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MARSTELLER COMMUNITY WATER AUTHORITY v. COMMONWEALTH PENNSYLVANIA (01/15/87)

decided: January 15, 1987.

THE MARSTELLER COMMUNITY WATER AUTHORITY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, BUREAU OF OIL & GAS, RESPONDENT



Original Jurisdiction in case of The Marsteller Community Water Authority v. Commonwealth of Pennsylvania, Department of Environmental Resources, Bureau of Oil & Gas.

COUNSEL

William Gleason Barbin, Gleason, Difrancesco, Shahade & Markovitz, for petitioner.

Justina M. Wasicek, Assistant Counsel, for respondent.

Judges MacPhail, Doyle and Colins, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 103 Pa. Commw. Page 196]

The Department of Environmental Resources, Bureau of Oil and Gas Management (DER), has filed preliminary objections to Petitioner Marsteller Community Water Authority's (Authority) petition for review requesting injunctive relief. For the reasons set forth below, we sustain DER's objections and dismiss the Authority's petition for review.

The Authority provides water service to residents of Marsteller and Moss Creek in Barr Township, Cambria County. The water supply is drawn from a pool of potable water located in an abandoned coal mine underlying Barr Township.

In March, 1986, following the drilling of gas wells in Barr Township, the Authority's water supply became diminished and the water itself colored. According to the Authority, water flow from its original point source decreased from five hundred gallons per minute to less than five gallons per minute.

The Authority filed a petition for review and application for preliminary injunction with this Court in July, 1986. The petition alleged that the continued permitting of gas well drilling by DER and the operation of such wells over the mine pool reservoir represents a serious threat of immediate and irreparable harm to this source of potable water. The Authority requested that this Court enjoin the issuance of any further permits and order that all drilling over the mine pool cease.

The Authority and DER thereafter entered into an agreement which was reduced to a consent order by

[ 103 Pa. Commw. Page 197]

    this Court on August 4, 1986. The order provided that the application for a preliminary injunction would be continued generally pending further proceedings by the Authority and a request for a hearing; that counsel for the Authority would submit a written request to DER for an investigation under Section 208 of the Oil and Gas Act (Act), Act of December 19, 1984, P.L. 1140, as amended, 58 P.S. ยง 601.208; and that DER would give timely notice to the Authority of all drilling permits issued for the area over the mine pool.

DER subsequently filed preliminary objections to the Authority's petition for review asserting inter alia that the Authority failed to exhaust its administrative remedies by not appealing the issuance of the drilling permits to the Environmental Hearing Board (Board) ...


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