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COMMONWEALTH PENNSYLVANIA v. BIG B MINING COMPANY (02/23/89)

decided: February 23, 1989.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, PETITIONER
v.
BIG B MINING COMPANY, INC., RESPONDENT



Appeal from the Order of the Environmental Hearing Board, in the case of Big B Mining Company v. Commonwealth of Pennsylvania, Department of Environmental Resources and Trout Unlimited, No. 83-215-G.

COUNSEL

Diana J. Stares, Assistant Counsel, for petitioner.

Bruno A. Muscatello, Stephanian & Muscatello, for respondent.

Michael J. Boyle, Meyer, Unkovic & Scott, for Trout Unlimited, intervenor.

Steven J. Schiffman, Serratelli & Schiffman, for Pennsylvania Federation of Sportsmen's Clubs, Amicus Curiae.

Judges Craig and McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 123 Pa. Commw. Page 593]

The Department of Environmental Resources (DER) has appealed from an adjudication and order of the Environmental Hearing Board (Board)*fn1 which reversed DER's denial of the permit sought by Big B Mining Company, Inc. (Big B) to conduct surface mining on a tract of land situated within the Silver Creek watershed.

The factual and procedural background giving rise to this appeal may be summarized as follows. In 1979, Big B applied for and was issued a permit to conduct surface mining on a tract of land in Butler County designated as the Fleming site. Mining operations were conducted on this site in 1980 and 1981. In December 1981, Big B applied for a permit to conduct surface mining on a site adjacent to the Fleming site, known as the Gould site. After a series of delays which we need not summarize, DER denied Big B's permit application in 1983 and Big B filed a timely appeal to the Board.

In 1985, Big B applied to re-permit a portion of the Fleming site which had not been mined under its previous permit. DER denied the application and Big B filed a second appeal. The two appeals were consolidated before the Board, which treated the two applications as

[ 123 Pa. Commw. Page 594]

    one, as we shall, referring to the entire site as the Gould site and to one single application.

Big B's Gould site is located approximately one mile upstream from Silver Creek. It drains into an unnamed tributary to Silver Creek, referred to by the Board as UT#1. UT#1 enters Silver Creek below the Walley Mill bridge. Silver Creek is placed in the "High Quality Waters" category downstream from that bridge. See 25 Pa. Code § 93.9 (Drainage List S).*fn2 Its waters upstream from the bridge are categorized as "Exceptional Value Waters." Id.*fn3

When DER denied Big B's permit application, it did so on the basis of 25 Pa. Code § 95.1(b).*fn4 That section provides:

[ 123 Pa. Commw. Page 595]

(b) Waters having a water use designated as 'High Quality Waters' in §§ 93.6 and 93.9 (relating to general water quality criteria and designated water uses and water quality criteria) shall be maintained and protected at their existing quality or enhanced, unless the following are affirmatively ...


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