530 A.2d 140

#### William J. McIntire Coal Co., Inc., et al., Petitioners *v.*Commonwealth of Pennsylvania, Department of Environmental Resources, Respondent.

Argued April 21, 1987,

before Judges Craig and Doyle, and Senior Judge Barbieri, sitting as a panel of three.

*444Gregg M. *Rosen, Rosen*& *Mahfood,*for petitioners.

*Leo M. Stepanian,*for petitioners, William J. Mclntire Coal Co., Inc., and William J. Mclntire, individually.

B. *Patrick Costello, Costello*& *Berk,*for petitioner, Ronald G. Mclntire Coal Co., Inc. and Ronald G. Mclntire, individually.

*Diana J. Stares,*Assistant Counsel, for respondent.

August 13, 1987:

Opinion by

Senior Judge Barbieri,

William J. Mclntire Coal Co., Inc., William J. Mclntire, and Ronald G. Mclntire (collectively Mclntires), appeal a decision of the Environmental Hearing Board (Board) affirming an order of the Department of Environmental Resources (Department). The Departments order, dated July 29, 1983, directed the Mclntires to permanently treat or abate acid mine drainage emanating from an area known as the Heilman Mine in Armstrong County, Pennsylvania. Mclntires also appeal the Boards affirmance of its prior order on reconsideration.1

*445William J. Mclntire Coal Co., Inc. operated a surface mining operation on land leased from Ray Heilman between 1975 or 1976 and 1979. William J. Mclntire and Ronald G. Mclntire are brothers and are the sole partners in M and M Coal Co. which subcontracted with William J. Mclntire Coal Co., Inc., for the mining activities at the Heilman Mine site.

Prior to the issuance of William J. Mclntire Coal Co., Inc.’s surface and mine drainage permits, a Department inspector conducted a pre-mining survey of the site. The inspector noted abandoned deep mines from a prior mining operation in an area known as the Heilman Ravine. In connection with the pre-mining survey the inspector took water samples of the discharge from the abandoned deep mines in the Heilman Ravine and a subsequent analysis indicated that the water was in violation of Department effluent limits, *i.e.*acid mine drainage.

On March 7, 1975, the Department issued a mining permit and a mine drainage permit to William J. Mclntire Coal Co., Inc. for the Heilman Mine site, which included the Heilman Ravine where the acid mine discharges were located. The discharges which are *446the subject of the Departments July 29, 1983, order are in the vicinity of the pre-existing deep mines. However, the Mclntires backfilled the entire area with soil and the deep mine entries are thus no longer visible. The groundwater from the majority of the Heilman Mine site flows toward the Heilman Ravine where it discharges. The discharges form a small stream which flows into Garretts Run, a tributary of the Allegheny River.

The Mclntires appealed the Departments order to permanently treat or abate the acid mine discharges to the Board. The hearing examiner for the Board resigned prior to issuance of the July 7, 1986, adjudication. The Board affirmed the Departments order and held the Mclntires liable for causing or allowing unauthorized discharges from the Heilman Mine in violation of Section 315 of the Clean Streams Law,2 the Department effluent limitations as set forth at 25 Pa. Code §87.102 and various conditions contained in the mine drainage permit.

The Board affirmed its adjudication on reconsideration. On appeal to this Court3 the Mclntires contend that the Board committed an error of law in finding them liable under Section 315 of the Clean Streams Law for the discharges which they allege they did not cause or degrade and that they are entitled to a new hearing in light of the fact that the hearing examiner resigned prior to the issuance of the Boards adjudication.4 We initially note that pursuant to Section 704 of *447the Administrative Agency Law, 2 Pa. C. S. §704, we must affirm the Boards adjudication unless the necessary findings are unsupported by substantial evidence, an error of law has been committed, or there has been a violation of constitutional rights. *Lucas v. Department of Environmental Resources,*53 Pa. Commonwealth Ct. 598, 420 A.2d 1 (1980).

The pertinent provisions of Section 315(a) of the Clean Streams Law read as follows:

> (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. ... A discharge from a mine shall include a discharge which occurs after mining operations have ceased, provided that 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 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. . . .

In *Commonwealth v. Harmar Coal Company,*452 Pa. 77, 306 A.2d 308 (1973), our Supreme Court upheld a denial by the Sanitary Water Board5 of mine drainage *448permits to Harmar Coal Company and Pittsburgh Coal Company which would approve the discharge of untreated acid mine drainage. The *Harmar*Court held that Section 315(a) of “the Clean Streams Law requires an operator of an active mine to treat the entire discharge from the active mine and a discharge from an adjacent inactive mine necessary to protect the active workings.” *Id.*at 100, 306 A.2d at 321.

Our Supreme Court has also held that a mine operator is liable under both common law and statutory nuisance theories for post-mining discharges, which occurred as a natural result of the previous mining operations along with the volume and flow of surface and underground waters around the mine site. *Commonwealth v. Barnes and Tucker*Company, 455 Pa. 392, 319 A.2d 871 (1974) *(Barnes and Tucker I).*The Board held that *Harmar Coal*and *Barnes and Tucker I,*taken together, provide that a mine operator is liable for post-mining discharges in excess of permissible effluent limits regardless of the source of the discharge or whether they were caused by the operator.

The Mclntires contend that Section 315(a) does not provide for strict liability upon a mine operator for post-mining discharges which it did not cause or degrade; however we need not specifically determine this question as, contrary to the Mclntires’ assertions, the Board’s adjudication does assign them responsibility for causing the discharges. It is true that operator liability in both *Harmar Coal*and *Barnes and Tucker I*involved an element of causation. In *Harmar Coal*the acid mine discharge resulted from the operator’s pumping of polluted water in an adjacent mine and in *Barnes and Tucker I,*although fugutive mine water was contributing to the discharge, the operator’s mining activity was the “dominant and relevant fact without which the public nuisance would not have resulted where and under the *449circumstances it did.” *Commonwealth v. Barnes and Tucker Company,*23 Pa. Commonwealth Ct. 496, 510, 353 A.2d 461, 479 (1976) *aff'd,*472 Pa. 115, 371 A.2d 461 (1977), appeal dismissed, 434 U.S. 807 (1977), *(Barnes and Tucker II).*

Although the Board found that the pre-existing deep mine workings were likely to be the primary source of the acid mine drainage discharging into the Heilman Ravine, it also found that the Mclntires increased the potential for the acid mine drainage by failing to abide by Special Condition Nine and Additional Special Condition One of the mine drainage permit. Together these required all deep mine workings that were encountered to be stripped out, leaving only a twenty-five foot wide strip of coal crop line.6 Instead of leaving only a twenty-five. foot wide strip of coal crop line the Mclntires left a crop line barrier of between one-hundred and one-hundred and twenty-five feet.

The Board also found that an additional potential source of the acid mine drainage is the coal refuse which the Mclntires placed in the pit. Standard Condition Twenty-nine and Additional Special Condition Two of the mine drainage permit provided that old refuse from the abandoned deep mining activities which was encountered was to be buried high in the surface mining pit in a specified manner. The Mclntires failed to bury the refuse high in the pit as specified.

The Board found that the recharge area7 for the Heilman Ravine discharge includes most of the area *450surface mined by the Mclntires. Although recognizing the feet that the Mclntires offered expert testimony that the abandoned deep mines were a likely source of the acid mine drainage, the Board noted that these mines were located in the same seam of coal which the Mclntires mined and that they had mined through significant portions of them during the surface mining operation.

A review of the record reveals that there is substantial evidence to support the Boards findings that the Mclntires increased the potential for acid mine drainage to develop. A hydrogeologist with the Departments Bureau of Mining and Reclamation testified that he found highly significant differences when comparing pre-mining and post-mining water samples and that in his opinion the surface mining operation worsened the acid mine discharges.8 He further stressed that analyses of water samples revealed post-mining acidity values which were greatly increased over the pre-mining samples.9

Section 315(a) of the Clean Streams Law does not require an operator to treat a discharge emanating from a mine site if the discharge is authorized by the Departments rules and regulations or if the operator has first obtained a permit. The Mclntires contend that the pollutional discharges were authorized by the permit issued to William J. McIntire Coal Co., Inc., and former Section 77.92(26) of the Departments rules and regulations, 25 Pa. Code §77.92(26), rescinded July 30, 1983, 12 Pa. B. 2382. The Mclntires failed to raise this argument before the Board and it is therefore not properly before this Court. Pa. R.A.P. 1551(a)(3). However, we note the Mclntires’ contention that their permit did not *451require that they treat existing discharges is directly contradicted by Special Condition Fifteen of the mine drainage permit which provided that all gravity drain-ages encountered from the previous deep mining operation should be treated to neutrality. Further, Standard Conditions Ten, Eleven and Twelve required that all discharges comply with certain effluent limitations. The discharges which are the subject of the Departments order are not in compliance with these conditions or the Departments regulations. Therefore the permit expressly imposes liability on the Mclntires to treat the discharges.

The Mclntires premise the argument that they are not responsible for treating or abating the discharges on the pre-mining survey which noted acid mine drainage from a prior deep mining operation. In presenting their contentions, they conveniently overlook the fact that they surface mined the area in question and violated several permit conditions which the Board found increased the potential for the development of acid mine drainage.

Section 3 of the Clean Streams Law, 35 P.S. §691.3, provides that the discharge of industrial waste “into the waters of the Commonwealth which causes or *contributes*to pollution as defined herein or creates a danger of such pollution is declared ... to be a public nuisance.” (Emphasis added.) Further, Section 601 of the Clean Streams Law, 35 P.S. §691.601 provides for the abatement of such public nuisances. A mine operator cannot escape liability for acts which further degrade water quality or cause additional pollution to the waters of this Commonwealth simply because a polluting condition existed from a prior operation.

The Department submits that Section 316 of the Clean Streams Law, 35 P.S. §691.316, provides an independent basis for holding the Mclntires liable for treat*452ment or abatement of the discharge. Section 316 provides that “[w]henever the Department finds that pollution or a danger of pollution is resulting from a condition which exists on land in the Commonwealth [it] may order the landowner or occupier to correct the condition.”

Section 316 imposes liability upon an owner or occupier of land for a polluting condition thereon even if the owner or occupier did not cause the condition. However, before liability will attach it must be shown that the owner or occupier knew of the polluting condition and positively associated with it by engaging in some affirmative conduct, indicating an intent to adopt the condition. *See National Wood Preservers v. Department of Environmental Resources,*489 Pa. 221, 414 A.2d 37 (1980), (Flaherty, J, concurring), appeal dismissed, 449 U.S. 803 (1980). Under the facts of this case we would not hesitate to conclude that the Mclntires positively associated with the previously existing polluting condition.

We see no merit in the Mclntires" contention that they may not be held liable under Section 316 without the Board having specifically found that they were owners or occupiers of the Heilman Mine site as of July 29, 1983, the date of the Departments order. Although Section 316 does not specifically declare a “condition” resulting in pollution to be a public nuisance, we have held that public nuisance law applies to Section 316 when the “condition is the direct cause of a public nuisance.” *Philadelphia Chewing Gum Corp. v. Department of Environmental Resources,*35 Pa. Commonwealth Ct. 443, 458 n. 5, 387 A.2d 142, 149 (1978), *aff'd*489 Pa. 221, 414 A.2d 37 (1980). Here the Mclntires have caused a nuisance. The fact that the Departments order was issued after the nuisance was created is irrelevant. In any event, although the Board *453made a passing reference to Section 316 of the Clean Streams Law in its adjudication, it is clear that it based its ruling on liability on Section 315(a).

We now turn to the Mclntires’ contention that they are entitled to a new hearing. The record before the Board was closed on September 6, 1984, and the former Board member who presided over the hearings resigned on January 31, 1986.10 The Board’s adjudication is dated July 7, 1986. The pertinent regulation reads as follows:

> §21.86 Conduct of Hearings (a) Hearings may be held, at the discretion of the Board, before the Board as a whole, by individual Board Members sitting as hearing examiners or by hearing examiners who are not members of the Board. Hearings held by hearing examiners not members of the Board will be decided by the Board based upon its review of the record and the examiner’s proposed adjudication. *Final decisions shall be decisions of the Board decided by majority vote.*Petitions for supersedeas and other petitions and motions may be decided by the Board member hearing the petition or motion.

25 Pa. Code §21.86(a) (emphasis added).

The Mclntires argue that the Board’s adjudication of July 7, 1986, failed to comport with the regulation because the hearing examiner was not a current member of the Board at the time the adjudication was rendered and did not submit a proposed adjudication. We refuse to read into the regulation a requirement that a Board member sitting as a hearing examiner must be a current member at the time of adjudication or must submit a proposed adjudication. Both the hearing and adjudica*454tion in this matter were totally appropriate under the provisions of Section 21.86(a).

The regulation provides that all final decisions are to be decisions of the Board by majority vote. Clearly the submission of a proposed adjudication by a hearing examiner cannot be a determining factor as the final decision is made by the Board. Should the Boards adjudication differ from a proposed adjudication the latter would certainly be disregarded.

The Mclntires argue further that since the Boards adjudication was not written by the hearing examiner they were denied due process of law. In support of this contention the Mclntires stress the importance of the factfinders credibility determinations. We have held that witness demeanor is not the only consideration in determining credibility and that due process does not require that administrative adjudicators be present at a hearing but only that they review the record in preparing their decisions. *Caldwell v. Clearfield County Children and Youth Services,*83 Pa. Commonwealth Ct. 429, 300 A.2d 508 (1973). From the detailed citations to the testimony and exhibits in the Boards adjudication, it is obvious that the Board reviewed the record carefully. Therefore, the Board properly denied the Mclntires a new hearing.

Having disposed of the Mclntires’ contentions in favor of the Board, we will affirm its orders.

Order

And Now, this 13th day of August, 1987, the orders of the Environmental Hearing Board at Docket No. 83-180-M, dated July 7, 1986, and September 8, 1986, are affirmed.

1

 The Board consolidated an appeal by R. G. Mclntire Coal Co., Inc. from the Departments refusal to issue it 1983 and 1984 mining permits for another mining site with the appeal by the Mclntires. The Department denied R. G. Mclntire Coal Co., Inc., a 1983 and 1984 mining license pursuant to Section 3.1 of the *445Surface Mining Conservation and Reclamation Act, the Act of May 31, 1945, RL. 1198, *as amended,*52 P.S. §1396.3a, because its President, Ronald G. Mclntire foiled to comply with the Departments order to treat or abate discharge at the Heilman Mine site.

The Department submits that R. G. Mclntire Goal Co., Inc,, is not a party to this proceeding as neither the Petition For Review nor the Petitioners’ brief raises the issue of whether the licenses were improperly denied.

Pursuant to Pa. R.A.P. 908 we must deem R. G. Mclntire Coal Co., Inc., a party to this proceeding. Furthermore, R, G. Mclntire Coal Co., Inc., is an undeniably interested party as its license to mine rises or fells with the outcome of the appeal of the Departments order to treat or abate the discharges emanating from the Heilman site.

2

 Act of June 22, 1937, P.L. 1987, *as amended,*35 P.S. §691.315.

3

 On November 6, 1986, this Court denied Petitioners application for a supersedeas of the Boards order,

4

 The issue of entitlement to a new hearing is on appeal from the Boards Adjudication and Order dated July 7, 1986, and the Boards Opinion and Order Sur Petition For Reconsideration dated September 8, 1986.

5

 The Sanitary Water Board was abolished by Section 30 of the Act of December 3, 1970, P.L. 834, 71 P.S. §510-103, and its functions transferred to the Department of Environmental Resources.

6

 The crop line of the coal seam is where the coal is naturally exposed or covered with soil only. The crop line barrier is the portion of the mined coal seam which was left in place between the crop line and where the Mclntires surface mined the coal. Findings of Fact 34 and 38 of the Boards Adjudication dated July 7, 1986.

7

 The recharge area is where the ground water system which supplies the discharge receives water from the surface. Finding of Fact No. 29 of the Boards Adjudication dated July 7, 1986.

8

 See Notes of Testimony from January 17, 1984, hearing before the Board (N.T.) at pages 194 and 219.

9

 N.T. at 193.

10

 See Boards Opinion and Order Sur Petition For Reconsideration, dated September 8, 1986, at page 8.