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decided: March 25, 1974.


Appeal from decree of Commonwealth Court, No. 896A Tr. Dkt. 1970, in case of Commonwealth of Pennsylvania v. Barnes & Tucker Company.


K. W. James Rochow, Assistant Attorney General, with him Michael S. Alushin, Assistant Attorney General, for Commonwealth, appellant.

Cloyd R. Mellott, with him C. Arthur Wilson, Jr., John R. Kenrick, Frank A. Sinon, Eckert, Seamans, Cherin & Mellott, and Rhoads, Sinon & Reader, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Manderino took no part in the consideration or decision of this case.

Author: Jones

[ 455 Pa. Page 393]

Appellee, Barnes & Tucker Company, engaged in active deep mining operations at Lancashire Mine No. 15 in Cambria County from 1939 until July 1969, at which time the mine was closed and sealed. Following closure, Mine No. 15 began to inundate and in June and July of 1970 substantial discharges of acid mine drainage were discovered at two different locations. Without detailing the factual posture which will be discussed infra, the events which precipitated this appeal are as

[ 455 Pa. Page 394]

    follows.*fn1 The Department of Environmental Resources filed a complaint in equity in the Commonwealth Court on August 7, 1970, seeking preliminary and permanent mandatory injunctions requiring Barnes & Tucker to treat the efflux from Mine No. 15. After attempts by the Commonwealth and Barnes & Tucker to resolve their differences inter se had failed, a preliminary injunction hearing was begun on March 5, 1971, and was completed on March 25, 1971. In the interim, the Commonwealth had filed an amended complaint on March 17, 1971, which consisted of four counts. Three of the counts were based on The Clean Streams Law,*fn2 and the remaining count was based on a common law nuisance theory.

A preliminary injunction was issued by the Commonwealth Court on April 13, 1971, requiring the continuation of treatment facilities until final determination of the action on the merits with the parties sharing the costs on an equal basis. 1 Pa. Commonwealth Ct. 552 (1971). On the merits of granting permanent injunctive relief, however, the Commonwealth Court found that Barnes & Tucker was not liable for the abatement of the discharge from Mine No. 15 under any of the Commonwealth's four theories. Commonwealth v. Barnes & Tucker Co., 9 Pa. Commonwealth Ct. 1, 303 A.2d 544 (1973). From that decree the Commonwealth's appeal followed.

This appeal presents significant questions concerning the power of the Department of Environmental Resources*fn3 to enjoin acid mine drainage from abandoned

[ 455 Pa. Page 395]

    mines. In some respects, this is a case of first impression in this Commonwealth, requiring an analysis of The Clean Streams Law and the law of public nuisance. Due to the complexity of the legal questions involved, a preliminary investigation of the procedural and factual posture of this case juxtaposed with a discussion of the evolution of Clean Streams legislation in the Commonwealth we deem useful.


The Clean Streams Law was first enacted by the Act of June 22, 1937, P. L. 1987. Prior to its passage, the pertinent legislation was the Purity of Waters Act of April 22, 1905, P. L. 260, which regulated the discharge of sewage into the waters of the Commonwealth. It was specifically provided, however, that this act was not to apply to "waters pumped or flowing from coal mines. . . ." Likewise, the Act of June 14, 1923, P. L. 793, which authorized the Department of Health to promulgate orders and regulations for the prevention of pollution, similarly exempted coal mine discharges.

The Clean Streams Law, as enacted in 1937, took a middle ground with reference to mine drainage, as it provided that: "The provisions of this article 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 shall become known." 35 P.S. § 691.310.

The Act of May 8, 1945, P. L. 435, significantly amended The Clean Streams Law in several respects. Section 2, the definitional section, redefined "establishment" to include coal mines and broadened the definition of "pollution" to include discharges from coal

[ 455 Pa. Page 396]

    mines. Section 309, which imposed penalties for discharge of industrial waste into the waters of the Commonwealth, was also amended to cover acid mine drainage. Section 310 was also amended, further bringing the treatment of acid mine drainage into parity with other sources of pollution. By these amendments Section 310 read, inter alia :

"Except as hereinafter provided, the provisions of this article shall not apply to acid mine drainage 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.

"It shall be unlawful and a nuisance to discharge, or to permit the discharge, of acid mine drainage (1) into 'clean waters' of the Commonwealth which are being devoted or put to public use at the time of such discharge; or (2) into 'clean waters' of the Commonwealth, unless the Commonwealth, after the Sanitary Water Board has approved plans of drainage pursuant to section three hundred thirteen hereof, and has set a reasonable time not to exceed one year within which such pipes, conduits, drains, tunnels or pumps as may be necessary to receive such acid mine drainage at the point or points where such acid mine drainage is delivered, as provided in this section, shall be constructed and put into operation by the Commonwealth, has failed to construct and put into operation the same within such time: Provided, That nothing in this amendatory act shall be construed to limit or affect the provisions of section seven hundred one of the act to which it is an amendment."

A new Section 313 was added by the 1945 amendments to read in part as follows: "Before any existing or new coal mine may be opened or reopened, and before any existing coal mine may be continued in operation, a plan of the proposed drainage and disposal of

[ 455 Pa. Page 397]

    industrial wastes, and acid mine drainage of such mine, shall be submitted to the Sanitary Water Board, and it shall be unlawful to open or reopen any such mine, or to continue the operation of any mine, or to change or alter any already approved plan of drainage and disposal of industrial wastes, and acid mine drainage from such mine, unless and until the board, after consultation with the Department of Mines has approved such plan or change of plan. . . ."

In 1965 The Clean Streams Law was again substantially altered by the Act of August 23, 1965, P. L. 372. A new section was added which detailed legislative findings and declarations of policy:

"Section 4. Findings and Declarations of Policy. -- It is hereby determined by the General Assembly of Pennsylvania and declared as a matter of legislative findings that:

"(1) The Clean Streams Law as presently written has failed to prevent an increase in the miles of polluted water in Pennsylvania.

"(2) The present Clean Streams Law contains special provisions for mine drainage that discriminate against the public interest.

"(3) Mine drainage is the major cause of stream pollution in Pennsylvania and is doing immense damage to the waters of the Commonwealth.

"(4) Pennsylvania, having more miles of water polluted by mine drainage than any state in the nation, has an intolerable situation which seriously jeopardizes the economic future of the Commonwealth.

"(5) Clean, unpolluted streams are absolutely essential if Pennsylvania is to attract new manufacturing industries and to develop Pennsylvania's full share of the tourist industry, and

"(6) Clean, unpolluted water is absolutely essential if Pennsylvanians are to have adequate out of door recreational facilities in the decades ahead.

[ 455 Pa. Page 398]

"The General Assembly of Pennsylvania therefore declares it to be the policy of the Commonwealth of Pennsylvania that:

"(1) It is the objective of the Clean Streams Law not only to prevent further pollution of the waters of the Commonwealth, but also to reclaim and restore to a clean, unpolluted condition every stream in Pennsylvania that is presently polluted, and

"(2) The prevention and elimination of water pollution is recognized as being directly related to the economic future of the Commonwealth." The definitional section was amended to include mine drainage within the definition of "industrial waste," 35 P.S. § 691.1, thus bringing acid mine drainage within the prohibition of Section 307, which remained essentially unchanged since originally enacted in 1937 and which provided in part: "No person shall hereafter erect, construct or open, or reopen or operate, any establishment which, in its operation, results in the discharge of industrial wastes which would flow or be discharged into any of the waters of the Commonwealth and thereby cause a pollution of the same, unless such person shall first provide proper and adequate treatment works for the treatment of such industrial wastes, approved by the board, so that if and when flowing or discharged into the waters of the Commonwealth the effluent thereof shall not be inimical or injurious to the public health or to animal or aquatic life, or prevent the use of water for domestic, industrial or recreational purposes. . . ."

Sections 310, 311, 312 and 313 were repealed by the 1965 Act, but an important new Section 315 was added which provided:

"(a) Before any coal mine is opened, reopened, or continued in operation, an application for a permit approving the proposed drainage and disposal of industrial ...

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