
    Stream Pollution from Mines
    March 15, 1944.
   Rutter, Deputy Attorney General,

—You have requested us to advise you concerning certain powers and duties of the Sanitary Water Board with relation to the prevention and control of stream pollution.

The Sanitary Water Board was created by section 202 of the Act of June 7, 1923, P. L. 498, as amended by the Act of April 13, 1927, P. L. 207, 71 PS §12, known as The Administrative Code. The board was continued by section 202 of The Administrative Code of April 9, 1929, P. L. 177, as amended, 71 PS §62. It consists of the Secretary of Health as chairman, the Secretary of Forests and Waters/ the Fish Commissioner, and three other members: section 439 of The Administrative Code of 1929, 71 PS §149. Certain powers and duties of the board are set forth in section 2110 of the same code, as amended by the Act of June 21, 1937, P. L. 1865, 71 PS §540. The Department of Health has the power and duty of acting as the enforcement agent for the Sanitary Water Board: section 2109 of The Administrative Code of 1929, 71 PS §539. The general statute relating to the preservation and improvement of the purity, of the waters of the Commonwealth, and to the duties and powers of the Sanitary Water Board with relation thereto, is the Act of June 22,1937, P. L. 1987, 35 PS §691.1 et seq.

Section 301 of the Act of June 22, 1937, P. L. 1987, supra, provides that no industrial wastes may be discharged into the waters of the Commonwealth except as provided in said act. Industrial wastes are defined by section 1 of said act as meaning any liquid, gaseous, or solid substance, not sewage, resulting from any manufacturing or industry. Section 310 of said act provides that the aforesaid prohibition “. . . shall not apply to acid mine drainage and silt from coal mines until such time as, in the opinion of the Sanitary Water Board, practical means for the removal of the polluting properties of such drainage shall become known”.

You inform us that the polluting properties of coal mine drainage consist principally of acid content which is in solution, certain mineral salts also largely in solution, and coal mine waste solids which are relatively inert particles of coal and waste rock of varying sizes in suspension; that, although the acid and mineral salts in such drainage can be chemically neutralized by well-known methods, the board knows of no reasonable and practicable method of general applicability on a commercial scale for such neutralization, and believes that further study is necessary before the exemption against the discharge of such acids and mineral salts can be removed. You further state that the board is of opinion that reasonable and practicable methods for the elimination of the major portion of the solids, consisting of coal and rock particles, are available, that such solids should be removed prior to the discharge of mining waste waters into the streams of the Commonwealth, and that such removal is one of degree and that any cessation of the exemption from the prohibition of the discharge of such mine solids should be properly qualified so as to require their removal only to the extent that reasonable and practicable methods are available.

The board desires to know, therefore, whether it can declare a limited suspension of the aforesaid exemption of mine drainage from the prohibition against the discharge of industrial wastes, into streams, and specify the extent to which such removal of coal mine solids is practicable.

We have no hesitation in concluding that the board has such power and authority. To hold otherwise would be to say that, because all mine pollution could not be successfully eliminated at one fell stroke, it should all be tolerated until that becomes possible. Even a casual reading of the legislation relating to this subject matter could not result in such a strained construction. To deny the board the power to do what it contemplates would be to impute to the legislature a state of mind which not only is not revealed in the pertinent legislation, but which the history and language of such legislation clearly indicate to be otherwise. The legislature has long struggled with the problem of stream pollution in its efforts to restore the streams of the Commonwealth as nearly as practicable to their pristine condition.

It seems that the pollution of streams by coal mine solids arises not only from discharge directly from operating collieries but also from erosion from existing culm and waste banks, and also from the operation of “washeries” which take coal deposits from stream beds, remove merchantable coal therefrom, and return the waste solids to the stream. You wish us to advise you whether the board is within its authority in determining that waste waters resulting from the processing of such deposits now in the streams of the Commonwealth constitute an industrial waste within the meaning of the Act of June 22, 1937, P. L. 1987, supra. We are of opinion that it is. It seems to us to make no difference where industrial waste waters or other polluting matter come from. The important thing is what is done with them. If they are discharged into the waters of the Commonwealth they constitute an illegal pollution thereof.

It further appears that coal breakers are in general of two types, that is, those operated by the producers of the coal as an apparent part of the entire mining operation, and those breakers which serve anyone delivering coal to them for processing but which are not directly connected with any mining operation as such. You wish us to advise you whether such nonproducing breakers are industrial establishments rather than “coal mines”. The reason for this question seems to be because of the exemption from the prohibition of the act of acid mine drainage and silt “from coal mines”, whereas industrial establishments generally are subject to the prohibition. It is quite clear to us that a nonproducing breaker such as you describe is an industrial establishment and not a coal mine. An independent breaker not an integrated part of a mining operation is, to our minds, just as much an industrial establishment as a jewelry manufactory which cuts and shapes diamonds which originally came from a diamond mine. To hold otherwise would be to carry the concept of processing to an unwarranted conclusion. We are of the opinion that nonproducing breakers are industrial establishments within the meaning of the act.  