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WILLIAM J. MCINTIRE COAL CO. v. COMMONWEALTH PENNSYLVANIA (08/13/87)

decided: August 13, 1987.

WILLIAM J. MCINTIRE COAL CO., INC., ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



Appeal from the Order of the Environmental Hearing Board of Pennsylvania in case of William J. McIntire Coal Company, Inc. et al. v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 83-180-G.

COUNSEL

Gregg M. Rosen, Rosen & Mahfood, for petitioners.

Leo M. Stepanian, for petitioners, William J. McIntire Coal Co., Inc., and William J. McIntire, individually.

B. Patrick Costello, Costello & Berk, for petitioner, Ronald G. McIntire Coal Co., Inc. and Ronald G. McIntire, individually.

Diana J. Stares, Assistant Counsel, for respondent.

Judges Craig and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 108 Pa. Commw. Page 444]

William J. McIntire Coal Co., Inc., William J. McIntire, and Ronald G. McIntire (collectively McIntires), appeal a decision of the Environmental Hearing Board (Board) affirming an order of the Department of Environmental Resources (Department). The Department's order, dated July 29, 1983, directed the McIntires to permanently treat or abate acid mine drainage emanating from an area known as the Heilman Mine in Armstrong County, Pennsylvania. McIntires also appeal the Board's affirmance of its prior order on reconsideration.*fn1

[ 108 Pa. Commw. Page 445]

William J. McIntire Coal Co., Inc. operated a surface mining operation on land leased from Ray Heilman between 1975 or 1976 and 1979. William J. McIntire and Ronald G. McIntire are brothers and are the sole partners in M and M Coal Co. which subcontracted with William J. McIntire Coal Co., Inc., for the mining activities at the Heilman Mine site.

Prior to the issuance of William J. McIntire Coal Co., Inc.'s surface and mine drainage permits, a Department inspector conducted a pre-mining survey of the site. The inspector noted abandoned deep mines from a prior mining operation in an area known as the Heilman Ravine. In connection with the pre-mining survey the inspector took water samples of the discharge from the abandoned deep mines in the Heilman Ravine and a subsequent analysis indicated that the water was in violation of Department effluent limits, i.e. acid mine drainage.

On March 7, 1975, the Department issued a mining permit and a mine drainage permit to William J. McIntire Coal Co., Inc. for the Heilman Mine site, which included the Heilman Ravine where the acid mine discharges were located. The discharges which are

[ 108 Pa. Commw. Page 446]

    the subject of the Department's July 29, 1983, order are in the vicinity of the pre-existing deep mines. However, the McIntires backfilled the entire area with soil and the deep mine entries are thus no longer visible. The groundwater from the majority of the Heilman Mine site flows toward the Heilman Ravine where it discharges. The discharges form a small stream which flows into Garrett's Run, a tributary of the Allegheny River.

The McIntires appealed the Department's order to permanently treat or abate the acid mine discharges to the Board. The hearing examiner for the Board resigned prior to issuance of the July 7, 1986, adjudication. The Board affirmed the Department's order and held the McIntires liable for causing or allowing unauthorized discharges from the Heilman Mine in violation of Section 315 of the Clean Streams Law,*fn2 the Department effluent limitations as set forth at 25 Pa. Code ยง 87.102 and various conditions contained in the mine drainage permit.

The Board affirmed its adjudication on reconsideration. On appeal to this Court*fn3 the McIntires contend that the Board committed an error of law in finding them liable under Section 315 of the Clean Streams Law for the discharges which they allege they did not cause or degrade and that they are entitled to a new hearing in light of the fact that the hearing examiner resigned prior ...


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