Appendix — Ingram v. Pennsylvania Department of Environmental Resources

Supreme Court brief1992

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Text

Eupreine Court,

5) 3S) ©) 4 8D

AUS 17 1992

“ie OFFISE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

CLARK R. INGRAM, GEORGE M. INGRAM,

GARY C. INGRAM and GREGORY B. INGRAM,

Petitioners

Vv.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL RESOURCES,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

ROGER H. TAFT (Counsel of Record)

MARK J. SHAW

CRAIG R. F. MURPHEY

MacDONALD, ILLIG, JONES & BRITTON

100 State Street, Suite 700

Erie, Pennsylvania 16507-1498

(814) 870-7600

Attorneys. _ for Petitioners

TABLE OF CONTENTS

Appendix A -- Order of Supreme

Court of Pennsylvania at

No. 441 W.D. Allocatur Docket,

1991 = A-1

Appendix B -- Opinion and Order

of Commonwealth Court of

Pennsylvania at No. 1075 C.D.

1990 (Consolidated Cases) A-2

Appendix C -- Opinion, Order

and Amended Order of

Pennsylvania Environmental

Hearing Board at EHB Docket

No. 88-291-F (Consolidated

Cases) A-29

Appendix D -- United States

Constitutional Provisions A-66

Appendix E -- Pennsylvania

Statutory Provisions A-67

Appendix F -- Pennsylvania

Regulatory Provisions A-72

Appendix G -- Raising of Federal

Question Before Supreme Court

of Pennsylvania A-77

Appendix H -- Raising of Federal

Question Before Commonwealth

Court of Pennsylvania A-94

Appendix I -- Raising of Federal

Question Before Pennsylvania

Environmental Hearing Board A-123

APPENDIX A

ORDER OF SUPREME COURT

OF PENNSYLVANIA AT

NO. 441 W.D. ALLOCATUR DOCKET, 1991

IN THE SUPREME COURT OF PENNSYLVANIA

CLARK R. INGRAM,

GEORGE M. INGRAM,

GARY C. INGRAM and

GREGORY B. INGRAM,

Petitioners

No. 441 W.D.

ALLOCATUR DOCKET,

1991

COMMONWEALTH OF

PENNSYLVANIA,

DEPARTMENT OF

ENVIRONMENTAL

RESOURCES,

Respondent

—e ee eee eee ee ee ee ee ee ee es

May 19, 1992

Petition Denied

Per Curiam

APPENDIX B

OPINION AND ORDER OF

COMMONWEALTH COURT OF PENNSYLVANIA

_AT NO. 1075 C.D. 1990 AND

NO. 1091 C.D. 1990 (CONSOLIDATED ES

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

CLARK R. INGRAM,

GEORGE M. INGRAM,

GARY C. INGRAM and

GREGORY B. INGRAM,

Petitioners

Vv. No. 1075 C.D. 1990

DEPARTMENT OF

ENVIRONMENTAL

RESOURCES,

Respondent

me eee ee ee”

INGRAM COAL COMPANY,

HENRY L. ISRAEL and

BETTY ANN TAYLOR,

personal

representatives of

the Estate of

HERMAN J. ISRAEL,

and ROCKWOOD ENERGY

MANAGEMENT CO.,

Petitioners

No. 1091 C.D. 1990

ARGUED: April 29,

1991

. ae

DEPARTMENT OF

ENVIRONMENTAL

RESOURCES,

Respondent

Se See we ee ee we ee Wee ee We eee We TH tH ted te te?

BEFORE: HONORABLE JOSEPH T. DOYLE, Judge

HONORABLE MADALINE PALLADINO,

Judge

HONORABLE ALEXANDER F. BARBIERI,

Senior Judge

OPINION BY SENIOR JUDGE BARBIERI

Filed: July 19, 1991

These two petitions for review arise

from an order of the Environmental Hearing

Board (EHB) dated April 17, 1990, as

amended on April 27, 1990. At issue before

EHB, and before this Court, is a compliance

order issued by the Department of

Environmental Resources (DER) relating to

abatement of discharges entering a stream

from a surface mining site. Before

addressing the issues raised in each

petition, we shall set forth the factual

background necessary for our discussion.

The surface mining site in question is

a 42 acre area located near the community

of Frenchville in Girard Township,

Clearfield County. The site encompasses a

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Stream which is an unnamed tributary of

Deer Creek. Mining and mine drainage

permits for the site were issued by DER in

1976 to an entity known as Ingram Coal

Company.

On June 29, 1988, DER issued a

compliance order (at Docket No. 88H057)

Citing Ingram Coal Company for acid mine

discharges flowing into the unnamed stream

from the surface mining site.! The

compliance order directed Ingram Coal

Company, aS operator of the site, (1) to

immediately provide adequate treatment to

insure that all discharges from the site

met the effluent limitations set forth at

25 Pa. Code § 87.102, and (2) to submit to

DER, for its approval, a plan and schedule

for providing acceptable treatment or

The compliance order indicated that these

discharges were in violation of DER

regulations set forth at 25 Pa. Code

§ 87.102(a) (1), (2) and (5).

A-4

abatement of the discharge so as to achieve

compliance with 25 Pa. Code § 87.102. The

compliance order also set a "required

abatement date" of August 2, 1988 for

undertaking these corrective actions.

Ingram Coal Company is presently owned

and operated by Rockwood Energy and

Minerals Corporation (Rockwood), which

filed a notice of appeal with EHB from this

DER compliance order. Stating the basis

for its appeal, Rockwood, d/b/a Ingram Coal

Company, averred that it was not the proper

party to be made subject to the compliance

order because it was not the holder of the

mine drainage permit (No. 4576SM4) referred

to in the order. It was averred that

Ingram Coal Company was originally owned by

a partnership comprised of Clark R. Ingram

and his sons George, Gary and Gregory, and

that DER Permit No. 4576SM4 was issued to

this Ingram Partnership. It was further

averred that, in 1982, Herman J. Israel

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purchased the license to use the name

"Ingram Coal Company" from the Ingram

Partnership —and that Rockwood, in turn,

later purchased the license to use this

name from Herman J. Israel. However,

neither purchase included the DER mine

drainage permit issued to the Ingram

Partnership. Rockwood/Ingram Coal Company

also requested that EHB issue a

Supersedeas, staying the requirements of

the compliance order.

On August 20, 1988, DER issued an

order amending its compliance order at

Docket No. 88H507 to, inter alia, identify

as operators Clark, George, Gary and

Gregory Ingram, and Herman J. Israel. This

amended order also changed the required

abatement date to October 5, 1988. The

amended compliance order was then issued to

all parties identified as operators.

Appeals from this amended order were filed

with EHB by Rockwood, the Ingrams and

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Herman J.- Israel, all of which were

consolidated for proceedings before EHB.

All of these parties also filed petitions

for supersedeas of the amended compliance

order.

EHB member William A. Roth presided

over a supersedeas hearing in this matter

on January 25, 26, 27, 30 and 31, 1989.

EHB granted supersedeas to Rockwood, but

denied supersedeas to the Ingrams and

Israel. Subsequently, DER filed with EHB a

motion for summary judgment against the

Ingrams and Israel. The Ingrams and

Rockwood also filed separate motions for

summary judgment against DER.’

To complicate matters further, on

September 28, 1989, Herman J. Israel died.

Shortly afterwards, a motion to dismiss

The authority of EHB to enter summary judgment

was recently affirmed by this Court in Snyder

v. Department of Environmental Resources, ___

Pa. Commonwealth Ct. __, 588 A.2d 1001

(1991).

DER’s action against Herman J. Israel was

filed with EHB by MIsrael’s attorney,

alleging that, as a result of Israel’s

death, the amended compliance order was no

longer valid as it related to Israel. DER

and the Ingrams filed separate objections

to this motion to dismiss, and requested,

instead, that EHB act to substitute as

parties in this matter the personal

representatives of Herman J. Israel’s

estate, who are Henry L. Israel and Betty

Ann Taylor.

On April 17, 1990, EHB issued the

order which is the subject of these

petitions for review. In its order, EHB:

(1) denied the motion to dismiss DER’s

action against Herman J. Israel, and

granted the request to substitute the

personal representatives of Herman J.

Israel as parties in this matter;°

(2) granted DER’S motion for summary

judgment against the Ingrams and the

personal representatives of Herman J.

Israel; (3) denied the motions for summary

judgment filed by the Ingrams and Rockwood;

and (4) dismissed the administrative

appeals filed on behalf of the Ingrams and

Herman J. Israel. Petitions for review

were consolidated for oral argument, and

are presently’ before this Court for

disposition.‘

Before proceeding further, we note

that DER claims as legal authority for

On April 27, 1990, EHB issued a second order

amending and correcting its order of April 17,

1990, because it incorrectly identified one of

the personal representatives as "Herman" L.

Israel, rather than as Henry L. Israel. In

all other respects, the order of April 17,

1990 was unchanged.

A stay of EHB’s order pending disposition of

this matter was granted to the Ingrams and the

Estate of Israel by order of this Court dated

July 5, 1990.

issuance of its compliance order to all of

the parties involved in this action the

language of Section 315(a) of the Act of

June 22, 1937, P.L. 1987, as amended, 35

P.S. § 691.315(a), commonly referred to as

the Clean Streams Law. The pertinent

language of this statutory provision reads

as follows:

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 department

[DER] or such person or

municipality has first obtained a

permit from the department.

Operation of the mine shall

include preparatory work in

connection with the opening or

reopening of a mine, refuse

disposal, backfilling, sealing,

and other closing procedures, and

any other work done on land or

water in connection with the

mine. A discharge from a mine

shall include a discharge which

occurs after mining operations

have ceased, provided that the

mining operations were conducted

subsequent to January 1 1966,

under circumstances requiring a

permit .. . under the provisions

of section 315(b) of this act

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The operation of any mine

or the allowing of any discharge

without a permit or contrary to

the terms or conditions of a

permit or contrary to the rules

and regulations of the

department, is hereby declared to

be a nuisance. . ..[’]

35 P.8. § 691.3135 (a)

Having set forth this factual

background, we now turn to the issues

raised in these petitions for review.

The first petition for review which we

shall address is that brought by the

Ingrams, which raises two issues for our

consideration.

Initially, the Ingrams contend that

DER should be estopped from seeking to

The language of Section 315(a) just quoted was

enacted in a 1980 amendment to the Clean

Streams Law. However, this language 15S

virtually identical to the previous language

of Section 315(a) enacted in 1970.

enforce its compliance order against them

based on the equitable doctrines of

detrimental reliance and laches. The

Ingrams note that they operated and owned

the mine site only for the time period from

1976 to 1982, while DER did not issue its

compliance order until 1988. The Ingrams

also point out that DER knew that the water

quality of the unnamed tributary of Deer

Creek, which this action concerns, failed

to meet DER water quality standards

throughout that 12 year time period (1976-

1988). Yet, DER issued no compliance order

to the Ingrams until well after they had

ceased surface mining operations and sold

the site.

The Pennsylvania Supreme Court

considered similar estoppel and laches

defenses raised by a coal mine operator

Charged with a violation of the Clean

Streams Law in Commonwealth v. Barnes &

Tucker Company, 455 Pa. 392, 319 A.2d 871

A-12 ;

(1974). The Supreme Court dismissed the

operator’s attempts to raise such defenses,

noting that the Clean Streams Law, itself,

at Section 701, proclaims that the purpose

of the statute is "to provide additional

and cumulative remedies to abate the

pollution of the waters of this

Commonwealth," and that this section goes

on to state, "nor shall any provision in

this act, or the granting of any permit

under this act, or any act done by virtue

of this act, be construed as estopping the

Commonwealth . . . from proceeding . . . to

abate any pollution now or hereafter

existing . . .." See 35 P.S. § 691.701.

Taking into account this provision and

previous case _ law, the Supreme Court

enunciated a broad principle in Barnes &

Tucker that "stream polluters can acquire

10 prescriptive or property right to

pollute as against the Commonwealth no

matter how long their conduct has been

tolerated." Id. at 415, 319 A.2d at 884.

Following this instructive reasoning,

we find no merit in the Ingrams’ assertions

that DER should be estopped from requiring

that they now take action to abate the

continuing pollution of the Deer Creek

tributary. The Ingrams acknowledge that

periodic water quality sampling at the mine

site since 1976 confirmed that the water

guality did not meet DER- standards.

Basically, the Ingrams take the position

that, since DER knew of this violation from

its water quality standards and failed to

take immediate action to abate the

pollution causing it, DER’ should be

estopped from taking such action now. It

is, indeed, unfortunate that DER permitted

pollution of this stream to occur unabated

for so many years; however, the Ingrams

Cannot escape responsibility for having

allowed discharges to occur by arguing that

A-14

DER took too long to act, or that they have

relied to their detriment on DER’s past

inaction. Accepting the Ingrams’ position

would require this Court to ignore the

language of Section 701, and ignore the

broader purpose which the Clean Streams Law

is meant to achieve. See Barnes & Tucker.

Under these circumstances, we find no merit

in the Ingrams’ initial allegation of error

by EHB.

The Ingrams’ second and final issue is

a allegation that DER is attempting to

retroactively apply current DER regulations

to the Ingrams, which regulations are

allegedly contrary to DER policy and

regulations in effect from 1976-1982. The

Ingrams contend that such a retroactive

application of current DER regulations is

unconstitutional.

We do not find that DER is attempting

to retroactively apply its regulations to

the Ingrams. The stream pollution which

A-15

emanates from the Frenchville site formerly

mined by the Ingrams is a continuous and

ongoing occurrence. In issuing its

compliance order in 1988, DER was applying

Current regulations to a current violation

of Section 315(a) of the Clean Streams Law.

DER’S order was not an attempt’ to

retroactively apply a regulation.

Therefore, the Ingrams’ petition is

untenable.°®

In summary, we find no merit in the

allegations of error raised by the Ingrams’

petition for review. Accordingly, we will

affirm the order of EHB insofar as its

As part of this second issue, the Ingrams also

make a claim that it was error for EHB to

interpret Section 315(a) in a manner that

allowed for strict liability against the

Ingrams, as former operators of a mine site

emitting a discharge into a stream, without

proof of causation of the pollution to be

abated. However, this Court has held that

demonstration of a causal link is not a

prerequisite for imposition of liability under

Section 315(a). Thompson & Phillips Clay

an Vv. D rtmen f£ Environmental

Resources, Pa. Commonwealth Ct. , 582

A.2d 1162 (1990). Thus, we find no merit to

this allegation of error.

A-16

entry of summary judgment for DER and

against Clark R. Ingram, George M. Ingram,

Gary C. Ingram and Gregory B. Ingram, and

insofar as its dismissal of the Ingrams’

appeal of DER’s compliance order to EHB.

Ras

The second petition for review before

us concerns the effect of EHB’s order on

the estate and personal representatives of

Herman J. Israel. Initially, several

procedural issues are raised which we must

address.

This petition for review was filed on

behalf of "the Estate of Herman J. Israel,

deceased." DER requests that this Court

quash the petition on grounds that an

estate lacks the capacity to institute

legal proceedings, thus’ rendering this

petition for review a nullity ab initio.

Although this question was previously

A-17

presented to a single judge of this Court,

the Hon. William W. Lipsitt, who denied

DER’sS motion to quash by order dated July

5, 1990, DER argues that the question goes

to our jurisdiction, and therefore may

again be raised at this stage of the

proceedings.

DER has cited several pertinent cases

which support its position the suits by or

against an estate must be brought by or

against the personal representatives of the

estate. See, e.q., Wilkes-Barre General

Hospital v. Lesho, 62 Pa. Commonwealth Ct.

222, 435 A.2d 1340 (1981). Our appellate

rules also provide for substitution of the

personal representative of a deceased

party. See Pennsylvania Rule of Appellate

Procedure (Pa. R.A.P.) 502(a). However, we

do not agree with DER’s position that

filing of this petition for review on

behalf of the estate, rather than the

personal representatives, raises an issue

A-18

which goes to our jurisdiction. There is

no question that this Court has

jurisdiction over a petition for review of

a final order of EHB. And there is no

dispute that the order of EHB substituted

the personal representatives of Herman J.

Israel, rather than the estate of Herman J.

Israel, as parties in this matter. While

it was improper for the petition for review

to be filed on behalf of the estate, we do

not view this error as being one which

deprives this Court of jurisdiction to

consider the petition.

The practical effect of Judge

Lipsitt’s order was to amend the caption of

this petition to reflect the names of the

estate’s personal representatives. DER

does not, and could not reasonably, argue

that it has been prejudiced as a result of

Judge Lipsitt’s order. Moreover, we remind

DER that it is the policy of this Court

that when no petition for reconsideration

A-19

EEE eee

from an order of a single judge has been

filed, as is the case here, that order will

normally be considered binding. Larocca v.

Workmen’s Compensation Appeal Board (The

Pittsburgh Press), Pa. Commonwealth Ct.

; A.2d (No. 254 C.D. 1990, filed

May 31, 1991).’ Considering these

circumstances, we will not act now to quash

this petition for review.

The personal representatives of the

Israel estate (hereinafter Israel

Petitioners) present four issues in their

petition. The first issue raises a

question as to whether EHB has authority to

effectuate the substitution of the personal

representatives of a deceased party as

parties in a proceeding before EHB,- and if

so, whether the procedure used to

As noted in Larocca, at footnote 1, we have

approved this practice even in a case

involving a jurisdictional issue. City of

R ing v mplin, 88 Pa. Commonwealth Ct.

267, 269, n.3, 4869 A.26 272, 273, 2.3 (1985).

A-20

effectuate that substitution in this

instance waS- proper. Second, Israel

Petitioners contend that the compliance

action brought by DER is not the type of

action which survives a decedent against

whom such action has been brought. DER

contends that these two issues have been

waived because they were not raised before

EHB, and therefore are not preserved for

appellate review. After examination of the

record, we agree with DER’s position that

these two issues have been waived.

The record indicates that a motion to

dismiss DER’s action against Israel, dated

September 29, 1989, was filed by counsel a

few days after Israel’s death. DER’S

objections to this motion to dismiss are

dated November 6, 1989. In its objection,

granted to the personal representatives of

the Israel estate on or about October 6,

1989. The Ingrams filed a similar

A-21

objection dated November 7, 1989, also

averring that Israel Petitioners had been

granted letters testamentary. Certificates

of service attached to both sets of

objections indicate that service was made

on counsel for the estate, now representing

Israel Petitioners in this matter. The

record reveals no responsive pleading or

motion filed by Israel Petitioners opposing

the requests that they be substituted as

parties in this matter, or raising before

EHB these two issues which they now wish to

present to this Court. Accordingly, we

find that Israel Petitioners have waived

these issues, see Pa.R.A.P. 1551, and we

will not address them.

Israel Petitioners’ remaining two

issues concern the merits of DER’s

compliance order. Israel Petitioners argue

that EHB erred in granting summary judgment

because genuine issues of material fact

remain unresolved regarding whether Israel

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conducted mining or mine reclamation

activities at the site. Israel Petitioners

also contend that Israel was not an

"Operator" of a mine as that term is used

in the Clean Streams Law and the Surface

Mining Conservation and Reclamation Act,®

and therefore cannot be made subject to

DER'’S compliance order. EHB found that

Israel was an operator within the meaning

of the Clean Streams Law, and that no

material issues of fact were in dispute.

Section 315(a) of the Clean Streams

Law is, by its own terms, applicable to any

person wha "Shall operate a mine or allowa

discharge from a mine into the waters of

the Commonwealth." 35 P.S. § 691.315 (a)

(emphasis added). There is no factual

dispute that discharges from the

Frenchville mine site entered into the

waters of the Commonwealth during the time

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

P.S. §§1396.1-1396.31.

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period in which Israel owned the site, from

1982-1984. Thus, regardless of whether

Israel conducted any mining activities at

this site, or might be considered a mine

"Operator" as that term is used in the acts

cited by Israel Petitioners, there is no

dispute that during the time period Israel

owned the Frenchville site he allowed

discharges from that site to enter waters

of the Commonwealth. Periodic water

samples taken during that time period

indicate that such discharges occurred. In

allowing such discharges to occur, Israel

violated the Clean Streams Law.

As we held in Thompson & Phillips

(cited im full at n.6), liability under the

Clean Streams Law is not founded in tort,

but is based on the police power of the

Commonwealth to enact legislation for the

protection of the health, safety and

welfare of its citizens. It is not

necessary to establish a causal link

A-24

between mining activities and_ stream

pollution for liability to attach under the

Clean Streams Law. Israel’s liability

under Section 315(a) of the Clean Streams

Law attached when he allowed discharges

form the mine site to enter into the Deer

Creek tributary, regardless of whether he

conducted any mining activities there.

Accordingly, we see no error in EHB’s

~decision to enter summary judgment for DER.

Having found no merit to _ Israel

Petitioners’ allegations of error, we will

affirm the order of EHB in its substitution

of the personal representatives of the

Estate of Herman H. Israel, namely Henry L.

Israel and Betty Ann Taylor, as parties in

this matter; in its entry of summary

judgment for DER and against the personal

representatives of the Estate of Herman J.

Israel; and in its dismissal of Herman J.

Israel’s appeal of DER’s compliance order

to EHB.

s lexan F, Barbieri

ALEXANDER F. BARBIERI,

Senior Judge

A-26

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

CLARK R. INGRAM,

GEORGE M. INGRAM,

GARY C. INGRAM and

GREGORY B. INGRAM,

Petitioners

Vv. No. 1075 C.D. 1990

DEPARTMENT OF

ENVIRONMENTAL

RESOURCES,

Respondent

INGRAM COAL COMPANY,

HENRY L. ISRAEL and

BETTY ANN TAYLOR,

personal

representatives of

the Estate of

HERMAN J. ISRAEL,

and ROCKWOOD ENERGY

MANAGEMENT CO.,

Petitioners

Vv. No. 1091 C.D. 1990

ARGUED: April 29,

DEPARTMENT OF 1991

ENVIRONMENTAL

RESOURCES,

Respondent

wa Se Gee Ne ee wee Gee Ge Ge we we Oe ee tee ee we te

AND NOW, July 19, 1991, the order of

the Environmental Hearing Board in the

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above-captioned petitions for review is

hereby affirmed.

s/s Alexander F. Barbieri

ALEXANDER F. BARBIERI,

Senior Judge

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APPENDIX C

OPINION, ORDER AND AMENDED

ORDER OF PENNSYLVANIA ENVIRONMENTAL

HEARING BOARD AT

EHB DOCKET NO. 88-291-F

(CONSOLIDATED CASES)

COMMONWEALTH OF PENNSYLVANIA

ENVIRONMENTAL HEARING BOARD

INGRAM COAL COMPANY,

)

et al. )

) EHB Docket No.

Vv. ) 88-291-F

) (Consolidated

COMMONWEALTH OF ) Cases)

PENNSYLVANIA )

DEPARTMENT OF ) Issued:

ENVIRONMENTAL ) April 17, 1990

RESOURCES )

OPINION AND ORDER SUR

MOTION FOR SUMMARY JUDGMENT,

CROSS-MOTIONS FOR SUMMARY JUDGMENT,

AND MOTION TO DISMISS

By: Terrence J. Fitzpatrick, Member

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Synopsis

This is a consolidated proceeding

involving three appeals from an order of

the Department of Environmental Resources

(DER) directing the Appellants to remedy

acid mine discharges emanating from a mine

Site. We will grant DER’s motion and enter

Summary judgment against two of the

Appellants because they engaged in

"Operation of a mine," and, thus, they are

responsible for the discharges on the site

regardless of whether they caused the

discharges. We will also deny the motion

to dismiss filed by one of these

Appellants, and grant DER’s motion to

substitute the personal representatives of

the Appellant’s estate. With regard to the

third Appellant, there are unresolved

factual questions regarding whether it

engaged in "operation of a mine";

therefore, we will deny this Appellant’s

motion for summary judgment.

Opinion

This proceeding involves three appeals

which have been consolidated for hearing.

The Appellants are the "Ingram Partnership"

(consisting of Clark R. Ingram, George M.

Ingram, Gary C. Ingram, and Gregory B.

Ingram), Herman J. Israel?

(a sole proprietorship), and Rockwood

Energy and Mineral Corporation.” At issue

is a compliance order issued to the

Appellants by DER on August 30, 1988,

Mr. Israel died after this appeal was filed.

As we will explain later in this Opinion, the

representatives of the estate of Mr. Israel

will be substituted for Mr. Israel.

DER contends that all three of these

Appellants have, at different times, conducted

business as "Ingram Coal Company" (DER Pre-

hearing Memorandum, p. 2).

A-31

directing them to abate discharges from a

surface mining site near the town of

Frenchville in Girard Township, Clearfield

County, Pennsylvania.

All three appellants filed petitions

for supersedeas. On February 6, 1989, the

Board issued an Order granting the petition

Of Rockwood, but denying the petitions of

the Ingram Partnership and Israel.

Subsequently, DER filed a motion for

partial summary judgment (or, in the

alternative, to limit issues) seeking

summary judgment against Ingram Partnership

and Israel. Both of these parties filed

responses opposing this motion. The Ingram

Partnership filed a cross-motion for

Summary judgment, which was opposed by the

DER and Rockwood. Rockwood filed a motion

for summary judgment which was opposed by

the Ingram Partnership and DER. Finally,

Israel filed a motion to dismiss, which was

opposed by DER and the Ingram Partnership.

A-32

This Opinion and Order addresses all four

of these motions.

Some of the facts in this case are

undisputed. The Ingram Partnership secured

two permits from DER in 1976 to mine the

Frenchville site. Mining permit No. 1476-3

was issued on August 26, 1976; Mine

Drainage Permit No. 4576SM4 was issued on

May 6, 1976. The Ingram Partnership mined

on the site from 1976 to 1980. From 1980

to 1982, the Ingram Partnership conducted

reclamation and other post-mining

activities at the site. In May, 1982,

Ingram Partnership signed a_ purchase

agreement with Israel, and Israel received

the business known as "Ingram Coal Co." and

certain assets of that company. At the

Same time, Ingram Partnership signed a

purchase agreement with Rockwood by which

it transferred certain assets to

Rockwood.!"!

Despite the sale of Ingram Coal Co.,

neither Israel nor the Ingram Partnership

ever transferred the Permits under which

mining was conducted at the Frenchville

site.” After the sale, employees of

Israel’? completed work at DER’s direction

to remedy erosion and - sedimentation

problems at the site. Israel also

continued a water monitoring program which

waS put in place when the - Ingram

Partnership had control of the site.

We are deleting many details regarding Israel

and Rockwood which are not crucial to this

Opinion. Suffice it to say that Israel was a

stockholder in a parent company of Rockwood,

and that there were agreements between Israel

= and Rockwood regarding the Frenchville site.

Those permits were issued to the Ingram

Partnership, doing business as Ingram Coal Co.

Gary, George, and Gregory Ingram were employed

by Israel following the transfer of the

business to Israel.

A-34

Rockwood

took control

Company at some point in

exercised ani

option EO b

n agreement wit

troversy here

ld responsible

of Ingram Coal

1984,

mine discharges emanat

'T F

Frencnvilie site. Two of tnese

are LOC ated at tne SO 1p

affected area of the sit

discharge is from a pipe

pond near the southneast

affected area These three

into an unnamed tributary

The Board nas the aut

summary judgment only when

depositions, answers to

_— 4 la haa oc abe a a — -« ~

Add BAvasii2 OS 421i Jia ae Se

affidavits, if any, snow t

Jeénuine issue as to any material

that the moving party

)

]

when it

company

l signed

judgment as a matter of law." rdal

Borough v. DER, 34 Pa. Commw. 574, 383 A.2d

1320, 1322 (1978). The Board must read a

motion for summary judgment in the light

most favorable to the non-moving party.

Palisades Residents in Defense of the

Environment v. DER, 1988 EHB 8, 10-11.

i The motions which have been filed

address the potential liability of each of

the Appellants. We will address the legal

arguments raised regarding each Appellant

in a separate section.

ao Liability of Clark R. Ingram, Gary C.

Ingram, George M. Ingram, and Gregory

B. Ingram (the Ingram Partnership) for

the Discharges.

DER and Ingram Partnership have both

filed motions seeking summary judgment on

the question oof whether the Ingram

Partnership is responsible for the

A-36

discharges. Each party, in turn, has

responded to the other’s motion.

DER argues that the Ingram Partnership

was, and still is, the permittee for the

Frenchville site, and that the discharges

are emanating from the permitted area. DER

contends that the Ingram partnership is

"strictly liable" for the discharges under

Section 315(a) of the Clean Streams Law, 35

P.S. § 691.315(a), regardless of whether

the discharges preexisted the Partnership’s

mining or whether the Partnership's mining

caused or affected the discharges, citing

Bologna Mining Co. v. DER, 1989 EHB 270,

Benjamin Coal Co. v. DER, 1987 EHB 402,

William J. McIntire Coal Co. v. DER, 1986

EHB 712, affirmed, 108 Pa. Commonwealth Ct.

443, 530 A.2d 140 (1987), Hepburnia Coal

Co. v. DER, 1986 EHB 563, 602."

" DER also argues, in the alternative, that

Ingram Partnership’s mining did cause or

contribute to the discharges in question.

A-37

The Ingram Partnership raises anumber

of arguments why it is not legally

responsible for the discharges and, thus,

why its motion for summary judgment should

be granted. First, it argues that there

are no appellate court decisions in

Pennsylvania which have held a mine

operator liable for a discharge it did not

cause, citing William J. McIntire Coal Co.

v. Commonwealth, DER, 108 Pa. Commonwealth

Ct. 443, 530 A.2d 140 (1987). Relying upon

this lack of judicial precedent, Ingram

Partnership contends that the Board

precedents cited by DER, which held an

operator liable regardless of causation,

were incorrectly decided. Second, Ingram

Partnership argues that DER is estopped

from holding it responsible for any pre-

existing discharge which it did not cause

Or contribute to, because DER’s regulations

which were in effect at the time Ingram

conducted its mining (specifically, 25 Pa.

A-38

oe EEO

Code § 77.92(26), now repealed) only held

an operator responsible for "any additional

pollution load" which an operator added to

a pre-existing discharge. Holding an

operator responsible under these

circumstances would allegedly violate the

operator’s right to due process of law.

Third, Ingram Partnership argues’ that

Herman Israel assumed the liability of

Ingram Coal Co. upon the transfer of that

business in 1982, and that Ingram

Partnership was, accordingly, absolved of

any liability. Finally, Ingram Partnership

argues that the recent worsening of the

discharges is attributable to unidentified

parties who drilled test-holes on the site

within the past few years (after the

Partnership concluded its operation on the

site), and that the Partnership cannot be

held responsible for the actrons of these

third parties.

The first issue is whether Ingram

Partnership can be held liable under

Section 315(a) of the Clean Streams Law, 35

P.S. § 691.315(a), for a discharge from its

permitted area which it did not cause.

This section provides, in relevant part:

(a) No person or municipality

shall operate a mine or allow a

discharge from a mine into waters

of the Commonwealth unless such

operation or discharge is

authorized by the rules-~ and

regulations of the department or

such person or municipality has

first obtained a permit from the

department .. .. The operation

of any mine or the allowing of

any discharge without a permit or

contrary to the terms or

conditions of a permit or

contrary to the rules and

regulations of the department, is

hereby declared to be a nuisance.

DER is correct that the Board has construed

this language to hold an operator

responsible for a discharge on its site

regardless of whether the operator caused

or contributed to the discharge. See e.g.

Bologna Mining Co., Benjamin Coal Co.;

McIntire Coal Co., Hepburnia Coal Co.,

A-40

supra. On the other hand, Ingram

Partnership is correct that Pennsylvania’s

appellate courts have never held an

operator liable under Section 315(a) where

the operator did not cause the discharge.

See William J. McIntire Coal Co. Vv.

Commonwealth, DER, 108 Pa. Commonwealth Ct.

443, 530 A.2d 140 (1987). Furthermore, in

McIntire, Commonwealth Court noted that

Causation was present in two judicial

precedents which the Board had cited in

Support of finding liability without

causation." McIntire, 530 A.2d at 142-

143.

For the reasons which follow, we

reaffirm our previous holdings that an

operator is responsible under Section 315

for any discharge emanating from its mine

These precedents are Commonwealth v. Barnes &

Tucker Co. (Barnes & Tucker I), 455 Pa. 392.

319 A.2d 871 (1974), and Commonwealth v.

Harmar Coal Co., 452 Pa. 77, 306 A.2d 302

(i373) .

A-41

Site, regardless of whether the operator

"caused" the discharge. See, Bologna,

Benjamin, Hepburnia, McIntire, supra., see

also, Yenzi v. DER, 1988 EHB 643, Adam

Greece d/b/a Cherry Run Fuel Co. v. DER,

1980 EHB 135, Robert C. Penover v. _DER,

1987 EHB 131, Hawk Contracting, Inc. & Adam

Eidemiller, Inc. v., DER, 1981 EHB 150,

1973.

At the outset, we recognize that the

liability imposed by Section 315 is a

departure from traditional concepts of

liability under tort law. In tort law, a

finding of causation is required to

establish a connection between the

defendant’s actions or omissions and the

injury suffered. William Prosser, The Law

of Torts, p. 236 (4th ed. 1971). Causation

is required even in those areas of tort law

where "strict liability" -- liability

without fault’ -- is applied. See,

There appears to be some confusion that

"strict liability" -- liability without

"fault" -- eliminates the requirement of

causation. This confusion can be traced to

the multiple meanings of the word "fault."

Fault is best understood as a synonym for

"negligence." This was the sense in which

Superior Court used the term when it stated

that: "The progress of the law in extending

liability without fault... [has not been] in

disregard of fundamentals pertaining to the

tort law of causation." Bascelli _v. Randy,

Inc., 339 Pa. Superior Ct. 254, 488 A.2d 1110

(1985), quoting from, Oehler v. Davis, 223 Pa.

Superior Ct. 333, 334, 298 A.2da 895 (1972).

This statement recognizes that under tort law,

consideration of the defendant’s mental state

(whether he acted intentionally or

negligently) is a separate consideration from

whether he caused the injury; thus, liability

depends upon showing that both the requisite

mental state and causation are present.

However, fault is sometimes used (perhaps less

precisely) as a synonym for the broader

concept of "responsibility" -- a term which 1s

used interchangeably with "liability." For

example, when a person did not cause the

damage, he might argue that the damage was not

nae *Zauit.* When understood in this way,

dispensing with "fault" + PB strict

liability) means dispensing with consideration

of both the defendant’s mental state and

causation. Commonwealth Court has used the

term "fault" in the latter sense. See Western

Pennsylvania Water Co. v. Commonwealth, DER,

___ Pa. Commonwealth Ct. __, 560 A.2d 905,

909 (1989). Since the terminology of fault

and strict liability comes from tort law, we

will use those terms with the same precision

as in tort law. Thus, using the term "fault"

as a synonym for "negligence," our holding

that an operator is responsible for discharges

he may not have caused cannot technically be

justified by saying that we are imposing

"Strict liability" or “liability without

fault" upon an operator. Liability without

causation goes beyond these concepts. It is

A-43

Berkebile v. Brantly Helicopter Corp., 462

Pa. 83, 337 A.2d 893 (1975), Bascelli v.

Randy, Inc., 339 Pa. Superior Ct. 254, 488

A.2d 1110 (1985), Oehler v. Davis, 223 Pa.

Superior Ct. 333, 298 A.2d 895 1972).

Federal courts have also interpreted

federal statutes to require causation where

a defendant may be held strictly liable for

different types of pollution. See United

States v. West of England Ship Owner’s

Mutual Protection and Indemnity Assoc., 872

F.2d 1192 (Sth Cir. 1989), United States v.

Tex-Tow, Inc., 589 F.2d 1310 (7th Cir.

1978), State of Idaho v. Bunker Hill Co.,

635 F. Supp. 665 (D. Idaho 1986).

difficult to find a term in tort law to

describe liability without causation -

although this concept has been described as

imposing an insurer’s responsibility upon the

operator. Adam Greece d/b/a Cherry Run Fue}

Co. v. DER, 1980 EHB 135, 145 (Concurring

Opinion). Whatever term is used to describe

the concept, however, it is not entirely novel

-- it has been applied by the Courts under

Section 316 of the Clean Streams Law. See,

footnote 9, infra.

A-44

The connection between the defendant

and the injury suffered which is normally

supplied by causation is not required in

cases arising under Section 315, however,

because that connection is supplied by the

operator’s relationship with the site which

he mines. Section 315 imposes the duty

upon an operator not to "allow" any

discharge from his site. This is a higher

duty than if the General Assembly had

written that the operator may not "cause"

any discharge.” The imposition of this

higher duty is consistent with the

ective of the Clean Streams Law:

This duty is similar to that imposed upon a

landowner or occupier under Section 316 of the

Clean Streams Law, 35 P.S. § 691.316. A

landowner or occupier may be ordered to

correct conditions on his land which are

Causing pollution regardless of whether he

caused or created the conditions. National

Wood Preserver’s Inc. v. Commonwealth, DER,

489 Pa. 221, 414 A.2d 37 (1980), appeal

Gismissed, 449 U.S. 803, 101 S. Ct. 47, 6 L.

Ed.2d7 (1980), Western Pennsylvania Water Co.

v. Commonwealth, DER, Pa. Commonwealth Ct.

__, 560 A.2d 905 (1989).

A-45

It is the objective of the Clean

Streams Law not only to prevent

further pollution of the waters

of the Commoriwealth, but also to

reclaim and restore to a clean,

unpolluted condition every stream

in Pennsylvania that is presently

polluted.

35 P.S. § 691.4(3). The Supreme Court of

Pennsylvania has relied upon this objective

in deciding other cases where mine

operators argued that it was unfair to hold

them responsible for acid mine discharges.

See Commonwealth v. Harmar Coal Co., 452

Pa. 77, 306 A.2d 308, 321 (1973), appeal

dismissed, 415 ee 903 (1974),

Commonwealth v. Barnes & Tucker Co. (Barnes

& Tucker II), 472 Pa. 115, 371 A.2@ $61,

Moreover, while we do not casually

dismiss the operator’s argument of

unfairness, it is evident that in the eyes

of the General Assembly, the public policy

consideration of the public’s right to

clean water overrode considerations of

A-46

—

individual unfairness. If operator were

permitted to contest causation of a

discharge, the public’s right to unpolluted

water would be severely impaired because

acid mine pollution would continue while

tiaqation ran its languorous course. This

b-7

a @,

—

“

“tie

“s

77)

. 34 ~ ’

1 7 > TY) al rr 4 Gia ‘Gla x

n Willian _ Meintizre Coal o> 3 V

CAMMNaANwWwWe TNE’ R 102 MnAmMmmoan't + ("+

Commonwealth, DEK, i1VU9 Pa. Commonweaith LL.

AA* aie tt a - ,J “ rc 47,0 ot .

2 LP | rt 4 a mr 2 rr

i oe JwaIV A.2qd 14 J 1987 ° -OMMONWEeEaA is ii

fp he 2 - ere oe ee £ -

YY wo rt alley — CY 2 Yr oc ar - Fr

~UYUlL avoiaeda Lil& YUU OSoLAWV ss e 7 * wnetner

ao aa ra rtTr om a <n] an a » = a r an) 5, - fr nda

Causation WadaS required, pecause it LOUTI

o — o erianannr Se ae eon Fanniainc ~ F

cna Lis eviaqaence Ssupporvtea a rinaing J i

lanl > + va’ Ty >| t oY) lth h

- 2 = = 4 r

causation. In addition, although

Commonwealth Court ;ointed out that

—~UWiullad Sadia UU & poinre ul Lia L

& Tucker I; the Court did not hold that an

operator could not be held liable without

Causation."

We also disagree with Ingram

Partnership’s argument that DER is estopped

from holding it liable for a pre-existing

discharge because a DER regulation (25 Pa.

Code § 77.92(26), now repealed) which was

in force at the time the Partnership began

mining provided that an operator was only

responsible for any additional pollution

load which he added to a pre-existing

discharge. This issue was raised and

We agree that Harmar and Barnes & Tucker I did

not resolve the precise issue presented here.

In Harmar, the Court decided that an operator

was required to treat all the water

discharging from its mine, even though some

(not all) of that water originated in an

adjacent, abandoned mine. In Barnes & Tucker

I, the Court held that an operator was liable

for a post-mining discharge caused by its

prior mining, even though the law in existence

at the time the mining was conducted did not

provide for liability for post-mining

discharges. However, while these decisions

are not "on all fours" with the present case,

we do believe that the rationale employed by

the Supreme Court supports our holding here.

A-48

decided against the operator in Bologna,

Supra, and we will reject the argument

here. Ingram Partnership did not obtain an

indefeasible right to allow a discharge

from its site merely because such a

discharge may have been tolerated when it

conducted its mining. See Commonwealth v.

Barnes & Tueker Co., 455 Pa. 392, 319 A.2d

871 (1974). Similarly, we reject Ingram

Partnership’s argument, based upon the

repealed regulation, that holding it liable

without causation would violate fundamental

fairness and due process of law. The

Partnership did not develop this argument

in any Significant detail. (See,

Partnership’s Brief filed November 22,

aveo; ©. #7). As we stated above, we do

not take the Partnership’s unfairness

argument lightly; however, we must also

consider the public’s right to unpolluted

water. Moreover, we believe that our

conclusion is required by the language of

A-49

Section 315, and we lack the authority to

find this Statutory provision

unconstitutional. St. Joe Minerals Corp.

v. Goddard, 14 Pa. Commonwealth Ct. 624,

324 A.2d 800 (1974).

In addition, we disagree with Ingram

Partnership’s argument that it was absolved

of future liability because its agreement

with Herman Israel provided that Israel

assumed the liabilities of Ingram Coal Co.

upon the transfer of the company to Israel.

The permit was issued to -Ingram

Partnership. A permittee cannot, by

private agreement, delegate duties imposed

upon it by statute. Morcoal Co. v.

Commonwealth, DER, 74 Pa. Commonwealth Ct.

108, 459 A.2d 1303 (1983). As the

permittee, Ingram Partnership had

responsibility for the site and it could

not shift this burden to Israel via a

private agreement.

a rare

Ingram Partnership's final argument is

that it cannot be held liable for the

discharges because the recent worsening of

the discharges is attributable to the

actions of third parties who drilled

testholes on the site after the Partnership

ceased its mining activities.” DER

counters this "drill-hole theory" by

arguing that water sample test results show

that at least one of the discharges was

degraded as early as 1980 -- long before

che alleged drilling occurred.

DER’s argument raises a factual issue,

which would require a hearing to resolve.

However, we find that Ingram Partnership’s

argument must be rejected as a matter of

law. As we concluded above, Section 315 (a)

barred Ingram Partnership from allowing any

This argument seems to be supplemental to the

Partnership’s argument that the discharges

pre-existed the Partnership’s mining on the

site.

discharge from its mining site. Ingram

Partnership remains responsible for the

Frenchville site because it never obtained

a release of its responsibility from DER.

Even if we concede that third parties

entered the site and drilled testholes

which caused the discharges -- Ingram

Partnership is still responsible for those

discharges under Section 315(a). See, Adam

Greece d/b/a Cherry Run Fuel Co. v. DER,

1980 EHB 135, John E, Kaites, et al. v.

DER, 1985 EHB 625. This result is

inescapable because, as we stated above,

the liability of an operator under Section

315(a) is predicated not upon causation,

but upon the operator’s relationship with

the land it mines. As the Board noted in

Adam Greece and Kaites, the operator may

have a private cause of action against

third parties, but that does not affect the

operator’s liability under Section 315(a).

For;the reasons Stated above, it is

obvious that DER’s motion for summary

judgment as to Ingram Partnership must be

granted, and Ingram Partnership’s motion

for summary judgment must be denied.

y Liability of Herman J. Israel for the

Discharges.

(a) Israel’s Motion to Dismiss

First, we must address Israel’s motion

to dismiss. The sole basis for this motion

was that Herman J. Israel died after the

Compliance Order was issued. DER filed a

response to this motion, contending that

Mr. Israel’s liability survives him and is

transferred by operation of law to his

estate. See 20 Pa. C.S. § 3371, 42 Pa.

ay Bs § 8302. DER asserted that the

personal representatives of Mr. Israel's

estate -- Herman L. Israel and Betty Ann

Taylor -- should be substituted for

Mr. Israel.

DER is correct that Israel's liability

Survives him. See 20 Pa. C.S. § 3371, 42

oe BF § 8302. In addition, we may

Substitute the personal representatives of

Israel’s estate for Israel. See 20 PaC.sS.

§ 3372. Therefore, we will deny Israel’s

motion to dismiss, and grant DER’s request

to substitute Herman L. Israel and Betty

Ann Taylor, Personal Representatives of the

Estate of Herman J. Israel, for Israel.

(b) DER’s Motion for Summary Judament

against Israel.

DER’sS motion seeks summary judgment

against Herman J. Israel because he was an

"Operator" on the site. Although, as

Stated in the previous section, Israel

never became the permit holder on the site,

DER asserts that Israel conducted remedial

A-54

work and carried on a water monitoring

program while he was the owner of Ingram

Coal Co. Thus, DER contends that Israel

became an "operator" under Section 3 of the

Surface Mining Conservation and Reclamation

Act (SMCRA), 52 P.S. § 1396.3, and that his

activities constituted "operation of a

mine" under Section 315(a) of the CSL; 35

P.S. § 691.315(a). As a result, DER argues

that Israel can be held liable under

Section 315(a) for the discharges from the

site, whether he caused them or not.

Israel argues that he cannot be held

responsible under Section 315(a) because he

never became the permittee for the site,

citing Morcoal v. Commonwealth, DER, 74 Pa.

Commonwealth Ct. 108, 459 A.2d 1303 (1983).

Israel also argues that his reclamation and

water monitoring activities do not

constitute "operation of a mine" because if

they do, then a multitude of parties who

were always viewed as independent

A-55

contractors would be engaged in "operation

of a mine." Indeed, Israel contends that,

under DER’sS construction of the term, DER

itself engages in "operation of a mine"

Since DER conducts water sampling on mining

Sites. Finally, Israel contends that his

actions did not contribute to or affect the

discharges.

We agree with DER that Israel is

responsible under Section 315(a) due to his

activities which constitute "operation of a

mine."*° We recognize that this case

presents an unusual situation in that

Israel did not have a permit to mine the

site, but responsibility under Section

315(a) is not based upon a permit, it is

based upon operation of a mine. Israel

Cannot escape liability simply because he

Section 315(a) defines operation of a mine to

include, among other things, "any... . work

done on land or water in connection with the

mine." Certainly, Israel’s reclamation and

water sampling come within this definition.

A-56

failed to secure a permit and, thus,

operated illegally. With regard to

Israel’s argument that DER’S interpretation

of "operation of a mine" will subject

independent contractors, and possibly DER

itself, to liability under Section 315(a),

this 1s not the case because DER has

restricted its definition to those who are

"Operators" -- principals rather than

agents -- under SMRCA. See 52 P.S.

In addition, we disagree with Israel

that liability is restricted to the

permittee under Morcoal v. Commonwealth,

DER, 74 Pa. Commonwealth Ct. 108, 459 A.2d

1303 (1983). In Morcoal, the Court

rejected a permittee’s attempt to deflect

responsibility to a third party who the

permittee claimed was the actual operator

of the site. This does not mean, however,

that DER is precluded from assigning

responsibility to an operator simply

because he acted illegally and operated

without a permit. In such a case, both the

permittee and the de facto operator are

subject to liability.

In summary, we will deny Israel’s

motion to dismiss, and grant DER’s request

to substitute the personal representatives

of Israel’s estate. In addition, Israel is

responsible for the discharges under

Section 315(a) regardless of whether he

caused them or not. Therefore, we will

also grant DER’sS motion for summary

judgment against Israel.

as Liability of Rockwood Energy and

Mineral Corporation for the

Discharges.

The final issue involves Rockwood’s

motion for summary judgment. DER did not

file a motion for summary judgment against

Rockwood because it believes that

rockwood’s liability depends on unresolved

questions of fact.

Rockwood argues that it is- not

responsible for the discharges because it

did not conduct mining, reclamation, or any

other surface mining activities at the

Site, and because it is not the permittee

for the site. Rockwood further contends

that it cannot be held responsible merely

because of its contractual relationship

with Israel. Finally, Rockwood argues it

Cannot be held liable as a successor to the

Ingram Partnership.

In its response to Rockwood’s motion,

DER contends that it believes Rockwood

conducted the final round of water sampling

and made the decision to discontinue the

water monitoring program. If so, Rockwood

engaged in "operation of a mine," and is

Subject to Section 315. However, the

Department recognizes that these facts were

not conclusively established at the

A-59

Supersedeas hearing; therefore, a hearing

is necessary to address Rockwood’s

liability. Furthermore, DER asserts that

whether Rockwood can be held responsible as

a successor to Ingram Coal Co. hinges upon

factual questions regarding what assets and

liabilities of Ingram Coal Co. have been

assumed by Rockwood.

It follows from what we stated above

with regard to Israel that Rockwood engaged

in "operation of a mine" if it authorized

the water sampling on the site. We agree

with DER that a hearing is necessary to

address whether Rockwood did authorize the

water sampling; therefore, we will deny

Rockwood’s motion for summary judgment.”!

We take no position on the arguments of the

parties regarding successor liability.

A-60

AND NOW, this 17th day of April, 1990,

it is ordered that:

1) Herman J. Israel’s motion to

dismiss is denied, and DER’s request to

substitute Herman L. Israel and Betty Ann

Taylor, Personal Representatives of the

Fstate of Herman J. Israel, is granted.

2 ) DER’s motion for partial summary

judgment is granted, and summary judgment

is entered against Appellants Clark R.

Ingram, George M. Ingram, Gary C. Ingram,

and Gregory B. Ingram (the Ingram

Partnership), and also against Herman L.

Israel and Betty Ann Taylor, Personal

Representatives of the Estate of Herman J.

Israel.

3) The cross-motions for summary

judgment filed by the Ingram Partnership

and Rockwood Energy and Mineral Corporation

are denied.

4) The appeals filed by the Ingram

Partnership at EHB Docket No. 88-394-R and

by Israel at EHB Docket No. 88-395-R are

dismissed.

ENVIRONMENTAL HEARING BOARD

/s/ Maxine Woelfling

MAXINE WOELFLING

Administrative Law Judge

Chairman

/s/ Robert D. Myers

ROBERT D. MYERS

Administrative Law Judge

Member

/s/ Terrance J. Fitzpatrick

TERRANCE J. FITZPATRICK

Administrative Law Judge

Member

/s/ Richard S. Ehmann

RICHARD S. EHMANN

Administrative Law Judge

Member

/s/ Joseph N, Mack

JOSEPH N. MACK

Administrative Law Judge

Member

ATED: April 27, 1990

A-62

COMMONWEALTH OF PENNSYLVANIA

ENVIRONMENTAL HEARING BOARD

INGRAM COAL COMPANY,

)

et al. )

) EHB Docket No.

Vv. ) 88-291-F

) (Consolidated

COMMONWEALTH OF ) Cases)

PENNSYLVANIA )

DEPARTMENT OF )

ENVIRONMENTAL )

RESOURCES )

ve)

AND NOW, this 27th day of April, 1990,

pon consideration of the Department’s

Motion to correct opinion and order, which

correctly points out that the - Board

committed a typographical error at four

different places in its opinion and order

of April ais 1990, by identifying

"Herman L. Israel" as one of the personal

representatives of Herman J. Israel's

estate, when in fact the correct name of

this individual is "Henry L, Israel," it

A-63

is ordered that the Board’s Opinion and

Order issued on April 17, 1990 is amended

to substitute "Henry L. Israel" for "Herman

L. Israel" at the following places:

Opinion, page 12, section 2(a),

first paragraph.

Opinion, page 12, section 2(a),

second paragraph.

Order, page 16, paragraph no. 1.

Order, page 16, paragraph no. 2.

ENVIRONMENTAL HEARING BOARD

J/s/ Maxine Woelfling

MAXINE WOELFLING

Administrative Law Judge

Chairman

/s/ Robert D. Myers

ROBERT D. MYERS

Administrative Law Judge

Member

/s/ Terrance J. Fitzpatrick

TERRANCE J. FITZPATRICK

Administrative Law Judge

Member

/s/ Richard S. Ehmann

RICHARD S. EHMANN

Administrative Law Judge

Member

/s/ Joseph N. Mack

JOSEPH N. MACK

Administrative Law Judge

Member

TVATOM. ~~ ry ‘eonena|

DATED: April 27, 1990

APPENDIX D

UNITED STATES CONSTITUTIONAL PROVISIONS

TEXT OF UNITED STATES CONSTITUTION,

AMENDMENT XIV, SECTION 1

AMENDMENT XIV - CITIZENSHIP;

PRIVILEGES AND IMMUNITIES; DUE

PROCESS; EQUAL PROTECTION;

APPORTIONMENT OF REPRESENTATION;

DISQUALIFICATION OF OFFICERS;

PUBLIC DEBT; ENFORCEMENT

Section 1. All persons born or

naturalized in the United States,

and subject to the jurisdiction

thereof, are citizens of the

United States and of the State

wherein they reside. No State

shall make or enforce any law

which shall abridge the

privileges or immunities of

citizens of the United States;

nor shall any State deprive any

person of life, liberty, or

property, without due process of

law; nor deny to any person

within its jurisdiction the equal

protection of the laws.

APPENDIX E

PENNSYLVANIA STATUTORY PROVISIONS

TEXT OF SECTION 315(a) OF THE

PENNSYLVANIA CLEAN STREAMS LAW,

35 P.S. §691.315 (a)

§ 691.315. Operation of Mines

(a) 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 department or

such person or municipality has

first obtained a permit from the

department. Operation of the

mine shall include preparatory

work in connection with the

opening or reopening of a mine,

refuse disposal, backfilling,

sealing, and other closing

procedures, and any other work

done on land or water in

connection with the mine. A

discharge from a mine shall

include a discharge which occurs

after mining operations’ have

ceased, provided that the mining

operations were conducted

subsequent to January 1, 1966,

under circumstances requiring a

permit from the Sanitary Water

Board under the provisions of

section 315(b) of this act as it

existed under the amendatory act

A-67

of August 23, 1965 (P.L. 372, No.

194). The operation of any mine

or the allowing of any discharge

without a permit or contrary to

the terms or conditions of a

permit or contrary to the rules

and regulations of the

department, is hereby declared to

be a nuisance. Whenever a permit

is requested to be issued

pursuant to this subsection, and

such permit is requested for

permission to operate any mining

operations, the city, borough,

incorporated town or township in

which the operation is to be

conducted shall be notified by

registered mail of the request,

at least ten days before the

issuance of the permit or before

a hearing on the issuance,

whichever is first.

eee

TEXT OF SECTION 602(c) OF THE

PENNSYLVANIA CLEAN STREAMS LAW,

35 P.S. §691.602(c)

§ 691.602. Penalties

who, after a conviction of a

misdemeanor for any violation

within two years as above

provided, wilfully or negligently

violates any provision of this

act, any rule or regulation of

the department, any order of the

department, or any condition of

any permit issued pursuant to

this act is guilty of a

misdemeanor of the second degree

and, upon conviction, shall be

subject to a fine of not less

than two thousand five hundred

dollars ($2,500) nor more than

fifty thousand dollars ($50,000)

for each separate offense or to

imprisonment for a period of not

more than two years, or both.

TEXT OF SECTION 605(a) OF THE

PENNSYLVANIA CLEAN STREAMS LAW,

35 P.A. §691.605 (a)

§ 691.605. Civil penalties

generally

(a) 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 ($16,000) per

day for each violation. In

determining the amount of the

Civil penalty the department

shall consider the wilfulness of

the violation, damage or injury

to the waters of the Commonwealth

or their uses, cost of

restoration, and other relevant

factors. It shall be payable to

the Commonwealth of Pennsylvania

and shall be collectible in any

manner provided at law for the

collection of debts. If any

person liable to pay any such

penalty neglects or refuses to

pay the same after demand, the

amount, together with interest

and any costs that may accrue,

A-70

———

shall constitute a judgment in

favor of the Commonwealth upon

the property of such person from

the date it has been entered and

docketed of record by the

prothonotary of the county where

- such is situated. The department

may, at any time, transmit to the

prothonotaries of the respective

counties certified copies of all

such judgments, and it shall be

the duty of each prothonotary to

enter and docket them of record

in his office, and to index the

same as judgments are indexed,

without requiring the payment of

costs as a condition precedent to

the entry thereof.

APPENDIX F

PENNSYLVANIA REGULATORY PROVISIONS

TEXT OF SECTION 77.92(26) OF

REGULATIONS OF PENNSYLVANIA

ENVIRONMENTAL QUALITY BOARD,

25 PA. CODE §77.92 (26)

Subchapter D. Requirements

Accompanying Permits Authorizing

the Operation of Surface Coal

Mines

* * *

§ 77.92. Requirements.

* * *

Water Quality Criteria.

* * *

26. The operator shall take the

necessary steps to eliminate, if

possible, any gravity drains from

previous mining. Any drainage so

encountered shall be treated to

neutrality during the period of

corrective action and during the

life of the operation. The

operator shall be responsible for

any additional pollution load.

TEXT OF SECTION 77.92(d) (8) OF

REGULATIONS OF PENNSYLVANIA

ENVIRONMENTAL QUALITY BOARD,

25 PA. CODE §77.92(d) (8)

Subchapter D. Requirements

Accompanying Permits Authorizing

the Operation of Surface Coal

Mines

* * *

§ 77.92. Requirements.

* * *

(d) Drainage. The following

drainage standards shall apply:

x «* *

(8) The operator shall take the

necessary steps to eliminate, if

possible, any gravity drains from

previous mining. Any drainage so

encountered shall he treated to

neutrality during the period of

corrective, action and during the

life of the operation. The

operator shall be responsible for

any additional pollution load.

TEXT OF SECTION 87.102 (a) (1),

(2) AND (5) OF REGULATIONS OF

PENNSYLVANIA ENVIRONMENTAL

QUALITY BOARD, 25 PA. CODE

§87.102(a) (1), (2) AND (5)

Subchapter E. SURFACE COAL

MINES: MINIMUM ENVIRONMENTAL

PROTECTION PERFORMANCE STANDARDS

* * *

§ 87.102. Hydrologic balance:

effluent standards.

(a) At a minimum, the discharge

of water from areas disturbed by

mining activities, including area

disturbed by mineral preparation,

processing, or handling

facilities, shall comply with the

following discharge limitation:

(3) Bese. There shall be

no discharge of water which is

acid.

(2) - 2208: There shall be

no discharge of water containing

a concentration of iron in excess

of seven milligrams per liter.

* * *

(5) pH. The pH of

discharges of water shall be

maintained between 6.0 and 9.0,

except in the following

circumstances:

(1) When the

discharger can show

the water is

discharged to an acid

stream, in which cases

the pH may be greater

than 9.0; or

CC ee

(11) The dis-

Charger affirmatively

demonstrates, in

writing, to the

Department that

biological respiration

in the wastewater

treatment system will

cause the discharge to

exceed the limits set

forth in this section

and that exceeding

these limits will not

result in a violation

Of applicable water

quality standards in

Chapter 93 (relating

to water quality

Standards) or of the

applicable treatment

requirements and

effluent limitations

to which a discharge

is subject under the

Federal Water

Pollution Control Act,

known as the Clean

Water Act, in which

case the Department

may grant a variance

in writing from the

limitation set forth

in this section; or

(iii) When the

discharger affirma-

tively demonstrates to

the Department that

the wastewater

treatment process

being used by~ the

discharger requires

the pH to be raised

A-75

above 9.0, that the

elevated pH will not

cause a safety hazard

at the outfall, and

that the elevated pH

will not result in a

Vioiation of

applicable water

quality standards in

Chapter 93 (relating

to water quality

Standards) or of the

applicable treatment

requirements and

ffluent limitations

to which a discharge

is subject under the

Clean Water Act, the

Department may Grant a

variance from this

limitation.

APPENDIX G

RAISING OF FEDERAL QUESTION BEFORE

SUPREME COURT OF PENNSYLVANIA

EXCERPTS FROM PETITION FOR ALLOWANCE

OF APPEAL ON BEHALF OF CLARK R. INGRAM,

GEORGE M. INGRAM, GARY C. INGRAM AND

GREGORY B. INGRAM

QUESTIONS PRESENTED FOR REVIEW

II. WHETHER IMPOSITION OF STRICT

LIABILITY UPON A’ FORMER

SURFACE MINE OPERATOR UNDER

SECTION 315(a) OF THE CLEAN

STREAMS LAW FOR DISCHARGES

FROM A MINING SITE SOME SIX

YEARS AFTER COMPLETION OF

MINING RAwVAVETLES ,

REGARDLESS OF ANY FINDING

THAT THE FORMER OPERATOR

CAUSED OR ADVERSELY AFFECTED

THE DISCHARGES, AND IN

VIOLATION OF OFFICIAL DER

REGULATIONS IN EFFECT DURING

THE COURSE OF ITS MINING

A-77

ACTIVITIES, CONSTITUTES A

VIOLATION OF THE GUARANTEE

OF DUE PROCESS OF LAW

PROVIDED UNDER THE UNITED

STATES AND PENNSYLVANIA

CONSTITUTIONS?

(Answered in the negative below).

A-78

—

II. IMPOSITION OF STRICT

LIABILITY UPON A FORMER

SURFACE MINE OPERATOR UNDER

SECTION 315(a) OF THE CLEAN

STREAMS LAW FOR DISCHARGES

FROM A MINING SITE SOME SIX

YEARS AFTER COMPLETION OF

MINING ACTIVITIES,

REGARDLESS OF ANY FINDING

THAT THE FORMER OPERATOR

CAUSED OR ADVERSELY AFFECTED

THE DISCHARGES, AND IN

VIOLATION OF OFFICIAL DER

REGULATIONS IN EFFECT DURING

THE COURSE OF ITS MINING

ACTIVITIES, CONSTITUTES A

VIOLATION OF THE GUARANTEE

OF DUE PROCESS OF LAW

PROVIDED UNDER THE UNITED

STATES AND PENNSYLVANIA

CONSTITUTIONS .

A. Imposition of Strict

Liability, Without Causation

on Ingrams is Fundamentally

Unfair and a Violation of

Substantive Due Process.

In its Opinion (Appendix A),

Commonwealth Court of Pennsylvania used

only two paragraphs to find that

Regulations in effect in 1988,

which

establish liability without causation,

could be applied to Ingrams without

A-79

violating principles of due process, even

though those Regulations are contrary to

the official DER Regulations which were in

effect during the entire time that Ingrams

conducted mining operations at the

Frenchville Site and before Ingrams sold

their coal mining business. (Opinion,

p. 8). This holding stretches liability

under Section 315(a) of the Clean Streams

Law, 35 P.S. §691.315(a), beyond all

reasonable bounds and is an

unconstitutional exercise of the

Commonwealth’s police power in violation of

the due process protections provided by the

Fourteenth Amendment to the United States

Constitution and Article One, Sections One

and Nine, of the Pennsylvania Constitution.

Imposition of liability, without

Causation, iS an arbitrary exercise of

DER’s enforcement power. Substantive due

process, moreover, is offended when DER

seeks to impose liability on Ingrams in

A- 80

—— iL CCC

operated the Frenchville Site until 1982

17 7 + Toke >, AFFEARA 7

but also which are contrary to the official

)

DER Regulations which had been in effect at

rer TALI me 9s - b 54 ~ AT )N 4 - . ~ —~ + ~ . ~ oa

NnNaUCcCTING tneir Nniniainc Operations ana

HK 5 te aF ate tho - + + siarfar m= +

ha cs Ce ce cs te 8 Y Jid LiIic pal L yd SUrTta = Co ae SG.

Y\¢ Y - # Y ’ . * roan Vake + Y ~% s+ 4 =

Vera t TS With Fa). CO DIreé SALSC LING

L L L

t.? + ~ rc) l= + vol ant an 7 - oO } r > +

oe ) ¢ ner .

Wa I @ger. Bi a % 4 Di pHLem Unless Lo hb Ge IDE Ia di

| L i

; + ; 1

mare + 5 a> ie ~~ ry . a a =" t ‘at: a Cc 5, reHnayr ~ + + «ry

MldaU Lille ULSChatl J WOTSE 4 ease & Aid AUaAIL I y

| d

6 MmIQnriakee«¢, Dv h 5 utr Amora Fr Anna

4 JUal§llt tly, Jy nis JIWid ywetav2Uls.

}ehe " = - i. - moter - -- +

Alth JUG TI a ~.JaLS illal Lo& 4 S

nn al MAUuso ¥ na th a tn a + + + - Ar

WO + —- UW i A104 ad ‘ Lo Ga A cS Ali

. Qa pm "

el ae | = + ~ - “eames + } yY - _- - }

be ee + a

SGULALC LOIS LU i Wi Vad YUss i do 1Tea 4 diy

2 L L

ry 7 + + >| 7} a }

en an ot ~~ = ~ uF i ate | y ~ > mC - i. + .

— + — 4 .

MULaALS , sat.ct y aflidd MmGeL.ads ee ae eete 1

tinned anNmm™m mse « -h => lls y ,a y + _ rn + >)

i=) =>

Vii WJeiUliltdadd 2 ys wiih & WUWSC Ao ad Added sidlid 4 ©

+: + ' ~ ~ ~ a

ho Nitrton C+ -$ oO C rr ™ + y . y ,

Pe FS Wie < A . a So oe OUI L SLE A + 11a © 4 ,i\4

-rORrnTnN 4 rt - +} + eho ~ ee alan en _— a} ~ 4

oa (= = > > =)

2+ oTCUYG1I4 [SU LLIiAL Lil MUS MWLUCoCS»S LAUDS 4

+ } Baiirroanth - ~ + ro OQ TInirtrea >

Lad jWwudh CS Uséseda ‘ae i oF F | sid A

fon ~~ ;

stat ec f ST) a tf Ss was ke a awe inrannary a ry > +

7 ie CA DY mS wm Ne 4 eee eR ee KL A 4a & 44\4A— A — aye WJ v

the individual from the arbitrary exercise

of the powers of government. Hurtado v.

California, 110 U.S. 516, 110 S. Ct. 232,

236 (1984). In Commonwealth v. Harmar Coal

Co., 452 Pa. 77, 93, 306 A.2d 308 (1973),

the Supreme Court of Pennsylvania set forth

the following constitutional standards that

apply in determining whether the state’s

police power was properly exercised:

"To justify the State in :

interposing its authority in

behalf of the public, it must

appear, first, that the interests

of the public require’ such

interference; and, second, that

the mean r r onabl

necessary for the accomplishment

of the purpose and not unduly

oppressive upon individuals."

[Emphasis added].

In the present case, the imposition of

liability upon Ingrams, based on a concept

of strict liability without the need to

show causation and contrary to official DER

regulations in effect during Ingrams’

mining activities, is unduly oppressive

and, therefore, unconstitutional. The

A- 82

pre-existing water quality prok.=+ms at the

Frenchville Site and that Ingrams did not

(

LU)

ade the water quality. Despite actual

knowledge of apparent water quality

violations during the period from 1976 to

when Ingrams sold their business in 1982,

23)

ms - con } OD at a" ot = 731 6 a.) ae)

L r o» we r ry) 7Tb- -)

E299; R 7D-8b, 90bD-95b, 116b, 127 128b

Rather ARR Crag 7 5 manner hich

Ratiici, Ur! acted cg a manner wnicn

| a |

= ry Daron -Ha + rhnor — T= NT roa c\r) 1b > 27)

suggesteaqa tnat tnere was no responsi AL iC¥

I9 L

y hea mart a + ~ ~ mc Any . = -~ + ~

Jid i. 146 Wal LU SPs ing ams | © Fe oF Fh water

7 > 5

~ + 5 <r }- - rannrr ane -~hHa + ho ~ maha, o

wWiktnad & & ¥ LY Sweet & Lada Lisa L Fé 5) qgiscnarges

4 P s —- he

_-_ " _ ~ + ~~ « " =—nwA = -y - _ ~

a Yo Yr\ y A= =] rOrT nrnry 4 gslarbe @ t

Wel i? & —~ Sy eS aiid Dy QUCTIOLL ZinG a

Te awe 7 2 RannnA roOolanas th ata | +h

YLAGQ i | DOMQa .SicCase alia = gs

~ =lalet sto —— — = oh oe a 5 om he aul an te San 1a & r

£4L5SCOMNTLAUANCEe I WYUaLUTCeia2y Water Gualiacty

mar -Arsa ne rr —-aAm™m D I’QNsa re re _ 4 |

4 MAWES progra NX aa wa» 534Ua, 2 4a,

J —

i ae ee eee HAA D2a9 E385 _ Ao} a b

- 4 \4 _ ~< -

362a-363a, E299, E382 385; R. 45bD-46

These actions by DER during the time

that Ingrams operated the Frenchville Site

were consistent with the DER Regulations

which then were in effect at 25 Pa. Code

§77.92(26) as of 1972 and at 25 Pa. Code

§77.92(d) (8) as of 1982, which contained a

Causation requirement and which imposed

liability only if the surface coal mine

operator made a discharge worse either in

quality or quantity as a result of his own

mining. (R. 140b-144b).

The Affidavit of Van G. Plocus, P.E.,

moreover, establishes that the mining

activities of Ingrams did not make the

pre-existing water quality at the

Frenchville Site any worse. Rather, his

investigation and field study determined

that the worsening water quality problems,

if any, were caused by unauthorized

exploratory drilling by unknown third

parties after the Frenchville Site had been

reclaimed and after Ingrams sold their

A- 84

business and had no further contact with

the Site. (R. 515a-526a).

It is one thing to hold a surface mine

operator absolutely liable for water

quality problems caused during his

Operation of the mining site and in

accordance with the applicable law in

effect when the operator commenced and

-_ ~ = So - > +

fairness, however, to impose Strict

re a, ae :

a . + | ?

liability, without causation, upon an

B. Imposition of Strict

Liability Without Causation

on Ingrams Constitutes an

Unconstitutional Retroactive

Application of DER

Regulations.

It is an undisputed rule of statutory

construction in Pennsylvania that a statute

may not be construed to operate

retroactively unless the legislature’s

intent in that regard is so clear as to

reclude all question as to that intent.

See Krenzelak v. Krenzelak, 503 Pa. 373,

380, 469 A.2d 987 (1983); R. & P Services,

Inc. v. Commonwealth, Dept. of Revenue, 116

Pa. Commw. 230, 234, 541 A.2d 432 (1988).

The strong presumption against

retroactivity, moreover, has been

promulgated as law by Pennsylvania’s

legislature:

"No statute shall [be] construed

to be retroactive unless clearly

and manifestly so intended by the

General Assembly."

A- 86

| |

1 Pa.C.S.A. §1926. This principle is fully

applicable to the regulations of

administrative agencies. R & P Services,

Inc. v. Commonwealth, Dept. of Revenue, 116

Pa. Commw. 230, 234, 541 A.2d 432 (1988);

Klesh _ v. Commonwealth, Dept. of Public

Welfare, 55 Pa. Commw. 587, 590-591, 423

A.2d 1348 (1980).

Even 2 legislative intent for

retroactive operation of a statute is

present, however, Pennsylvania’s courts

have nonetheless placed Significant :

limitations on such retroactivity. For

instance, when the retroactive effect of a

law would alter the substantive rights of a

party, the statute cannot be construed to

be retroactive, because:

"(W]hen substantive rights are

involved, the applicable law must

be that which is in effect at the

time the cause of action arises."

Bell v. Koppers Co., Inc., 481 Pa. 454,

458, 392 A.2d 1380 (1978); Brown v.

A- 87

Commonwealth, State Bd. of Pharmacy, 129

Pa. Commw. 642, 648, 566 A.2d 913 (1989) ;

Bortulin v. Harley-Davidson Motor Co.,

inc., 115 Pa. Commw. 42, 47, 539 A.2d 906

(1988).

Substantive rights which cannot be

affected by retroactive legislation are

essentially those rights which rise above

mere procedural rights. For example, in

Costa v. Lair, 241 Pa. Super. 517, 520, 363

A.2d 1313 (1976), the right affected by the

retroactive application of the statute at

issue was held to be substantive because:

"{I)£ applied retroactively, the

Act would create legal liability

for damages which did not exist

at the time the accident

occurred."

Furthermore, statutes or regulations

may not be given retroactive application if

to do so would violate those principles of

Gue process of law set forth in the United

States or Pennsylvania Constitutions.

Krenzelak v. Krenzelak, 503 Pa. 373, 380,

A- 88

ee ]

469 A.2d 987 (1983); R & P Services, Inc.

v. Commonwealth, Dept. of Revenue, 116 Pa.

Commw. 230, 235, 541 A.2d 432 (1988).

Retroactive application of laws offends the

due process clause if, upon balancing the

interests of both parties, such application

would be unreasonable. Krenzelak v.

Krenzelak, 503 Pa. 373, 382, 469 A.2d 987

(1983).

Application of the above principles to

the present case reveals conclusively that

DER should fiot be able to now hold the

Ingrams liable for actions which, when they

were taken, were clearly permitted by DER’s

own official Regulations. Ingrams mined

the Frenchville site from 1976 to 1982. On

May 28, 1982, Ingrams sold their entire

coal stripping business and ceased all

involvement in the strip mining of coal.

(R. E277-E286; R. 48b, 57b, 118b). At the

time Ingrams sold the business, there were

no outstanding DER violations. (R. 297a;

R. 7b, 10b, 116b-117b, 128b-129b).

During the entire time Ingrams engaged

in mining activities at the Frenchville

Site, from 1976 to May of 1982, Ingrams

operated under the following DER

Regulation:

"The operator shall take the

necessary steps to eliminate, if

possible, any gravity drains from

previous mining. Any drainage so

encountered shall be treated to

neutrality during the period of

corrective action and during the

life of the operation. The

operator shall be responsible for

any additional pollution l@ad."

[Emphasis added].

25 Pa. Code §77.92(26) (1972), later

codified at 25 Pa. Code §77.92(d) (8) (1982).

am Anthony Ercole, who was- the

Directci of the DER’s Bureau of Surface

Mining Reclamation from 1977 to 1983,

testified by Affidavit that he was

intimately familiar with the DER’s surface

mining rules and regulations and the DER’s

official practices and procedures. [hs

A-90

140b-144b). Ercole further stated that the

above-cited Regulation accurately reflects

the DER’s policy during his tenure:

"This Regulation at 25 Pa. Code

Section 74.932 embodied the

Official policy and practice of

the Department of Environmental

Resources not to hold surface

coal_mine operators responsible

for mine discharges existing from

prior mining, after the life of

the operator’s mining, whether

the discharges were on or off the

operator’s permit area, unless

the operator made the Gischarge

worse either in qualitv or

Quantity as a result of his own

Mining." [Emphasis added].

(R. 140b-144b).

This DER Regulation Clearly required

the element of causation by a surface mine

Operator who came into contact with

pre-existing discharges. DER’s attempt to

now ignore the provisions of that

Regulation and hold Ingrams responsible for

the pre-existing discharges pursuant to

current Regulations which do not address

Causation constitutes. an impermissible

retroactive application of the current DER

a-9i

Regulations in violation of due process of

law.

As noted above, retroactive

application of a law violates principles of

due process if to so apply the law would be

"unreasonable." Krenzelak v. Krenzelak,

503 Pa. 373, 380, 469 A.2d 987 (1983). One

of the recognized definitions of an

unreasonable effect of a retroactive law is

when the law varies existing obligations

contrary to the situation when entered.

503 Pa. at 383. Retroactive application of

the subject Regulations clearly varies the

obligations Ingrams had when they conducted

their mining operation, and such

application is thus unreasonable.

In summary, retroactive application of

the current DER Regulations operates to

hold Ingrams liable for discharges for

which they were specifically held not to be

liable under official DER Regulations in

effect at the time of Ingrams’ mining

A-92

operation. If Ingrams did not cause the

pre-existing water quality problems which

provide the basis for the Compliance Order,

and would not have been liable under DER

Regulations in effect while they operated

the Frenchville | Site, the Commonwealth

cannot belatedly amend the DER Regulations,

after Ingrams ceased operation of the Site,

to impose liability merely because the

pre-existing condition is continuous and

Ongoing. This Honorable Court should agree

to hear Ingrams’ appeal in order to prevent

the violation of significant constitutional

APPENDIX H

RAISING OF FEDERAL QUESTION BEFORE

COMMONWEALTH COURT OF PENNSYLVANIA

EXCERPTS FROM BRIEF FOR PETITIONERS

CLARK R. INGRAM, GEORGE M. INGRAM,

GARY C. INGRAM AND GREGORY B.

INGRAM AT NO. 1075 C.D. 1990

STATEMENT OF QUESTIONS INVOLVED

Whether the effort by DER to

impose strict liability upon

a surface mine operator,

regardless of any finding

that the operator caused or

adversely affected the

discharges, is unconsti-

tutional?

(Negatived by the government

unit below)

Il. THE EFFORT BY DER TO IMPOSE

STRICT LIABILITY UPON A

SURFACE MINE OPERATOR,

REGARDLESS OF ANY FINDING

THAT THE OPERATOR CAUSED OR

ADVERSELY AFFECTED THE

DISCHARGES, IS UNCONSTI -

TUTIONAL.

In issuing the Compliance Order, DER

seeks to impose strict liability upon

Ingrams for the water quality problems at

the Frenchville Site without any finding

that Ingrams caused or adversely affected

the discharges. DER also seeks to ignore

forth in codified DER Regulations which

Surface coal _ mine Operator was not

responsible for pre-existing water quality

problems unless the Operator has made the

1scharge worse, either in quality or

quantity by his own operations. These

efforts constitute an improper exercise of

DER’s police power and are an impermissible

violation of _— Ingrams’ constitutional

rights.

(A) Application of Principles of

Strict Liability Without

Causation to Ingrams Under

Section 315 (a) of the Clean

Streams Law is Unconstitutional.

In the Opinion and Order Sur Motion

)

for Partial Summary Judgment, Cross-Motions

Or Summary Judgment, and Motion to Dismiss

dated April 17, 1990, the Environmental

Hearing Board held that an operator is

legally responsible for any discharges

emanating from its mining site, regardless

of whether the operator caused or

contributed to the discharge. (R. 608a).

This holding stretches liability under

1 315(a) of the Clean Streams Law, 35

ba |

'¢ 8)

(0)

ve)

+ 4

i. 4

09)

beyond all reasonable

bounds and is an unconstitutional exercise

of the Commonwealth’s police power.

A-96

In issuing this extreme ruling, the

Environmental Hearing Board acted despite

its recognition of two important concerns.

First, no Pennsylvania appellate court has

ever held that an operator can be liable

under Section 315(a) where the operator

did not cause the discharge.” (R. 608a)

Causation by the operator was present in

the cases of Commonwealth v. Barnes &

(1977), Commonwealth v. Harmar Coal Co.

152 Pa. ee 306 A.2d 308 (1973), and

William J. McIntire Coal Co Vv.

Commonwealth, Dept. of Environmental

A.2d 140

Resources, 10

'@ @)

ae)

law

Subsequent to service of the advance text of

their Brief pursuant to Pa.R.A.P 2187 (b),

Ingrams became aware of the decision in

wealth,

Thompson & Phillips Coal Co. v. Commonweal

Dept. of Environmental Resources, Pa.

Commw . » S82 A.2d 1162 (1990), which

presently is the subject of a Petition for

Allowance of Appeal at No. 691 WD Allocatur

Docket 1990.

A-97

Second, imposition of strict liability

without causation is a departure from

traditional concepts of liability under

tort law. (R. 609a). Not only does the

Board impose liability upon Ingrams without

fault, as in a typical "Strict liability"

case, but also the Board goes one step

further and imposes’ strict liability

without causation by the operator.

The unreasonableness of holding a mine

operator liable for pollution absent any

proof of causation is highlighted by the

fact that Pennsylvania has not adopted

those tort theories which hold a defendant

liable without the element of causation,

despite a trend towards such liability in

some areas of the law. See Burnside v.

Abbott Laboratories, 351 Pa. Super. 264,

287, 505 A.2d 973 (1985) (holding that

Pennsylvania has not adopted the market

share alternate liability theory of

recovery for product liability cases). In

A-98

iis a2 ee a eames ee aces

Pennsylvania, extension of liability

without fault "has not been in disregard of

fundamentals pertaining to the tort law of

Causation." Bascelli v. Randy, Inc., 339

Pa. Super. 254, 259, 488 A.2da 1110 (1985);

Oehler v. Davis, 223 Pa. Super 333, 334,

298 A.2d 895 (1972).

Although a- state May exercise its

police power and enact Statutes and

regulations to promote the public health,

morals, safety and general well-being of

the community, this power is not unlimited.

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

77, 93, 306 A.2da 308 (1973), the Supreme

Court of Pennsylvania set forth the

following constitutional Standards that

apply in determining whether the State’s

police power was properly exercised:

"To justify the State in .

interposing its authority in

behalf of the public, it must

appear, first, that the interests

of the public require such

interference; and, second, that

the means are reasonably

A-99

necessary for the accomplishment

of the purpose _ and not unduly

oppressive upon individuals."

[Emphasis added].

In the present case, the imposition of

liability upon Ingrams, based on a concept

of strict liability without the need to

show causation, is unduly oppressive and,

therefore, unconstitutional. The record

read in a light most favorable to Ingrams

establishes that there were pre-existing

water quality problems at the Frenchville

Site and that Ingrams did not degrade the

water quality. Despite actual knowledge of

apparent water quality violations during

the period from 1976 to 1982 when Ingrams

sold their business, DER did not issue any

citations or other notice of violations to

Ingrams regarding the water quality at the

Site. (R. Ei06, E299; R. 7b-8b, 90b-95b,

116b, 127b-128b). Rather, DER acted ina

manner which suggested that there was no

responsibility on the part of Ingrams for

A-100

the water quality by reporting that the

discharges were "pre-existing," and by

authorizing a Stage II Bond release and the

discontinuance of quarterly water quality

monitoring program. (R. 330a, 340a, 344a,

362a-363a, E299, E382-E385; R. 45b-46b,

These actions b DER during the time

y g

mS operated the Frenchville Site

were consistent with the DER Regulations

€n were in effect at 25 Ppa. Code

$77.92(26) as of 1972 and at 25 Pa. Code

§77.92(d) (8) as of 1982 and which contained

a Causation requirement and imposed

cet eee 7 . £ W’WKrEt 7 :

+iabliiity only if the surface coal mine

ishes that the mining

action of Ingrams did not make the

pre-existing water quality at the

Frenchville Site any worse. Rather, his

investigation and field study determined

that the worsening water quality problems,

if any, were caused by unauthorized

exploratory éciliing by unknown third

parties after the Frenchville Site had been

reclaimed and after Ingrams sold their

business and had no further contact with

the Site. (R. 515a-526a).

The Environmental Hearing Board has

held Ingrams legally responsible for the

water quality problems at the Frenchville

Site without any showing that Ingrams

caused the pollution. This unprecedented

departure from concepts of fundamental

fairness is unduly oppressive to Ingrams

and is an unconstitutional exercise of the

tate’s police power.

A-102

(B) Imposition of Strict

Liability Without Causation

on Ingrams Constitutes an

Unconstitutional Retroactive

Application of DER Regula-

tions.

The effort to impose strict liability

without causation upon Ingrams is even more

egregious when the actions of DER during

the period that Ingrams Operated the

Frenchville Site are considered. Prior to

the sale of their business on May 28, 1982,

Ingrams operated under former DER

Regulations which required a Showing that

the surface coal mining operator caused a

degradation of any pre-existing discharge.

The Compliance Order, however, is based on

Current DER Regulations which do not

address causation and, therefore,

constitutes an unconstitutional retroactive

application of those Regulations to

Ingrams.

It is an undisputed rule of statutory

construction in Pennsylvania that a statute

may not be construed to operate

retroactively unless the legislature’s

intent in that regard is so clear as to

preclude all question as to that intent.

See Krenzelak v. Krenzelak, 503 Pa. 373,

380, 469 A.2d 987 (1983); R & P Services,

Inc. v. Commonwealth, Dept. of Revenue, 116

Pa. Commw. 230, 234, 541 A.2d 432 (1988).

Under this rule, when the language of a

statute is general and may be given both

prospective and retroactive operation, it

must be held to be prospective only.

Krenzelak v. Krenzelak, 503 Pa. 373, 380,

469 A.2d 987 (1983).

The strong presumption against

retroactivity, moreover, has been

promulgated as law by Pennsylvania’s

legislature:

"No statute shall [be] construed

to be retroactive unless clearly

A-104

and manifestly so intended by the

General Assembly."

1 Pa.C.S.A. §1926. This principle is fully

applicable to the regulations of

administrative agencies. R_& P Services,

THe ae Commonwealth, Dept., 116 Pa. Comnw.

230, 234, 541 A.2a 432 (1988); Klesh v.

Commonwealth, Dept. of Public Welfare, 55

Pa. Commw. 2987, 590-591, 423 A.2d 1348

(1980).

In R & Pp Services, Inc. Vv.

Commonwealth, Dept. of Revenue, 116 Pa.

Commw. 230, 235, 541 A.2d 432 (1988), the

Commonwealth Court described retroactive

application as follows:

"A retroactive law has been

defined as one which relates back

to and gives a previous

transaction a legal effect

different from that which it had

under the law in effect when it

transpired .... A law is given

retroactive effect when it is

used to impose new legal burdens

on a past transaction or

occurrence. [Citations

omitted] ."

A-105

Several Pennsylvania appellate courts

have considered statutes or regulations

which operate retroactively despite the

absence of specific legislative intent for

such retroactivity. In those cases, the

courts have held the retroactive operation

impermissible. For instance, in

Commonwealth, Bureau of Employment Security

v. Pennsylvania Engineering Corp., 54 Pa.

Commw. 376, 379, 421 A.2d 521 (1980), the

plaintiff sought to enforce a statute

requiring the defendant to contribute money

to the state’s Unemployment Compensation

Fund, although the event triggering the

requirement for contribution occurred prior

to enactment of the statute. The Court,

however, found that there existed no clear

legislative intent that the statute be

-etroactive and, therefore, the plaintiff

could not rely on the statute to compel the

defendant to contribute to the Fund. 54

Pa. Commw. at 380-381.

A-106

The Court did not consider’ the

sonstitutionality or even appropriateness

of applying the statute retroactively. The

court clearly based its decision solely on

the fact that the plaintiff was attempting

retroactive operation of a statute in which

there was no clear legislative intent for

retroactivity. 54 Pa. Commw. at 381. See

Public Utility Commission, 81 Pa. Commw.

25, 473 A.2d 209 (1984 ‘both finding

Statutes not retroactive absent evidence of

Specific legislative intent for

retroactivity

Even if legislative intent for

retroactive operation of a statute is

present, Pennsylvania’s courts still have

7} x ~~ 14 | 5 Y }

placed significant limitations on_ such

retroactivity. For instance, when the

retroactive effect of a law would alter the

Substantive rights of a party, the statute

A-107

Cannot be construed to be retroactive,

because:

"{W)hen substantive rights are

involved, the applicable law must

be that which is in effect at the

time the cause of action arises."

Bell v. Koppers Co., Inc., 481 Pa. 454,

458, 392 A.2d 1380 (1978); Brown v.

Commonwealth, State Bd. of Pharmacy, 129

Pa. Commw. 642, 648, 566 A.2d 913 (1989) ;

Bortulin v. Harley-Davidson Motor Co.,

Inc. 115 Pa. Commw. 42, 47, 539 A.2d 906

\@)

Substantive rights which cannot be

affected by retroactive legislation are

essentially those rights which rise above

mere procedural rights. For example, in

Costa v. Lair, 241 Pa. Super. 517, 520, 363

A.2d 1313 (1976), the right affected by the

retroactive application of the statute at

issue was held to be substantive because:

"{I])f applied retroactively, the

Act would create legal liability

for damages which did not exist

A-108

at the t ime the accident

occurred."

Furthermore, statutes or regulations

May not be given retroactive application i

to do so would violate those principles of

due process of law set forth in the United

States or Pennsylvania Constitutions.

Krenzelak v. Krenzelak, 503 Pa. 373, 380

; R_& P Services, Inc.

Dept. of Revenue, 116 Pa.

30, 235, 541 A.2d 432 (1988); 116

Pa. Commw. at 235. Retroactive applica

~ - ) +h * + ~ + a

upon Daiancing 12 interests Ol DO

: aie | a rr > ~~ ) rae «a ~”- io at

Darties, ULii appiication YULU | Oh

> . y -r

nre aAnah 5 - - ~ c

unreasonable Krenzelak v Krenzelak, 503

— 77 > nN a - ~ 23 “AAA “nr

Pa 373, 382, 469 A.2d 987 1983

4 5 a - = ~- — ~ a ~~ oo .

Application Or tne above rincipies tc

£ L

— Q ant __ Yravoa le RAW lasmaep oltw -ha

ess present case reveals Wee a “MSivoe.y Se ete SS

NEY nh la + no KRA o na AAA he

Von Snoul not | Oh — adie le siWw SPae' ~ii

T om liable for he. 2 Le iam & hes

ingrams ilabdle for actions which , wnen cney

af — a kK y ro rls rYlw narmsretran Rey DNRR’e

were taken, were clearly permitted by DER’s

own regulations and official policy and

procedure.

Ingrams mined the Frenchville site

from 1976 to 1982. On May 28, 1982,

Ingrams sold their entire coal stripping

business and ceased all involvement in the

strip mining of coal. (R. E277-E286; R.

48b, 57b, 118b). At the time Ingrams sold

the business, there were no outstanding DER

violations. (R. 297a; R. 7b, 10b,

116b-117b, 128b-129b).

During the entire time Ingrams engaged

in mining activities at the Frenchville

Site, from 1976 to May of 1982, Ingrams

operated under the following DER

Regulation:

"The operator shall take the

necessary steps to eliminate, if

possible, any gravity drains from

previous mining. Any drainage so

encountered shall be treated to

neutrality during the period of

corrective action and during the

life of the operation. The

operator shall be responsible for

any additional pollution load."

[Emphasis added].

A-110

25 Pa. Code §77.92(26) (1972), later

codified at 25 Pa. Code §77.92(d) (8) (1982).

J. Anthony’ Ercole, who was the

Director of the DER’s Bureau of Surface

Mining Reclamation from 1977 to 1983,

testified by Affidavit that he was

intimately familiar with the DER’s surface

mining rules and regulations and the DER’s

official practices and procedures. ims

140b-144b). Ercole further stated that the

above-cited Regulation accurately reflects

the DER’s policy during his tenure:

"This Regulation at 25 Pa. Code

Section 77.92 embodied the

official policy and practice of

the Department of Environmental

Resources not to hold surface

coal mine operators responsible

for mine discharges existing from

prior mining, after the life of

the operator’s mining, whether

the discharges were on or off the

Operator’s permit area, unless

the operator made the discharge

worse either in quality or

quantity as a result of his own

mining."

(R. 140b-144b).

A-111

This DER Regulation and its

application by the DER clearly required the

element of causation by a surface mine

operator who came into contact with

pre-existing discharges. DER’s attempt to

now ignore the provisions of that

Regulation and hold Ingrams responsible for

the pre-existing discharges pursuant to

current Regulations which do not address

Causation clearly is an impermissible

retroactive applicatior of the current DER

Regulations.

DER’s Compliance Order cites Ingrams

for violations of effluent limitations set

forth at 25 Pa. Code §§87.102(a) (1), (2)

and (5). Nowhere in these Regulations, or

nywhere else in the Pennsylvania Code or

Pennsylvania Bulletin, is there any

evidence of legislative intent to make

these Regulations retroactive. Nor is

there evidence in any of the several

statutes which DER cites as support for its

A-112

SCC

Compliance Order of legislative intent to

apply the standards of 25 Pa. Code

§§87.102(a) (1), (2) or (5) retroactively.

Since Pennsylvania law, as outlined above,

does not permit retroactive application of

an administrative regulation without clear

evidence of legislative intent to do so,

DER may not retroactively apply these

Regulations to Ingrams.

Even if it were somehow to be

intent to apply the Regulations at issue

retroactively, such application would be

contrary to those principles of

Pennsylvania law. As noted above, a law is

+ - o = ( = ~

exist at the time of the occurrence Costa

- ~ = r Ph. « ain Ee 4 ry ant = any

Vv. Lair, 241 Pa. Super. 517, 363 A.2d 1313

anaes ~ —_ +

(1976). In the present case, the evidence

—

is overwhelming that the Regulations in

effect during the period of Ingrams mining,

as well as DER’s' interpretation and

enforcement of those Regulations, created

no legal liability in Ingrams for their

mining activities at the time of those

activities. Now DER is attempting to

retroactively apply current Regulations to

create legal liability where none before

existed. Thus DER’ 3 retroactive

application of the Regulations are

adversely affecting Ingrams' substantive

rights and may not be allowed.

Furthermore, DER’S retroactive

application of these regulations would

violate Ingrams constitutional rights to

due process of law. As noted above,

retroactive application of a law violates

principles of due process if to so apply

the law would be "unreasonable." Krenzelak

v. Krenzelak, 503 Pa. 373, 380, 469 A.2d

987 (1983). One of the recognized

definitions of an unreasonable effect of a

A-114

ee)

‘

Lad

}

i‘

‘

“

‘

—+

}

—~

“ngramS nad when they conducted their

mining operation, and such application is

thu Inreasonable.

In sum, retroactive application of the

Current DER Regulations Operates to hold

ak 3 VW ra cr 2 eo: ‘ t Ee > r > a

ney We 5 pe LLiiCdailiy TM1O CO DE He iG

ae . + + r\ TT r ‘ :

) Y 4 ye Y ( r 4 4 Bs

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i y}

££ lm + + - }b ’ + aaa ry F Tnoar- ma c ,Y tT C)Y

— 5 ie 1 & a nie 1 Mme I] L1mGFams IPeErati1on,

4 i

) ny +mHyYr a7 mr + ro c na + ¢ nr ok, alla +

Ais 4 44 Wild ~id Iié F A &~s4snsid dl Gg: 44 DD! 4A\A-4

- + + “7 Y y ra rw y + y ¢ rT’, ran)

) wel 2% Ba cS :

sia ii* y Ji JF | ail JA J Hid au mee a 46,4 &

4 i 4 i y)

Cc c Y 17 +7 y a ,o cr\rY “s Y¢ - ¢ 4 qc ry r\t

4 4 i de Aid Aiid A Jil ALi ih» “ae A i aUuSsé DY

" £ ¢ r r

rotrrrer Waka ‘T¢ _mr arta r\r r ‘a Yror LL

4 AA — WwW Apypia J A * 4A,a 4s ~-\Aa 4 A/ ash

ory + y rr - -r ‘; c + : ~ > ry r"

[eg u 4 4 UTI& alld, 11US, VvAiVsLG lee ii€ AUF

roOcec - c2ac - F the Donncecy > ann

b/ 4 “ . ho 4 aA Aw — A he — = . % +44 e& y ~ VAIS Cc a+ ss

ry. = 5 a5 - nL os rr Pe i

YT ery “slrafrec Y T T T mS nere Ore

Jisia | OYA o A = ~ Yili 4A0b-uLiIVUiIIS. 4447040 iULC,

- a 4

retroactive application of current DER

Regulations must not be permitted.

EXCERPTS FROM REPLY BRIEF FOR PETITIONERS

CLARK R. INGRAM, GEORGE M. INGRAM,

GARY C. INGRAM AND GREGORY B. INGRAM

AT NO. 1075 C.D. 1990

II. THE EFFORT BY DER TO IMPOSE

STRICT LIABILITY UPON A

SURFACE MINE OPERATOR

REGARDLESS OF ANY FINDING

THAT THE OPERATOR CAUSED OR

ADVERSELY AFFECTED THE

DISCHARGES IS UNCONSTI -

TUTIONAL.

DER’S effort to impose strict

liability upon Ingrams for the water

quality problems at the Frenchville Site,

without any finding the Ingrams caused or

adversely affected the discharges, is an

improper exercise of DER’s police power and

an impermissible violation of MIngrams

constitutional rights.

A-116

The opinion below of the Environmental

Hearing Board ("EHB") accepted DER’s

interpretation that Section 315(a) of the

Clean Streams Law, 35 P.S. § 691.315(a),

holds a mine operator strictly liable for

pollution he in no way caused. (Opinion

and Order Sur Motion for Partial Summary

Judgment, Cross-Motions for Summary

Judgment and Motion to Dismiss’ dated

4/17/90, (hereinafter referred to as "EHB

Opinion"), p. 6). This interpretation of

the statute 1S incorrect because it permits

an unconstitutional exercise of the

Commonwealth’s police power by DER.

As the EHB below noted, there never

has been an appellate decision holding an

operator liable under Section 315(a) where

the operator did not cause the discharge.

Ipinimi, p. 6).- DER cites dicta from

two Pennsylvania Supreme Court decisions as

support for its proposition that an

operator may be held strictly liable under

A-117

Section 315(a), but regardless of DER’s

interpretations, they cannot stand for this

proposition because causation by the

operator waS present in both cases --

Commonwealth v. Barnes & Tucker Co., 472

Pa. 115, 371 A.2d 401 (1977) and

Commonwealth v. Harmar Coal Co., 452 Pa.

77, 306 A.2d 308 (1973).

DER also makes much of the language of

Section 315(a) which prohibits one from

"allowing" an unauthorized discharge froma

mine. (Brief for Respondents, p. 31-32).

DER contends that the legislature’s choice

of the term "allow" rather the "cause," or

"Contribute to," or any other language

inferring causation, means that the

legislature intended Section 315(a) to hold

an operator strictly liable for

unauthorized discharges. (Brief for

Respondents, p. 32).

First, the word "allow" surely can

infer an element of causation. DER’s

A-118

attempt to Support its extreme

interpretation of Section 315(a) with an

ey)

—

be ©

”

-he word "allow," without

more, iS surely an insufficient basis on

\_+ ~ + - « + os, + s - i @ - sy +

interpretation of section 315 (a 1s

ry . , rn + + ,sorh - - 74 . T r

leserving of jreat weight, and since DER

, me oF + } s+ + , + ; + P + — + 1 a+

Wa S rile S Luc Ls GA reacvt Sti d

l 4 HK 4 + y + } + "A119 + ashe; ry , m+ y + - |}

LaAQwaaawy, Lika a PULL t SMOULaA lmicerpret Lie

2 t

s+ ++ a Asanre?) is + + ¢ -

= — Y CY r YY yY

ptLatLuULSt a dI AINGLYy. Briel! a Be

7 “2 in - “ar Tr. Fon | -_ c rr na“ nr ® ’ | ,

aula Or7ToO | ~ f a=" 4 te me ab a mJ

nowever, 25 Pa. Code § 77.92(26 , which was

am . + -- 11 ~ + Lh - ~- 34 _ - 4 +h co

Y ivrr a 1Y YTV CY r 5 Yr) » ie o moa

aii LOIrCe MAUL 211 Wsae ert i> de SS oe Fit Cnat

narams mined rhe BPrancrhkcr:- ae.) 2 oe healA -

ANQGramsS mined Mo PIENCNVILIeG site, neld an

an = ‘aan a reannnarar nr) r Fr ~ t — ha a (YT — 5. = ry

ID € rat f IL LO oWVMUllslDIe& Jie ¥ me at te Wa TEL YWUallly

h is 4

+ + a+ Va! ry, . latranyr = 1+ + + ’ ann

aLlected. 47l1l5S reguiat1ion was drafted and

YC } > eg DV the REnvwironmenra) (jin lary

pi JALAL i | \ dy ad siv Jiiil La WuUai tt y

eee , = . : eames _ P

"a 1) myn Yr) yj Y TY) " > v="

Board, the rule making arm of DER. See 7

T ’ a r oo mt, *

) 4%7 +

ra. Bulletin 1-¢ 7-1604.,

During the entire period that 25 Pa.

Code § 77.92(26) was in effect, the

regulation was interpreted by the entirety

of DER, from its highest officials down, as

meaning that an operator was not

responsible for pre-existing discharges

they did not worsen, despite the fact these

discharges were emanating from the

permitted site. (Affidavit of Ercole, | 3,

+33 Supersedeas Hearing Transcript

{hereinafter referred to as "Tr."] 4).

Thus, DER itself did not interpret Section

315(a) as imposing strict liability on

operators while Ingrams mined the

Frenchville site.

Given the foregoing, DER now is

arguing that its current interpretation of

Section 315(a) must be given effect, while

its interpretation of the statute during

the time Ingrams were operating the

Frenchville site should be ignored. The

inequity, unfairness and dubious

A-120

constitutionality of such a proposition is

obvious.

As set forth in Ingrams’ initial

Brief, DER’s attempt to now hold Ingrams

liable for discharges which pre-existed

their operation, when they were not held

liable for such discharges during their

mining operations, is an unconstitutional

retroactive application of the law and

administrative regulations. (Brief for

Petitioner, p. 42). DER’s effort to avoid

this argument is based entirely on the

Supreme Court’s decision in Commonwealth v.

Barnes & Tucker Co., 455 Pa. 392, 319 A.2d

871 (1974) ("Barnes & Tucker I"). This

reliance, however, is misplaced.

Barnes & “Tucker I based its decision -

- that the Commonwealth's attempt to apply

the Clean Streams Law to conduct which

predated that new law was not retrospective

legislation -- on the following maxim:

A-121

"Legislative withdrawal of a

prior grant of privilege is not

retrospective legislation."

455 Pa. at 417. This rule is inapplicable

to the present case, however, because

Ingrams never had a "privilege" to pollute;

they merely had the right to not to be held

liable for pollution caused by others.

As described in detail above, the

Commonwealth has never had the statutory

authority to require a mine operator to

abate pollutive discharges which he in no

way caused or adversely affected. Thus, it

has never been a "privilege" for Ingrams

not to be held liable for pollution caused

by others. DER’s present attempt to hold

Ingrams liable for such pollution is not a

withdrawal of a prior grant of a privilege,

but rather is an unconstitutional

retrospective application of administrative

regulations.

A-122

APPENDIX I

RAISING OF FEDERAL QUESTION

BEFORE PENNSYLVANIA

ENVIRONMENTAL HEARING BOARD

EXCERPT FROM OBJECTIONS TO DER MOTION

FOR PARTIAL SUMMARY JUDGMENT OR IN THE

ALTERNATIVE TO LIMIT ISSUES, AND

CROSS-MOTION FOR SUMMARY JUDGMENT ON

BEHALF OF APPELLANTS CLARK R. INGRAM,

GARY C. INGRAM, GEORGE M. INGRAM AND

GREGORY B. INGRAM

62. Compliance Order No. 88H057, as

amended and restated, issued against

appellants Remcorp, Israel and the Ingram

Family Partnership is based upon the

contention by appellee DER that the water

quality of the discharges is in violation

of current regulatory standards. This

attempt to hold the Ingram Family

Partnership liable under new standards,

more than six years after Ingram Family

A-123

Partnership sold its entire business and

ceased all surface mining activities,

constitutes a violation of fundamental

fairness and due process of law. John G.

Bintner, 1973 EHB 252, 254-255 (1973); U.S.

nstitution, Amendment IV[XIV ion 1.

EXCERPTS FROM BRIEF IN SUPPORT OF

OPPOSITION TO THE DER MOTION FOR

PARTIAL SUMMARY JUDGMENT OR IN THE

ALTERNATIVE TO LIMIT ISSUES AND

CROSS-MOTION FOR SUMMARY JUDGMENT ON

BEHALF OF APPELLANTS CLARK R. INGRAM,

GARY C. INGRAM, GEORGE M. INGRAM

AND GREGORY B. INGRAM

Section 315(a) of the Clean Streams

Law has been the basis for the Board’s and

the Commonwealth Court’s support of DER

orders to clean up pre-existing violative

discharges. See, e.g., William J. McIntire

Coal Co., Inc. v. DER, 108 Pa. Commw. 443,

530 A.2d 140 (1987); Bologna Mining Co. v.

A-124

DER, EHB Docket No. 86-555-M (Opinion and

Order Sur Motion for Partial Summary

Judgment or in the Alternative to Limit

Issues); C & K Coal Co. v. DER, 1987 EHB

786; McGal Coal Co., Inc. v. DER, 1987 EHB

771. However, Section 315(a), by its

terms, does not apply to hold the Ingram

Family Partnership liable for the

Frenchville Site’s pre-existing conditions.

Section 315(a) provides, in pertinent

part:

"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”7 and

regulations of the department. A

discharge from a mine shall

include a discharge which occurs

after mining operations have

ceased..."

35 B.S. § 691.315(a). This section can not

be applied to the Ingrams’ situation

because the discharges at issue were

Clearly authorized by the DER’s rules and

regulations, namely Section 77.92(26).

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While the Board has recently questioned the

validity of Section 77.92(26) after the

Barnes _ and Tucker decisions, see Bologna,

Slip op. at 14, n. 4, the record is

nonetheless clear that the regulation was

in place during the entirety of the

Ingrams’ operation of the Frenchville Site,

and that the terms of the regulation would

have operated to exempt the Ingrams from

cleaning up the Site. Section 77.92(26)

was a conscious effort by the DER to exempt

operators from liability for pre-existing

~ discharges which were not worsened by the

mining operation. Therefore, the

discharges left by the Ingram Family

Partnership when it ceased operating were

authorized by the r.les and regulations of

the DER and Section 315(a), therefore,

Cannot be used to now compel the Ingrams to

clean up the Site.

In sum, more than six years have

passed since the Ingram family sold their

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entire strip mining business. To attempt

to hold Ingram Family Partnership to new

Standards, adopted by the DER after the

Sale, without proof that the Ingrams in

some way contributed to the acid mine

discharges at the Frenchville site, would

constitute a violations of fundamental

fairness and due process of law. John G.

Bintner, 1973 EHB 252, 254-255 (1973); U.S.

Constitution, Amendment IV[XIV], Section 1.

Moreover, there is no appellate decisional

authority in Pennsylvania for holding the

Ingrams liable for cleaning up pre-existing

pollutional discharges which they were not

responsible for causing. The DER’s Motion

for Partial Summary Judgment or in the

Alternative to Limit Issues should be

denied, and Ingram Family Partnership’s

Cross-Motion for Summary Judgment should be

granted.

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In the present case, the DER should be

estopped from requiring the Ingram Family

Partnership to perform remedial work at the

Frenchville Site at this late date; also

the DER has waived any right to seek such

compliance.

First, aS noted above, during the

entire time the Ingram Family Partnership

operated the Frenchville Site, a specific

and unambiguous DER regulation was in place

which provided that a mine operator was not

liable for a pre-existing condition unless

it degraded the water quality by its own

activity. See former Section 77.92(26) of

the DER Rules and Regulations, adopted

August 26, 1982 and the extensive

discussion of the Regulation at Section IV-

A above. This Regulation was promulgated

and adopted by the rule-making arm of the

DER, the Environmental Quality Board, and

pronounced by the Chairman of the

Environmental Quality Board, Dr. Maurice K.

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Goddard. See 2 Pa. Bulletin 1607-1609.

Therefore, it cannot be said that the

highest officials of the Commonwealth in

Charge of environmental policy did not

affirmatively represent that Section

77.92(26) was to be the Commonwealth’s

official policy and practice regarding pre-

existing violative conditions.

Second, the Regulation noted above did

in fact embody the official policy and

practice of the DER throughout the period

in which the Ingrams operated the

Frenchville site, as evidenced by the

Affidavit of J. Anthony Ercole, who was

Director of the DER’s Bureau of Surface

Mining Reclamation (BSMR) from 1977 to

1983. As noted above at Section IV-A of

this Brief, Mr. Ercole testifies that

during the life of the Ingram Family

Partnership operation, the DER simply did

not hold operators liable for pre-existing

discharges when those operators did nothing

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to worsen the discharge. As described more

fully below, this regulation, and the DER

policy it articulates, was but one of

several ways the DER induced the Ingram

Family Partnership into justifiably

believing they would not be held

responsible for pre-existing water quality

conditions which they did nothing to

worsen.

The record reveals that the DER has

known of the alleged problems of the

Frenchville Site, through its own numerous:

inspections and laboratory reports, since

1976. The DER allowed the Ingram Family

Partnership to operate, without citation

for such problems, for six years at the

Site, right up through the sale to Israel

in May of 1982. Not only was no citation

issued, but also the DER specifically

identified the condition as "pre-existing"

on its Inspection Reports, authorized

partial bond releases and further

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authorized discontinuance of a quarterly

water monitoring program.

The DER correctly notes that water

polluters cannot acquire a prescriptive or

property right to pollute regardless of how

long the DER fails to assert the statutory

or common-law remedies available to stop

the pollution. See Barnes & Tucker Co. v.

Das, 455 Pa. 392, 416 n. 3, 319 A.2a 871

(1974) (Barnes & Tucker I); Appellee’s

Brief, p. 5. However, the Ingram Family

Partnership estoppel argument is not based

Simply upon delayed enforcement, but rather

affirmative enforcement of prior regulation

and policy. Not only did the Ingram Family

Partnership justifiably and detrimentally

rely on the existence of a DER regulation

which clearly exempted it from liability

for the pollution now complained of, but

also the actions of the DER continually

reinforced the Ingrams’ reliance. The

facts uncovered to date reveal that the

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Ingrams did not know, or have reason to

know, that despite the DER’s prior word and

conduct to the contrary, DER would now

Claim the legal right to order the Ingrams

to clean up the pre-existing discharges.

The DER attempts to now limit the

effect of the conduct upon which the

Ingrams justifiably relied. For instance,

the DER asserts that the Stage II bond

release and the issuance of the mine

drainage permit and mining permit are not

legally sufficient defenses to the

Compliance Order at issue. While past

individual, fact specific Board decisions

may have found one DER action insufficient

to estop later, apparently inconsistent

actions, see, e.g., WABO Coal Co. v. DER,

1986 EHB 71 (a partial bond release held

not to estop later enforcement when

application for said bond release contained

false information), the fact remains that

each of these several actions served to

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induce justifiable reliance by the Ingrams

and, when taken in toto, these actions must

be held to equitably estop DER’s present

attempt to compel the Ingrams to clean up

the Frenchville Site.

The DER is now unfairly attempting to

reach back in time to assert liability, for

the very first time, against the Ingram

Family Partnership more than six years

after they sold their business on May 28,

1982 and ceased all coal mining activities.

Clearly, the DER’s forbearance and

tolerance of the alleged problems for these

many years, as well as affirmative

representations of the DER’s’- highest

officials that its Department-wide policy

was to not hold operators liable for pre-

existing discharges which were not further

degraded by mining operations, constitute

sufficient "inducement" for estoppel

purposes and conclusive evidence of waiver.

The Ingram Family Partnership relied

to its detriment on both fthe affirmative

representations and inaction of the DER.

The Ingrams commenced mining and continued

those activities based upon the actions and

statements of the DER which indicated that

they were not liable for water quality

conditions at the Frenchville Site during

the time they operate the Site. To now

change the rules of the game and asset that

the Ingrams are liable for conditions of

which the DEk had express knowledge and

which the DER affirmatively approved

throughout the time that the Ingrams

operated the Site is fundamentally unfair

and a violation of due process of law.

John G. Bintner, 1973 EHB 252, 254-255

(1973); U.S. Constitution, Amendment IV,

Section 1. The record is replete with

factual evidence of this unfairness.

Therefore, the DER’s Motion for Partial

Summary Judgment or in the Alternative to

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Limit Issues should be denied, and Ingram

Family Partnership's Cross-Motion for

Summary Judgment should be granted.

ROGER H. TAFT (Counsel of Record)

MARK J. SHAW

CRAIG R. F. MURPHEY

MacDONALD, ILLIG, JONES & BRITTON

100 State Street, Suite 700

Erie, Pennsylvania 16507-1498

(814) 870-7600

ttorneys for Petitioners

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.