Harmar Coal Co. v. Sanitary Water Board

Dissenting Opinion by

Judge Mencer:

I respectfully dissent. This case presents us with the difficult problem of the extent to which a mine operator is responsible under the Clean Streams Law of 1965 for the treatment of polluted mine water which the operator pumps from an adjacent inactive mine to enable him to operate his own active mine and protect his miners.

The issue is whether Section 315 of the Clean Streams Law of 1965, Act of August 23, 1965, P. L. 372, applies to the fact situation here. I believe that it does. This section is captioned, “Permits for Operation of Coal Mines”. Its initial words are: “Before any coal mine. . . .” (Emphasis added.) This would clearly *444indicate that it was the intention of the Legislature to have this section apply to any coal mine, active or inactive alike. When Section 315 was added by the 1965 amendments, the Act was amended by adding, after Section 3, a new section to read: “Section 4. Findings and Declarations of Policy. — It is hereby determined by the General Assembly of Pennsylvania and declared as a matter of legislative findings that:

“(1) The Clean Streams Law as presently written has failed to prevent an increase in the miles of polluted water in Pennsylvania.
“(2) The present Clean Streams Law contains special provisions for mine drainage that discriminate against the public interest.
“(3) Mine drainage is the major cause of stream pollution in Pennsylvania and is doing immense damage to the waters of the Commonwealth.
“(4) Pennsylvania, having more miles of water polluted by mine drainage than any state in the nation, has an intolerable situation which seriously jeopardizes the economic future of the Commonwealth.
“(5) Clean, unpolluted streams are absolutely essential if Pennsylvania is to attract new manufacturing industries and to develop Pennsylvania’s full share of the tourist industry, and
“(6) Clean, unpolluted water is absolutely essential if Pennsylvanians are to have adequate out of door recreational facilities in the decades ahead.
“The General Assembly of Pennsylvania therefore declares it to be the policy of the Commonwealth of Pennsylvania that:
“(1) It is the objective of the Clean Streams Law not only to prevent further pollution of the waters of the Commonwealth, but also to reclaim and restore to a clean, unpolluted condition every stream in Pennsylvania that is presently polluted, and
*445“(2) The prevention and elimination of water pollution is recognized as being directly related to the economic future of the Commonwealth.”

The foregoing statement of policy indicates that the Legislature intended to deal directly with the problem of waters of the Commonwealth bang affected by polluted water resulting from mining operations. Section 315(b) provides, inter alia, that “[a] permit shall not be issued if the board shall be of the opinion that the discharge from the mine would be or become inimical or injurious to the public health, animal or aquatic life, or to the use of the water for domestic or industrial consumption or recreation.” There is no dispute in the instant case that the discharge from the Indianola Mine is polluting the receiving streams which are waters of the Commonwealth. The Sanitary Water Board so found as one of its findings of fact, the appellee by its application admits it, and there is substantial evidence in the record to support this finding of fact by the Board. The only dispute centers on the appellee’s contention that the language of Section 315 is applicable only to active mines and not to inactive mines or, if to inactive mines, then only to those owned by the applicant. Under the facts of this case I do not believe that the discharge from the Indianola Mine can be separated from the operation of the Harmar Mine. The sole reason that polluted water is being pumped from Indianola into the receiving streams is so that the Harmar Mine can operate. If pumping stopped, so would the operation of the Harmar Mine, because it would no longer be safe for miners to go into the Harmar Mine. The discharge of water from the Indianola Mine is absolutely essential to, and an integral vital part of, the operation of the Harmar Mine and accordingly must be subject to the issuance of a permit and the approval of a drainage plan, as required by the provisions of *446Section 815 which, govern the operation of any coal mine.

I am in accord with that portion of the Board’s adjudication that reads as follows: “Although the mine water pumped from Indianola does not come directly from the Harmar mine, it is the operation of the Harmar mine which results in the discharge from Indianola. The pumping of the water from Indianola changes significantly the natural drainage pattern. Increasing the rate of flow at a given point and concentrating the discharge at a given point are two immediate results of pumping, each of which tend to heighten the adverse effect of any pollutional load contained in the discharge. Pumping also prevents the stabilization of the water flowing through underground workings and prolongs the time required for a natural improvement of the water being discharged. We therefore conclude that the discharge from Indianola is subject to regulation under the Clean Stream Law.”

The Division of Sanitary Engineering, Pennsylvania Department of Health, published and circulated a Mine Drainage Manual on June 1, 1966 which stated on its cover and title pages that it was a guide for the preparation of applications, plans of drainage and reports on bituminous deep and anthracite mines. The appellee and the Sanitary Water Board do not share a common understanding as to the meaning or effect of these guidelines. I do not consider them to be equivalent to rules and regulations of the Department of Health and, even if they were to be so considered, they were entitled to little, if any, consideration without the approval of the Department of Justice, pursuant to the then applicable Administrative Agency Law, June 4, 1945, P. L. 1388, §21, as amended by the Act of June 26, 1963, P. L. 180, 71 P.S. §1710.21. More important, the power of an administrative agency to prescribe rules and regula*447tions under a statute is not the power to make law, but only the power to adopt regulations to carry into effect the will of the Legislature as expressed by statute. Volunteer Firemen’s Relief Association of Gity of Reading v. Minehart, 425 Pa. 82, 227 A. 2d 632 (1967); Commonwealth v. American Ice Co., 406 Pa. 322, 178 A. 2d 768 (1962). Here the guidelines in question were merely statements of policy and suggestions to mine operators relative to the preparation of applications for permits.

Although there was disputed testimony pertaining to the Board’s findings of fact Nos. 6, 7 and 8, the record discloses substantial evidence in support of the first five findings of fact, which are the essential findings here. These include the findings that, in order to insure the safety of the workers in the Harmar Mine, the applicant pumps mine water from an adjacent inactive mine (the Indianola Mine); that the applicant’s discharge from the Indianola Mine enters Deer Creek, a tributary of the Allegheny River, and is a discharge of approximately five million gallons of water per day, containing an iron concentrate in excess of seven milligrams per litre, the maximum concentration allowed under Board standards; that the discharge from the Indianola Mine results in an iron concentration in the receiving stream in excess of standards approved by the Board; and that the discharge from the Indianola Mine is polluting the receiving streams.

My examination of the record convinces me that there is substantial evidence to support these crucial findings of fact and that, in turn, they support the Board’s conclusions of law, including that the applicant’s discharge of untreated mine water from the Indianola Mine can be approved only if it meets Board standards and does not pollute the receiving streams. The Sanitary Water Board here has the responsibility *448to determine factual matters. McAllister Unemployment Compensation Case, 197 Pa. Superior Ct. 552, 180 A. 2d 121 (1962).

I would reverse the order of the Court of Common Pleas of Dauphin County.

Judge Kramer joins in this dissent.