Armco Sludge Dumped in Mines Causes Fluoride Pollution

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PRIOR HISTORY:

 [***1] 
 

 

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.

DISPOSITION: Affirmed.

COUNSEL:
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.

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

OPINIONBY: MacPHAIL

OPINION:

 [*600] 

 [**2]  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
 [***2]  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,

 [*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
 [***3]  Nos.
174-5A, 174-7 and 174-9. On May 26, 1972, Appellants received written approval
from Mr. Kohler to place the

 [**3]  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
 [***4]  the Division of Surface Mine Reclamation — visited the disposal site. At
that time, those DER

 [*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.
§
 [***5]  6001 et seq. n1 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.

 

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n1 This case is unaffected by the new Solid Waste Management Act, Act of
July 7, 1980, P.L.
   , No. 97.

 

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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

 [*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
 [***6]  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).

 [**4]  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
 [***7]  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

 [*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
 [***8]  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

 [*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
 [***9]  limitations on the concentration of certain toxic substances that would be
permitted in Appellants’ effluent discharge. However, the EHB order provided
that:

Appellants shall prepare an
industrial waste permit application to treat discharges to the specific water
quality standards applicable to the Slippery Rock Creek Basin under Chapter 93
of 25 Pa. Code. In the process of reviewing appellants’ application, the
department may establish treatment parameters for the additional elements
listed
in paragraph B of its order only to the extent that they can be justified in
relation to specific, current water uses and established toxicity levels.

The EHB held that there was not substantial evidence to support the specific
limitations set forth in the DER order.

Appellants contend that EHB had no authority to
permit DER to establish standards on a
“case by case” basis. In concluding that the least that Appellants could be required to do
is to treat the discharges in such a way as
“to achieve minimum water quality standards as prescribed by law pertaining to
the discharge of acid mine water into the waters of the Commonwealth,” the EHB
relied upon the language

 [*606] 

 [***10]  of this Court in its order in
Commonwealth v. Barnes and Tucker Company, 23 Pa. Commonwealth Ct. 496, 513-14,
 [**5]  353 A.2d 471, 481 (1976). Inasmuch as EHB found that DER failed to prove what the treatment parameters
were for the elements
found in Appellants’ discharge, the EHB order states that once Appellants filed
their application, DER must establish standards but they may not establish
limits for the elements which are more restrictive than
“can be justified in relation to specific, current water uses and established
toxicity levels.”

DER has the authority to develop specific limitations on polluting discharges.
DER regulations allow discharge limitations to be established on such an
individual case-by-case basis, for the language of 25 Pa. Code
§ 93.5(a) reads in part:

(a) The water quality criteria prescribed in this
chapter for the various designated uses of the waters of this Commonwealth
apply to receiving waters and are not to be necessarily deemed to constitute
the effluent limit for a particular discharge, but rather one of the major
factors to be considered in
developing specific limitations on the discharge of pollutants. (Emphasis added.)
 [***11] 

The water
quality criteria set forth in 25 Pa. Code
§ 93.7 (Tables 3, 4 and 5) have been expanded this year to include water quality
standards for most of the toxic constituents found in the subject discharge
(chromium, copper,
fluoride, iron lead, manganese, nickel,
zinc). For the substances not listed, the best scientific information
available will be used to adjudge the suitability of a given waste discharge.
25 Pa. Code
§ 93.7(f).

We are of the opinion that the EHB order is a practical solution to a
procedural dilemma, to wit:

 [*607]  DER is required to
set standards with which Appellants must comply but such limits must be based
upon some reliable and ascertainable factual information. EHB found
insufficient evidence of those standards in the record of this case but could
not enter an order against Appellants requiring treatment without some
standards. By ordering DER to
set specific standards which must fall within certain limitations, EHB has
protected the Appellants as well as the public. We find no error in this
procedure.

Appellants contend that EHB erred when it did respect is a regulation required
to be published by the provisions of the Commonwealth Documents
 [***12]  Law, Act of July 31,
1968, P.L. 769,
as amended, 45 P.S.
§ 1102(12), is totally without merit.

3.
Causal Connection Between Sludge and Discharge

Appellants’ contention that the EHB order in this not require DER to prove a
causal connection between the disposal of the Armco sludge and the leachate or
discharge entering the waters in the immediate vicinity of the Appellants’
mine. In fact, EHB did require DER to prove such a causal connection and found
from substantial evidence that the burden had been carried by DER.

Appellants argue that it was impossible for DER to carry its burden of proof:
1) without necessary
background data on the quality of the receiving stream’s water prior to
Appellants’ mining operations and prior to their disposal of the sludge, or 2)
without conducting
“commonly recognized” scientific tests. Instead, Appellants argue, DER relied upon
“assumption and guesses.”

 [*608]  Of course, we may uphold the EHB’s finding that leaching was resulting from
Appellants’ disposal of the Armco sludge if such a finding was based on
substantial evidence.
“If a regulatory agency desires to order the abatement of a violation of its
regulations, it must
 [***13]  meet its burden to prove that violation with substantial evidence. Nothing
less will permit a reviewing court to affirm the action of the agency.”
North American Coal Corp. v. Commonwealth, 2 Pa. Commonwealth Ct. 469, 480, 279 A.2d 356, 362 (1971).

Here, the EHB, in arriving at its conclusion, relied on several types of
evidence presented by DER amounting to more than mere inference, assumption, or
speculation.

Thirteen down-gradient water samples taken in the area by DER from 1974 to 1977
indicated a high level of heavy metals (copper, chromium, nickel, and zinc)
generally not associated with mine drainage. However,

 [**6]  expert witnesses for
both Appellants and DER agreed that the metals
may occur at these levels in some areas.

It was the elevated levels of
fluorides and sulfates found in these same samplings that the EHB emphasized in its
findings. Appellants’ witnesses testified that the
fluoride levels found in the water samples were essentially unheard of in that part of
the country, the samples showing at least three
times the normal ground water concentrations. Samples of sludge taken from the
Armco sludge lagoons clearly show that the sludge itself contains
 [***14]  high levels of
fluorides. According to a leachate test performed in DER’s laboratory, when the sludge
is placed in an acid environment, such as the spoil of Appellants’ mine, and
water is allowed to interact with it, leaching of the
fluoride (and other elements) occurs. The  [*609]  more acidic the environment,
the more material is dissolved and is leached.

As further support for its conclusions, the EHB relied on evidence that the
sulfate levels in the water samples were high, compared to the normal range of
sulfate levels found in the
vicinity of the Appellants’ mine from January 20, 1969, through Septem-17,
1969. These levels were reported in a study made for DER known as the
Operation Scarlift Report. Like the
fluorides, high sulfates were found in the Armco sludge itself; and thus the EHB
concluded that high sulfate
levels in the water were also the result of leaching.

In addition to the samples showing increased
fluoride and sulfate contents, the EHB relied on evidence as to the nature of the
sludge, its location in an acid environment, and the geologic conditions of the
site — such as the southeasterly direction of the dip toward the main
discharge point of the mine.

 [***15] 

Appellants contend that there
can be no direct evidence of leaching without background data on the quality of
the stream water before Appellants started mining and before disposal of the
sludge. A background analysis of the receiving stream, which could be compared
to an analysis after sludge disposal, admittedly would have constituted the
best evidence of a change in
water quality. We note, as did the EHB, that had Appellants followed the
normal procedure to obtain a solid waste permit, DER automatically would have
undertaken a study of the quality of the receiving stream prior to issuing such
a permit. But the impossibility of DER’s obtaining such evidence now should
not prevent DER from attempting to
prove its case by other means. Failure to do the impossible will not prohibit
DER from enforcing the law and its rules and regulations.
United States
 [*610]  Steel Corp. v. Department of Environmental Resources, 7 Pa. Commonwealth Ct. 429, 300 A.2d 508 (1973).

Appellants also find
fault with DER’s failure to conduct
“any commonly recognized scientific tests such as
monitoring wells, tracer studies, bromide studies, electric resistivity, or
pumping tests which would
 [***16]  have proved whether or not the sludge was leaching.” The EHB, however, finds it reasonable that DER conducted no tracer studies,
because DER believed that the presence of
fluorides in the
discharge acted as a tracer study. The EHB finds DER’s evidence substantial
without its utilization of other tests. We agree, for the evidence does not
consist of inadequate visual tests and observations, which would necessitate
the use of available scientific tests as in
Bortz Coal Co. v. Commonwealth, 2 Pa. Commonwealth Ct. 441, 279 A.2d 388 (1971). Rather, the evidence consists of experts’ scientific samplings, studies, and
reports adjudged credible by the fact-finding EHB. Therefore, we believe the
evidence is substantial in amount and quality to form the basis of the EHB
conclusion that the sludge was leaching and that it was the
cause of the pollution in the water in the immedite vicinity of Appellants’
mine.

4.
Prejudging of Case and Failure to Require DER to Furnish Copies of Reports

We find no evidence in the record to uphold Appellants’ contention that the
Hearing Examiner decided the case before any testimony or evidence was
received.

 [**7]  We find
no error of law in
 [***17]  the Hearing Examiner’s rulings on hearsay evidence, keeping in mind that
“Commonwealth agencies shall not be bound by technical rules of evidence at
agency hearings,

 [*611]  and all relevant evidence of reasonably probative value may be received.” Administrative Agency Law, 2 Pa.
C.S.
§ 505.

Appellants also claim that the EHB erred in failing to require DER’s counsel to
furnish to Appellants’ counsel various documents and files in accord with an
EHB order of July 25, 1977 granting Appellants’ motion for discovery and
production of documents. We find that at the 1978 hearings, the
EHB properly ruled that certain documents were not discoverable, being material
prepared or obtained in anticipation of litigation. 1978 Pa. Rules of Court,
Pa. R.C.P. No. 4011(d). Moreover, we cannot conclude that DER’s introduction
into evidence of reports and other evidence was in any way prejudicial to
Appellants. We find no error of law.

Now, we proceed to a consideration of DER’s cross-appeal.

1.
A Valid Solid Waste Permit?

DER contends that the EHB erroneously found that Appellants obtained a valid
solid waste permit, because they failed to comply with the explicit requirements
 [***18]  of the Solid
Waste Act. n2

 

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n2 Section 7(a) of The Solid Waste Act, 35 P.S.
§ 6007(a) provides in pertinent part:

(a) It shall be unlawful for any person, municipality, county or authority to
use or continue to use their land or the land of any other person,
municipality, county or authority as a solid waste processing or disposal area
of a solid waste management system or transport solid wastes to a mine without
first obtaining a permit from the department.

 

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –

Initially, we note that whether or not Appellants were issued a valid
authorization to
dispose of the Armco sludge has no bearing on whether Appellants should be held
responsible for subsequent polluting discharges.

 [*612]  Additionally, we concur with EHB’s conclusions that Appellants’ complete
compliance with DER’s specific directions for approval of their plan to dispose
of the sludge constituted a de facto approval by DER notwithstanding
Appellants’ admitted failure to comply with the permit requirements of the
Solid Waste Act and that
 [***19]  Appellants should not suffer because of departmental confusion.

However, we hasten to add that our holding here is limited to the facts of this
case and does not affect cases involving sludge disposal after the effective
date of the formal DER policy relating to sludge disposal,
i.e.
September 6, 1973.

2.
Posting of a Bond

DER contends that the EHB erred in dismissing Paragraph C of DER’s order, which
required Appellants to post a bond in the amount of $ 200,000 to assure
financial responsibility for the continued treatment of the industrial wastes
discharged. The EHB
concluded in its decision that although DER may have the power to require
posting of a bond under The Clean Streams Law, it would not sustain such an
order absent a showing of necessity for the bond. Finding no proof of
necessity here, the EHB deleted the bond requirement.

DER argues that authority
for DER’s requiring a bond is found in Section 7.1(a)(2) of the Solid Waste
Act, 35 P.S.
§ 6007.1(a)(2), which reads:

(a) In addition to the foregoing requirements, before granting any permit for
the disposal of solid wastes in mines or
for the transportation thereof for said purpose, the department
 [***20]  shall, as applicable:

. . .

 [*613]  (2) Except in the case of a municipality, county or authority which is
directly performing the operations, require the posting of a bond sufficient to
assure the financial responsibility of the operator, including the restoration
of the area.

We agree that this statutory section imposes no
condition of showing necessity for the bond on DER, for it is a mandatory
requirement. However, DER concedes as it must, that the mandatory bond
requirement pertains only to the granting of a solid waste

 [**8]  permit. DER contends that inasmuch as Appellants should have acquired such a
permit, the bond requirement should apply. The argument is fatally
flawed by the clear statutory language which requires the bond as a
condition precedent to the granting of a solid waste permit. Since no such permit was granted
here, DER cannot utilize that statutory requirement for a bond in the instant
case.

Though the bonding requirement of Section 7.1(a)(2) of the Solid Waste Act does not apply to this case, we do find authority
for requiring a bond under Section 610 of The Clean Streams Law, 35 P.S.
§ 691.610, to assure abatement of pollution caused
 [***21]  by Appellants’ sludge disposal. However, Section 610 clearly
requires that before the issuance of an enforcement order, such as one to post
a bond, the order must be shown necessary to effect the purposes of The Clean
Streams Law. In pertinent part, Section 610 states:

The department may issue such orders as are necessary to aid in the enforcement
of the provisions of this act. . . The department
may, in its order, require compliance with such conditions as are necessary to
prevent or abate pollution or effect the purposes of this act.

 [*614]  We agree with the EHB that DER did not show the necessity for posting of a
bond as required, and thus we uphold its dismissal of Paragraph C. of DER’s
order.

3.
Effluent Limits Presumed Valid?

DER also contends that its case-by-case determination of effluent limits for
toxic substances and the standards on which these limits are based must be
given the presumption of validity once DER’s expert witnesses have formulated
these limits and standards based on the best scientific information available.
Furthermore, DER asserts that Appellants, rather than
DER, bear the burden of proof with regard to necessary treatment
 [***22]  standards.

We disagree that Appellants have the burden of proof to rebut DER’s treatment
standards set forth in its order. The facts of this case do not fall within
the exception to the general rule that DER has the burden of proof when it
orders a party to abate
water pollution. 25 Pa. Code
§ 21.101 (formerly 25 Pa. Code
§ 21.42).

EHB was correct in ordering that DER establish a basis for the unique effluent
standards it wishes to impose after reviewing Appellants’ application for an
industrial waste permit.
Since the effluent limits in DER’s order are to apply specifically to
Appellants, being determined on an individual basis, it is reasonable that DER
be slightly burdened with justifying the basis for its standards.

It appears as though the EHB is asking DER to do no more than explain briefly
how it arrived at each figure set
forth in its order, or, in other words, to justify the standards by pointing to
the specific EPA guidelines and other factors it considered. It is not a
matter of
proving the basis for the parameters,

 [*615]  but a matter of justifying the basis. By affirming the EHB’s request for a
justification, we are
not disputing the ability of DER’s
 [***23]  experts, nor trying to substitute our own judgment.

The recent expansion of DER’s water quality criteria standards in 25 Pa. Code
§ 93.7 may make easier DER’s task, but it does not change our opinion that DER’s
standards are not presumed
valid. For according to 25 Pa. Code
§ 93.5(a),
supra, these criteria are to be considered only as
“one of the major factors” in developing discharge limitations. DER must explain the link between these
water quality standards, the other factors it considered and the parameters it
wishes to establish.

4.
Abatement of a Public Nuisance

DER argues finally that the EHB’s conclusion that
“the Appellants would be responsible for acid mine drainage resulting from the
operation for as long as it continues” is not the proper standard, but rather that Appellants’ responsibility to
abate a public nuisance continues until the nuisance is abated,
regardless of economic considerations and subsequent determinations of fault.

Our interpretation of EHB’s conclusion as to Appellants’ duty to abate the
public nuisance

 [**9]  leads us to hold that the EHB committed no error of law in this regard. A
reading of the EHB’s discussion in conjunction
 [***24]  with its conclusions of law clearly indicates that it is properly imposing on
Appellants a duty to abate any post-mining discharges resulting from their
disposal of industrial wastes
and any acid mine discharges resulting from their mining operations in general.
The EHB found from the facts that although there was a pre-existing acid mine
discharge on Appellants’ property when they started

 [*616]  mining, the discharge increased
during Appellants’ operations and thus resulted from Appellants’ operations.
We agree with the EHB that
“[i]t is clear that an operator may be required to treat acid mine drainage
resulting from this operation even though it includes water from prior
abandoned mining operations.” n3

 

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n3 The Supreme Court in
Commonwealth v. Barnes and Tucker Co., 472 Pa. 115, 126, 371 A.2d 461, 466-67 (1977), known as
Barnes and Tucker II, recognized that:

‘Whether the impelling force which produced the public nuisance is solely or
partially that of fugitive mine water flowing into and adding to the generated
water of that mine
the

.’ (Emphasis in original.)
 

 

– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
 [***25] 

The EHB is not imposing a fault limitation on Appellants’ duty to abate. Its
decision indicates to us that Appellants shall
treat the discharges
as long as they continue, because they have resulted from Appellants’ operations. DER will not have to
prove again at future intervals that the discharges are the direct result of
Appellants’ past operations. Unless a new factor is introduced in the future,
which influences the discharge, Appellants will be held strictly liable for
abating the discharge.

Neither has the EHB imposed an economic limitation on Appellants’ duty to abate
by its statement that it is
“especially concerned that appellants not be charged with excessive or
unreasonable treatment costs.” The EHB expressly and properly states that Appellants cannot be absolved from
liability because of cost. However, the EHB is also appropriately concerned with
exercising the police
power in a reasonable and not unduly oppressive manner, which

 [*617]  means considering the differing economic impacts on Appellants of the several
effective remedial measures. We disagree with DER’s contention that the
Supreme Court decision in
Barnes and Tucker II, supra, requires
 [***26]  DER to select an abatement method, without
regard to whether other treatment methods might be less expensive. We sustain
EHB’s conclusions regarding Appellants’ duty to abate.

For the above reasons, we affirm the decision and order of the EHB.

Order

And Now, this 3rd day of September, 1980 the order of the Environmental Hearing
Board, dated May 23, 1979,
dismissing in part and sustaining in part an order of the Department of
Environmental Resources, is hereby affirmed.

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