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decided: February 28, 1977.



Eckert, Seamans, Cherin & Mellott, Cloyd R. Mellott, C. Arthur Wilson, Jr., John R. Kenrick, Pittsburgh, Rhoads, Sinon & Reader, Frank A. Sinon, Harrisburg, Schnader, Harrison, Segal & Lewis, James D. Crawford, Philadelphia, for appellant.

K. W. James Rochow, Harrisburg, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Manderino, J., did not participate in the consideration or decision of this case.

Author: Jones

[ 472 Pa. Page 117]


Appellant, Barnes & Tucker Company, appeals from the decree of the Commonwealth Court requiring it to operate the Duman Dam pumping facility for the purpose of preventing the discharge of untreated acid mine water at its Mine No. 15, located in an area of Cambria and Indiana Counties, Pennsylvania known as the Barnesboro Basin. This case was previously before this Court on appeal for the purpose of determining the "power of the Department of Environmental Resources to enjoin acid mine drainage from abandoned mines."*fn1

In that appeal, we found:

"The third and fourth bases upon which the Commonwealth claims relief should be granted are the doctrines

[ 472 Pa. Page 118]

    of statutory and common law public nuisances. We find that relief may be granted under either of these theories." 455 Pa. at 408, 319 A.2d at 880.

We went on in our opinion to hold that:

"From our prior discussion it is clear that the public interest requires the interposition of the Commonwealth's authority in this case. Furthermore, since the activity involved is a public nuisance it cannot be regulated, but must be abated. We believe that abatement of water pollution is unquestionably a reasonable exercise of the police power in the abstract. We are not swayed in this belief by the fact that the mining activity which gave rise to the present condition is past conduct which obviously cannot now be abated." 455 Pa. at 418-19, 319 A.2d at 885.

However, due to an inadequate record, we remanded to the Commonwealth Court to fashion an appropriate decree:

"The precise nature of relief which would be warranted and reasonable in this case must rest with the chancellor who may need to take additional testimony and make additional findings of fact in so determining." 455 Pa. at 419, 319 A.2d 886.

Since we previously determined that the condition existing at Mine No. 15 is a public nuisance, the issue*fn2 in this appeal narrows to a two-pronged inquiry: (a) whether the means adopted by the Commonwealth Court are reasonably necessary for the abatement of the nuisance; (b) whether it would be unduly oppressive to require Barnes & Tucker to abide by the order of the Commonwealth Court.

[ 472 Pa. Page 119]


A brief review of the events preceding this appeal and the nature of the discharge of acid mine water at Mine No. 15 will be helpful in the consideration of this appeal.*fn3 Mine No. 15 is a deep bituminous coal mine located in the B seam of coal in the Barnesboro Basin area of Cambria and Indiana Counties near the headwaters of the West Branch of the Susquehanna River. Most of the area of Mine No. 15 is located in the lowest portion of the Barnesboro Basin. It contains approximately 6,600 acres.

The mine was originally opened in 1915 in the northeast section of the Barnesboro Basin near where the coal outcrops in the vicinity of the West Branch of the Susquehanna. From 1915 until 1969, when the mine was closed, mining operations were conducted along the dip of the coal seam in Mine No. 15, i. e., from the highest elevation of the coal seam at the outcrop near the West Branch in the southwesterly direction to the lowest area of elevation of the coal seam. Barnes & Tucker ceased its mining operations of Mine No. 15 on May 10, 1969, and subsequently sealed the mine openings and completed construction of barriers between the No. 15 mine and the adjacent Mine No. 24-B.*fn4

In late June 1970, a substantial discharge of acid mine water drainage into the West Branch of the Susquehanna River from the Buckwheat borehole of Mine No. 15, located

[ 472 Pa. Page 120]

    at the northeast end of the mine, was discovered. This discharge prompted the Sanitary Water Board*fn5 to issue an order (dated July 7, 1970) suspending Barnes & Tucker's permit No. 567MO35.*fn6 This suspension was to remain in effect until (1) the Buckwheat borehole was plugged, (2) satisfactory treatment facilities were placed in operation and (3) satisfactory plans for prevention of pollution after cessation of mining had been submitted. A subsequent Board order (dated July 16, 1970) reinstated permit No. 567MO35 subject to special conditions.

Prior to the reinstatement order of July 16, 1970, the Buckwheat borehole had been plugged, but the pool level in Mine No. 15 was rising to a level which threatened a discharge from a portal in the general vicinity of the Buckwheat borehole now plugged. Barnes & Tucker then proposed to construct relief boreholes and build treatment facilities in that area for the liming of any discharge. This second borehole (Mayberry) was constructed and treatment of its discharge began, but on July 23, 1970, another substantial acid mine water discharge from Mine No. 15 occurred in the vicinity just south of the plugged Buckwheat borehole, which became known as the breakout area.*fn7 This second discharge resulted

[ 472 Pa. Page 121]

    in another order by the Sanitary Water Board (dated July 28, 1970) which again suspended permit No. 567MO35. Barnes & Tucker then ceased treatment of the discharge at Mayberry, the responsibility of which the Commonwealth assumed on August 22, 1970. In the meantime, Barnes & Tucker appealed to the Commonwealth Court from the Board order of July 28, 1970, and the Commonwealth initiated its complaint in equity seeking preliminary and permanent injunctive relief. The Commonwealth's prayer for relief sought to enjoin Barnes & Tucker from operating Mine Nos. 15, 24-B and 24-D, and to require Barnes & Tucker to take immediate steps to treat the acid mine water drainage to attain specified water quality standards.

The Commonwealth and Barnes & Tucker then entered into a stipulation, accepted by the Commonwealth Court, whereby the Commonwealth would continue its liming treatment of the discharge from No. 15 into the West Branch until Barnes & Tucker, pursuant to the stipulation, constructed and commenced operation of the Duman Dam pumping and treatment facility at the southwest end of the mine from which the treated discharge would flow into the headwaters of the Allegheny River watershed. Barnes & Tucker constructed a treatment facility at Duman Dam and commenced the operation of that facility on November 1, 1970. On February 22, 1971, Barnes & Tucker ceased operating the Duman Dam facility and its operation was assumed by the Commonwealth. On April 13, 1971, the Commonwealth Court issued a preliminary injunction providing for the continued operation of the Duman Dam facility, pending the final determination of the case upon its merits, with the parties sharing the costs of such operation on an equal basis.

Upon remand from this Court, the Commonwealth Court made additional findings of fact and entered a final decree, which reads in pertinent part:

"2. For the purpose of avoiding repetition of such a breakout or the discharge of untreated acid mine water

[ 472 Pa. Page 122]

    from Mine No. 15 into the waters of the Commonwealth, a public nuisance; and until such time as the likelihood of a reoccurrence of another breakout is past, Barnes & Tucker Company shall cause to be pumped from Mine No. 15 sufficient quantities of mine water to avoid any such breakout and shall maintain a treatment program of the mine water discharge to achieve minimum water quality standards as prescribed by law pertaining to the discharge of acid mine water into the waters of the Commonwealth.

3. Expenses incurred by the Commonwealth in the operation and maintenance of the Duman Dam pumping and treatment facility or sums paid by the Commonwealth to Barnes & Tucker incident to the operation of said pumping and treatment facility by Barnes & Tucker during the course of this litigation as prescribed in our prior Orders of April 13, 1971, June 7, 1973 and September 20, 1974, shall be entered as a money judgment in favor of the Commonwealth and against Barnes & Tucker Company."

It is from this decree that Barnes & Tucker now appeals.


In light of the above background, we now move to consider the issue on this appeal concerning the constitutionality of the remedy imposed by the Commonwealth Court. Appellant argues that, since the requirements of The Clean Streams Law already have forced it for economic considerations to cease operation of Mine No. 15, to further compel it to take affirmative steps to treat the acid mine drainage emanating from its now abandoned mine is both an unreasonable exercise of the state's police power and a "taking" of private property in violation of the Fourteenth Amendment to the United States Constitution. We are not persuaded by appellant's arguments and, therefore, affirm the order of the Commonwealth Court.

[ 472 Pa. Page 123]

The police power is the inherent power of a body politic to enact and enforce laws for the promotion of the general welfare. "It has long been recognized that property rights are not absolute and that persons hold their property 'subject to valid police regulation, made, and to be made, for the health and comfort of the people. . . .'" De Paul v. Kauffman, 441 Pa. 386, 393, 272 A.2d 500, 504 (1971), quoting Nolan v. Jones, 263 Pa. 124, 131, 106 A. 235, 237 (1919). It must be recognized that one who challenges the constitutionality of the exercise of the state's police power, affecting a property interest, must overcome a heavy burden of proof to sustain that challenge. See, e. g., Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928); Hadacheck v. Los Angeles, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915); Philadelphia v. Watt, 162 Pa. Super. 433, 57 A.2d 591 (1948).

As we acknowledged in our previous consideration of this case, the classic rule of Lawton v. Steele, 152 U.S. 133, 137, 14 S.Ct. 499, 501, 38 L.Ed. 385 (1894), is instructive in determining whether there has been an unconstitutional exercise of the state's police power:

"To justify the State in . . . interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations." (Emphasis added).

One of the primary factors which appellant urges should sway this Court to accept its argument is

[ 472 Pa. Page 124]

    that much (perhaps the greater proportion) of the acid mine water which is being discharged by Mine No. 15 is attributable to fugitive mine*fn8 water, generated in other mines in the complex. It is true that the court below found, and the record supports, that of the 7.2 million gallons per day which must be pumped from Mine No. 15 in order to avoid a breakout of acid mine drainage, 6 million gallons are attributable to fugitive mine water. Yet, appellant fails to perceive the true nature of the injury at which the Commonwealth Court's order is directed. The objective of The Clean Streams Law, as amended, is to prevent the further discharge of pollution into the waters of the Commonwealth and not simply the cessation of future activities which are responsible for the creation of the polluting condition. Act of August 23, 1965, P.L. 372, Section 4. The deleterious condition of our waterways attributable to acid mine drainage,*fn9

[ 472 Pa. Page 125]

    which is being discharged from abandoned underground mines,*fn10 has reached a critical state. Id.

"More than 3.5 million tons of acid mine water are discharged annually into the nation's streams and rivers. The estimated annual damage from acid mine drainage in the Appalachian region is nearly ten million dollars, including loss of aquatic life, increased water treatment costs for industries and municipalities, corrosion of barges, boats, bridge piers, dams and other structures, and diminished recreational value of affected rivers and streams. Of the 5,700 miles of streams in Appalachia continuously or intermittently affected by acid mine drainage, three-fourth are found in the Susquehanna, Allegheny, Potomac and Delaware River basins in Pennsylvania, northern West Virginia and Maryland."*fn11

[ 472 Pa. Page 126]

Here, as we acknowledged in Barnes & Tucker I, the condition created by appellant's past mining operations constitutes a public nuisance which requires abatement. Commonwealth v. Barnes & Tucker Co., 455 Pa. 392, 319 A.2d 871 (1974). It is not the source of the polluted water itself, but the source of the discharge of the acid mine water into the waters of the Commonwealth with which we are presently concerned. See, e. g., Commonwealth v. Harmar Coal Co. and Commonwealth v. Pittsburgh Coal Co., 452 Pa. 77, 306 A.2d 308 (1973).*fn12 As the Commonwealth Court recognized:

"Whether the impelling force which produced the public nuisance is solely or partially that of fugitive mine water flowing into and adding to the generated water of that mine, the conduct of Barnes & Tucker in its mining activity remains the dominant and relevant fact without which the public nuisance would not have resulted where and under the circumstances it did." 23 Pa. Commw. at 510, 353 A.2d at 479. (Emphasis added).

[ 472 Pa. Page 127]

Nor, does the fact that the present condition arises only from past activities affect the appropriateness of invoking the police power to dispel the immediate dangerous condition. See, e. g., Usery v. Turner Elkhorn Mining Co. et al., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976); Commonwealth ex rel. Chidsey v. Page 127} Black, 363 Pa. 231, 69 A.2d 376 (1949). To permit appellant to avert responsibility for abating a nuisance which it created under the proposition that it may abandon its enterprise, rather than operate such enterprise within the parameters of the environmental regulations, would nullify the environmental policy of this Commonwealth. We cannot say that, in light of the severity of harm which may occur from the continued discharge from Mine No. 15 of the acid mine water into the waters of the Commonwealth, the remedy ordered by the Commonwealth Court is an unreasonable exercise of the police power.

The police power of the state is as comprehensive as the demands of society require under the circumstances. See Stephens v. Bonding Association of Kentucky, 538 S.W.2d 580 (Ky.1976); People v. K. Sakai Co., 56 Cal.App.3d 531, 128 Cal.Rptr. 536 (1976). Indeed, given our determination that the Commonwealth is validly employing its police power in a reasonable manner to abate the immediate public nuisance, there can be no finding of an unconstitutional "taking" by the imposition of the present abatement order, despite the impact this exercise of the police power may have on the appellant. See, e. g., Erie Railroad Company v. Board of Public Utility Commissioners, 254 U.S. 394, 41 S.Ct. 169, 65 L.Ed. 322 (1921); Hadacheck v. Los Angeles, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915); Ramey Borough v. Commonwealth, Department of Environmental Resources, 466 Pa. 45, 351 A.2d 613 (1976); Commonwealth v. Emmers, 221 Pa. 298, 70 A. 762 (1908); Bortz Coal Company v. Commonwealth, 2 Pa. Commw. 441, 279 A.2d 388 (1971); Commonwealth v. Town of Hudson, 315 Mass. 335, 52 N.E.2d 566 (1943). "[T]he very essence of the police power (as distinguished from the power of eminent domain) is that the deprivation of individual rights and property without compensation cannot prevent its operation, so long as its exercise is proper

[ 472 Pa. Page 128]

    and reasonable." People v. K. Sakai Co., 56 Cal.App.3d 531, 538, 128 Cal.Rptr. 536, 541 (1976). This distinction was explained by the United States Supreme Court in Mugler v. Kansas, 123 U.S. 623, 668-69, 8 S.Ct. 273, 301, 31 L.Ed. 205 (1887):

"A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. . . . The power which the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public is not -- and, consistently with the existence and safety of organized society, cannot be -- burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community."

Thus, we find that restrictions or obligations imposed on the use or ownership of property to protect the public health, safety or morals from dangers threatened, if reasonably necessary to dispel the particular danger, do not constitute a taking.

It must be noted that despite ample opportunity to do so, no effort was made by appellant to offer additional evidence on remand to show that either (1) there was an alternative means of abating the nuisance which was more reasonable than that ordered by the court, or (2) the remedy imposed was unduly oppressive due to its economic impact. In fact, the Commonwealth Court found and we accept that "the only known effective abatement order which can be entered in this case is to direct the pumping and treatment of the acid mine water accumulating in Mine No. 15 . . . ."*fn13 The appellant, therefore,

[ 472 Pa. Page 129]

    has failed to carry its burden of proof on the issue of the unconstitutionality of the remedy imposed. Our review of the record and the findings of the Commonwealth Court lead us to conclude that the remedy ordered by the Commonwealth Court is neither unreasonable nor unduly oppressive. Cf. Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928); Ramey Borough v. Commonwealth, Department of Environmental Resources, 466 Pa. 45, 351 A.2d 613 (1976).

The final decree of the Commonwealth Court is affirmed.

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