Al Hamilton Contracting Co. v. Department of Environmental Resources

• Decision Date: 11 May 1995
• Citation: 659 A.2d 31
• Parties: AL HAMILTON CONTRACTING COMPANY, Petitioner, v. DEPARTMENT OF ENVIRONMENTAL RESOURCES, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 31

659 A.2d 31

AL HAMILTON CONTRACTING COMPANY, Petitioner, v. DEPARTMENT OF ENVIRONMENTAL RESOURCES, Respondent.

Commonwealth Court of Pennsylvania.

Argued April 6, 1995.

Decided May 11, 1995.

William C. Kriner, for petitioner.

Dennis A. Whitaker, for respondent.

Before PELLEGRINI and NEWMAN, JJ., and KELTON, Senior Judge.

PELLEGRINI, Judge.

Al Hamilton Contracting Company (Hamilton) petitions for review of an order of the Environmental Hearing Board (EHB) upholding a Department of Environmental Resources (DER) order requiring Hamilton to conduct a groundwater study at its Little Beth Mine Site located in Bradford Township, Clearfield County.

Evelyn Cowder owns a property and residence on Shilo Road in Bradford Township. Hamilton was the permittee and operator of a bituminous surface mine at Little Beth since at least 1980. The mine site has Township Road 605 as its northern boundary and Cowder's property is approximately 700 feet north of the boundary. From 1960, when Cowder moved into her residence, she obtained her drinking water from a well on the property and used water from a spring in her basement to cool food. The water from the spring ran through a trough and out a drain in the basement. Beginning in the 1980's, the well water on Cowder's property became hard and then became unsuitable for drinking. In 1988, she was able to connect to the public water line.

Around 1985 or 1986, the water from Cowder's spring began flowing at a faster rate. Because of the faster flow rate, the drain could not keep up with the flow from the spring and would become clogged with "red muck". Three sump pumps were ruined in an effort to continuously pump the water out of a basement window. At times, the water rose to a level of four feet, ruining Cowder's furnace and hot water tank. The acidity of the water caused her grass to die and her pond to be covered with red muck. Cowder filed a complaint with DER in August of 1991 alleging her water problems were caused by mine drainage.

DER assigned Scott Barnes, a hydrogeologist, to investigate Cowder's complaint. Barnes found that Cowder's basement contained two to three feet of foul-smelling water with a thick red scum on the top which was hard in places. Barnes took samples of the water in Cowder's basement and these samples were analyzed revealing a pH of 3, high acidity, high metal concentration, especially iron, and high sulfate concentration. Barnes tested water from springs and seeps in the area and studied geological surveys, government topographic maps, aerial photographs, and data in the surface mining permit applications for Little Beth and other nearby mines. Barnes also explored the surrounding area including Little Beth Mine Site and other old strip mining sites.

Barnes concluded that the water samples were typical of acid mine drainage, relying particularly on the high sulfate and iron levels. Based on its investigation, DER determined Cowder's water was degraded by acid mine drainage and in September of 1992, issued an order stating that it believed that Hamilton's Little Beth Mine Site was the "most likely source" of the acid mine water contaminating Cowder's property. The order directed Hamilton to submit a Groundwater Monitoring Study to define the hydrogeology of the Little Beth operation relative to the groundwater at Cowder's property. Hamilton appealed the order to the EHB.

Before the EHB, DER called Barnes to testify, qualifying him as an expert witness. He testified as to the results of the water analysis and the other facts he relied on in his investigation. Barnes testified that the regional geological structures dip or slope down to the northwest, towards the Cowder property. (Reproduced Record 158a). Barnes testified that by 1980 Hamilton had a mine cut in the northwestern corner of the site on the lower Kittanning coal seam, which is beneath the elevation of Township Road 605. (R.R. 178-79a). Such a cut creates a wall of coal and from that point Hamilton mined from west to east, parallel to the road. Barnes also determined that the lower Kittanning coal seam crops to the north of Township Route 605. (R.R. 178a). Because the mining did not extend to the coal seam crop to the north of the road, by necessity, Barnes concluded, a low wall or high wall existed at the northern edge of the mine site as well. Because of these geological features and the location of mining, a boxcut was formed in the northwestern corner of the Little Beth Mine Site, that is, the walls met creating a corner of unmined strata. (R.R. 179a).

Barnes testified that the Brookhart and Tyo Engineering Subsurface Investigation Profile and Report (Brookhart report) provided by Hamilton to DER in September of 1992 confirmed his conclusion that the lower Kittanning coal seam crops north of Township Route 605 and north of the edge of Hamilton's mining. Also, based on the Hess and Fisher Hydrologic Conditions Report (Hess and Fisher report) provided by Hamilton to DER in October of 1992, Barnes determined that a buried high wall existed in the northern corner of the Little Beth Mine Site, instead of a low wall, and determined its location and size. Regardless of whether a high wall or low wall existed, Barnes went on to testify that the formation of the boxcut was the most likely source of the groundwater drainage onto Cowder's property.

Barnes based his conclusion on his determination that the Cowder property is topographically and hydrogeologically downgradient from the Little Beth Mine Site (R.R. 202-203a). Groundwater from the mine accumulates in the area of the boxcut, which acts as a dam, and then flows from this area after it accumulates to the top of the walls toward the Cowder tributary hollow, which is a pre-existing stream channel, running next to the Cowder house and into Valley Fork Run. (R.R. 183a, 186a) Barnes stated that groundwater from the mine site would also leak into the old strip mines, which were mined in the 1950's, located east of the Cowder property. (R.R. 187a). ¹

Barnes also testified as to the water analysis in the Cowder tributary, a more eastern tributary, and a ditch dug on the east side of Cowder's property. He described a study of the ditch whereby he determined that groundwater was seeping into the ditch. Based on all of these factors, Barnes opined that the Cowder water had been degraded by acid mine drainage and that the Little Beth Mine Site is the probable cause of the pollution problem on the Cowder property. (R.R. 262a). He stated that the old mines to the east are not the cause of the pollution problem on Cowder's property because the problem developed at a time when discharges from those mines should have been stable or decreasing and because the Cowder property has a higher acidity than the water in the eastern tributary. (R.R. 248a, 224a). While the Little Beth Mine Site was the most likely source of the pollution, Barnes admitted that to determine conclusively whether Little Beth Mine Site was the cause of the Cowder acid mine drainage would require piezometer data or subsurface data of groundwater flow direction and groundwater quality between the mine and Cowder's property. (R.R. 269a).

After presenting the expert testimony of Michael Smith, Barnes' supervisor on the investigation who agreed with Barnes' conclusions, DER rested its case. Hamilton moved to have its appeal sustained arguing that DER had not met its burden because the expert's testimony was not sufficiently certain and because the expert relied on one of Hamilton's exhibits, the Brookhart report, that was not admitted into evidence. DER then requested to reopen their case to introduce additional evidence and in the alternative argued that the expert can rely on materials outside the record upon which an expert would normally rely. Hamilton objected to DER's request to reopen its case. Presiding Board Member Ehmann permitted the reopening. After admitting the Brookhart Report, DER rested and Hamilton presented only additional exhibits in its defense.

The EHB held that DER had met its burden to establish by a preponderance of the evidence that ordering Hamilton to do a groundwater study was not contrary to law or an abuse of discretion. It held that DER established a prima facie showing of a causal connection between the Cowder pollution and the Little Beth Mine Site. In response to Hamilton's Motion to Sustain its appeal, the EHB held that the presiding board member did not abuse his discretion in allowing DER to reopen its case. ² Hamilton then filed this petition for review. ³

Hamilton contends the EHB erred in allowing DER to reopen its case because DER did not follow the proper administrative procedures and in admitting the expert testimony of Barnes which it argues is not based on facts in evidence nor was it sufficiently certain. Hamilton also contends that DER has no authority to order groundwater monitoring under the statute and the case law and that the EHB applied an inappropriate standard of proof.

I.

The first issue before us is whether the EHB erred in allowing DER to reopen its case to admit exhibits relied on by its expert witness. A decision whether to reopen the record in an administrative proceeding is within the discretion of the presiding officer and on review an exercise of that discretion will not be reversed unless a clear abuse is shown. Metro Transportation Company v. Pennsylvania Public Utility Commission, 128 Pa.Commonwealth Ct. 223, 563 A.2d 228 (1989).

Hamilton first argues that 1 Pa.Code § 35.231, titled "Reopening on application of party" applies to this case and therefore DER should have filed a petition setting forth sufficient grounds for reopening. 1 Pa.Code § 35.231(a) provides:

After the conclusion of a hearing in a proceeding or adjournment thereof sine die, a participant in the proceeding may file with the presiding officer, if before issuance by the presiding officer of a proposed report, otherwise with...