Petition for Writ of Certiorari — Lawrence Coal Co. v. Pennsylvania Department of Environmental Resources

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MAR 19 1999

BQSEPH F.

No. L CRN Re

IN THE

Supreme Court of the United States

October Term, 1989

LAWRENCE COAL COMPANY,

Petitioner.

vs.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL RESOURCES,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE PENNSYLVANIA SUPREME COURT

WILLIAM M. RADCLIFFE, ESQ.

Counsel of Record

LOUISE D. MONAGHAN, ESQ.

COLDREN, ADAMS, DEHAAS

& RADCLIFFE

700 Gallatin Bank Building

Post Office Box 1327

Uniontown, Pennsylvania 15401

(412) 437-2711

Attorneys for Petitioner

Batavia Times Publishing Co.

Harold L. Berkoben

Pitteburgh. Pa. (412) 881-7463

Question Presented For Review

I. Is it a violation of Due Process to permit a single

member of an Administrative Tribunal to determine a

case when the remaining other two members have

already been recused due to the appearance of

impropriety?

Statement of Interested Parties

All interested parties are listed in the caption of this

case.

iii.

TABLE OF CONTENTS.

QUESTION PRESENTED FOR REVIEW........ sa!

STATEMENT OF INTERESTED PARTIES ...... ii

pe iii

See Oe MUEMPOMITIES .................... Vv

NN oo coco occ ccccccewcccce 2

eee ci ce cece cece ccecccee 3

STATEMENT OF THE CASE .................. 4

REASONS FOR GRANTING THE WRIT........ 7

DUE PROCESS IS NOT COMPLIED WITH

NOR IS THE APPEARANCE OF BIAS

EXPUNGED BY PERMITTING ONE

MEMBER OF A THREE MEMBER

ADMINISTRATIVE AGENCY TO MAKE A

DETERMINATION WHEN THE OTHER

TWO MEMBERS HAVE BEEN JUDICIALLY

se os i bs cescccccveccle 7

eas eave es cencpeccvecec. 10

iv.

Page

Appendix:

Appendix ‘“‘A”—Petition for Allowance of Appeal

Dated December 19, 1989. ......------++eeeees

Appendix “‘B’’—Memorandum Opinion and Order

of the Commonwealth Court of Pennsylvania

Dated July 12, 1989 .........- eee eee eee:

Appendix ‘“‘C’’—Adjudication of the

Environmental Hearing Board by Robert D.

Myers, Dated July 5, 1988.......---+-+++++5:

Appendix ‘‘D’—Opinion and Order of the

Commonwealth Court of Pennsylvania

(unreported) Dated January 25, 1988........--.

Appendix ‘““E’’—Adjudication of the

Environmental Hearing Board by Maxine

Woelfling, Dated May 27, 1986........-------

54a

Page

TABLE OF AUTHORITIES.

(-—

Cases:

FTC v. Flotili Products, Inc., 389 U.S. 179 (1967)... y

Gardner v. Repasky, 434 Pa. 126, 252 A.2d 704

MG) eae ee ee 9

Gibson v. Berryhill, 411 U.S. 564 (1973)........... 8

In Re Murchison, 349 U.S. 133 (1955)............. 8

R. R. Yardmasters of America v. Harris, 721 F.2d

a RASS Mpeg elie esae og iii 9

Withrow v. Larkin, 421 U.S. 35 (1975) ............ 8

Statutes:

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Be I 6 55 55 < o's wee duce Vibwn eeleaceecs 9

ori 6 Ss ink eb 0S bw kbc dee as 4

i es 3

Regulation:

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IN THE

Supreme Court of the United States

October Term. 1989

No.

LAWRENCE COAL COMPANY,

Petitioner,

vs.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL RESOURCES,

Respondei t.

PETITION FOR WRIT OF CERTIORARI

TO THE PENNSYLVANIA SUPREME COURT

Lawrence Coal Company, petitioner in the action

below, respectfully prays that a writ of certiorari issue to

review the denial of allowance of appeal by the

Pennsylvania Supreme Court filed on the 18th day of

December, 1989.

Opinions Below

The order of the Pennsylvania Supreme Court denying

the petitioner's petition for allowance of appeal is

reproduced in Appendix “A”. The memorandum opinion

and order of the Commonwealth Court of Pennsylvania

dated July 12, 1989 is reproduced in Appendix “B’’. The

adjudication of the Environmental Hearing Board by

Robert D. Myers, Member, dated July 5, 1988 is

reproduced in Appendix ‘‘C’’. The opinion and order of

the Commonwealth Court of Pennsylvania (unreported)

dated January 25, 1988, is reproduced as Appendix ‘‘D”.

The adjudication of Environmental Hearing Board by

Maxine Woelfling dated May 27, 1986, is reproduced as

Appendix ‘‘E”’.

Jurisdiction

The denial of the petitioner's petition for allowance of

appeal to the Pennsylvania Supreme Court was filed on

December 18, 1989. This petition was filed within 90

days. The jurisdiction of this Court is founded upon 28

U.S.C. §1257(a) (1989).

Statement of the Case

Respondent, Commonwealth of Pennsylvania,

Department of Environmental Resources (hereinafter

‘“DER’’), seeks civil penalties pursuant to Section 605 of

the Clean Streams Law against surface coal operator

Lawrence Coal Company (hereinafter ‘‘Lawrence’’). 35

Pa. Cons. Stat. Ann. §691.5 (Purdon 1977 and Supp.

1989).

The events which are pertinent are as follows:

The Chairman of the Environmental Hearing

Board (hereinafter ‘“‘Board’’), Dennis J. Harnish,

presided over 11 days of hearings which concluded

on November 23, 1982.'

The bulk of the testimony centered around

Lawrence’s_ responsibility for several off-site

discharges along a township road adjacent to the

mining site.

Harnish resigned from the Board in May of 1983

without having prepared an adjudication. (Appendix

“E”’ at p. 63a).

The case was later assigned by the Board to

Hearing Examiner Edward Casey for preparation of

a proposed adjudication. After review of the case,

Casey wrote a letter to both counsel indicating that

he made certain findings and recommended

settlement of the case for the sum of $1,000.

(Appendix “‘C’’ at p. 11a).

The DER then petitioned to remove Casey based

upon ex parte unverified communications between

the DER and former Chairman Dennis Hauish.

(Appendix ‘‘E’’ at p. 63a). The Board granted the

DER’s petition for recusal.

‘The Board, an administrative tribunal consisting of five members,

has inter alia jurisdiction to determine civil penalties in surface mine

operations. 35 P.S. §7513(b) (Purdon 1977 and Supp. 1989).

After the Board granted the DER'’s petition for

recusal, Lawrence petitioned for recusal of the Board

because its decision was based upon unverified ex

part conversations between the DER and Harnish.

The Board held that ‘‘an indicia of conflict could be

perceived from the disclosures made by Harnish to

DER counsel, and the Board thought it in the best

interest of all concerned that the members of the

Board not involved in the unfortunate incident

reserve unto themselves the final determination of

the controversy.” (Appendix “‘D”’ at p. 57a).

On May 27, 1986, three and one half years after

the testimony had concluded, an adjudication was

handed down by the remaining two members of the

Board, Chairman Maxine Woelfling and Edward

Gerjuoy. The adjudication found against Lawrence

on all major points and assessed $150,700 in

penalties. (Appendix “‘F”’ at p. 64a).

Lawrence, upon receiving notice that Woelfling

had participated in the determination, filed a

petition for recusal of Woelfling and Gerjuoy.

(Appendix ‘‘C’” at p. 12a). It was determined that

Woelfling had been associated with the subject case

in her position as an attorney for the DER for 11

years. The petition was denied and the adjudication

of May 27, 1986, of the Board was affirmed without

modification. (Appendix “‘C’’ at p. 12a).

In Lawrence’s appeal to the Commonwealth Court,

the Court held the case was ‘‘so tarnished as to

create a clear susceptibility to potential bias against

Lawrence” and that “... the possibility of

unfairness to Lawrence exists and improprieties

might have occurred.’ (Appendix ‘“D’’). The case

was remanded for a new adjudication based upon

the record already established. (Appendix ‘‘D”’).

The only remaining member of the Board, Robert

Myers,? again found in favor of the DER on all

major issues and assessed civil penalties in the

amount of $104,050. (Appendix ‘E’’).

Lawrence’s appeal to the Commonwealth Court

was denied by a three judge panel with one judge

abstaining and the other joining only in the result.

(Appendix ‘‘B”’). Lawrence’s petition for allowance of

appeal was denied before the Supreme Court without

opinion.

?The Commonwealth Court, in its first opinion, held that the two

other members of the Board could not participate in the decision.

Myers made findings of fact and conclusions of law substantially the

same as the Board had in its previous tarnished adjudication, but

reduced the damages by $50,000.

a ee

REASONS FOR GRANTING THE WRIT

DUE PROCESS IS NOT COMPLIED WITH NOR IS

THE APPEARANCE OF BIAS EXPUNGED BY

PERMITTING ONE MEMBER OF A _ THREE

MEMBER ADMINISTRATIVE AGENCY TO MAKE

A DETERMINATION WHEN THE OTHER TWO

MEMBERS HAVE BEEN’ JUDICIALLY

DISQUALIFIED.

There can be no question that the proceedings in this

case have created the appearance of impropriety:

The hearing officer originally appointed by the

Board made a recommendation the case be settled

for $1,000.

That hearing officer was recused without a

hearing, pursuant to the DER’s request, on the

basis of an unverified ex parte communication

between the DER and the former Chairman of the

Environmental Hearing Board.

The subsequent adjudication was rendered against

Lawrence in the amount of $150,700 was authored

by the current Chairman of the Environmental

Hearing Board who, at the time the complaint was

initially filed against Lawrence by the DER, had

been an employee of the DER and had reviewed the

matter as part of her position with the DER.

After a determination by the appellate court that

the case was tarnished by the above events, and in

violation of the statute and the Board’s own rules,

one member of the three member Board’, without

* The Board’s own rules provide that determinations are to be made

by a majority of the Board after a hearing. 25 Pa.Code §21.86 (1990).

hearing any testimony, rendered a_ decision

substantially similar to the original tainted

adjudication.‘

It has long been recognized by this Court that ‘‘[a] fair

trial and a fair tribunal is a basic requirement of due

process.” In re Murchison, 349 U.S. 133, 136 (1955). This

requirement applies to administrative agencies as well as

to the courts. Gibson v. Berryhill, 411 U.S. 564, 579

(1973). The courts have recognized not only that a biased

decisionmaker is unconstitutional but also that the

constitution seeks ‘‘. . . to prevent even the probability of

unfairness.”” In re Murchison, 349 U.S. at 136. This

Court has relied upon experience and common sense in

determining when the probability of actual bias on the

part of the decision maker is too severe to be

constitutionally appropriate. Withrow v. Larkin, 421 U.S.

35, 47 (1975).

From a practical standpoint, the dilemma facing Myers

in making his adjudication was obvious. As the newest

Board member, Meyers was asked to decide a case which

three of his predecessors, two of whom were current

Board members, had previously decided against

Lawrence. He was placed in an impossible position. To

decide contrary to the prior decision of his colleagues

would be a _ public betrayal. The appearance of

impropriety is obvious and compelled by logic and

practicality, both of which are standards recognized by

this Court. Withrow v. Larkin, supra at 47.

‘A cursory examination of the adjudication of Myers indicates his

obvious bias. This complicated case, which concerned off-site alleged

acid mine drainage, was based entirely upon circumstantial evidence.

Every crucial point was disputed and although the burden of proof

was on the DER, Myers stated in his adjudication, that it was not

necessary for him to reach sensible conclusions from the DER’s

evidence because Lawrence failed to address several important points

in the case. (Appendix ‘‘C’’ at 4la-42a). This statement is completely

contrary to the rule as to burden of proof recognized by both sides

which placed the burden on the DER.

The Environmental Hearing Board is a quasi-judicial

agency. 35 P.S. §$§$7511-7516. This is not a situation

where the statute or the Board's own rules permit the

delegation of determinations to a minority member. E.g.,

R. R. Yardmasters of America v. Harris, 721 F.2d 1332,

1340 (1983). Both the statute and its own rules require

the Board to speak through a majority of its members.

Jd.; 25 Pa.Code §21.86. Even assuming that the Board

followed the common law rule that a quorum of a

majority of a question is required to participate, FTC v.

Flotill Products, Inc., 389 U.S. 179 (1967), neither a

quorum nor a majority of that quorum made the

determination in this matter.

This Court has never determined the issue of whether

disqualification of a majority of the members of a

tribunal due to the appearance of impropriety

constitutionally requires that the remedy be dismissal of

the complaint. However, some courts have previously

dismissed cases where the appearance of impropriety has

risen to a constitutional level due to irreparable prejudice

and long delay. E.g., Gardner v. Repasky, 434 Pa. 126,

130, 252 A.2d 704, 706 (1969).

In view of the standards established by this Court

regarding due process: (1) that a biased decision maker is

unconstitutional; (2) that the constitution has endeavored

to prevent even the probability of unfairness; (3) and

that experience and common sense are to be used in

determining when the offenses rise to the level of

violations of constitutional due process, certiorari should

be granted with regard to this issue of first impression

before the court.

Conclusion.

A writ of certiorari should be issued to review the

judgment of the Pennsylvania Supreme Court so as to

determine if due process infraction has been violated

when a minority member of a three member tribunal

renders a determination in violation of both state statute

and administrative rules in a case already tarnished by

the appearance of impropriety.

Respectfully submitted,

WILLIAM M. RADCLIFFE, ESQ.

Counsel of Record

LOUISE D. MONAGHAN, ESQ.

COLDREN, ADAMS, DEHAAS

& RADCLIFFE

700 Gallatin Bank Building

Post Office Box 1327

Uniontown, Pennsylvania 15401

412-437-2711

APPENDIX “A”

Petition for Allowance of Appeal

Dated December 19, 1989.

SEAL

THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

PROTHONOTARY 801 City-County Building

IRMA T. GARDNER Pittsburgh, Pa.

DEPUTY PROTHONOTARY 15219

(412) 565-2816

December 19, 1989

Ira B. Coldren, Jr., Esquire

Louis D. Monaghan, Esquire

Coldren, Adams, DeHaas & Radcliffe

700 Gallatin Bank Building

P. O. Box 1327

Uniontown, Pa. 15401

In Re: Lawrence Coal Co. v. Dept. of Environmental

Resources No. 457 W. D. Allocatur Docket 1989

Gentlemen:

The Court has entered the following Order on your

Petition for Allowance of Appeal in the above matter:

“December 18, 1989

Petition Denied

Per Curiam”’

Very truly yours,

IRMA T. GARDNER

DEPUTY PROTHONOTARY

ITG:cho

cc: Diana J. Stares, Esq.

Hon. Jacob Kalish

APPENDIX “‘B”

Memorandum Opinion and Order of the Commonwealth

Court of Pennsylvania Dated July 12, 1989.

IN THE COMMONWEALTH COURT

OF PENNSYLVANIA

No. 1891 C.D. 1988

LAWRENCE COAL COMPANY,

Petitioner,

Vv.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL

RESOURCES,

Respondent.

BEFORE: HONORABLE DAVID W. CRAIG, Judge

HONORABLE JOSEPH T. DOYLE, Judge

HONORABLE JACOB KALISH, Senior

Judge

ARGUED: May 4, 1988

OPINION NOT REPORTED

MEMORANDUM OPINION

BY SENIOR JUDGE KALISH FILED: July 12, 1989

Lawrence Coal Company (Lawrence) petitions for

review of a decision of the Environmental Hearing Board

(Board), which assessed civil penalties against Lawrence

for certain violations.

On November 20, 1987, this court remanded this

matter to the Board for a new hearing and a new

decision on the basis of a 1982 record and any associated

briefs and papers filed by the parties.

The basis for this remand was that upon consideration

of the proceedings, the matter was so tarnished as to

create a clear susceptibility to potential bias against

Lawrence. Additionally, the possibility of unfairness to

Lawrence existed and improprieties may have occurred.

At the remand hearing, Robert Myers, recently

appointed as a Board member, heard the matter. and

assessed civil penalties of $104,500 against Lawrence,

which now petitions this court for review. We Affirm.

Lawrence contends that the proceedings were so

irreparably tainted that a remand based on the

previously-made record was not curable. It is further

contended by Lawrence that the Board’s findings are not

based on substantial evidence. In the previous appeal,

this court did consider the question of taint, and while

recognizing that the proceedings at least had the

appearance of impropriety, nevertheless did not find that

the evidence itself was tainted. Therefore, the matter was

remanded for an administrative hearing based on the

record previously made. Because the parties have

previously litigated the issue of taint before this court, it

is now res judicata, since parties are the same and the

same issue is involved. They are barred from relitigating

the issue.

Lawrence now contends that Myers was not a Board

member at the time of the original hearings, the

procedure for the conduct of hearings before the Board

was not followed, and that in any event, the findings are

not based on substantial evidence.

Our scope of review is limited to determining whether

the Board committed constitutional violations, errors of

law, or whether any necessary fingings are unsupported

by substantial evidence. Pennsylvania Game Commission

v. Department of Environmental Resources, 97 Pa.

Commonwealth Ct. 78, 509 A.2d 877 (1986), aff'd

Pa. , 555 A.2d 812 (1989).

Our legislature vested in the Department of

Environmental Resources (DER) the implementation of

the policy of our state, namely, ‘(T]he people have a

right to clean air, pure water, and to the preservation of

the natural, scenic, historic and esthetic values of the

environment.’ Pa. Const. art. I, §27. An administrative

agency has wide discretion in performing its

administrative duties, including promulgating rules,

regulations, and standards, and the Commonwealth

Court will not interfere with the exercise of such

discretion, absent proof of fraud, bad faith or blatant

abuse of discretion.. Haycock Township v. Department of

Environmental Resources, 108 Pa. Commonwealth Ct.

466, 530 A.2d 514 (1987), petition for allowance of appeal

denied, 518 Pa. 656, 544 A.2d 1343 (1988).

Section 21.86 of DER regulations, 25 Pa.Code §21.86,

reads in pertinent part as follows:

(a) Hearings may be held at the discretion of the

Board, before the Board as a whole, by individual

Board members sitting as hearing examiners or by

hearing examiners who are not members of the

Board. Hearings held by hearing examiners not

members of the Board will be decided by the Board

upon its review of the record and the examiner's

proposed adjudication.

In McIntire Co. v. Department of Environmental

Resources, 108 Pa. Commonwealth Ct. 443, 530 A.2d 140

(1987), petition for allowance of appeal denied, 518 Pa.

614, 540 A.2d 536 (1988), the hearing examiner was not a

member of the Board at the time the adjudication was

rendered. In that case we held:

[W]e refuse to read into the regulation a requirement

that a Board member sitting as a hearing examiner

must be a current member at the time of

adjudication. .. . [Djue process does not require that

administrative adjudicators be present at a hearing

but only that they review the record in preparing

their decisions.

Id. at 453, 530 A.2d at 145; Caldwell v. Clearfield County

Children and Youth Services, 83 Pa. Commonwealth Ct.

49, 476 A.2d 996 (1984). Furthermore, administrative

adjudicators are not precluded from determining

credibility of witnesses from the reading of a transcript.

Caldwell.

There is a _ prima-facie presumption that the

adjudicator read the record and there is nothing in the

record to overcome this regularity of his acts. See

Mignatti Construction Co. v. Environmental Hearing

Board, 49 Pa. Commonwealth Ct. 497, 411 A.2d 860

(1980).

Lawrence had a strip-mining permit for its operation,

the Rogers Mill Strip. Located uphill from the Rogers

Mill Strip is a strip known as the Chanin Strip operated

by the Marsolino Coal and Coke Mining Company,

fronting along Pirl Spring Road. Pirl Spring Road

contains culverts which carry water under the road

toward the Buck Run Tributary and Buck Run.

The Board found that at several of the culverts the

discharge was acid mine drainage. The Board found that

stream degradation is solely attributable to the mining

activities of Lawrence and Marsolino and held Lawrence

responsible for the drainage discharge into the

Commonwealth waters.

Lawrence contends that this finding is not based on

substantial evidence. Lawrence asserts that the drainage

did not come solely from its mining operations, and that

therefore the causal relationship of the drainage from

Lawrence was not proven. Furthermore, it is asserted

that Marsolino was responsible for the acid drainage, and

that Lawrence was responsible for only a few isolated

instances.

In Commonwealth v. Harmar Coal Co., 452 Pa. 77, 306

A.2d 308 (1973), appeal dismissed, 415 U.S. 903 (1974),

our Supreme Court reviewed the legislative history of

The Clean Streams Law (Law), Act of June 22, 1937,

P.L. 1987, as amended, 35 P.S. §$§691.1-691.702, and

the applicable court decisions. The critical and principal

conduct prohibited by the Law is water pollution. It was

concluded that in view of the Law's objective not only to

prevent further pollution of the waters of the

Commonwealth, but also to eliminate existing water

pollution, it is the fact of mine drainage discharge into

the surface waters which is critical, rather than

identification of the original source of the polluted

waters. Discharge must be authorized by the Board's

rules and ‘regulations. ‘‘Mine drainage’ consists of

waters which have been polluted by operation of a mine,

and includes ‘‘fugitive mine water,” that is, water which

enters a particular mine by gravity or pressure.

Also, section 315 of the Law, 35 P.S. §315, provides

that no person shall operate a mine or allow a discharge

from a mine. Thus, while Lawrence may not be

responsible for actually causing the pollution, it certainly

harms the Commonwealth by discharging the polluted

water into the surface waters. There is nothing in the

record to indicate that Lawrence has the right to

discharge acid mine drainage into the waters of the

ne ETO

2, ee

Commonwealth. The Clean Streams Law applies to ail

discharges of mine drainage. Harmar. The fact that the

condition arises from the activities of another mine does

not affect the appropriateness of invoking the police

power to dispel the immediate dangerous condition.

Commonwealth v. Barnes and Tucker Co., 472 Pa. 115,

371 A.2d 461 (1977).

Substantial evidence, albeit circumstantial, establishes

clearly and logically a link between the discharge from

the other mines and the acid mine drainage from

Lawrence.

There was evidence of the tracing of the flow of the

drainage from the Rogers Mill Strip. There was evidence

of the groundwater flow pattern at the mine in

topographical and structural designs and controls. The

mine forms a hillside and the groundwater penetrating

the mine at the higher level would tend to flow downhill,

discharging at the lower level in the vicinity of Pirl

Spring Road. The structural controls would direct the

drainage toward the culverts, and a portion of the acid

mine drainage from the Rogers Mill Strip traveled along

the pavement of the mined coal seam.

The record shows that the discharges of acid drainage,

rather that an isolated instance, occurred on eleven

separate days within a ten-month period. It was

deliberate and willful on the part of Lawrence not to

treat the drainage system after having been directed to

comply for a period of two and a half years.

Thus, the penalty imposed was proper, and we affirm.

JACOB KALISH

Jacob Kalish, Senior Judge

Judge Doyle concurs in the result only.

IN THE COMMONWEALTH COURT

OF PENNSYLVANIA

No. 1891 C.D. 1988

LAWRENCE COAL COMPANY,

Petitioner,

Vv.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL

RESOURCES,

Respondent.

ORDER

NOW, July 12, 1989, the decision of the

Environmental Hearing Board, No. 81-021-CP-M, is

affirmed.

JACOB KALISH

Jacob Kalish, Senior Judge

CERTIFIED FROM THE RECORD

AND ORDER EXIT

Jul 12, 1989

C.R. HOSTUTLER

Deputy Prothonotary—Chief Clerk

APPENDIX ‘“‘C’’

Adjudication of the Environmental Hearing Board

by Robert D. Myers, Dated July 5, 1988.

SEAL

COMMONWEALTH OF PENNSYLVANIA

ENVIRONMENTAL HEARING BOARD

101 South Second Street

Suites Three—Five

Harrisburg, PA. 17101

(717) 787-3483

M. DIANE SMITH

SECRETARY TO THE BOARD

EHB Docket No. 81-021-CP-M

Issued: July 5, 1988

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL

RESOURCES

Vv.

LAWRENCE COAL COMPANY

ADJUDICATION

By the Board

Synopsis

This proceeding involves a Complaint for Civil

Penalties filed by the Department of Environmental

Resources (DER) against Lawrence Coal Company

10a

(Lawrence) under Section 605 of the Clean Streams Law

(CSL), Act of June 22, 1937, P.L. 1987, as amended, 35

P.S. §691.605. DER sustained its burden of proving by a

preponderance of the evidence that Lawrence had

violated provisions of the CSL, provisions of DER’s

regulations, and provisions of its mine drainage permits

by discharges of acid mine drainage (AMD) and sediment

at two surface mining sites in Fayette County, and by

the improper handling of reject material at one of the

sites. The unlawful discharges were shown to have

degraded Buck Run (a high quality cold water fishery)

and to have interfered with its use as a fishing stream.

In determining the amount of a civil penalty, the

Board considered wilfullness and the damage to Buck

Run. It did not consider the cost of restoration or

employ a deterrence factor because of insufficient

evidence.

PROCEDURAL HISTORY

On February 25, 1981, DER filed a Complaint for Civil

Penalties against Lawrence, alleging (1) the discharge of

acid mine drainage, (2) the failure to implement and

maintain effective erosion and sedimentation controls, (3)

the failure to properly dispose of toxic waste, and (4) the

disturbing of land designated as a barrier. The

allegations pertained to Lawrence's surface mining

operations under Mining Permit No. 1063-5 in

Springfield Township, Fayette County, and under Mining

Permits Nos. 1063-7 and 1063-8 in Dunbar Township,

Fayette County, during 1980 and the early months of

1981.

On March 16, 1981, Lawrence filed an Answer denying

the allegations of the Complaint, alleging in New Matter

that it had attempted in good faith to cooperate with

DER in determining the cause of the alleged pollution of

lla

the waters of the Commonwealth. DER filed a Reply to

this New Matter on April 1, 1981, denying the

allegations.

Hearings began before Board Chairman Dennis J.

Harnish in Pittsburgh on June 2, 1981. At that time it

was stipulated that the Complaint did not include any

alleged violations with respect to Mining Permit No.

1063-5A. DER filed on July 6, 1981, an Application for

Leave to Amend Complaint to include Mining Permit No.

1063-5A, to which Lawrence objected in an Answer filed

on July 19, 1981. Chairman Harnish denied DER’s

Application at the outset of the hearing on July 26,

1981.

A total of eleven days of hearings were held before

they concluded on November 23, 1982. By agreement of

counsel, the deposition of Donald L. Streib, dated

January 21, 1983, together with exhibits, was filed as

part of the record on January 31, 1983. Post-hearing

briefs were filed by both parties during March 1983. On

March 28, 1983, DER filed a Motion to Amend

Complaint to Conform to Proof. Lawrence filed an

Answer to the Motion on April 7, 1983.

Chairman Harnish resigned from the Board on May 16,

1983, without having prepared an Adjudication. The case

was assigned to Edward R. Casey, a Board-appointed

Hearing Examiner, who began reviewing the record on

September 15, 1983. On October 20, 1983, Mr. Casey

wrote a letter to legal counsel for both parties, setting

forth his candid overview of the case and suggesting a

settlement that would involve the assessment of civil

penalties in the maximum amount of $1,000.

On November 7, 1983, DER filed a Petition for Recusal

of Mr. Casey and a Motion for Reassignment, alleging,

inter alia, that Mr. Casey had ignored a recommendation

12a

of former Board Chairman Harnish to find in favor of

DER. On November 22, 1983, the Board entered an

Order recusing Mr. Casey and reassigning the case to

Board Member Anthony J. Mazullo, Jr. for the purpose

of preparing an Adjudication.

On November 30, 1983, Lawrence filed a Petition,

requesting either a dismissal of the case because of

alleged improper communications between former Board

Chairman Harnish and legal counsel for DER or, in the

alternative, a reassignment of the case to a neutral

hearing examiner who was not involved with the Board

during Harnish’s tenure. The Petition was denied in an

Opinion and Order issued by the Board (Members Mazullo

and Edward Gerjuoy) on December 12, 1983.

Board Member Mazullo prepared a draft Adjudication

which had not been adopted by the Board at the time of

his resignation on January 31, 1986. On May 27, 1986,

the Board (acting through its remaining incumbents,

Chairman Maxine Woelfling and Member Gerjuoy)

issued an Adjudication, which adopted Mazullo’s draft

Adjudication with certain modifications and which

assessed civil penalties in the amount of $150,700.

On June 6, 1986, Lawrence filed a Petition for

Reconsideration. As supplemented on June 24, 1986, the

Petition requested that the Adjudication of May 27,

1986, be vacated and that Chairman Woelfling and

Member Gerjuoy be recused from any further

participation in the case. William A. Roth became a

Member of the Board on June 24, 1986. On August 7,

1986, the Board informed the parties that Members

Gerjuoy and Roth would decide whether Chairman

Woelfling should be recused.

13a

On September 12, 1986, the Board (Members Gerjuoy

and Roth) issued an Opinion and Order deferring a

decision on the recusal of Chairman Woelfling until

Gerjuoy and Roth acted on Lawrence’s Petition for

Reconsideration. On September 19, 1986, the Board

(Members Gerjuoy and Roth) issued on Opinion and

Order denying the Petition for Reconsideration and

dismissing as moot the request for the recusal of

Chairman Woelfling.

Lawrence filed with Commonwealth Court (No. 3062

C.D. 1986) on October 16, 1986, a Petition for Review of

the Board’s Orders of September 19, 1986, and May 27,

1986. Commonwealth Court handed down a

Memorandum Opinion and Order on January 25, 1988,

vacating the Board’s Orders and remanding the case for

new hearings. On April 8, 1988, the Order was amended

to provide for a new Adjudication, to be issued within 90

days, on the basis of the 1982 record and associated

briefs and papers, and without the participation of

Chairman Woelfling and Member Roth. (Board Member

Gerjuoy had left the Board in 1987 and had been

succeeded by Robert D. Myers.)

The record consists of the pleadings, a transcript of

1914 pages, a deposition of 54 pages and 118 exhibits.

FINDINGS OF FACT

1. DER is an administrative department of the

Commonwealth of Pennsylvania, and is responsible for

administering the provisions of the CSL and the rules

and regulations adopted pursuant thereto. (Complaint,

Para.1; 71 P.S. §61)

2. Lawrence is a company engaged in the surface

mining of coal at sites in Springfield and Dunbar

Townships, Fayette County. (Complaint Para. 2 and 3)

14a

3. Lawrence's surface mining operation in Springfield

Township is the Rogers Mill Strip. (N.T. 10)

4. Mine Drainage Permit No. 3376SM15 (MDP), which

pertains to the Rogers Mill Strip, was issued by DER to

William K. Tedesco on November 10, 1976, and was

transferred to Lawrence on July 19, 1977. (N.T. 11)

5. Mining Permit No. 1063-5 (MP5), covering 63 acres

of the Rogers Mill Strip, was issued by DER to

Lawrence on July 1, 1977. (N.T. 11-12)

6. Mining Permit No. 1063-5A (MP5A), covering an

additional 20.4 acres of the Rogers Mill Strip, was issued

by DER to Lawrence on July 29, 1977. (N.T. 11-12)

7. Mining Permit No. 1063-7 (MP7) and Mine Drainage

Permit No. 3374SM31T both pertain to a surface mining

operation conducted by Lawrence at the Kennedy Strip

in Dunbar Township. (Complaint Para. 4; N.T. 275)

8. Mining Permit No. 1063-8 (MP8) and Mine Drainage

Permit No. 3378BC10 both pertain to a surface mining

operation conducted by Lawrence on the Spruell Strip in

Dunbar Township. (Complaint Para. 4; N.T. 264)

9. The Rogers Mill Strip lies east of the junction of T-

683 (Pirl Spring Road) with T-687 (Fish Hatchery Road).

Fish Hatchery Road runs in a_ northeasterly-

southwesterly direction and forms the western boundary

of MP5A. Pirl Spring Road runs in a northwesterly-

southeasterly direction and forms the southwestern

boundary of MP5. T-685 (Haul Road) runs in a general

easterly direction from Pirl Spring Road (about 250 feet

away from the junction with the Fish Hatchery Road),

crosses the Rogers Mill Strip and forms the dividing line

between MP5 and MPSA. (N.T. 21-24; Commonwealth

Exhibit (CX) 1)

15a

10. Topographically, the Rogers Mill Strip descends

about 500 feet from the southeast to the northwest with

a slight ridge or “tongue’’ extending through the center.

Drainage from the Strip flows southwest toward Buck

Run and northeast toward Middle Fork. (N.T. 13, 720-

721; CX 1)

11. Also located in the Buck Run watershed is a

surface mining operation, conducted by Marsalino Coal &

Coke, Inc. (Marsalino) pursuant to Mining Permit No. 71-

27 on the Chanin Strip, upgradient from and immediately

to the south of, the Rogers Mill Strip. (N.T. 17-18; CX 1)

12. The Rogers Mill Strip and the Chanin Strip are

the only current mining operations in the Buck Run

watershed. (N.T. 18)

13. In prior years, deep mining had been conducted

beneath both the Rogers Mill Strip and the Chanin Strip,

and surface mining had been conducted on the Rogers

Mill Strip by William K. Tedesco, Lawrence's

predecessor. (N.T. 606-610, 750-757, 918, 1377-1378,

1392-1393)

14. Buck Run flows in a northerly direction west of the

Pirl Spring Road, but veers toward the west near the

junction of the Pirl Spring Road with the Fish Hatchery

Road, running beneath the latter at the Rogers Mill

Bridge. About 700 feet upstream from this bridge, Buck

Run divides into two branches which rejoin after a

distance of about 500 feet. An unnamed tributary flows

west of Pirl Spring Road and empties into the easterly

branch of Buck Run about 150 feet upstream from its

junction with the westerly branch. (N.T. 13, 86, 104-107; CX

16a

15. Buck Run has been classified as a cold water

fishery and was stocked with trout by the Pennsylvania

Fish Commission from 1976 through 1978. (N.T. 14,

1837, 1853)

16. The Rogers Mill Strip and the Chanin Strip are

situated on the northwestern flank of the Laurel Ridge

anticline. Both Strips are geologically similar,

characterized by moderately steeply dipping sedimentary

rock. The main coal seam (the seam mined by both

Marsalino and Lawrence) strikes North 30° East and

dips to the northwest. It is overlain with 50 to 60 feet of

sandstone. A rider seam lies below the main seam,

separated from it by 40 to 60 feet of sandstone and

shale. (N.T. 712-713, 731-735, 790-791, 1326-1327)

17. In the vicinity of the Haul Road, a roll occurs in

the main seam, causing it to flatten considerably while

still dipping to the northwest. (N.T. 735)

18. The main seam outcrops on the southwestern

portions of the Rogers Mill Strip and the Chanin Strip

along a line that runs roughly parallel to, and about 400

feet away from, Pirl Spring Road. The outcrop line then

swings toward the north on the Rogers Mill Strip and

runs parallel to, and about 150 feet away from, Fish

Hatchery Road. (CX 1; Defendant’s Exhibit (DX) 4)

19. The rider seam outcrops at Pirl Spring Road. (DX

20. Groundwater penetrating the surface at the higher

elevations would tend to flow in a _ northwesterly

direction, discharging at the lower elevation in the

vicinity of Pirl Spring Road and Fish Hatchery Road.

(N.T. 736-737)

17a

21. Lawrence’s MP5 pit was 1,000 feet to 1,200 feet

long. The highwall was about 60 feet high and oriented

in a general north-south direction. It was composed of

highly fractured sandstone. The northern endwall was

adjacent to the Haul Road and the southern endwall was

next to the boundary line between the Rogers Mill Strip

and the Chanin Strip. (N.T. 716-717, 720; CX1; CX 36;

DX 4)

22. A series of ten culverts carry water under Pirl

Spring Road to Buck Run and the unnamed tributary.

The first five of these are adjacent to the MP5 portion of

the Rogers Mill Strip and the remaining five are

adjacent to the Chanin Strip. Culvert 1 (the farthest

toward the northwest) and culvert 2 flow directly toward

Buck Run. The others all flow toward the unnamed

tributary. (N.T. 20, 39; CX 1)

23. On January 23, 1980, Mark Frederick, a Surface

Mining Conservation Inspector for DER, observed

discharges of water from culverts 1 through 5 and

obtained samples for analysis. (N.T. 19-20)

24. Mr. Frederick determined the following sources for

the flows at culverts 1 through 5:

culvert 1—sediment pond on MP5A (not reievant to

this proceeding) _

culvert 2—swampy area at toe of spoil on MP5

culvert 3—swampy area at toe of spoil on MP5

culvert 4—toe of spoil near dead tree on MP5

culvert 5—embarkment above ditch along Pirl Spring

Road near boundary between Rogers Mill Strip and

Chanin Strip. Since the precise source of the discharge

could not be determined, Mr. Frederick was unable to

decide whether Lawrence or Marsalino was responsible

for it. (N.T. 24-25, 51-54, 64-66)

18a

25. Marsalino had been cited by DER on July 31, 1979,

for discharging AMD into Buck Run and its tributaries.

Marsalino’s discharges continued into 1980. (N.T. 317-

325; DX 1)

26. The analysis of water samples obtained by Mr.

Frederick on January 23, 1980, revealed that the

discharges at culverts 2 through 5 exceeded the effluent

limitations imposed by Lawrence’s MDP and by DER's

regulations, and constituted AMD. (N.T. 40-48)

27. Mr. Frederick recommended that Lawrence develop

and implement a plan to collect and treat any

substandard water leaving the Rogers Mill Strip and

flowing toward Buck Run or the unnamed tributary.

(N.T. 25)

28. Mr. Frederick inspected the Rogers Mill Strip on

January 28, 1980, in the company of Archie Johnson,

Lawrence’s foreman. Mr. Frederick observed discharges

of water from culverts 2 through 5 but did not obtain

any samples. There was no treatment of the discharges

but Mr. Johnson agreed to look into the feasibility of

constructing a ditch to collect and divert water to a

treatment basin. (N.T. 70-72)

29. Mr. Frederick inspected the Rogers Mill Strip on

February 28, 1980, accompanied by James V. Filiaggi,

Lawrence’s Supervisor, Mr. Johnson, Mr.

Frederick’s immediate superior and another DER mine

inspector. Mr. Frederick directed Lawrence to install the

siltation (toe of spoil) ditch required by the MDP by

March 30, 1980, and to construct it at a grade and depth

adequate to collect both surface runoff and discharges of

AMD. (N.T. 73-74)

19a

30. The toe of spoil ditch was dug between May 27,

1980, and June 10, 1980, but was not deep encugh or

long enough to intercept all the water discharging at the

culverts. Lawrence extended the ditch as far as the

dividing line between the Rogers Mill Strip and the

Chanin Strip by July 1, 1980. The ditch was dug in

rubbly material and was not impermeable. (N.T. 170-171,

182,194, 851)

31. Water in the toe of spoil ditch was diverted to a

sedimentation pond constructed by Lawrence between

May 13, 1980, and June 12, 1980. A_ second

sedimentation pond was in place by July 1, 1980.

Lischarges from the ponds flowed to culvert 2. (N.T. 132,

134, 182, 194, 1516)

32. After the toe of spoil ditch and the two

sedimentation ponds had been constructed, the amount

of water discharged at culverts 2, 3, and 4 decreased

significantly. (N.T. 225, 238-239,489)

33. On October 10, 1980, Mr. Frederick suggested that

Lawrence deepen the original section of the toe of spoil

ditch in an effort to intercept seepage still reporting to

culverts 3 and 4. (N.T. 252-254)

34. DER did not hold Lawrence responsible for

treating the discharge at culvert 5 from January 23,

1980 to June 10, -1980, did hold Lawrence responsible

from June 10, 1980, to July 1, 1980, did not hold

Lawrence responsible from July 1, 1980 to September 10,

1980, and held Lawrence jointly responsible with

Marsalino after September 10, 1980. (N.T. 168, 201-202,

249, 299-300)

35. Mr. Frederick also sampled the discharges at the

Rogers Mill Strip on February 28, 1980, March 12, 1980,

March 20-21, 1980, May 13, 1980, May 21, 1980, June

20a

10, 1980, July 7, 1980, July 22-23, 1980, August 14,

1980, and October 3, 1980. (N.T. 74-79, 80, 82, 84, 90,

123, 131, 139, 147, 168169, 171-172, 223-224, 226-227,

237-238, 245, 249)

36. Discharges at culvert 2:

(a) exceeded effluent limitations and constituted

AMD on February 28, 1980, March 12, 1980, March

20-21, 1980, May 21, 1980, July 7, 1980, August 14,

1980, and October 3, 1980; (N.T. 74-79, 8f, 82, 90,

148, 225, 239, 250; CX 33A)

(b) were being treated on May 13, 1980, June 10,

1980, July 1-2, 1980, and July 22-23, 1980. Ps and

acidity levels may have been within effluent

limitations on these dates, but metal concentrations

exceeded effluent limitations. (N.T. 133, 173, 201,

227, 237; CX 33A)

37. Discharges at culvert 3:

(a) exceeded effluent limitations and constituted

AMD on February 28, 1980, March 12, 1980, March

20-21, 1980, May 21, 1980, August 14, 1980, and

October 3, 1980; (N.T. 74-79, 80, 82, 90, 148, 238,

250; CX 33A)

' (b) were being treated on May 13, 1980, June 10,

1980, July 1-2, 1980, and July 22-23, 1980. Pn and

acidity levels may have been within effluent

limitations on these dates, but metal concentrations

exceeded effluent limitations; (N.T. 133, 172, 201,

227, 234; CX 33A)

on July 7, 1980, and August 14, 1980; (N.T. 224,

238)

38. Discharges at culvert 4:

(a) exceeded effluent limitations and constituted

AMD on February 28, 1980, March 12, 1980, March

20-21, 1980, May 21, 1980, June 10, 1980, July 7,

1980, August 14, 1980, and October 3, 1980; (N.T.

74-79, 80, 82, 90, 148, 172, 225, 238, 250; CX 33A)

2la

(b) were being treated on May 13, 1980, July 1-2,

1980, and July 22-23, 1980. Ph and acidity levels

may have been within effluent limitations on these

dates, but metal concentrations exceeded effluent

limitations; (N.T. 132, 201, 227; CX 33A)

on July 7, 1980. (N.T. 224)

39. During the periods when DER considered Lawrence

wholly or partly responsible for the discharges at culvert

5, such discharges:

(a) were not being treated on June 12, 1980; (N.T.

182)

(b) were being treated on July 1, 1980, but not for

the removal of metals; (N.T. 198)

AMD on October 3, 1980. (N.T. 250)

40. The only method employed by Lawrence to

neutralize the discharges involved the placement in the

culverts of burlap bags filled with sodium carbonate

briquettes. This treatment did not remove metals or

solids. (N.T. 116-117, 134, 224, 602)

41. The toe of spoil ditch and the sedimentation ponds

constructed by Lawrence on MP5 provided a facility for

the removal of metals and solids from water intercepted

by the ditch; but no similar treatment was administered

to the water that continued to discharge at culverts 2

through 5. (N.T. 171, 181, 222-223, 227, 256)

42. Karl K. Shaeffer, a Water Pollution Biologist for

DER, performed a macro invertebrate study of Buck

Run adjacent to the Rogers Mill Strip and Chanin Strip

on March 20, 1980. This type of study attempts to

measure the quality of a stream as a fishery by

observing the insects resident in the stream. (N.T. 85-89,

388, 392) The March 20, 1980, study disclosed:

22a

(a) that Buck Run met the requirements for a high

quality cold water fishery upstream from a haul

road built by Marsalino in conjunction with the

Chanin Strip operation; (N.T. 402, 406-407)

(b) that Buck Run was somewhat degraded below

Marsalino’s haul road to the point where the

unnamed tributary enters the stream, but still met

the requirements for a high quality cold water

fishery; (N.T. 402, 407, 409)

unnamed tributary enters the stream was degraded

to the extent that the macro invertibrate community

was nonexistent. Siltation and metal deposition on

the substrate were readily observable; (N.T. 402,

407)

(d) that the metal deposition observable in Buck

Run is typical of what occurs when AMD enters a

stream and undergoes a certain amount of

neutralization. (N.T. 408)

43. Karl K. Shaeffer conducted an electrofishing

survey of Buck Run adjacent to the Rogers Mill Strip

and Chanin Strip on October 3, 1980. This type of study

attempts to measure the quality of a stream as a fishery

by stunning the fish, counting them, and identifying

them by species and size. (N.T. 411-414) The October 3,

1980, survey disclosed:

(a) that 75 brook trout of varying sizes, as well as

some other associated cold water species, were found

in that part of Buck Run immediately above the

Marsalino haul road; (N.T. 417)

(b) that 3 brook trout were found in that part of

Buck Run immediately above the Rogers Mill

Bridge; (N.T. 416)

confluence with the unnamed tributary had been

almost completely devastated; (N.T. 419)

23a

(d) that Buck Run below the confluence with the

unnamed tributary was affected by AMD, siltation

and metal deposition, all of which is harmful to fish

life; (N.T. 430-432, 436-438)

(e) that surface mining operations were the cause

of the conditions in Buck Run below the confluence

with the unnamed tributary. (N.T. 438-439)

44. The water in the Pirl Spring and the water

discharging at culverts 7, 8, 9 and 10 are unaffected by

surface mining on the Rogers Mill Strip and Chanin

Strip, and represent background water quality for Buck

Run. This water had a P: between 5 and 6; alkalinites

are usually between 10 and 20 parts per million (ppm);

acidities are usually less than 10 ppm; iron, maganese,

and aluminum are ali under 1 pmm. It does not

constitute AMD. (N.T. 497-500, 759-761, 1612)

45. The background water quality of Buck Run is such

that the stream has little or no capacity to handle AMD.

(N.T. 499, 761)

46. Observations and water samplings of Buck Run

and the unnamed tributary on May 12, 1980, established:

(a) that Buck Run was slightly turbid, somewhat

more alkaline and contained a higher concentration

of iron below the confluence with the unnamed

tributary; (N.T. 118-119; CX 33A)

(b) that Buck Run below the confluence with the

unnamed tributary became highly polluted with silt

and iron after a heavy rain shower; (N.T. 120-121;

CX 33A)

in alkalinity and iron as it flowed past the Rogers

Mill Strip and Chanin Strip toward Buck Run; (N.T.

110-115; CX 33A)

(d) that the unnamed tributary near its confluence

with Buck Run was discolored and reflected metal

deposition; (N.T. 115)

24a

(e) that both Marsalino and Lawrence were

treating discharges with sodium carbonate

briquettes on that day, accounting for the increases

in alkalinity in the unnamed tributary and Buck

Kiun; (N.T. 115-116)

(f) that neither Marsalino nor Lawrence was

using any facilities for the removal of solids on that

day, accounting for the increases in iron and

turbidity in the unnamed tributary and Buck Run.

(N.T. 116)

47. Observations and water samplings of Buck Run

and the unnamed tributary on May 13, 1980, established:

(a) that both Marsalino and Lawrence were

treating discharges with sodium carbonate

briquettes on that day; (N.T. 130, 132; CX 33A)

(b) that neither Marsalino nor Lawrence was using

any facilities for the removal of solids on that day;

(N.T. 130, 132; CX 33A)

confluence with the unnamed tributary had a

yellowish appearance and metal deposition, but the

western branch was very clear; (N.T. 135; CX 33A)

(d) that the condition of the eastern branch of

Buck Run was caused by the inadequate treatment

of the discharges from the Rogers Mill Strip and the

Chanin Strip. (N.T. 135; CX 33A)

48. Observations and water samplings of Buck Run

and the unnamed tributary on May 21, 1980, established:

(a) that both branches of Buck Run above the

confluence with the unnamed tributary were clear

and had no signs of metal deposition; (N.T. 160; CX

33A)

(b) that the eastern branch of Buck Run below the

confluence with the unnamed tributary was slightly

turbid and had metal deposition; (N.T. 160; CX 33A)

branches was slightly cloudy and had metal

deposition. (N.T. 161; CX 33A)

25a

49. Observations and stream samplings of Buck Run

and the unnamed tributary on June 10, 1980,

established:

(a) that both branches of Buck Run above the

confluence with the unnamed tributary were very

clear; (N.T. 175; CX 33A)

(b) that the eastern branch of Buck Run below the

confluence with the unnamed tributary was slightly

turbid; (N.T. 175; CX 33A)

turbid and alkaline. (N.T. 175, CX 33A)

50. On July 1-2, 1980, the eastern branch of Buck

Run was clear above the confluence with the unnamed

tributary and turbid below it. (N.T. 200, 209-213, CX

14C-CX 14H)

51. On July 22-23, 1980, silt deposits were in the

unnamed tributary and in Buck Run below the

confluence with the unnamed tributary. (N.T. 233)

52. Observations and water samplings established

that Lawrence's discharges into Buck Run and the

unnamed tributary exceeded effluent limitations for the

total suspended solids on March 20, 1980, May 12-13,

1980, May 21, 1980, June 10, 1980, July 1-2, 1980, and

July 22-23, 1980. (N.T. 90, 96-123, 125-135, 151-161, 172-

179, 198-199, 209-223, 233-237; CX 8; CX 9; CX 10; CX

14C; CX 14D; CX 14E; CX 33A)

53. Buck Run (for a couple of miles below the

unnamed tributary) and the unnamed tributary itself

were degraded by the surface mining operations of both

Lawrence and Marsalino. (N.T. 438-439, 461)

54. Lawrence's discharges, taken alone, or

Marsalino’s discharges, taken alone, were sufficient to

degrade these waterways. Taken together, they had a

cumulative effect. (N.T. 473-474)

26a

55. The surface mining operations of Lawrence and

Marsalino are the only apparent sources of AMD flowing

into culverts 2 through 5. (N.T. 870-871)

56. The Pennsylvania Fish Commission ceased

stocking Buck Run after the 1978 fishing season,

primarily because of the AMD caused by Marsalino’s

operation on the Chanin Strip. At that time, there were

no discerible discharges from the Rogers Mill Strip. (N.T.

555-557, 559-564, 1853)

57. From 1978 through 1981 there was little fishing

done on Buck Run below the confluence with the

unnamed tributary. (N.T. 1846-1848)

58. Samples of water in the toe of spoil ditch, taken

on July 1-2, 1980, and July 22, 1980, had the

characteristics of AMD and were similar in chemical

composition to the water discharging at the culverts,

with the exception of iron. Iron concentrations were

higher in the ditch water than in the culvert water. (N.T.

241-245, 865-866, 1070-1072; CX 17A; CX 33A)

59. Lawrence’s pit floor dipped, in part, toward

Pirl Spring Road and, in part, toward Fish

Hatchery Road. Initially, water flowed across

the pit floor at a 45 degree angle away from the

highwall and toward Pirl Spring Road. Later, it tended

to flow toward the highwall and into the corner formed

by the highwall and the northern endwall. (N.T. 260-263,

717)

60. Lawrence’s pit floor water was analyzed in 1977,

1980, 1981 and 1982 and determined to be AMD. (N.T.

150, 1069; CX 18)

61. On May 13, 1980, Mr. Frederick informed

Lawrence personnel that reject material was to be buried

above the level of the pit floor to reduce the possibility

of contaminating pit floor water. (N.T. 124-125, 375-380)

27a

62. Lawrence continued to pile reject material on the

pit floor on June 10, 1980, and on July 1-2; 1980. (N.T.

171, 219-220; CX 14P)

63. The surface mining of coal disturbs the normal

flow of groundwater in the overburden. During and after

the removal of coal, groundwater tends to penetrate to

the pavement below the point where the coal seam was

located and to discharge at the crop line. (N.T. 769-770)

64. Groundwater also may penetrate into the rock

strata lying below the point where the coal seam was

located. (N.T. 777)

65. Water flowing into the toe of spoil ditch and into

culverts 2 through 5 represents both crop line discharges

and discharges from below the crop line. (N.T. 782)

66. The roll in the main seam in the vicinity of the

Haul Road diverts groundwater toward culvert 4 (at a

point below the crop line of the main coal seam where a

dead tree is the predominant landscape feature). This

groundwater was intercepted by the toe of spoil ditch

after it was constructed. (N.T. 798-799, 884-885)

67. Water that discharges into the toe of spoil ditch

previously flowed off the Rogers Mill Strip and was

affected by Lawrence’s surface mining operations. (N.T.

801, 1029)

68. Water that continued to discharge into culverts 2,

3, 4, and 5 after construction of the toe of spoil ditch

flowed off the Rogers Mill Strip, but may have had its

source, in part, on the Chanin Strip. The water was

affected both by Lawrence’s and by Marsalino’s surface

mining operations. (N.T. 808-812, 1031-1036)

28a

69. There is a hydrologic connection between water

disturbed by Lawrence’s surface mining operation on the

Rogers Mill Strip and water discharged at culverts 2

through 5. (N.T. 487-494, 579-580, 782, 808-812, 838-844,

884-885, 1029-1036, 1633; CX 28)

70. Lawrence has acknowledged that some of the

water that previously flowed to culvert 4 before

construction of the toe of spoil ditch originated on the

Rogers Mill Strip. (N.T. 487-488, 1162-1163, 1283, 1632-

1633)

71. Lawrence has acknowledged that it never

performed any analysis of the water discharging at

culverts 2 through 5. (N.T. 1512-1513)

72. A study of Buck Run in 1981 and 1982

established:

(a) that fish and macro invertebrates were

reestablished in that part of Buck Run below the

confluence with the unnamed tributary; (N.T. 451-

457, 1674-1676)

(b) that metal deposition still existed in that part

of Buck Run below the confluence with the unnamed

tributary, but that recovery was taking place; (N.T.

455)

directly to the reduction or elimination of discharges

of AMD, silt and metals from the Rogers Mill Strip

and the Chanin Strip; (N.T. 457)

(d) that, given the status quo, Buck Run will be

rr id restored in three to five years. (N.T. 460-

461

73. On September 4, 1980, Lawrence did not have a

toe of spoil ditch on the Spruell Strip, had not

constructed sedimentation ponds in accordance with

plans approved by DER and was not providing separate

29a

treatment in the sedimentation ponds. There was

evidence of sediment runoff from the site into a tributary

of Morgan Run. (N.T. 269-270, 274)

74. On September 4, 1980, Lawrence allowed a

discharge of AMD to flow from the Spruell Strip into a

tributary of Morgan Run. (N.T. 270, 274)

75. On September 15, 1980, Lawrence had spoils piled

on the Kennedy Strip within several feet of Dickerson

Run. (N.T. 275-276)

DISCUSSION

DER had brought this action under Section 605 of the

CSL, 35 P.S. §691.605. During the time period covered

by the alleged violations, Section 605 read, in pertinent

part, as follows:

“In addition to proceeding under any other

remedy available at law or in equity for a violation

of a provision of this act, rule, regulation, order of

the department, or a condition of any permit issued

pursuant to this act, the department, after hearing,

may assess a civil penalty upon a person or

municipality for such violation. Such a penalty may

be assessed whether or not the violation was wilful.

The civil penalty so assessed shall not exceed ten

thousand dollars ($10,000) per day for each violation.

In determining the amount of the civil penalty the

department shall consider the wilfullness of the

violation, damage or injury to the waters of the

Commonwealth or their uses, cost of restoration,

and other relevant factors... .”’

DER has the burden of proving by a preponderance of

the evidence that Lawrence committed violations of the

CSL and that civil penalties should be assessed: 25 Pa.

Code §21.101(b)(1).

30a

Count I—-AMD

In Count I of its Complaint, DER alleged that

Lawrence discharged AMD from the MP5 portion of the

Rogers Mill Strip into Buck Run and its tributaries. The

discharges were alleged to have been continuous,

specifically including the following dates: January 23,

February 28, May 13, May 21, May 27, June 2, June 10,

July 1, July 2, July 7, July 22, July 23, August 14,

October 10, October 23, November 17, all in 1980, and

January 7, and January 28 in 1981. In its post-hearing

brief, DER abandoned entirely the period following

October 10, 1980, and eliminated the claim of continuous

discharges for the period subsequent to May 27, 1980.

There is no dispute about the fact that discharges at

culverts 2 through 5 constituted AMD. There is serious

dispute, however, about the source of those discharges.

DER points, inter alia, to the following evidence

linking those discharges to Lawrence’s surface mining

operation on the MP5 area of the Rogers Mill Strip:

1. the discharges emanated from MP5;

2. the discharges at culverts 2, 3, and 4 were

traced to the toe of spoil on MP5;

3. construction of the toe of spoil ditch on MP5

reduced the flows at culverts 2, 3 and 4;

4. Lawrence mined MP5 above culverts 2

through 5;

5. the discharges at culverts 7 through 10 are not

AMD;

6. the water discharged at culverts 2 through 5

is chemically similar to the water on MP5;

7. there is no other logical source of AMD than

the surface mining operations of Lawrence on MP5

and Marsalino on the Chanin Strip.

3la

Lawrence disputed much of this evidence. Its

witnesses maintained that the discharges could not have

been traced to the toe of spoil on MP5; that the water

discharged at the culverts is chemically different in

certain respects from the water on MP5; that there is no

geologic mechanism on MP5 that would enable water to

penetrate below the crop line of the main seam; and that

the water discharged from MP5 constituted AMD before

any surface mining had been done.

Much time could be devoted to weighing the evidence

on each of these disputed points, resolving the many

conflicts and attempting to reach sensible conclusions.

That is unnecessary, in my judgment, because

Lawrence’s evidence failed to address several decisive

points in DER’s case.

The first of these pertains to the flow of water at

culverts 2, 3 and 4. DER’s undisputed evidence is that

such flows diminished substantially but not completely

after the toe of spoil ditch was constructed. This fact is

strong evidence that some hydrologic connection existed

between the MP5 area and culverts 2, 3, and 4. While

Lawrence’s experts went to great lengths to disprove

any connection, they offered no explanation at all for the

reduction in flows.

Lawrence’s experts also were hardpressed to explain

why discharges at culverts 2, 3, 4 and 5 constituted

AMD while discharges at culverts 7, 8, 9, and 10 did not.

The latter culverts all were along and down gradient

from Marsalino’s Chanin Strip; and yet the discharges

showed no evidence of AMD. Beginning with culvert 5,

however (just 300 feet or so away), and continuing

downgrade to culvert 2, the discharges are AMD. This

evidence clearly points primarily to Lawrence, and not to

Marsalino, as the generator of the condition.

32a

Lawrence's witnesses attempted to establish that the

discharges at culverts 2 through 5 cannot originate on

MP5 because they emanate from below the crop line of

the main seam which Lawrence mined. The pavement

below the main seam, these witnesses contend, is

impermeable, preventing any vertical percolation of

AMD from Lawrence’s operation. The only other

currently possible source of these discharges would be

Marsalino; but that operator mined the same coal seam

as Lawrence and as close as one hundred feet upgrade

from Lawrence’s south endwall. If AMD could not

percolate below that coal seam on Lawrence’s site, it is

unlikely that it could have done so on Marsalino’s.

Lawrence’s final rationale maintains that discharges

from MP5 were AMD prior to any mining activity at all.

Aside from the fact that this is possible, the only

evidence to support the argument is a comment

supposedly made by a former DER inspector in 1975 and

overheard by the man who now is Lawrence's foreman.

After securing a sample of water from the ditch along

Pirl Spring Road, the inspector reportedly said that he

had not found any good water in the vicinity.

At best, this evidence provides feeble support for

Lawrence’s position. It loses even this significance when

measured against other evidence. It is undisputed that

Buck Run was classified as a high quality cold water

fishery and was stocked with trout by the Pennsylvania

Fish Commission before any surface mining began on

nearby land. After the 1978 season, Buck Run was taken

off the stocking list because the portion of it below the

confluence with the unnamed tributary had degraded to

the point where macro invertebrates were completely

absent. While this action was taken as a result of

Marsalino’s operation on the Chanin Strip (which was

cited for AMD discharges in 1979), the evidence

33a

substantiates the fact that Buck Run was not degraded

prior to 1979. This means that there could not have been

any appreciable volume of AMD entering the stream

from the Rogers Mill Strip, the Chanin Strip or any other

source.

If the water in the ditch along the Pirl Spring Road

had any negative characteristics when tested by the

DER inspector in 1975, the nature of the contaminant

and the volume of the discharge obviously were not

enough to impact Buck Run. This fact is reinforced by

the testimony of Terry Confer, a DER inspector, who

walked the Pirl Spring Road with Lawrence’s foreman on

July 24, 1979, and could find no discharges at all from

the Rogers Mill Strip. Six months later, when the flows

at culverts 2 through 5 amounted to thousands of

gallons per day, the impact of Buck Run was

devastating. Clearly, these discharges were caused by

Lawrence’s surface mining operation and exceeded in

volume and, perhaps, in potency any AMD that

previously might have originated from the Rogers Mill

Strip.

DER had not shown the precise mechanism by which

AMD migrated below the crop line of the main seam on

the Rogers Mill Strip, has not explained the disparity in

iron concentrations revealed by the water samples, and

has not shown a precise breakdown of the volumes of

AMD contributed by Lawrence’s operation and by

Marsalino’s operation.’ Nonetheless, the evidence

connecting Lawrence’s operation to the discharges of

AMD at culverts 2 through 5 is overwhelming.

Lawrence, in fact, has admitted to part of it.

' DER’s pollution loading calculation, which attempts to estimate the

pounds per day of pollutants discharging at the culverts along Pirl

Spring Road, assigns about 50% of the total pollutior load to

Lawrence. See CX 29, CX 30 and CX 31.

34a

The burden of proof in a case like this does not require

that every stone be turned, that every detail be

completely explained. Evidence can be compelling and

overpowering even though it is circumstantial. Dillsburg

Septic Service v. DER, 1976 EHB 184; DER v. Bucks

County Water and Sewer Authority and The Korman

Corp., 1975 EHB 414. The circumstantial evidence of a

hydrologic connection in this case, unlike that in

Hepburnia Coal Company v. DER, 1986 EHB 563, rises

to that level and implicates Lawrence. The fact that

Marsalino also may be at fault does not exonerate

Lawrence. Lawrence is responsible for all discharges

caused by its surface mining operation, even though

some of the AMD may originate off the Rogers Mill

Strip. Commonwealth v. Barnes & Tucker Company, 472

Pa. 115, 371 A.2d 461 (1977); Commonwealth v. Harmar

Coal Company, 452 Pa. 77, 306 A.2d 308 (1973).

DER has carried its burden of proving that the

discharges from culverts 2, 3, and 4 violated the effluent

limitations contained in DER’s regulations and in

Lawrence’s MDP on a number of dates in 1980. DER

maintains that the discharges were continuous from

January 23, 1980, to May 27, 1980. The evidence shows

that during this period, laboratory samples and/or field

P, tests were run on each of these culverts on January

23, 1980, February 28, 1980, March 12, 1980, March 20-

21, 1980, May 13, 1980, and May 21, 1980. In every

instance, the discharges violated the effluent limitations

in one or more respects. Treatment was being provided

by Lawrence only on one of those dates, May 13, but the

metals were not being affected.

? The evidence could support a conclusion that the discharges were

continuous to a date beyond May 27, 1980; but, since DER has not

made such a claim, the Board will not impose it.

35a

The flows at culverts 2, 3, and 4 did not diminish

significantly until construction of the toe of spoil ditch

began on May 27, 1980. It is reasonable to conclude that,

up to that point, the discharges were flowing

continuously into the culverts. It is also reasonable to

conclude that, since this water was not diverted to

sedimentation ponds until after May 27, 1980, the metals

were never treated in any manner prior to that time.

Since the concentrations of metals consistently exceeded

effluent limitations when they were measured prior to

May 27, it is reasonable to conclude that they did so on

every day.

DER claims that, for the period following May 27,

1980, the discharges at culverts 2, 3 and 4 exceeded

effluent limitations only on the actual dates when DER

inspected the Rogers Mill Strip. However, there were

some inspections when no laboratory or field tests were

done. When these are excluded, the pertinent dates for

culverts 2 and 4 are the following dates in 1980: June 10,

July 1-2, July 7, July 22-23, August 14 and October 3.

For culvert 3 they are June 10, July 1-2, July 22-

23, August 14 and October 3. The evidence establishes

that, on these dates, the discharges violated the effluent

limitations in one or more respects.

In summation, Lawrence’s discharges from the Rogers

Mill Strip into Buck Run or the unnamed tributary

violated effluent limitations for 125 days between

January 23, 1980, and May 27, 1980, and for a maximum

of 6 days between May 28, 1980, and October 10, 1980.

DER acknowledges that it vacillated on culvert 5,

charging Lawrence with the duty to treat that discharge

only for a period June 11, 1980, to June 30, 1980, and for

a period September 10, 1980 to October 10, 1980. While

36a

DER claims that the discharges were continuous during

these two periods, aggregating 52 days, water samples

were taken only on October 3, 1980. There is no question

that the discharge on that date exceeded effluent

limitations, but to extrapolate that one instance into 52

days would be highly inappropriate. Moreover, Lawrence

already has been charged with unlawful discharges on

October 3, 1980, at culverts 2, 3 and 4. The fact that the

culvert 5 discharge also was unlawful! on that date does

not add another day to the total.

In its Complaint, DER charged Lawrence with

discharging AMD into the waters of the Commonwealth

from the Spruell Strip ‘at all times material to the

Complaint, including September 4, 1980....”° In its

Motion to Amend Complaint to Conform to Proof, DER

requests that the allegation with respect to AMD at the

Spruell Strip be limited to September 4, 1980. Since the

evidence in the record concerns only that one date,

DER’s Motion is granted.

DER’s evidence firmly establishes the fact that

Lawrence allowed AMD to discharge from the Spruell

Strip on September 4, 1980. Lawrence presented no

evidence to the contrary. Accordingly, I conclude that

Lawrence violated its effluent limitations on discharges

from the Spruell Strip on one day.

In its Complaint, DER alleges that tne discharges of

AMD constitute violations of Sections 3, 301, 307, 315

and 401 of the CSL, Sections 77.92(c), 99.33a), (b) and (c)

of DER’s regulations in 25 Pa. Code, and Standard

Conditions 10, 11 and 12 of Lawrence’s mine drainage

permits. All statutory and regulatory citations, of course,

relate to those in effect during the period January 23,

1980, to October 10, 1980.

37a

Section 3 of the CSL, 35 P.S. §691.3, declares the

discharge of industrial waste into the waters of the

Commonwealth, causing or threatening pollution, to be a

public nuisance. Mine drainage is specifically included in

the definition of ‘industrial waste’ in Section 1 of the

CSL, 35 P.S. §691.1. Section 301, 35 P.S. §691.301,

prohibits the discharge of industrial waste, except as

provided later in the statute. Section 307, 35 PS.

§691.307, prohibits the discharge of industrial waste

unless it is pursuant to a permit from DER or in

accordance with DER regulations. Section 315, 35 P.S.

$691.315, prohibits any discharge from a mine unless it

is pursuant to a permit from DER and in accordance

with DER regulations. Section 401, 35 P.S. §691.401,

declares it to be unlawful to pollute the waters of the

Commonwealth by the discharge of any substance of any

kind.

25 Pa. Code $77.92(c) sets forth water quality criteria

for permittees under the CSL. Petinent to this

discussion are requirements that discharges of mine

drainage have a P., between 6 and 9 and no

concentrations of iron exeeding 7 milligrams per liter. 25

Pa. Code $99.33(a), (b) and (c), which also relate to mine

drainage, impose the additional requirement that the

discharge not be acid. These same effluent limitations are

incorporated into Lawrence's mine drainage permits as

Standard Conditions 10, 11 and 12.

Certainly Lawrence's discharges violated all of these

provisions.

Count II]—Erosion and Sedimentation Controls

In Count II of the Complaint, DER alleged that

Lawrence failed to implement and maintain effective

erosion and sedimentation (E&S) control measures on the

38a

MP5 portion of the Rogers Mill Strip, resulting in the

conveyance of sediment into Buck Run and its

tributaries. The discharges were alleged to have been

continuous, specifically including the following dates:

February 28, May 13, May 21, May 27, June 2, June 10,

July 1, July 2, July 7, July 22, July 23, August 14,

October 3, all in 1980, and January 26, 1981.

In the Application for leave to Amend Complaint filed

by DER on July 6, 1982, DER sought to revise the

allegations in Count II to include discharges emanating

from MP5A. The Application was denied by former

Board Chairman Harnish, as stated in the procedural

history portion of this Adjudication, but testimony

relating to the inadequacy of E&S controls on MP5A

was admitted into the record. DER again sought to

include the MP5A violations in the Complaint in its

Motion to Amend Complaint to Conform to Proof filed

after the hearings were concluded.

The precise scope of Harnish’s ruling is not clear, from

the record. Nonetheless, the ruling denied DER’s

Application to Amend and, on its face, appeared to

exclude E&S violations on MP5A from the case. Even

though some testimony on these violations was

introduced and even though Lawrence has made no claim

of being prejudiced by DER’s post-hearing Motion to

include them, I am not convinced that the subject was

fully litigated. Accordingly, I deny DER’s Motion to

Amend with respect to alleged E&S violations on MP5A

and refuse to consider them in assessing civil penalties

against Lawrence.

The evidence discloses that Lawrence’s MDP required

the construction of a toe of spoil ditch prior to

commencement of any mining operations. The primary

purpose of this ditch was E&S control. Lawrence

39a

commenced mining without having constructed the

ditch, relying instead on the grading of roads to keep

surface runoff on the site. No DER inspector had

complained about the absence of the toe of spoil ditch

until February 28, 1980, when Mark Frederick ordered

that it be dug. It is clear that Mr. Frederick's chief

concern at that time was not E&S but AMD. He directed

that the ditch be dug long enough and deep enough to

intercept the discharges flowing to culverts 2, 3 and 4.

E&S problems on MP5 became a concern on March 20,

1980, when a heavy discharge of muddy water was

observed flowing from the Haul Road into Buck Run.

Subsequently, on May 12-13, May 21, June 10, July 1-2

and July 22-23, in 1980, observations and water

samplings revealed that discharges from MP5 into Buck

Run and the unnamed tributary exceeded the effluent

limitation for total suspended solids.

Lawrence began constructing the toe of spoil ditch on

May 27, 1980. By July 1, 1980, the ditch and the two

sedimentation ponds to which it connected were

completely installed. These facilities provided effective

E&S controls for much of the discharge emanating from

culverts 2, 3 and 4. In addition, since the flows at those

culverts significantly lessened after the ditch was dug

and deepened, the amount of silt washing off the site

was also reduced. In fact, on July 7, 1980, the flows at

culverts 3 and 4 were so low that laboratory samples

were not taken; and the total suspended solids measured

at the culvert 2 discharge were within effluent

limitations.

The failure to have effective E&S controls on MP5 was

continuous from March 30, 1980, when the toe of spoil

ditch was supposed to have been in place

pursuant to Mr. Frederick’s order, to July 1,

1980, when the E&S facilities were completely

installed. March 20, 1980, must be considered

40a

an isolated violation since it occurred prior to the

compliance date mandated by Frederick. Likewise, July

22-23, 1980, must be treated apart from the continuous

violations, since there was a period earlier in July when

E&S controls were working effectively. The violations

cover a total of 95 days.

In its Complaint, DER also charged Lawrence with

E&S violations at the Spruell Strip ‘“‘on dates including

but not limited to September 4, 1980.’’ In its Motion to

Amend Complaint to Conform to Proof, DER seeks to

revise its allegation with respect to the Spruell Strip so

as to limit it to September 4, 1980. Since the only

evidence presented concerned this date alone, the

amendment will be allowed.

DER proved that on September 4, 1980, Lawrence had

not constructed a toe of spoil ditch on the Spruell Strip,

as required by its mine drainage permit, and there was

evidence of sediment runoff into a tributary of Morgan

Run. Lawrence made no attempt to dispute these facts.

Accordingly, I conclude that Lawrence violated the E&S

requirements of its permit pertaining to the Spruell Strip

on one day.

DER’s Complaint alleges that Lawrence's failure to

implement and maintain effective E&S controls resulted

in the conveyance of sediment into the waters of the

Commonwealth, including Buck Run, which

contamination has destroyed Buck Run’s capacity to

support benthic macro invertebrate and other aquatic

communities. In its Motion to Amend Complaint to,

Conform to Proof, DER proposes to revise this

allegation so as to limit it to the MP5 and MP5A

portions of the Rogers Mill Strip.

4la

As already noted, the inclusion of MP5A at this late

point in the proceedings is not appropriate. However, the

only evidence of stream pollution presented by DER

relates to Buck Run and the unnamed tributary. No

evidence concerning the tributary to Morgan Run

appears in the record. Consequently, DER’s Motion to

Amend will be granted to the extent that it limits the

allegation of stream pollution to E&S violations on MP5.

These violations, according to the Complaint, are

contrary to the provisions of Sections 3, 301, 307, 315

and 401 of the CSL, the provisions of 25 Pa. Code

§102.4(a) and Standard Condition No. 3 of Lawrence's

mine drainage permits. It should be noted, at this point,

that ‘industrial waste’ as defined in Section 1 of the

CSL, 35 P.S. §691.1, includes ‘‘silt, coal mine solids, rock,

debris, dirt and clay from coal mines...."

Thus, the provisions of Sections 3, 301 and 307 of the

CSL, as applied previously with respect to AMD, is

equally applicable to the discharges caused by the E&S

violations.

Section 315 of the CSL, 35 P.S. §691.315, which

prohibits mining operations or discharges except in

accordance with a permit and DER regulations, also

applies. 25 Pa. Code §102.4(a) requires the

implementation of E&S controls to minimize accelerated

erosion and sedimentation. Standard Condition No. 3 of

Lawrence’s mine drainage permits mandates that no silt,

coal mine solids, rock, debris, dirt and clay be washed,

conveyed or otherwise deposited into the waters of the

Commonwealth. Lawrence clearly has violated these

provisions.

Section 401 of the CSW, 35 P.S. §691.401, the ‘‘catch-

all” provision that prohibits pollution by any substance

of any kind, also has been violated by Lawrence's failure

to provide effective E&S controls.

42a

Count III—Improper Disposal of Toxic Material

In Count III of the Complaint, DER alleges that

Lawrence failed to properly dispose of acid-bearing

material ‘‘at the site covered by Mining Permit No. 1063-

5 and amendments on dates including but not limited to

May 12, 1980; and has caused degradation of the

waters of the Commonwealth.

DER’s_ evidence involved only M25; so it is

unnecessary to discuss any allegations concerning

MP5A. The evidence presented shows that Mark

Frederick observed on May 13, 1980, that Lawrence was

disposing of acid and toxic bearing materials on the floor

of the pit against the spoils. Lawrence’s foreman told

him that the previous DER inspector had approved that

method of handling reject material. Mr. Frederick

examined Lawrence’s MDP and _ concluded that

Lawrence's method violated Standard Condition No. 29.

He ordered Lawrence to change its method of handling

this type of material. Mr. Frederick observed that

Lawrence had not changed its handling method on June

10, 1980, or on July 1-2, 1980.

As noted above, DER charged in the Complaint that

these alleged violations occurred on dates including but

not limited to May 12, 1980, but no evidence was

presented concerning that date. In its post-hearing brief,

DER states that the alleged violations occurred on May

13, June 6, June 16, and July 1, all in 1980, and were not

continuous. But there is no testimony whatever

concerning June 6 and June 16. The only dates for which

there is any testimony on this subject are May 12, June

10 and July 1-2.

DER claims that Lawrence’s handling method violated

Standard Condition No. 29 of the MDP. However, the

precise language of this Standard Condition is not part

43a

of the record. Mr. Frederick testified that Lawrence’s

handling method ‘was indeed contrary to the permit”

(N.T. 125), and Lawrence made no attempt to show that

it was not. Consequently, I conclude that Standard

Condition No. 29 of the MDP was violated by

Lawrence’s method of handling reject material.

DER concedes that these violations did not directly

cause any injury to waters of the Commonwealth, but

argues that they may have contributed to the AMD

discharges from MP5. In the Complaint, DER alleged

violations of Sections 315 and 402 of the CSL, in addition

to Standard Condition No. 29 of the MDP. Section 315,

35 P.S. §691.315 prohibits the operation of a mine except

in accordance with a DER permit and DER regulations.

Section 402, 35 P.S. §691.402, provides for regulatory

control over activities creating a danger of water

pollution. Since DER has not cited any regulation

governing the handling of reject materials in a mining

operation, Section 402 is not in issue.

The record does establish, however, that Lawrence

violated the MDP and Section 315 of the CSL on a total

of three days.

Count I1V—Disturbing Land Designated as a Barrier

In this Count, DER alleged that on September 5, 1980,

Lawrence disturbed land within 75 feet of a stream on

the Kennedy Strip by pushing spoils and rock onto the

area. This is alleged to be a violation of Standard

Condition No. 35 of Lawrence’s Mine drainage permit

and of Section 315 of the CSL, 35 P.S. §691.315.

The only evidence presented by DER on this subject

involved September 15 and not September 5, as alleged

in the Complaint. DER made no request to amend this

Count in its Post-hearing Motion to Amend Complaint to

44a

Conform to Proof. As a result, the allegations of the

Complaint remain in effect and have not been proved.

This Count, accordingly, will be disregarded.

Assessment of Civil Penalty

Section 605 of the CSL, 35 P.S. §691.605 (quoted at

the outset of this Discussion), requires the Board to

consider the following factors in determining the amount

of a civil penalty:

i. wilfullness of the violation;

2. damage or injury to the waters of the

Commonwealth or their uses;

3. cost of restoration; and

4. other relevant factors.

The Board has interpreted the last factor to include

deterrence. DER v. Jefferson Township, 1978 EHB 134.

No evidence has been presented on the cost of restoration;

so that factor will be excluded.

The Board has discussed wilfullness in a number of

prior opinions, especially in DER v. Rushton Mining Co.,

1976 EHB 117. In that case the Board observed that

there is a degree of wilfullness evident from the

knowledge that certain consequences are likely to result

from a particular action or failure to act. Lawrence's

AMD discharges from MP5 certainly involved this level

of wilfullness from January 23, 1980, when first informed

of them, until July 1, 1980, when the toe of spoil ditch

had been dug deep enough and long enough to intercept

most of the flow going to culverts 2, 3 and 4. Only four

instances of unlawful discharges occurred subsequent to

July 1, 1980. These involved flows that continued to

emanate from MP5 despite the efforts previously

devoted to intercepting them. While Lawrence's

45a

responsibility was no different with respect to these

flows than it was with respect to those previously

discharged, the wilfullness does not seem to rise to the

same level.

The circumstances surrounding the AMD discharge at

the Spruell Strip were not developed on the record to any

great extent. Therefore, it is not possible to assign a

level of wilfullness to this discharge.

Lawrence’s failure to construct the toe of spoil ditch to

provide E&S controls on MP5, which was required by its

permit, until months after being ordered to do so by

DER rises to a high level of wilfullness and constitutes

nearly intentional conduct. Lawrence's failure is more

egregious with respect to E&S violations than with

respect to AMD violations because the primary purpose

of the ditch was E&S control. While Lawrence's

resistance to digging the ditch deep enough and long

enough to intercept groundwater flowing to the culverts

is perhaps understandable (but not excusable), there is

absolutely no reason why it did not immediately

construct the ditch in order to stop surface runoff. This

wilfullness on Lawrence’s part must be deemed to have

affected all of the E&S violations on MP5 except for the

one on March 20, 1980, before the ditch was required to

be installed, and the one on July 22-23, after the toe of

spoil ditch and sedimentation ponds had been completely

installed.

As with the AMD discharge, the circumstances

surrounding the E&S violation at the Spruell Strip are

not sufficiently developed in the record to enable a

determination to be made as to whether it was wilfull.

Lawrence is charged with improperly handling reject

materials on three days. Apparently, Lawrence was not

aware that its method was improper until the violation

iid

46a

was observed on the first day. That violation cannot be

viewed as wilfull; but the other two subsequent

violations are inexcusable.

DER presented an overwhelming array of evidence to

show the injury done to Buck Run and the unnamed

tributary by Lawrence’s discharges of AMD, metals and

suspended solids. While Lawrence’s witnesses attempted

to soften the force of this evidence, it remained basically

untouched. The combined effects of AMD, metals and

suspended solids rendered Buck Run unsuitable as a

fishery. It is true that Marsalino’s discharges had

created the first significant impact on Buck Run and had

prompted the Pennsylvania Fish Commission to remove

it from the stocking list. Nonetheless, Lawrence's

discharges added to the problem and, most assuredly,

prolonged the recovery period for the stream. DER’s

witness estimated in 1982, two years after the date when

Lawrence finally began to take some steps to control the

discharges, that it would take another three to five years

for Buck Run to recover to its pre-mining condition. On

the other hand, Lawrence’s witness maintained that

neither Buck Run nor the unnamed tributary showed any

signs of degradation in 1982. This opinion is of

questionable value since this witness did not believe that

the two streams had ever been seriously degraded in the

first place.

The preponderance of the evidence clearly proves that

Buck Run and the unnamed tributary were seriously and

adversely affected by Lawrence’s discharges and that the

use of Buck Run as a fishery was interrupted for a

period of years.

In its post-hearing brief, DER submits. that

Lawrence’s degrading of Buck Run and the unnamed

tributary is a violation of Section 401 of the CSL, 35 P.S.

Pita aetna ania

47a

§691.401, separate and distinct from the violations of

other sections of the CSL and DER’s regulations.

Lawrence argues that the violations merge. DER’s

position is legally correct, although its impact on the

final outcome of this case is not significant. Violations of

regulations and permit conditions can occur even if they

do not result in the degradation of waters of the

Commonwealth. Section 401 of the CSL, already referred

to in this Adjudication as a ‘‘catch-all’’ provision, was

intended to prohibit water pollution by whatever means,

whether the activity is lawful or not. Accordingly, there

can be a viclation of Section 401 even if no other sections

of the CSL are involved.

DER presented no evidence to show what, if any,

impact the discharges of AMD and suspended solids

from the Spruell Strip had on the waters of the

Commonwealth. Likewise, it presented no evidence to

establish that the improper handling of reject materials

on MP5 polluted the waters of the Commonwealth.

Accordingly, that factor will not be considered in

determining civil penalties for these violations.

Fashioning a civil penalty containing an element of

deterrence is appropriate in this case because of the

dramatic effect discharges of AMD, metals and

suspended solids have on streams like Buck Run that are

uniquely suited for the propagation of native brook trout

and the accommodation of introduced species. The

delicate ecosystem of such streams is easily devastated;

and restored, if at all, only by the slow, painstaking work

of Mother Nature.

The problem posed by the present case is the total

absence of evidence on which to base a meaningful

decision that will serve as a deterrent to Lawrence and

to others. There is no evidence of Lawrence’s net worth;

48a f

no evidence of the amount of money Lawrence saved by

not implementing control measures earlier than it did; no

evidence of the cost of injury to Buck Run or the cost of

restoring it; no evidence of any kind to suggest an

amount of civil penalty that would deter Lawrence from

similar actions in the future. Absent such evidence, we

are left only with a very generalized approach to

deterrence whereby something more than a “nominal’’

amount is assessed. Since the nature and extent of

Lawrence's violations already demand something more

than a nominal penalty, deterrence cannot be much of a

factor in determining the final amount.

The discharges of AMD from the Rogers Mill Strip

warrant a civil penalty of $500 for each of the days of

continuous violations from January 23, 1980, to May 27,

1980, and for June 10, 1980, and July 1-2, 1980, when

the toe of spoil ditch was completed. The discharges of

AMD subsequent to that date, not rising to the same

level of wilfullness, warrant a civil penalty of $450 each.

Since the record is not as complete with respect to the

discharge of AMD at the Spruell Strip, a civil penalty of

$350 will be assessed for that one day’s violation.

The violations of E&S controls at the Rogers Mill Strip

were not as serious in nature as the discharges of AMD.

However, the wilfullness of the continuing violations

from March 30, 1980, to July 1, 1980, rises to a higher

level than that for AMD. Accordingly, 4 civil penalty of

$400 is appropriate for those 93 days while a civil

penalty of $250 is appropriate for the two remaining

days. Circumstances surrounding the E&S violation at

the Spruell Strip, being equally as uncertain as the AMD

discharges at that Strip, a civil penalty of $200 is all

that seems appropriate.

49a

Lawrence’s improper handling of toxic material cannot

be considered serious violations since DER did not show

any impact on waters of the Commonwealth.

Accordingly, a civil penalty of $100 is all that should

properly be imposed for the first day’s violation. Since

the other two days involve a higher element of

wilfullness, however, a civil penalty of $200 will be

imposed for each of those days.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over the parties and the

subject matter of this appeal.

2. DER has the burden of proving by a

preponderance of the evidence that Lawrence violated

the CSL and that civil penalties should be assessed.

3. The AMD discharges at culverts 2, 3 and 4

emanated from Lawrence’s MP5 area, were affected by

Lawrence’s surface mining operations on the MP5 area,

and constituted violations of Sections 3, 301, 307, 315

and 401 of the CSL, 35 P.S. §§691.1 et seq., Sections

77.92(c), 99.33(a), (b) and (c) of DER’s regulations in 25

Pa. Code, and Standard Conditions 10, 11 and 12 of

Lawrence’s MDP.

4. The unlawful discharges of AMD at culverts 2, 3

and 4 were continuous for 125 days from January 23,

1980, to May 27, 1980, and intermittent on six days

between May 28, 1980, and October 10, 1980.

5. The AMD discharges at culvert 5 emanated from

Lawrence’s MP5 area, were affected by Lawrence's

surface mining operations on MP5, and constituted

violations of Sections 3, 301, 307, 315 and 401 of the

CSL, 35 P.S. §§691.1 et seq., Sections 77.92(c), 99.33(a),

(b) and (c) of DER’s regulations in 25 Pa. Code, and

Standard Conditions 10, 11 and 12 of Lawrence’s MDP.

50a

6. The unlawful discharges of AMD at culvert 5,

during the periods when DER held Lawrence solely or

jointly responsible for them, occurred only on one date

and that date coincided with unlawful discharges of

AMD at one or more of the other culverts.

7. On September 4, 1980, a discharge of AMD

emanated from Lawrence’s Spruell Strip, was affected by

Lawrence's surface mining operations on the Spruell

Strip, and constituted violations of Sections 3, 301, 307,

315 and 401 of the CSL, 35 P.S. §§691.1 et seq., Section

77.92(c), 99.33(a), (b) and (c) of DER’s regulations in 25

Pa. Code, and Standard Conditions 10, 11 and 12 of the

mine drainage permit for the Spruell Strip.

8. Lawrence’s failure to implement and maintain

adequate E&S controls on the MP5 area resulted in

discharges of sediment from the MP5 area that violated

Sections 3, 301, 307, 315 and 401 of the CSL, 35 P.S.

§$691.1 et seq., Section 102.4(a) of DER’s regulations at

25 Pa. Code, and Standard Condition No. 3 of

Lawrence's MDP.

9. The unlawful discharges of sediment from MP5

were continuous for 33 days from March 30, 1980, to

July 1, 1980, and intermittent on March 20, 1980, and

July 22-23, 1980.

10. On September 4, 1980, as a result of Lawrence’s

failure to implement and maintain adequate E&S

controls on the Spruell Strip, sediment was discharged

from the Spruell Strip in violation of Sections 3, 301,

307, 315 and 401 of the CSL, 25 P.S. §§691.1 et seq.,

Section 102.4(a) of DER’s regulations at 25 Pa. Code,

and Standard Condition No. 3 of the mine drainage

permit for the Sprueil Strip.

5la

11. On 3 separate dates, Lawrence improperly

handled reject material on the pit floor of the MP5 area

in violation of Section 315 of the CSL, 35 P.S. §691.315,

and Standard Condition No. 29 of Lawrence's MDP.

12. Lawrence’s unlawful discharges of AMD and

sediment from the MP5 area degraded Buck Run and the

unnamed tributary and adversely affected the use of

Buck Run as a cold water high quality fishery.

13. Lawrence’s unlawful discharges of AMD from the

MP5 area were wilfull from January 23, 1980, until July

1, 1980, but were less wilfull after that date.

14. Lawrence's unlawful discharges of sediment from

the MP5 area were wilfull nearly to the point of being

intentional on all relevant dates except March 20, 1980,

and July 22-23, 1980.

15. Lawrence’s unlawful handling of reject material

on the pit floor of the MP5 area was wilfull on the last

two of the three dates involved.

16. DER did not present sufficient evidence to show

any degree of wilfullness connected with Lawrence's

unlawful discharges of AMD and sediment from the

Spruell Strip.

17. DER did not present sufficient evidence to enable

the Board to consider deterrence and the cost of

restoration in setting a civil penalty.

18. DER did not present evidence to sustain the

allegations in the Complaint relating to the Kennedy

Strip.

52a

19. The assessment of civil penalties is appropriate in

this case in the following amounts:

Rogers Mill Strip

AMD 127 x $500 =$ 63,500

4 x $450 = 1,800

$ 65,300

E&S 93 x $400 =$ 37,200

2x$250 = 500

37,700

Rejects 1 x $100 = $ 100

2 x $200 = 400

500

Total $ 103,500

Spruell Strip

AMD 1 x $350 = $ 350

E&S 1 x $200 - 200:

Total 550

GRAND TOTAL $ 104,050

53a

ORDER

AND NOW, this 5th day of July, 1988, civil penalties

are assessed against Lawrence Coal Company in the

aggregate amount of $104,050 for violations of the CSL,

the regulations of DER, and the provisions of its mine

drainage permits.

The entire civil penalty is due and payable immediately

into the Clean Water Fund. The Prothonotary of Fayette

County is ordered to enter the full amount of the civil

penalty as a lien against any property of Lawrence Coal

Company, together with interest at the rate of 6% per

annum from the date hereof. No costs may be assessed

upon the Commonwealth for entry of the lien on the

docket.

ENVIRONMENTAL HEARING

BOARD

ROBERT D. MYERS

Robert D. Myers, MEMBER

DATED: July 5, 1988

cc: Bureau of Litigation

Harrisburg, PA

For the Commonwealth, DER:

Diana J. Stares, Esq.

Western Region

For Appellant:

William M. Radcliffe, Esq.

Uniontown, PA

In accordance with the order of Commonwealth Court,

neither Chairman Maxine Woelfling nor Member William

A. Roth participated in the decision of this case.

She

APPENDIX “D”

Opinion and Order of the Commonwealth Court

of Pennsylvania (unreported) Dated

January 25, 1988.

IN THE COMMONWEALTH COURT

OF PENNSYLVANIA

No. 3062 C.D. 1986

LAWRENCE COAL COMPANY,

Petitioner,

Vv.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL

RESOURCES,

Respondent.

BEFORE: HONORABLE JOHN A. MacPHAIL,

Judge

HONORABLE MADALINE PALLADINO,

Judge

HONORABLE JACOB KALISH,

Senior Judge

ARGUED: November 20, 1987

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE PALLADINO FILED: January 25, 1988

| elidel

55a

Lawrence Coal Company (Lawrence) appeals from an

order of the Environmental Hearing Board (Board)

which, after reconsideration, affirmed its prior

adjudication assessing $150,700 in civil penalties against

Lawrence for violations of the Clean Streams Law (Law).'

For the reasons set forth below, we vacate and remand.

On February 25, 1981, the Department of

Environmental Resources (DER) filed a complaint

against Lawrence for civil penalties pursuant to Section

605 of the Law for violations alleged to have occurred in

1980. The Board, with Chairman Dennis J. Harnish

presiding, held eleven days of evidentiary hearings

between June 2, 1982 and November 23, 1982. In May of

1983, before the Board had rendered an adjudication on

the matter, Chairman Harnish resigned.

The matter was assigned to the two remaining Board

members, Anthony Mazullo and Edward Gerjuoy.

However, because both Mazullo and Gerjuoy were unable

to attend to the matter because of substantial caseloads

of their own, the case was reassigned to newly appointed

Hearing Examiner Edward R. Casey.

On October 20, 1983, Casey, without consulting either

of the other Board members, wrote a letter to counsel for

both the DER and Lawrence explaining his view of the

matter based upon his reading of the record. After

recounting portions of the testimony of expert witnesses

for both Lawrence and the DER, Casey concluded that

“[t]his is simply not the kind of case where a

regulatory agency should seek continuing civil

penalties against a defendant; because... the

testimony of DER witnesses on the issue of

' Act of June 22, 1937, P. L. 1987, as amended, 35 P.S. $§691.1-

691.1001.

56a

Lawrence’s direct responsibility for acid mine

drainage... was equivocal at best and it just does

not satisfy DER’s burden of proof to establish this

pivotal fact by a fair preponderance of the

evidence.”

Casey recommended that the two parties reach settlement

on the matter and suggested that a ‘‘nominal’’ fine of

$100 per month up to $1000 total might be appropriate.

Thereafter, according to sworr affidavit of counsel for

DER, the following occurred:

On October 24, 1985, Mr. Harnish, who was no

longer employed by the Board, was in the offices of

the Western Region Bureau of Litigation for the

purpose of meeting with another attorney on a

personal matter, and [counsel for DER] showed Mr.

Harnish the letter written by Mr. Casey. ... After

reviewing the letter, Mr. Harnish informed [DER

counselj that, prior to resigning from the Board, Mr.

Harnish had discussed this case with Mr. Casey and

had advised him that after hearing the evidence

presented by both parties he had initially concluded

that the Department had met its burden of

establishing that Lawrence was responsible for the

unauthorized discharges of mine drainage.

After hearing Harnish’s comments on the Casey letter,

counsel for DER wrote a letter to Casey alleging bias

against DER and filed a petition with the Board for

Casey’s recusal.

On November 22, 1983, in response to DER’s petition,

the remaining members of the Board (Mazullo and

Gerjuoy) granted DER’s motion for recusal and

reassigned the matter to Mazullo for purposes of

drafting a proposed adjudication on the merits of the

contest. Lawrence, who had opposed the DER’s petition

for recusal, thereafter filed a petition requesting the

Board either to dismiss the complaint against Lawrence,

57a

or in the alternative, to recuse Mazullo, since he was a

member of the original Board on which Harnish had sat,

and reassign the matter to a neutral hearing examiner.

The Board denied this petition in an order and opinion

dated December 14, 1983. By way of explanation for the

recusal of Casey and reassignment to Mazullo, the Board

stated that ‘‘an indicia of conflict could be perceived

from the disclosures made by Harnish to DER counsel,

and the Board thought it in the best interest of all

concerned that the members of the Board not involved in

the unfortunate incident reserve unto themsleves the

final determination of the controversy.’’ The case was

scheduled for proposed adjudication by Mazullo.

Mazullo subsequently prepared a propose adjudication

on the merits of the controversy. During this time,

Maxine Woefling was appointed to the chair of the

Board. Before her appointment, Woefling was Chief

Regulatory Counsel for the DER and had also been an

attorney with DER during pendency of the hearings

conducted in 1982.

On January 31, 1986, before the Board had taken any

action on the proposed adjudication, Mazullo resigned

his position. Four months later, on May 27, 1986, the

' Board issued an adjudication signed by Woefling and

) Gerjuoy which purported to adopt, with modifications,

the draft of Mazullo. The order assessed $150,700 in civil

penalties for multiple violations of the Clean Streams

Law and the regulations adopted pursuant thereto.

Lawrence subsequently filed two petitions for

reconsideration requesting (1) the recusal of Woefling; (2)

the recusal of Gerjuoy; or, in the alternative, (3)

dismissal of the complaint against Lawrence. On

September 12, 1986, the Board, consisting of Gerjuoy

and William A. Roth, a newly appointed Board member,

586

issued an order denying Lawrence's motion for recusal of

Gerjuoy. On September 19, 1986, the Board, still

composed of Gerjuoy and Roth, dismissed Lawrence’s

petition for reconsideration and affirmed its prior May

27, 1986 adjudication assessing $150,700 in civil

penalties against Lawrence. The Board concluded that

since Woefling had in no way participated in the Board’s

reconsideration and affirmance of its May 27, 1986

adjudication, the issue of her participation in the matter

was moot. Following this final order, Lawrence appealed

to this court.

Lawrence contends that it was denied its due process

right. to a fair and impartial adjudication on the subject

matter of the dispute because improprieties occurred.

Lawrence also challenges the legality of the Board’s

assessment of $150,700 in civil penalties.

It is fundamental that the resolution of any

controversy be rendered in an impartial manner by

irreproachably impartial officials. To this end, ‘any

tribunal permitted by law to try cases and controversies

must not only be unbiased but must avoid even the

appearance of bias.’’ Horn v. Township of Hilltown, 461

Pa. 745, 337 A.2d 858, 859-60 (1975) (quoting Gardner v.

Repasky, 434 Pa. 126, 129, 252 A.2d 704, 706 (1969)).

This foundational maximum applies equally in the

context of administrative tribunals as it does in courts of

law. As President Judge Crumlish, speaking for this

court, has stated:

The crucial function in the prosecution and

adjudication of administrative proceedings is in the

resolution ot disputed facts because the findings of

fact emanating from administrative proceedings are

subject only to limited appellate review. Therefore,

we must afford this process the broadest of

constitutional protection and prevent even the

possibility of unfairness.

DIE ci RNP en SEC SC EC

59a

Goldberg v. Commonwealth of Pennsylvania, State Board

of Pharmacy, 49 Pa. Commonwealth Ct. 123, 129-30, 410

A.2d 413, 417 (1980).

Upon review, this court concludes that the proceedings

in this matter taken as a whole are so tarnished as to

create a clear susceptibility to potential bias against

Lawrence. This court concludes that the possibility of

unfairness to Lawrence exists and that improprieties

might have occurred. Accordingly, we remand this case

to the Board for new hearings on the matter. Case

remanded for proceedings consistent with this opinion.

MADALINE PALLADINO

Madaline Palladino, Judge

60a

IN THE COMMONWEALTH COURT

OF PENNSYLVANIA

No. 3062 C.D. 1986

LAWRENCE COAL COMPANY,

Petitioner,

Vv.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL

RESOURCES,

Respondent.

ORDER

AND NOW, January 25, 1988, the order of the

Environmental Hearing Board dated September 19, 1986

in the above-captioned matter affirming the Board’s

prior May 27, 1986 adjudication is vacated. The case is

remanded for further proceedings consistent with this

opinion.

Jurisdiction relinquished.

MADALINE PALLADINO

Madaline Palladino, Judge

CERTIFIED FROM THE RECORD

AND ORDER EXIT

JAN 25, 1988

C.R. HOSTUTLER

Deputy Prothonotary—Chief Clerk

6la

APPENDIX “E”

Adjudication of the Environmental Hearing Board

by Maxine Woelfling, Dated May 27, 1986.

SEAL

COMMONWEALTH OF PENNSYLVANIA

ENVIRONMENTAL HEARING BOARD

221 North Second Street

Third Floor

Harrisburg, Pennsylvania, 17101

(717) 787-3483

MAXINE WOELFLING, CHAIRMAN M. DIANE SMITH

EDWARD GERJUOY, MEMBER SECRETARY TO THE BOARD

Docket No. 81-021-CP-M

Issued: May 27, 1986

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL

RESOURCES

Vv.

LAWRENCE COAL COMPANY

ADJUDICATION

By the Board

Synopsis

This matter involves a complaint by the Department of

Environmental Resources (DER) against Lawrence Coal

Company (Lawrence) for the assessment of civil penalties

62a

pursuant to §605 of the Clean Streams Law, the Act of

June 22, 1937, P.L. 1987, as amended, 35 P.S. §691.605

(CSL). It was proven by DER by a preponderance of the

evidence that acid mine drainage (AMD) emanated from

Lawrence’s permit area and that discharges of AMD

were caused or affected by Lawrence’s mining operations

in violation of §§3, 301, 307, 315, and 401 of the CSL and

the rules and regulations adopted thereunder at 25 Pa.

Code §§77.92, 95.1 and 99.33. It was further proven by a

preponderance of the evidence that Lawrence failed to

install and maintain adequate erosion and sediment

controls in violation of §402 of the CSL and 25 Pa. Code

$102.4.

Section 316 of the CSL does not provide a separate

basis of liability in this case because DER has chosen to

seek civil penalties rather than issue an order pursuant

to §316. Violations of §401 of the CSL do not merge into

violations of §§301, 307, and 315 because violating the

terms and conditions of a permit issued pursuant to

these sections of the CSL is distinct from causing

pollution. The discharge violations were continuous

because the sampling was sufficiently close in time to

establish a continuing AMD discharge.

In calculating a civil penalty, the Board did not

consider the cost of restoration of the receiving waters,

since DER presented no evidence as to such costs.

Damage to the stream was held to be moderate, and

certain violations were held to be wilful. Deterrence was

also considered by the Board in assessing the penalty.

Pe eee eo

63a

INTRODUCTION

This action involves a complaint for civil penalties filed

on February 25, 1981, by DER against Lawrence for

alleged violations of the CSL resulting from Lawrence's

strip mining operations in Springfield Township, Fayette

County.

Former Board Chairman Dennis J. Harnish presided

over eleven days of hearings, which concluded on

November 23, 1982. Following Chairman Harnish’'s

resignation from the Board in May, 1983, the case was

assigned to hearing examiner Edward R. Casey.

Subsequently, the Board ordered the recusal of Mr.

Casey for reasons recounted in an earlier Board Opinion

and Order (1983 EHB 608), and assigned the case to

Board Member Anthony J. Mazullo, Jr.

After the filing by both parties of post-hearing briefs,

and the filing by DER of a reply brief, the record was

presented for adjudication. Member Mazullo drafted an

adjudication for the consideration of the Board. He

resigned on January 31, 1986. The Board is adopting his

draft adjudication with modifications.

bbe

FINDINGS OF FACT

1. The plaintiff is DER, the agency entrusted with

the duty to enforce the provisions of the CSL.

2. The defendant is Lawrence, a corporation, which is

the permittee of a surface mining operation in Springfield

Township, Fayette County, which operation is referred to

herein as the Rogers Mill Strip. (T 10).

3. The Rogers Mill Strip is covered by Mine Drainage

Permit 3376SM15, which was issued by the Department

pursuant to Section 315(a) of the CSL. (T 11).

4. Mine Drainage Permit 3376SM15 was originally

issued to William K. Tedesco on November 10, 1976. (T

11).

5. Mine Drainage Permit 3376SM15 was transferred

by DER to Lawrence on July 19, 1977. (T 11).

6. Mining Permit 1063-5 is encompassed within the

area covered by Mine Drainage Permit 3376SM15. (T 11).

7. Lawrence is the permittee on Mining Permit 1063-5

which was issued by DER pursuant to Section 4(a) of the

Surface Mining Conservation and Reclamation Act, the

Act of May 31, 1945, P.L. 1198, as amended, 52 P.S.

§1396.1 et seq.

8. Mining Permit 1063-5 (“MP 5’’) covers an area of

63 acres and was issued to Lawrence on July 1, 1977. (T

12).

9. Drainage from the Rogers Mill Strip flows to Buck

Run and its unnamed tributary. (T 13)

10. Marsolino Coal and Coke, Inc. (‘‘Marsolino’’) has a

mining operation located immediately uphill from the

Rogers Mill Strip. This operation is referred to herein as

the MP 71-27 Strip. (T 17).

65a

11. The Rogers Mill Strip and the MP 71-27 Strip are

the only two surface mining operations on the Buck Run

watershed which could have had an impact on the

quality of Buck Run and its unnamed tributary in the

vicinity of the Rogers Mill Strip. (T 18).

12. There are three township roads in the immediate

vicinity of the Rogers Mill Strip. The Rogers Mill Strip

is bounded on the northwest by T-687, a paved road,

which runs to the Angelo Fish Hatchery and beyond

(‘Fish Hatchery Road’’). The site is bounded on the

southeast by T-683, a dirt road, which runs to the

residence and spring of Glen Pirl and beyond (''Pirl

Spring Road’’). The third road is T-685, a dirt road,

which runs through the Rogers Mill Strip (‘‘Haul Road’’).

The Haul Road joins the Pirl Spring Road approximately

150 feet from the intersection of the Pirl Spring Road

and the Fish Hatchery Road. There is a bridge on the

Fish Hatchery Road which crosses Buck Run and is very

near this intersection (‘Buck Run Bridge’). (T 22-24,

DER Exhibit 1).

13. There are a number of culverts along the Pirl

Spring Road which carry water under the road towards

Buck Run and the Buck Run tributary. (DER Exhibit 1).

14. Buck Run is to the southeast of the Rogers Mill

Strip. The Pirl Spring Road is between the Rogers Mill

Strip and Buck Run. Buck Run has a tributary which is

located between the main stream of Buck Run and the

Pirl Spring Road (‘Buck Run tributary’). The Buck Run

tributary confluences with Buck Run upstream from the

Buck Run Bridge between culverts 2 and 3 on Pirl

Spring Road. (DER Exhibit 1).

15. Drainage from culvert 2 flows directly to Buck

Run, while drainage from culverts 3 and 4 flows to the

Buck Run tributary. (T 54-55).

66a

16. Lawrence mined above the discharges at culverts

2 through 4 along the Pirl Spring Road. (T 298).

17. The area of the site is characterized by

moderately steep dipping sedimentary rocks. There is

frequent rolling that is at times sudden and severe. (T

713).

18. The rock formations in this area are the Middle

and Lower Allegheny rock formations, with the coal

seams being the Lower Kittanning through Freeport coal

seams. (T 714).

19. The overburden which was mined on the site and

which is evidenced by the existing highwall was a highly

fractured massive sandstone 50 to 60 feet thick. The

sandstone had many joints and fractures, and there were

smooth faces where the joints had been weathered. This

sandstone has coaly inclusions. The overburden has been

fairly consistent throughout the mining operation. (T

145, 717-718).

20. Topographically, the site resembles a tongue with

valleys on each side. The tongue has significant relief

from the tip of the tongue at the northwest to the top of

the hill in the south. The relief from the Angelo hatchery

to the top of the area mined by Marsolino is about 500

feet. (T 720-721). hice

21. Stratigraphically, the Rogers Mill Strip had one

coal seam which was mined. That coal seam was covered

by a massive sandstone 50 to 60 feet thick. Immediately

under the coal was a layer of shale 2 to 15 feet thick.

Some 40 to 60 feet below the mined coal seam is a thin

coal seam which has been referred to as the rider seam.

A few drill holes indicate that there are both sandstones

and shales between the mined seam and the rider seam.

(T 731, 1167; DER Exhibits 34, 39; Lawrence Exhibits 5,

6, 7, and 8).

sung

sin aAGUALiIe tedden Ske ml

67a

22. Structurally, the mined coal seam was fairly

uniform. (T 732). The mined coal seam dipped to the

northwest and in a northeast to southwest. direction. The

seam, or the underpavement remaining, has a moderate

uniform dip beginning on the Marsolino site (MP—27

Strip) and dipping uniformly until the area of the Haul

Road where there was a roll in the coal. At the roll, the

dip flattens somewhat but still dips to the northwest. (T

734-735).

23. The general recharge area for the Rogers Mill

Strip is the topographic high, which is the whole area of

sandstone uphill from the site to the uphill cropline of

the sandstone. (T 736-739).

24. The general discharge area is the lower end of the

tongues, which is the west and northwest area bounded

by the Pirl Spring Road and the Fish Hatchery Road.

This would cover the area from the north and south

WPA seals at the Angelo Hatchery along the crop line

and below it along the Hatchery Road and along the Pir!

Spring Road up as far as the Marsolino site. (T 737, 745-

746).

25. The primary controls on groundwater flow at the

Rogers Mill Strip are the topography, structure, and

stratigraphy of the site. (T 747-748).

26. On the reclaimed area of the surface mine,

infiltrating water will flow to the pit floor. The flow will

then be controlled primarily by structure, with

groundwater flowing downdip perpendicular to contour

lines until it reaches a crop line where it will discharge.

(T 769-770, 771).

27. The flow of the pit on the Rogers Mill Strip dips

in two directions, towards the Fish Hatchery Road and

towards the Pirl Spring Road. The component of dip

68a

towards the Pirl Spring Road was steeper in the area

closer to the Pirl Spring Road than it was in area of the

pit at the time of the view. In that area the dip towards

the Pirl Spring Road was steeper than the dip towards

theFish Hatchery Road. (T 260-261).

28. Discharges can occur anywhere along the north

and west croplines of the Rogers Mill Strip depending on

local rolls and undulations. (T 776).

29. The floor of the pit on the Rogers Mill Strip was

not perfectly flat. (T 1493).

30. The roll in the pavement of the mined site

channels water towards culvert 4 on the Pirl Spring

Road, and water following this course discharges at the

dead tree above culvert 4, which is below the cropline of

the mined seam. (T 798).

31. The Rogers Mill Strip produces AMD. (T 794,

1024).

32. Lawrence's mining operation is a source of the toe

of spoil discharge at the dead tree above culvert 4. (T

1632-1633).

33. Lawrence’s mining operations at the Rogers Mill

Strip have contributed to the discharge of mine drainage

at the toe of spoil on MP 5 near the dead tree above

culvert 4. (T 1632-1633).

34. There are no logical sources of the AMD at the

culverts along T-683 except the Lawrence and Marsolino

surface mines. (T 871-873).

35. Lawrence and Marsolino both mined the same

coal seam. (T 1326-1327).

36. Outcrop areas, such as the area of the Rogers Mill

Strip along the Pirl Spring Road, are normally fractured.

(T 1614).

Oe th Nate etn

37. It is common for water to pass through coal crop

lines. (T 1617).

.38. Flows of water at culverts 2, 3, and 4 were greatly

reduced after the toe of spoil mine drainage collection

ditch and the two treatment ponds on MP 5 were

constructed. (T 224-226, 495).

39. The quality of the seep of mine drainage into the

toe of spoil collection ditch and the water seeping out of

the road bank between culverts 4 and 5 is similar in most

respects. (DER Exhibit 334A).

40. There is a hydrologic connection between the

Rogers Mill Strip and the acid mine drainage discharges

at culverts 2, 3 and 4. (T 720-721, 731, 734-735, 747-748,

871-873, 1632-1633; DER Exhibits 33, 33A, 33B, 33C).

4i. There are discharges of AMD from the zone

between the mined seam and the rider seam. These

discharges exist or existed in the vicinity of culverts 2, 3,

4, 6, and 7 along the Pirl Spring Road. There are also

discharges from this zone at culverts 8, 9, 10 and the Pirl

Spring, but they are not AMD. (DER Exhibits 33A and

33B).

42. The AMD which flowed to culvert 2 on the Pirl

Spring Road flowed from the culverts directly to Buck

Run, and the AMD which flowed to culverts 3 and 4,

flowed from those culverts to the Buck Run Tributary.

(T 54-55).

43. The observable source of the water that flowed to

culverts 2 and 3 on January 23, 1980 was a swampy area

located below the toe of spoil of the Rogers Mill Strip, in

the area of the present location of the MP 5 treatment

ponds. This swampy area dried up some time after the

treatment ponds were constructed. The volume of these

70a

discharges decreased significantly after the toe of spoil

AMD collection ditch and the treatment ponds were

constructed on MP 5. (T 52, 224-226, 491-492, 495, 501;

DER Exhibit 334A).

44. The observable source of the water that flowed to

culvert 4 on January 23, 1980 was an area at the toe of

spoil of the Rogers Mill Strip in the vicinity of a dead

tree above culvert 4. Water continued to flow above

ground from the toe of spoil area to culvert 4 until a toe

of spoil ditch was constructed by Lawrence. The toe of

spoil ditch was originally constructed some time between

May 27, 1980 and June 10, 1980. After the construction

of the ditch, the flow of water at culverts 3 and 4 greatly

reduced. (T 51-52, 170, 224-226, 491, 495).

45. There is nothing between the sources of the

culvert discharges and the culverts which would alter the

chemical character of the water. (T 887).

46. DER’s file for the Rogers Mill Strip does not

indicate that there were any pre-mining pollutional

discharges below the Rogers Mill Strip along the Pirl

Spring Road. (T 25-28).

47. Lawrence never performed field tests or

laboratory tests of the mine drainage at the culverts

along the Pirl Spring Road prior to the time DER

Inspector Mark Frederick first sampled them. (T 1512-

1513, 1642).

48. The water quality at culverts 8, 9, 10, and the Pirl

Spring represents background or ambient water quality

for the area of the Rogers Mill Strip. (T 499-500).

49. The background water quality concentration for

sodium is less than lppm. (T 594-595).

>. oe aerial,

7la

50. On January 23, 1980, Lawrence was not treating

the AMD that flowed to culverts 2, 3 and 4 along the

Pirl Spring Road. (T 55).

51. On January 23, 1980, parameters sampled in the

mine drainage at culvert 4 had the following

concentrations (values, except for pH, are hereinafter

expressed in milligrams per liter): the pH was 3.2; the

acidity of 618 exceeded the alkalinity of 0; iron was 32.3;

and manganese was 56. (T 40; DER Exhibits 33, 334A).

52. On January 23, 1980, the parameters sampled in

the mine drainage at culvert 3 had the following

concentrations: the pH was 3.7; acidity of 891 exceeded

alkalinity of 0; and manganese was 140. (T 47; DER

Exhibits 33 and 334A).

53. On January 23, 1980, parameters sampled in the

mine drainage at culvert 2 had the following

concentrations: the pH was 4.5; acidity of 150 exceeded

alkalinity of 0; and manganese was 41. (T 48; DER

Exhibit 33A).

54. On January 23, 1980, Lawrence exceeded the

applicable effluent limits for pH, acidity, and manganese

at culverts 2, 3, and 4, and the applicable effluent limit

for iron at culvert 4.

55. On January 28, 1980, DER Inspector Frederick

inspected the Rogers Mill Strip and was accompanied by

Archie Johnson, the foreman at the strip. On that date

the discharges at culverts 2 through 4 were flowing but

were not sampled. Lawrence was not collecting or

treating the discharges on January 28, 1980. (T 71-72).

56. Inspector Frederick inspected the Rogers Mill

Strip on February 28, 1980, and was accompanied by

Archie Johnson and James Filiaggi, the superintendent

of Lawrence’s mining operations. (T 73, 1625).

72a

57. On February 28, 1980, Lawrence was not treating

the mine drainage flowing to culverts 2, 3, and 4. (T 79).

58. On February 28, 1980, parameters sampled in the

mine drainage at culvert 2 had the following

concentrations: the pH was 4.5; the acidity of 165

exceeded the alkalinity of 0; and the manganese was

41.7. (T 76; DER Exhibit 35A).

59. On February 28, 1980, parameters sampled in the

mine drainage at culvert 3 had the following

concentrations: the pH was 3.8, the acidity of 971

exceeded the alkalinity of 0, the iron was 20.6, and the

manganese was 130. (T 76-77; DER Exhibit 334A).

60. On February 28, 1980, parameters sampled in the

mine drainage at culvert 4 had the following

concentrations; the pH was 2.9, the iron was 81.4, the

acidity of 1032 exceeded the alkalinity of 0, and the

manganese was 93. (T 75-77; DER Exhibit 33A).

61. On February 28, 1980, Lawrence exceeded the

applicable effluent limits for pH, acidity, and manganese

at culverts 2, 3, and 4, and the applicable effluent limit

for iron at culverts 3 and 4.

62. On March 20, 1980, DER Inspector Frederick

observed mine drainage flowing to culverts 2, 3, and 4.

Inspector Frederick did not collect samples for

laboratory analysis, but did measure the pH of the

discharges at the site on that day. the pH’s of all the

discharges were less than 4.5. (T 90-91).

63. On March 20, 1980, Lawrence violated the

applicable effluent limit for pH at culverts 2, 3, and 4.

hela aN 0 aa NS 4

TO eA hE Ce one

73e

64. On May 13, 1980, the mine drainage at culvert 2

was being treated by Lawrence, and it had the following

concentrations of these parameters: the pH was 9.8; the

manganese was 32.78; and the TSS was 753. (DER

Exhibit 33A).

65. On May 13, 1980, the mine drainage at culvert 3

was being treated by Lawrence, and it had the following

concentrations of these parameters: the manganese was

130 and the TSS was 490. (DER Exhibit 33A).

66. On May 13, 1980, the mine drainage at culvert 4

was being treated by Lawrence, and it had the following

concentrations of these parameters: the iron was 23.6;

the manganese was 52.7; and the TSS was 604. (DER

Exhibit 33A).

67. On May 13, 1980, Lawrence exceeded the

applicable effluent limits for manganese and TSS at

culverts 2, 3, and 4; the applicable effluent limit for pH

at culvert 2; and the applicable limit for iron at cuivert 4.

68. Ox May 21, 1980, Lawrence was not treating the

mine drainage at culverts 2, 3, and 4. (T 147).

69. On May 21, 1980, the mine drainage at culvert 2

had the following concentrations of these parameters: the

pH was 4.3; the acidity of 37 exceeded the alkalinity of

less than 10; and the manganese was 21.8. (T 148; DER

Exhibt 334A).

70. On May 21, 1980, the mine drainage at culvert 3

had the following concentrations of these parameters: the

pH was 4.2; the acidity of 145 exceeded the alkalinity of

less than 10; and the manganese was 115. (T 149; DER

Exhibit 33A).

74a

71. On May 21, 1980, the mine drainage at culvert 4

had the following concentrations of these parameters: the

PH was 4.3; the acidity of 830 exceeded the alkalinity of

less than 10; and the manganese was 23. (T 149; DER

Exhibit 334A).

72. On May 21, 1980, Lawrence exceeded the

applicable effluent limits for pH, acidity, and manganese

at culverts 2, 3, and 4.

73. Lawrence admits that some of the mine drainage

collected by the toe of spoil collection ditch is from its

mining operation. (T 488, 1628, 1632-1633).

74. On June 10, 1980, the mine drainage at culvert 2

was treated by Lawrence but nevertheless had the

following concentrations of these parameters: the

manganese was 44.7 and the TSS was 112. (T 172-173;

DER Exhibits 334A).

75. On June 10, 1980, the mine drainage at culvert 3

was treated by Lawrence but nevertheless had the

following concentrations of these parameters: the iron

was 5.8; the manganese was 305; and the TSS was 4,150.

(DER Exhibit 334A).

76. On June 10, 1980, the mine drainage at culvert 4

was treated by Lawrence but nevertheless had the

following concentrations of these parameters: the pH was

5.2; the manganese was 24.2; and the TSS was 178.

(DER E:hibit 33A).

77. On June 10, 1980, Lawrence exceeded the

applicable effluent limits for manganese and TSS at

culverts 2, 3, and 4; the applicable effluent limit for iron

at culvert 3; and the applicable effluent limit for pH at

culvert 4.

> ae

oo ne i i Ra a it a EAT AT

75a

78. On or about June 20, 1980, Lawrence deepened

and extended the toe of spoil collection ditch which was

intended to intercept the mine drainage at the dead tree.

The toe of spoil collection ditch is in rubbly material and

is not impermeable. (T 184, 851; DER Exhibits 141, J, K,

L, M, and N).

79. The second treatment pond was built on MP 5 on

or about July 1, 1980. A major portion of the waste that

flowed to culverts 3 and 4 was intercepted by the toe of

spoil collection ditch and the treatment ponds on MP 5.

(T 194, 199, 489).

80. On July 7, 1980, Lawrence was not treating the

discharges at culverts 2, 3, or 4. (T 223-224).

81. On July 7, 1980, the mine drainage at culvert 2

had the following concentrations of these parameters: the

pH was 4.4; the acidity of 179 exceeded the alkalinity of

0; and the manganese was 56. (T 223-225; DER Exhibit

33A).

82. On July 7, 1980, the mine drainage at culvert 4

had a very low flow and, as a result, no sample was

collected for analysis. However, the mine drainage did

have a field pH of less than 4.5. (T 225).

83. On July 7, 1980, Lawrence exceeded the

applicable effluent limits for pH at culverts 2 and 4, and

the applicable effluent limits for acidity and manganese

at culvert 2.

84. On July 22, 1980, Lawrence was treating the

discharges at culverts 2, 3, and 4 with sacks full of soda

ash briquettes placed in the road ditch. There were no

facilities to settle out suspended solids. (T 226-227).

76a

85. On July 22, 1980, notwithstanding that it was

being treated, the mine drainage at culvert 2 had the

following concentrations of these parameters: the

manganese was 28.5 and the TSS was 100. (DER Exhibit

33A).

86. On July 22, 1980, the mine drainage at culvert 3

was being treated, but nevertheless had the following

concentrations of these parameters: the manganese was

103 and the TSS was 402. (DER Exhibit 33A).

87. On July 22, 1980, the mine drainage at culvert 4

was being treated, but nevertheless had the following

concentrations of these parameters: the pH was 10.1; the

manganese was 9.9; and the TSS was 264. (DER Exhibit

33A).

88. On July 22, 1980, Lawrence exceeded the

applicable effluent limits for manganese and TSS at

culverts 2, 3, and 4 and the applicable effluent limit for

pH at culvert 4.

89. On August 14, 1980, the mine drainage at culvert

2 had the following concentrations of these parameters:

the pH was 4.4; the acidity of 150 exceeded the alkalinity

of 1; and the manganese was 49. (T 237-238; DER

Exhibit 33A).

90. On August 14, 1980, the mine drainage at culvert

4 had the following concentrations of these parameters:

the pH was 4.4; the acidity of 150 exceeded the alkalinity

of 8; and the manganese was 19.16. (DER Exhibit 334A).

91. On August 14, 1980, Lawrence exceeded the

applicable effluent limits for pH, acidity, and manganese

at culverts 2 and 4.

. ne ©

77a

92. On October 3, 1980, samples of the mine drainage

at culverts 2, 3 and 4 were not collected. However, the

field pH’s for the drainage at culverts 2, 3, and 4 were all

less than 5. (T 250).

93. On October 3, 1980, Lawrence exceeded the

applicable effluent limit for pH at culverts 2, 3, and 4.

94. In order to effectively treat AMD, it must be

neutralized first and then directed to settling basins for

the metals to settle out. (T 1621).

95. The treatment which Lawrence provided for the

AMD at culverts 2, 3 and 4, by placing soda ash

briquettes in the road ditch, and for the dead tree toe of

spoil discharge by placing soda ash briquettes in the

channel in which it flowed to culvert 4, was not effective

to treat the AMD. (T 226-227, 1621).

96. Lawrence constructed a siltation control ditch on

the Rogers Mill Strip (MP 5) some time between May 27,

1980 and June 10, 1980. (T 170).

97. Prior to the construction of a siltation control

ditch on the Rogers Mill Strip (MP 5), there was an

absence of adequate erosion and sedimentation controls

at the site. (T 170, 363, 366, 1635-1637).

98. On May 12, 1980, there was a heavy rainfall at

the site, which resulted in muddy water running off the

site at two places, just above culvert 4 and down the

Haul Road; a siltation control ditch would have collected

the muddy water and conveyed it to sedimentation

basins. (T 95-96; DER Exhibit 7).

99. Buck Run is classified at 25 Pa. Code §93.9 as a

high quality cold water fishery.

100. Buck Run is a relatively lightly buffered stream

which does not have a great ability to assimilate acid. (1

419-420).

78a

101. Iron contained in AMD had a very negative

effect on aquatic life where iron precipitation occurs.

Precipitation occurs where the AMD enters a stream and

is neutralized. The neutralization of AMD causes the

formation of insoluble iron hydroxides which settle out,

coat and stain the substrate. The staining interferes with

the living space of aquatic organisms on the substrate

intself and interferes with the ability of the organisms to

exchange oxygen.

102. The acid in AMD is directly toxic to fish and

aquatic organisms. It irritates the gills of aquatic

organisms which react by secreting a mucus; this

interferes with their ability to exchange oxygen and

carbon dioxide and they die.

103. Mine drainage with very low pH has the same

effect on aquatic organisms as acid. (T 433).

104. Siltation can cause damage to aquatic life in two

ways: (i) small amounts of sediment over time could

smother a _ stream’s habitat; and, (ii) one high

concentration of abrasive sediment could result in an

instant fish kill. (T 438).

105. On March 20, 1980, Karl Shaeffer, a water

pollution biologist with DER, conducted a macro-

invertebrate study of Buck Run above and below the

area affected by drainage from Lawrence’s and

Marsolino’s surface mines. (T 386, 398-403).

106. On March 20, 1980, there was a well established

macro-invertebrate community in Buck Run above the

area affected by drainage from lLawrence’s and

Marsolino’s surface mining, which community included

many taxa of pollution sensitive invertebrates, including

mayflies, stoneflies and caddisflies, whereas, in the area

79a

near the Buck Run Bridge, the macro-invertebrate

community was almost nonexistent and there was iron

staining. (T 401-403).

107. The staining observed in Buck Run is iron

hydroxide precipitate which occurs commonly when

AMD enters a stream and is neutralized; it has an

orange tint and is often referred to as ‘‘yellowboy.” (T

407-408).

108. On May 12, 1980, Buck Run above Lawrence's

and Marsolino’s mines had clear water and there was no

coating (of precipitates) on the substrate, whereas below

the mines, the water was turbid and there was visible

orange staining on the rocks. (T 101, 114-115).

109. On May 12, 1980, discharges from the Rogers

Mill Strip and the MP-27 Strip impacted the water

quality of Buck Run and the Buck Run tributary

because, even though Lawrence and Marsolino were

treating their discharges, they did not employ facilities

to settle out the metals ard they were precipitating out

in the stream. (T 101, 116-117}.

110. On May 12, 1980, the total solids level of Buck

Run near the Rogers Mill Bridge increased from 142mg/1

before a rainstorm to 16,076 mg/1 after the rainstorm. (T

120; DER Exhibit 8).

111. On May 21, 1980, the physical appearance of

Buck Run showed that it was continuing to be degraded

by AMD. The unnamed tributary to Buck Run was very

yellow and turbid at its mouth, and Buck Run below

both tributaries was cloudy with iron staining on the

substrate. Whereas, upstream of the tributary, Buck

Run was very clear. (T 150-151).

80a

112. On July 1, 1980 Lawrence was treating the water

at culverts 2, 3 and 4, but did not settle out the metals.

(T 198-201).

113. On October 3, 1980, the fish community in Buck

Run in the area of the Buck Run Bridge was depressed

because of the adverse impact of AMD and siltation, in

spite of the fact that that area, with its pools and

ripples, is a good habitat for fish. Electrofishing in a 75

yard area upstream from the bridge yielded three trout,

whereas, electrofishing in a 75 yard area above the

influence of mining yielded approximately seventy-five

(75) trout and other associated species. (T 414-416).

114. When DER’s water polution biologist visited

Buck Run in March and October, 1980, there was an

abrupt change in the aquatic life in Buck Run below the

Buck Run tributary as compared to above it. The

differences in the aquatic communities of Buck Run

downstream and upstream of Lawrence's and

Marsolino’s mining operations can be attributed to those

operations. (T 419, 438). |

115. During the period of January 28, 1980 to

October 10, 1980, the physical, chemical and biological

condition of Buck Run and the Buck Run tributary was

degraded by discharges of AMD and sediment from

Lawrence’s and Marsolino’s surface mines; Lawrence

contributed to the degradation of Buck Run and the |

Buck Run tributary. (T inclusive).

116. Buck Run and the Buck Run tributary could not }

begin to recover until the discharges of AMD and

siltation from Lawrence’s and Marsolino’s operations

were eliminated. (T 466).

8la

117. In May of 1981, there was some improvement in

the aquatic community and stream quality in the area of

Buck Run below the Buck Run tributary; however,

recovery was not complete. Most of the coating of the

substrate was washed away. (T 448-454).

118. Between May, 1981 and May, 1982, Buck Run

continued to recover in quality; this improvement can be

attributed to the corrective measures taken by Lawrence

and Marsolino concerning the AMD and siltation from

their mining sites. (T 456-458).

119. In 1982, it was estimated that it would take

approximately 3 to 5 years for Buck Run to completely

recover from the damage that was done in 1980. (T 460-

461).

120. Lawrence is the permittee of a surface mining

operation in Dunbar Township, Fayette County, which is

covered by Mine Drainage Permit 3378BC10 and Mining

Permit 1063-8. (The “Spruell Strip’’) (T 264).

121. On September 4, 1980, Lawrence failed to

implement and maintain adequate erosion and

sedimentation controls at the Spruell Strip. (T 264, 269).

122. On September 4, 1980, there was a discharge of

AMD from the Spruell Strip which had the following

concentrations of these parameters: the pH was 2.9; the

acidity of 564 exceeded the alkalinity of 0; the iron was

35.8; and the maganese was 5.3. (T 274; DER Exhibit

33).

123. On September 4, 1980, Lawrence exceeded the

applicable effluent limits for pH, acidity, iron, and

manganese in its discharge from the Spruell Strip.

124. Drainage from the Spruell Strip enters a

tributary of Morgan Run. (T 274).

82a

DISCUSSION

In this civil penalties action, DER bears the burden of

proving by a preponderance of the evidence that

Lawrence violated applicable statutes and that there is a

basis for the Board to assess civil penalties. 25 Pa. Code

§21.101(a); 21.101(b)1); DER v. Federal Oil and Gas Co.

and James V. Joyce, t/d/b/a Joyce Pipeline Co., 1975 EHB

186. DER has met its burden with respect to most of the

violations set forth in both DER’s complaint and DER’s

amended complaint. However, before addressing the

details of those proven violations, and Lawrence’s

responsibility for them, we will consider DER’s still

pending motion to amend its complaint to conform to

proof.

Amendment of DER’s Complaint

DER’s original complaint covered violations which

occurred as a result of Lawrence’s strip mining

operations at three sites in Fayette County, the Rogers

Mill Strip, located in Springfield Township and covered

by mining permit no. 1063-5; the Spruell Strip, located in

Dunbar Township and covered by mining permit no.

1063-8; and the Kennedy Strip, located in Dunbar

Township and covered by mining permit no. 1063-7.

At the first hearing, held on June 2, 1982, the parties

restated an earlier stipulation which confirmed that this

action did not cover alleged violations which occurred as

a result of Lawrence’s mining operations at the twenty

(20) acre area covered by mining permit no. 1063-5(A),

which is adjacent to the sixty-three (63) acre area

covered by mining permit no. 1063-5. (T 3-6). These two

sites are collectively referred to as the Rogers Mill Strip.

83a

Subsequently, during the course of the hearing held on

June 3, 1982, DER at first offered to withdraw the

portions of its original complaint that dealt with ‘‘the

other sites [located] in Dunbar Township.” (T 265). This

reference was to the sites covered by mining permit nos.

1063-7 and 1063-8, the Kennedy Strip and the Spruell

Strip, respectively. However, following an

on-the-record dispute between the parties concerning

the fact that deletion of the applicable paragraphs of

DER’s complaint (nos. 18(b) and 27) would not suffice

due to their incorporation by reference into other

paragraphs of DER’s complaint, counsel for DER

rescinded the offer to withdraw the aforementioned

paragraphs by orally moving the Board to amend the

complaint to include them. (T 267). While agreeing with

counsel for Lawrence that the violations alleged in

paragraphs 18(b) and 27 were de minimis, counsel for

DER nonetheless pursued the motion to amend.

However, the Board deferred ruling on DER’s motion,

noting that it would be appropriate for DER to move to

amend the complaint to conform to the proof after the

proof had been put in the record. (T 268). DER followed

the Board’s recommendation by filing such a motion on

March 28, 1983, four months after the conclusion of the

hearing. (Lawrence’s answer to DER’s motion raises only

one ground for denial of DER’s motion, namely, the

dilatory filing of it.)

In its motion, DER requested the Board to allow

amendment of its complaint to cover violations on the

sites covered by mining permits 1063-8 and 1063-5(A).

The Hearing Examiner, former Board Chairman Harnish,

denied DER’s motion to amend its complaint concerning

permit no. 1063-5(A). (T 509). Furthermore, because DER

stipulated on the first day of hearings that this civil

penalties action did not cover alleged violations which

ee ae eT eT

84a

occurred as a result of Lawrence’s mining on the area

encompassed by mining permit 1063-5(A), we will not

allow DER to renege on that stipulation at this late

stage in the proceedings. Therefore, alleged violations

related to operations on the area covered by mining

permit 1063-5(A) are not at issue herein.

With regard to DER’s other proffered amendment,

concerning a violation on September 4, 1980, at the area

covered by mining permit 1063-8, the Spruell Strip, we

will allow the amendment in view of the fact that DER’s

original complaint included a count which alleged a

violation at the Spruell Strip on September 4, 1980. The

only difference between DER’s original complaint and its

amended complaint, concerning the September 4, 1980

violation at the Spruell Strip, is that DER incorrectly

listed Buck Run as the receiving stream in its original

complaint. In its amended complaint, DER does not cite

a specific receiving stream, but the record indicates that

the receiving stream of discharges from the Spruell Strip

is a tributary of Morgan Run. (See Finding of Fact No.

123).

Our grant of the amendment concerning the Spruell

Strip violation on September 4, 1980 comports with Pa.

R.C.P. No. 1033' which provides:

[a] party, either by filed consent of the adverse party

or by leave of court, may at any time change the form of

action, correct the name of a party or amend his

pleading. The amended pleading may aver transactions

or occurrences which have happened before or after the

filing of the original pleading, even though they give rise

to a new cause of action or defense. An amendment may

be made to conform the pleading to the evidence offered

or admitted. (emphasis added).

' With regard to pleadings, the Pennsylvania Rules of Civil Procedure

are made applicable to proceedings before the Board by virtue of the

Board's rules of practice and procedure. 25 Pa. Code §21.64.

85a

It is well-settled in Pennsylvania that a court has the

discretion to grant amendments to pleadings and that it

should be liberally exercised except where surprise or

prejudice to a party would result. Biglar v. Biglar, 330

Pa. Super. 512, 479 A2d 1021, 1024-26 (1984). In the

instant case, Lawrence had notice, by virtue of DER’s

original complaint, of the September 4, 1980 violation at

the Spruell Strip; thus, the element of surprise is not

present. Allowance of DER’s amendment, changing Buck

Run to waters of the Commonwealth, does not prejudice

Lawrence for the reasons noted above.

Finally, with regard to amendments of DER’s

complaint, we note that DER has not moved the Board

to amend the complaint to conform to the proof

concerning an alleged violation which occurred at the

area covered by mining vermit no. 1063-7, the Kennedy

Strip. Therefore, because of the omission, the alleged

violation at the Kennedy Strip is not at issue herein.

Basis for Liability

This civil penalties action has been brought by the

Department pursuant to Section 605 of the CSL; more

specifically, it has been brought pursuant to the version

of the CSL which was in effect prior to the amendment

of the statute by Act 157 of 1980, since the violations

complained of occurred prior to October 10, 1980, the

effective date of Act 157. All provisions of the CSL cited

in this adjudication will be those in effect at the time of

the violations.

Section 605 provided, in part, that:

In addition to proceeding under any other remedy

available at law or in equity for a violation of a

provision of this act, rule, regulation, order of the

department, or a condition of any permit issued

86a

pursuant to this act, the department, after hearing,

may assess a civil penalty upon a person or

municipality for such violation. Such a penalty may

be assessed whether or not the violation’ was wilful.

The civil penalty so assessed shall not exceed ten

thousand dollars ($10,000) per day for each violation.

In determining the amount of the civil penalty the

department shall consider the wilfullness of the

violation, damage or injury to the waters of the

Commonwealth or their uses, cost of restoration, and

other relevant factors.

The Department has alleged that Lawrence violated $§3,

301, 307, 315, and 401 of the CSL and the rules and

regulations adopted thereunder at 25 Pa. Code $§77.92,

95.1, 99.33 and 102.4.

Section 3 of the CSL generally declared that the

‘discharge of. . industrial waste. . .into the waters of this

Commonwealth,... which causes or contributes to

pollution as herein defined or creates a danger of

pollution is hereby declared. ..to be a public nuisance.”

Section 301 stated

No person or municipality shall place or permit to

be placed, or discharged or permit to flow, or continue

to discharge or permit to flow, into any of the

waters of the Commonwealth any industrial wastes,

except as hereinafter provided in this act.

Industrial waste was defined in $1 of the CSL to include

mine drainage. The conditions placed upon mine drainage

discharges were set forth in §§307 and 315. Section 307

generally imposed conditions upon the discharge of

industrial waste:

No person...shall discharge, or permit the

discharge of industrial wastes in any manner

directly or indirectly, into any of the waters of the

Commonwealth unless such discharge is authorized

by the rules and regulations of the board or such

87a

person has first obtained a permit from the

department... A discharge of industrial wastes

without a permit or contrary to the terms and

conditions of a permit or contrary to the rules and

regulations of the board is hereby declared to be a

nuisance.

Section 315 of the CSL dealt more specifically with the

operation of mines, providing that:

No person or municipality shall operate a mine or

allow a discharge from a mine into the waters of the

Commonwealth unless such operation or discharge is

authorized by the rules and regulations of the board

or such person or municipality has first obtained a

pemit from the department...

And, Section 401 of the CSL proscribed the discharge of

“any substance of any kind or character resulting in

pollution. . .”’

The regulations contained at 25 Pa. Code §§77.92, 95.1,

and 99.33 contain effluent limitations applicable to coal

mining activities. Section 95.1, which contains general

treatment requirements for all wastewater discharges,

states that wastewater discharges are subject to the

treatment requirements established pursuant to §§301

and 304 of the Clean Water Act, 33 U.S.C. §§1311 and

1314 and also to those treatment requirements set forth

in Title 25. The treatment requirements established

under the Clean Water Act were contained at 40 C.F.R.

434.32(a) and provided the following:

Total iron—7 mg/l maximum and 3.5 mg/1 for a

30 day average

Total manganese—4 mg/l maximum and 2 mg/1

for a 30 day average

Total suspended solids—70 mg/1 maximum and 35

mg/1 for a 30 day average

pH—within the range 6.0 to 9.0

88a

The effluent limitations to which mine drainage

discharges were subject under Title 25 were set forth at

$77.92 and 99.33.? Section 77.92(c) provides in pertinent

part:

Water Quality Criteria

1. The permittee shall take all necessary

precautions to prevent the discharge of avoidable

silt, coal mine solids, rock debris, dirt and clay into

the receiving stream as required by the current

Erosion and Sediment Control Regulations of the

Department.

2. The permittee shall at no time discharge to the

waters of the Commonwealth mine drainage from

any source the pH of which is less than six (6.0) or

greater than nine (9.0).

3. The permittee shall at no time discharge to the

waters of the Commonwealth mine drainage

containing a concentration of iron in excess of seven

(7) milligrams per liter.

4. The permittee at no time shall discharge to the

waters of the Commonwealth mine drainage the acid

content of which, as determined by a pH value of

eight (8.0) by the hot phenolphthalein test exceeds

its alkaline content as determined to pH of four (4.0)

by the bromphenol blue test.

Section 99.33 provided:

(a) Acid. There shall be no discharge of mine

drainage which is acid.

(b) Iron. There shall be no discharge of mine

drainage containing a concentration of iron in excess

of seven milligrams per liter.

shall be maintained between 6.0 and 9.0.

? Both of these regulations as applied to coal mining operations have

since been repealed.

89a

(d) Exceptions. The Board shall grant an

exception to any of the limitations in subsections

(a)—(c) of this section only when the operator has

affirmatively demonstrated that operation under the

proposed exception would not cause pollution to

waters of this Commonwealth.

(e) Specific limitations. At the request of the

reporting agency, or on its own motion, the Board

may require more stringent requirements than those

listed in subsections (a)—(c) of this section including

specific limitations as to other constituents of mine

drainage, such as aluminum, sulphates, manganese

and the like.

Section 102.4 relates to erosion and sediment control and

provides in relevant part:

(a) All earthmoving activities within this

Commonwealth shall be conducted in such a way as

to prevent accelerated erosion and the resulting

sedimentation. To accomplish this, except as

provided in subsection (b) of this section, any

landowner, person, or municipality engaged in

earth—moving activities shall develop, implement,

and maintain erosion and sedimentation control

measures which effectively minimize accelerated

erosion and sedimentation.

The Department has also urged that $316 of the CSL

is applicable to this proceeding. At the time of these

alleged violations, §316 provided, in part, that:

Whenever the Sanitary Water Board finds that

pollution or a danger of pollution is resulting from a

condition which exists on land in_ the

Commonwealth, the board may order the landowner

or occupier to correct the condition in a rmanner

satisfactory to the board of it may order such owner

or occupier to allow a mere operator or other person

or agency of the Commonwealth access to the land

to take such action. (emphasis added).

90a

Section 316 does indeed provide a separate basis for

liability, Commonwealth v. Barnes and Tucker Company,

453 Pa. 392, 400, 319 A.2d 871, 876 (1974), but in this

case the Department has chosen to proceed by way of a

complaint for civil penalties, rather than the issuance of

an order pursuant to $316. Consequently, our decision is

not based upon $316 considerations.

There are several legal principles under which

Lawrence may be held responsible for the discharges in

question. Lawrence is responsible for all mine drainage

which originates on or flows through its permitted area.

Commonwealth v. Harmar Coal Co. 452 Pa. 27, 306 A.2d

308 (1973) and Hawk Contracting, Inc. and Adam

Eidemiller, Inc. v. DER, 1981 EHB 150. And, Lawrence

is responsible for all discharges of mine drainage which

were either caused or affected by Lawrence’s mining

operations, Hawk Contracting, Inc., supra, and Adam

Greece d/b/a Cherry Run Fuel Company v. DER, 1980

EHB 135. Our review of the voluminous record indicates

that DER established that Lawrence was responsible for

the discharges from the Rogers Mill and Spruell sirips

under either or both of these priciples and did commit

the cited violations on the noted dates.

Regarding Lawrence’s responsibility for discharges

from its permitted area, it has been established that from

January 23, 1980, until the second treatment pond was

built on MP 5 on or about July 1, 1980, the discharges

which were sampled at culverts 2 and 3 originated in the

swampy area that was either on or very near to the

boundary of the permit area. Also, prior to construction

of the toe of spoil AMD collection ditch by the dead tree

on MP 5, the dead tree discharge flowed above the

ground from the point of the strip where it surfaced at

the toe of spoil to culvert 4. After the construction of the

9la

MP 5 ponds and the toe of spoil ditch, the flows at

culverts 2, 3 and 4 were greatly reduced, but not

eliminated. Reduced amounts of AMD continued to

discharge at these points because the treatment ponds

and the toe of spoil ditch were not impermeable and

because the toe of spoil ditch was not deep enough to

intercept all the AMD which flows towards the Pirl

Spring Road from the area mined by Lawrence. Since all

the AMD discharges at culverts 2, 3 and 4 originated on

Lawrence’s site, Lawrence was responsible for abating or

collecting and treating them. Lawrence is similarly

responsible for the September 4, 1980, discharge from

the Spruell Strip.

Lawrence is also responsible for all discharges

emanating on or off its mining site which were either

caused or affected by Lawrence’s mining operations if a

causal connection can be established between Lawrence's

operations and the discharges. There is no dispute in the

testimony that the Rogers Mill Strip produces AMD.

Furthermore, a causal connection between Lawrence's

operations and the discharges is established by both

direct and circumstantial evidence. The discharges at

culverts 2, 3 and 4 originated on the Lawrence site. A

causal connection after the construction of the toe of

spoil ditch and the second MP 5 treatment pond exists

because these structures were not impermeable and

because the toe of spoil ditch was not dug deep enough

to intercept all the AMD flowing from the Rogers Mill

Strip towards the Pirl Spring Road because it was not

dug all the way to the rider seam. The fact that the flows

decreased at culverts 2, 3 and 4 after construction of the

toe of spoil ditch and the second treatment pond on MP

5 is evidence of a hydrologic connection between the

discharges at the culverts and the site, as the ditch and

ponds are between the structures and the discharges. If

92a

there were no hydrologic connection, the flows at the

culverts would not have been reduced. Some flow

continues at the culverts because the ponds and ditch do

not intercept and hold all the AMD which flows from the

site towards the culverts.

The discharges at culverts 2, 3 and 4 are AMD and

there is no other logical source of AMD which would flow

to those culverts, except the surface mines at Lawrence's

Rogers Mill Strip and Marsolino’s MP-27 Strip. There

are no other active or abandoned surface or deep mines

in the recharge area for the culverts. There are not any

oil or gas wells in the area, and the water quality does

not represent ground water contaminated by oil or gas

wells. Finally, the quality of the discharges at culverts 2,

the area. The sulfates in the culvert discharges, as we'l

as the high acidity, manganese and aluminum

distinguish it from the ambient water quality which is

represented by the water at culverts 8, 9, 10 and the Pirl

Spring and, to some extent, by the water in the drill

holes above the highwall.

An additional indication that the water quality of the

culvert discharges changed after mining commenced is

the change in the quality of Buck Run and Buck Run

Tributary in the area which received drainage from the

culverts. Before mining, the area was a high quality

trout stream which was stocked by the Fish Commission.

After mining commenced, the stream became degraded

and was no longer stocked. After Lawrence and

Marsolino improved their collection and treatment of the

discharges, the water quality in the stream improved. If

the discharges had been bad prior to mining, Buck Run

and Buck Run Tributary would have been degraded

before mining.

93a

Hydrogeological evidence also establishes a causal

connection between the discharges and Lawrence's

operations. Drainage was occurring through or over the

crop line barrier of the mined seam, which was probably

not intact, and then ultimately to the culverts.

Groundwater is flowing toward the fractured, rubbly

area and out at the culverts. There is also evidence that

AMD is migrating vertically.

Lawrence has asserted that if civil penalties are to be

imposed under §605 of the CSL, any asserted violations

under §401 are merged into and with the §605 provisions,

such that separate civil penalties are inappropriate under

Section 401. The basis of Lawrence’s argument is that

violations of Sections 307 and 315 of the CSL and of

Section 401 are ‘different ways of saying the same

thing.’’ (Appellant’s Post-Hearing Brief, p. 52). DER

argues that violations encompassing discharges are

distinct and different from violations for polluting.

(Commonwealth's Reply to Post-Hearing Brief of

Lawrence Coal, p. 5, 6). We are of the opinion that the

attempt by Lawrence to invoke the doctrine of merger in

this appeal by the linkage of the word “‘pollution’’ to the

various sections of the CSL which DER maintains have

been violated is an unreasonbable interpretation of those

sections. (See discussion in Lawrence’s Post-Hearing

Brief at p. 52).. While the violation of the terms and

conditions of a permit, and therefore, in this case, §§307

and 315 of the CSI, may result in pollution of the waters

of the Commonwealth, there is a separate reason for the

creation and administration of a permit system. In

regulating an activity through a permit system, one

secks to prevent the occurrence of pollution by

prescribing various conditions for the undertaking of the

activity. The regulator also seeks to impose uniform

conditions, wherever possible, on similar activities.

948

Section 401 is a broad proscription against any pollution,

no matter what the source or no matter whether the

substance is regulated through a permit program. Thus,

the violations of §§307 and 401 are separate violations.

Lawrence has also asserted that Section 401 of the

CSL is, by definition, an improper basis for the

imposition of civil penalties in this appeal since Section

401 applies to other pollutions than industrial wastes.

(Appellant’s Post-Hearing Brief, p. 52). It is apparent

that Lawrence’s entire reliance upon this argument is

based upon the heading of Section 401, which reads

‘Prohibition against other pollutions.”’ We cannot accept

such a basis as propounded by Lawrence in light of the

language of the section. The operative language of

Section 401 is ‘“...any substance of any kind or

character. ..’’ Such language is not limited as argued by

Lawrence. Assuming that because of the discrepancy

between the heading of this statutory section and its

substantive language, that the section is somehow not

explicit or unclear, the tenets of statutory construction

provide aid and interpretation. Initially, §1924 of the

Statutory Construction Act. 1 Pa. C.S.A. $1924,

provides, in pertinent part, that “...The headings

prefixed to titles, parts, articles, chapters, sections, and

other divisions of a statute shall

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