law (the Act), 35 P.S. § 691.301 provides:
No person or municipality shall place or permit to be placed, or discharged or permit to flow, or continue to discharge or permit to flow, into any of the waters of the Commonwealth any industrial ...