281 A.2d 256;
1971 Pa. Commw. LEXIS 329;
3 ERC (BNA) 1089;
1 ELR 20494
June 3, 1971, Argued
September 10, 1971, Decided
PRIOR HISTORY:
[***1]
Appeal from the Adjudication of the Sanitary Water Board (now Department of
Environmental Resources) at Docket No. 70-33 in case of In re: Kristianson
& Johnson Coal Co., Inc.
DISPOSITION: Affirmed.
COUNSEL:
John D. Killian, with him
Killian
& Gephart, Rolf R. Larsen and
Larsen, Murray
& O’Neill, for appellants.
Richard B. Springer, Assistant Attorney General, with him
Allen B. Zerfoss, Assistant Attorney General, and
J. Shane Creamer, Attorney General, for appellee.
David L. Baird, with him
Baird, McCamley
& Miller, for intervenor, Kristianson and Johnson Coal Company, Inc.
JUDGES: President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr.,
Mencer and Rogers. Opinion by Judge Mencer.
OPINIONBY: MENCER
OPINION:
[*111]
[**256] As the noted legal luminary, Karl Llewellyn, once said,
“Law . . . begins when someone takes to doing something someone else does not
like.” These words
[**257] seem particularly appropriate in this case which is an appeal from an
adjudication of the Sanitary Water Board (Board) which, n1 over appellants’
objections,
[*112] granted a permit to
Kristianson
& Johnson Coal Co., Inc. (K.
& J.) for the discharge of
[***2] industrial waste and mine drainage from a proposed bituminous coal strip mine
in Chest Township, Clearfield County, and Chest Township, Cambria County. The
mine drainage application, filed on May 25, 1970,
pursuant to the then applicable Section 315 of the Clean Streams Law, Act of
June 22, 1937, P.L. 1987, as amended by the Act of August 23, 1965, P.L. 372,
embraced 1,707.19 acres, but the total
“land affected” n2 by such mining would be 1,273.15 acres of the watershed of Rogues
Harbor Run, a tributary of Chest Creek. Rogues Harbor Run is the source of
trout fishing enjoyment for many members of the organizations here represented,
as well as the source of water supply for the Westover Water Authority, which
supplies water for the use of Westover Borough, a community in
Clearfield County with an approximate population of 500.
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n1 The Sanitary Water Board consisted of the Secretary of Health, who was the
chairman, the Secretary of Forests and Waters, the Secretary of Mines, the
Executive Director of the Pennsylvania Fish Commission, the Secretary of
Commerce, and three members of the general public. See the Administrative
Code, the Act of April
9, 1929, P.L. 177, as amended by the Act of August 14, 1963, P.L. 1119, 71 P.S.
§ 149. The Chairman of the State Soil and Water Conservation Commission was
added by Section 1 of the Act of July 31, 1970, P.L.
, No. 222, 35 P.S.
§ 691.1.
The Sanitary Water Board was abolished by Section 30 of the Act of December 3,
1970, P.L.
, No. 275, creating the Department of Environmental Resources.
“All orders, permits, regulations, decisions and other actions of . . . (the)
board . . . remain in full force and effect” under Section 34 of the
same act, however,
“until modified, repealed, suspended, superseded or otherwise changed by
appropriate action of the agency assuming the applicable powers and duties. . .
.” Under Section 35(b), this agency is now the Department of Environmental
Resources, and references hereafter made to the Board should be construed as
now applicable to the Department of Environmental
Resources.
[***3]
n2
“Land affected shall mean the land from which the overburden is removed and that
occupied by the spoil piles.” Section 3 of the Bituminous Coal Open Pit Mining Conservation Act, Act of May
31, 1945, P.L. 1198, as amended, 52 P.S.
§ 1396.3.
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
The
primary contention of appellants is that the proposed K.
& J. strip mine operation will cause sedimentation which will degrade the
quality of Rogues Harbor Run as a fishing stream and adversely affect it as a
domestic water supply for Westover Borough.
[*113] The plan of operation of K.
& J., after
being made subject to 26
“Standard Conditions” and six
“Special Conditions”, was approved by the Department of Mines and Mineral Industries, the reporting
agency n3 for the Sanitary Water Board. The Board unanimously adopted the
favorable recommendation of its reporting agency on July 15, 1970, and approved
the issuance of a
permit, but because the Board had been advised of the objections of various
groups to the granting of a permit, the permit was withheld and hearings
followed on August 4, 20, and 21, and September 21 and 22 at which testimony
[***4] and exhibits were received from K.
& J., the protestants, and the Department of Mines and Mineral Industries. On
January 18, 1971, the Board
issued the adjudication and order appealed from here. Appellants wish us to
set aside the Board’s decision and to remand the matter to the Board
“for further proceedings consistent with the provisions of Act No. 222” (the
[**258] Act of July 31, 1970, P.L.
, No. 222, 35 P.S.
§ 691.1 et seq.).
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n3 Section 2(a) of Article 900 of the Rules and Regulations of the Sanitary
Water Board provided:
“Reporting agency shall mean the Commonwealth agency responsible to the Board
for certain investigating, reporting and enforcement duties. In the case of
bituminous strip mines the reporting agency shall be the Department of
Mines and Mineral Industries. In other cases the reporting agency shall be the
Department of Health.”
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
Intervening appellee, K.
& J., filed a Motion to Quash on April 13, 1971, to which an Answer was filed by
appellants on April 27, 1971. We conclude
[***5] that the contentions made in the
Motion are without merit, and therefore it is denied.
Turning to the merits, appellants make the following contentions:
(1) Contrary to the weight of the evidence, which proved that sedimentation
would enter the stream, the Board decided that the proposed operation can be
conducted
[*114] without resulting in pollution n4 of Rogues Harbor Run.
(2) The Board erred
in finding that K.
& J.’s mining operations under another permit at nearby Rock Run Creek do not
provide a basis for determining whether it could properly operate the proposed
operation.
(3) The Board erred in permitting K.
& J. to file less than a complete
set of plans.
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n4 Section 1 of the Clean Streams Law, at the time of K.
& J.’s application, provided in part:
“‘Pollution’ shall be construed to mean noxious and deleterious substances
rendering unclean the waters of the Commonwealth to the extent of being harmful
or inimical to the public health, or to animal or
aquatic life, or to the use of such waters for domestic water supply, or
industrial purposes, or for recreation. The Sanitary Water Board shall
determine when the discharge of any industrial waste, or the effluent
therefrom, constitutes pollution, as herein defined, and shall establish
standards whereby and wherefrom, so far as reasonably practicable and possible,
it can be ascertained and determined whether any such
discharge does or does not constitute pollution as herein defined.”
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
[***6]
As to the
first contention, appellants acknowledge that
“If this sedimentation was
excessive, it would be harmful to aquatic life and to the use of the stream as a
domestic water supply. Thus, the question is whether the sedimentation that
would in fact occur might become
excessive.” (Emphasis added) On this point, appellants point to the
testimony of Mr. David Yost, a soil scientist with the Soil Conservation
Service, to the effect that he had made a study of the soils in the Rogues
Harbor Run area and had calculated that
“for a five year frequency storm, from 93,367 to 107,650 cubic yards of silt
loam would be moved into Rogues
Harbor Run
if no vegetation is planted prior to the storm.” (Emphasis added) This study, however, was based on a formula from a technical
manual used by the Soil Conservation Service. In applying the formula, which
was marked
“tentative” and published in
[*115] March, 1970, Mr. Yost testified that it was assumed that the entire
area would be bare and have no vegetation, that if vegetation was present that
a different formula would have to be used, and that he had not examined the
plan of operation or given consideration to the diversion
[***7] ditches, the planting that is to be required under the plan as stripping
progresses or other controls that were set forth in the plan.
We are hardly stream pollution experts, and, as the Supreme Court’s
words in
Blumenschein v. Housing Authority of Pittsburgh, 379 Pa. 566, 572-573, 109 A. 2d 331, 334-335 (1954), indicate, n5 our review is
[**259] limited, but we tend to agree with appellee that
“Siltation is not a problem for which standards may be easily
established and enforced. Some silt may be useful to a stream, but the precise
point at which it becomes harmful is not clear. Nor are many of the common
sources, such as plowing of farm fields, adequately controlled. Nevertheless,
it is known that excessive silt in a stream is definitely injurious to certain
types of aquatic life, and
flagrant examples of excessive siltation may be readily recognized.
Consequently the best way to deal
[*116] with the problem, at this time, is to require that meaningful preventive
safeguards be incorporated in any plan of an operation where the potential for
excessive siltation exists. K.
& J., the applicant in this case, has made a concerted effort to
devise such preventive
[***8] measures; in fact, one of the best proposals yet received by the Department.” (Emphasis added)
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n5
“By a host of authorities in our own and other jurisdictions it has been
established as an elementary principle of law that courts will not review the
actions of governmental bodies or
administrative tribunals involving acts of discretion, in the absence of bad
faith, fraud, capricious action or abuse of power; they will not inquire into
the wisdom of such actions or into the details of the manner adopted to carry
them into execution. It is true that the mere possession of discretionary
power by an administrative body does not make it wholly
immune from judicial review, but the scope of that review is limited to the
determination of whether there has been a manifest and flagrant abuse of
discretion or a purely arbitrary execution of the agency’s duties or functions.
That the court might have a different opinion or judgment in regard to the
action of the agency is not a sufficient ground for
interference;
judicial discretion may not be substituted for
administrative discretion.” (Emphasis in original).
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
[***9]
As to the
second contention, it would appear that K.
& J. has significantly changed its plan of operation for the present tract as
opposed to its methods at the Rock Run Creek location. As appellee points out,
“. . .
K.
& J.’s proposed operation on Rogues Harbor Run differs in two major particulars:
(1) all haul roads are to be constructed on the spoils of the operation or at
an elevation higher than the mined areas, whereas in the Rock Run operation
there were no conditions on the location of the haul roads. To the extent
there was any problem with
siltation on that Rock Run operation, it was due to the silt in the drainage
from the haul roads, which were constructed below the mined area. This
drainage reached the stream without any settling. This situation has been
remedied by the building of settling ponds intermittently along the haul roads
to direct the drainage in the ditches from the stream temporarily to
enable settling of silt to occur. (2) The mining is to progress in a
checkerboard fashion, which significantly decreases the possible area exposed
at any one time. In any event, K.
& J. was never found to be in violation on its Rock Run operation, and the latest
[***10] biological study of the stream in July of
1970 revealed that Rock Run is progressly improving in its ability to support
aquatic life.”
Appellants’
third contention is urged because the plans
“did not show the annual waterfall, composition of the soil, slope of the land,
or quantity of water which will drain over, around and through the proposed
mining
[*117] operation.” This information was
not required, however, and, in the Board’s educated opinion, not particularly
helpful. n6
– – – – – – – – – – – – – – – – – -Footnotes- – – – – – – – – – – – – – – – – –
n6 Although for reasons of space we have not included here the elaborate
operation plan of K.
& J. or the 32 conditions attached to the Board’s approval, we quote here the
Board’s reasoning as to appellants’ third contention:
“First, the
quantity of rainfall and the slope of the land are relevant only to the
capacity of the settling ponds constructed to handle surface runoff. However,
the water from the pit going into settling ponds is pumped. Quantity of water
going into these ponds is, therefore, easily regulated, and any excess drainage
can be retained in the pit until such time as adequate space is
available in the treatment ponds. The water from the ditches of the haul roads
goes into the pit, and creates no problem in this regard. The water from the
diversion ditches above the highwall is channeled to the 50 foot barrier areas
of undisturbed ground, which will be able to filter substantial quantities of
water. In any event, the
location and size of the diversion ditches will be constantly changing. When
mining in the first pit is completed, the adjoining highwall area where the
first diversion ditch was located is blasted with dynamite, and the overburden
therefrom placed in the first pit. Prior thereto another diversion ditch will
have been constructed back further on the highwall, so as to
divert the surface drainage from the new second pit. Thus, the location and
size of the diversion ditches on the highwall will be constantly changing. If
diversion ditches and settling ponds become necessary to prevent siltation from
the initial spoil pile and the restored areas, these will, of necessity, be of
such size and location as conditions warrant.
“The composition of the soil is
relevant to the quantity of silt and sediment that a given area will produce.
If the collection and filtration and settling facilities are adequate, the
quantity of siltation produced by a given area is relevant only to the
frequency with which the ponds will have to be cleaned or constructed
elsewhere. This will vary with the peculiar circumstances of the area.
“The specific
types of grasses, legumes and trees that will be planted on the backfilled
areas is highly dependent on the precise type and composition of the soil on
the surface of the backfill. Accordingly they cannot be designated until the
backfilling has taken place, and then must be approved by the Department of
Mines and Mineral Industries (now a part of the Department of Environmental
Resources).”
– – – – – – – – – – – – – – – – -End Footnotes- – – – – – – – – – – – – – – – –
[***11]
[*118]
[**260] In this proposed operation, in the opinion of the Board, provisions have been
made for the control of all the potential sources of excessive siltation from
this proposed mining operation.
“We must say with respect to this finding that it is the primary function of the
Sanitary Water Board to protect the waters of the Commonwealth for the benefit
of all the people. From the
time The Clean Streams Law was first passed in 1937 the Sanitary Water Board
has made many investigations into the various aspects of pollution and we feel
that the board thereby has acquired a special knowledge and competence with
regard to these matters.”
Sanitary Water Board v. City of Wilkes-Barre, 78 Dauph. 328, 334, aff’d,
199 Pa. Superior Ct. 492, 185 A. 2d 624 (1962).
“[T]he Administrator’s policies are made in pursuance of official duty, based
upon more specialized experience and broader investigations and information
than is likely to come to a judge in a
particular case. . . . We consider that the rulings, interpretations and
opinions of the Administrator . . ., while not controlling upon the courts by
reason of their authority, do constitute a body of experience and informed
[***12] judgment to which courts and litigants may properly resort for guidance. The
weight of such a judgment in a particular case
will depend upon the thoroughness evident in its consideration, the validity of
its reasoning, its consistency with earlier and later pronouncements, and all
those factors which give it power to persuade, if lacking power to control.”
Skidmore v. Swift & Co., 323 U.S. 134, 139-140, 65 S. Ct. 161, 164 (1944),
cited with approval in
Hogan Unemployment Compensation Case, 169 Pa. Superior Ct. 554, 558-559 n.2, 83 A. 2d 386, 389 n.2 (1951) (“When an administrative board rests its conclusion upon
its own official experience the courts generally respect its
special competence.” (Emphasis in original)).
[*119] We fully understand appellants’ concern that this proposed strip mine is
likely to be
“. . . harmful or inimical to . . . aquatic life [of Rogues Harbor Run], or to
the use of such waters for domestic water supply . . .”, but
at this point (1) we have faith in the Board’s acumen in these matters and
feel that it has thoroughly considered this matter (particularly so because it
is hypertensively involved in ecological improvement in the
[***13] Commonwealth), and (2) we rely heavily that
“Special Condition” No. 2 (that, as an additional safeguard,
“prior to activating of this mining operation, . . . all facilities shall be
inspected and approved by the District Mine Inspector . . . .”) will effectively
cure any defects in the operation plan, and that subsequent inspections (which
in the past have been approximately weekly or biweekly) in accord with the
provisions of the Bituminous Coal Open Pit Mining Conservation Act,
supra, will do the same.
We applaud the civic spirit demonstrated by the several appellants, but we
nevertheless fail to
find the requisite
“manifest and flagrant abuse of discretion or a purely arbitrary execution of
the agency’s duties or functions.”
Order affirmed.
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