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decided: September 3, 1980.


Appeals from the Order of the Environmental Hearing Board in case of William A. Lucas and August J. Lucas v. Commonwealth of Pennsylvania, Department of Environmental Resource, No. 77-059-D.


Albert E. Vogel, Jr., Assistant Attorney General, with him Thomas Y. Au, Assistant Attorney General, for Commonwealth of Pennsylvania.

Leo M. Stepanian, Brydon & Stepanian, for William A. Lucas and August J. Lucas.

President Judge Crumlish and Judges Mencer, Rogers, Blatt, Craig, MacPhail and Williams, Jr. Judge Wilkinson, Jr. did not participate. Opinion by Judge MacPhail.

Author: Macphail

[ 53 Pa. Commw. Page 600]

William A. Lucas and August J. Lucas (Appellants) appeal and the Department of Environmental Resources (DER) cross-appeals from an adjudication and order of the Environmental Hearing Board (EHB), which sustains in part and dismisses in part an order issued by DER. By prior order of court the cases were joined for disposition. We affirm the adjudication and order of the EHB.

The pertinent facts of this case are the following: Appellants, partners in the Lucas Coal Company, own a strip mine in Butler County, which is identified by mining permit No. 174-5 (and amendments) issued under the Surface Mining Conservation and Reclamation Act, Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. § 1396.1 et seq. (prior to November 30, 1971, entitled the Bituminous Coal Open Pit Mining Conservation Act). The mine is contained within the larger geographical area covered by mine drainage permit No. 2866BSM39 (originally No. 365BMS1) issued in 1965 under The Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.1 et seq.

In early 1972, Appellant William Lucas contacted Walter Kohler, then Chief of the mine drainage section of DER's Division of Surface Mine Reclamation,

[ 53 Pa. Commw. Page 601]

    to inquire about getting approval to dump pickle liquor sludge from the Armco Steel Corporation (Armco) plant into Appellants' strip mine. Mr. Kohler advised Appellants to request a backfilling variance or amendment to their mining permit to allow disposal of the sludge which is an industrial waste. Apparently, Mr. Kohler did not inform Appellants that any other DER permit had to be obtained. On May 22, 1972, Appellants wrote to Mr. Kohler requesting approval to amend their backfilling plans at mining permit Nos. 174-5A, 174-7 and 174-9. On May 26, 1972, Appellants received written approval from Mr. Kohler to place the sludge in the strip mine pit governed by mine drainage permit No. 3071BSM1 (permit No. 2866BSM39 was not referred to). Prior thereto, DER had a chemical analysis conducted on a sample of the Armco sludge.

On July 29, 1972, Appellants began dumping the Armco sludge into their strip mine area covered by mine drainage permit No. 2866BSM39 (rather than 3071BSM1) and mining permit No. 174-5 and amendments. On August 2, 1972, DER mine inspector Merle Urey made an inspection of the disposal site and asked to see Appellants' written authorization to conduct the operation. Upon being shown Mr. Kohler's letter of Approval, Mr. Urey pointed out that the permit did not cover the area of the actual dumping site. Appellants promptly wrote to Mr. Kohler, asking for a correction of the permit numbers. Appellants assert that Mr. Kohler then gave his approval of sludge disposal in the intended site over the telephone; no written approval was in evidence. However, after Appellants' second letter, Mr. Kohler -- accompanied by Mr. Urey and W. E. Guckert, director of the Division of Surface Mine Reclamation -- visited the disposal site. At that time, those DER

[ 53 Pa. Commw. Page 602]

    staff members gave no indication that Appellants lacked the authority to deposit the sludge at that particular site.

In August of 1972, during the sludge disposal operation, DER received complaints relating to the spillage of the sludge onto Butler County roads. Thereupon, DER initiated a suit in equity against the hauler and Armco in the Court of Common Pleas of Butler County seeking to enjoin the spillage. That suit resulted in a consent decree granting the hauler authority to continue transportation of the sludge "to locations where the Lucas Coal Company has obtained a permit from the Department of Environmental Resources for the disposal of such waste." On September 15, 1972, Walter Heine, Associate Deputy Secretary for Mines and Land Protection (supervisor of divisions of Surface Mine Reclamation and Solid Waste) issued a cease and desist order to Appellants stating that Appellants' surface mining permit amendment did not constitute a permit under the Pennsylvania Solid Waste Management Act (Solid Waste Act), Act of July 31, 1968, P.L. 788, as amended, 35 P.S. § 6001 et seq.*fn1 and thus suspending Appellants' disposal operations. Appellants took no appeal and ceased operations. They received $55,475.35 from Armco for the disposal of the sludge.

In April, 1974, a Mr. Kelly, who resided at a location adjacent to Appellants' property, complained to DER of contamination of his water supply allegedly stemming from Appellants' mining operations. As a result of the complaint, John Davidson, an environmental protection specialist with DER, collected water samples from the immediate vicinity of the mine from

[ 53 Pa. Commw. Page 603]

March, 1974, until the spring of 1977. On May 18, 1977, DER ordered Appellants to A) submit within 60 days an application for an industrial waste permit to treat industrial wastes to meet certain standards B) reduce within 120 days the effluent from the mine to certain specified standards and C) furnish a $200,000 bond within 30 days to assure financial responsibility for the continued treatment of industrial wastes. Appellants appealed that order to the EHB which issued an adjudication and order after extensive hearings. The EHB order deleted the requirement of a bond, affirmed the requirement that Appellants apply for a permit and modified the standards for the treatment of the effluent.

Our scope of review of an order of the EHB is limited by the Administrative Agency Law, 2 Pa. C.S. § 704, "to a determination as to whether or not the findings of fact are supported by substantial evidence, whether or not an error of law was committed, or whether or not Appellant's constitutional rights were violated." Pawk v. Department of Environmental Resources, 39 Pa. Commonwealth Ct. 457, 461-62, 395 A.2d 692, 694 (1978).

For convenience and clarity, we will treat the cross-appeal separately. Initially, we address the Appellants' contentions.

1. Need For Industrial Waste Permit

Appellants first question whether the EHB committed an error of law in ordering them to apply for a new industrial waste permit, 1) when they already were in possession of an amendment to their mining permit granted under the Bituminous Coal Open Pit Mining Conservation Act, which the EHB held effectively constituted a permit to dispose of the Armco sludge, and 2) when the mine drainage and

[ 53 Pa. Commw. Page 604]

    industrial waste disposal permits issued to them in 1965, under The Clean Streams Law, authorized their discharge of industrial waste into the streams.

We do agree with the conclusion of EHB that Appellants' amended backfilling plan within its mining permit was equivalent to a permit issued under the Solid Waste Act to allow disposal of the sludge. That approval, however, cannot be construed as also granting Appellants permission to discharge industrial waste from the sludge or the inactive mine operation into Commonwealth waters. The approval made no reference to permitted discharge and contained no provisions for treatment in the event of discharge such provisions would have been contained in a proper industrial waste permit issued under The Clean Streams Law.

Furthermore, the two permits issued in 1965 do not authorize the industrial waste discharges that have occurred since Appellants' completion of its mining operations. Though Appellants apparently complied with the permits' parameters of acid, iron and pH during its mining operations, thereafter those parameters were exceeded. Accordingly, Appellants must apply for a new permit which would contain appropriate treatment parameters for all pollutants within the increased discharge.

The EHB is not ordering Appellants to apply for another permit to dispose of the industrial waste in their mines, but is requiring Appellants to apply for a permit for treatment to specific standards of all their industrial waste discharges entering the streams. The EHB has the statutory power and duty to "[f]ormulate, adopt, promulgate and repeal such rules and regulations and issue such orders as are necessary to implement the provisions of this act." (Emphasis added.) Section 5(b)(1) of The Clean

[ 53 Pa. Commw. Page 605]

Streams Law, 35 P.S. § 691.5(b)(1). Section 307 of The Clean Streams Law, 35 P.S. § 691.307, requires such a permit to further the policy of both preventing any further water pollution and eliminating existing pollution; therefore it was necessary and correct for the EHB to order Appellants to apply for an industrial waste permit.

2. Establishing Standards on a Case-By-Case Basis

In its order, DER set forth specific limitations on the concentration of certain toxic substances that would be permitted in Appellants' effluent ...

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