Appendix — Barnes & Tucker Co. v. Pennsylvania

Supreme Court, U. 8

mm FILED .

IN THE — vues ty

Supreme Court of the Statean |

—

October Term, 1977.

No. 6% %44 a

BARNES & TUCKER COMPANY,

Appellant,

v.

COMMONWEALTH OF PENNSYLVANIA,

Appellee.

APPENDIX TO JURISDICTIONAL STATEMENT.

BERNARD G. SEGAL,

James D. Crawrorp,

Attorneys for Appellant.

SCHNADER, HARRISON, SEGAL & LEWIs,

1719 Packard Building,

Philadelphia, Pennsylvania. 19102

(215) 491-0662

Crioyp R. MELiorT,

EcKERT, SEAMANS, CHERIN & MELLOTT,

42nd Floor, &™) Grant Street,

Pittsburgh, Pennsylvania. 15219

FRANK A. SINON,

Reoaps, SINON & READER,

410 North Third Street,

Harrisburg, Pennsylvania. 17108

Of Counsel.

International Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711

LO nr Oe eee cee

INDEX TO APPENDIX.

Page

First Commonwealth Court Opinion .............65e0s+055 Al

Second Commonwealth Court Opinion ..........--++++++5: Al0

First Pennsylvania Supreme Court Opinion ...........-.+-. A70

Third Commonwealth Court Opinion ............-+-+++++: A98

Second Pennsylvania Supreme Court Opinion ............-- All7

Pennsylvania Clean Streams Law ......-.. ++ ee seeeeereeees Al3l

Notice of Appeal to the Supreme Court of the United States. . Al64

Certificate of Service of Notice of Appeal .............++-. A165

Appendix.

COMMONWEALTH OF PENNSYLVANIA

v.

BARNES & TUCKER COMPANY.

Hearings and arguments March and April, 1971, be-

fore President Judge Bowman, sitting as Chancellor in

Equity.

Complaint in Equity filed in the Court of Common

Pleas of Dauphin County No.- 3067 Equity Docket: No.

333 C. D. 1970 in case of The Commonwealth of Penn-

sylvania v. Barnes & Tucker Company. Case trans-

ferred September 1, 1970, to the Commonwealth Court

of Pennsylvania, 896A Tr. Dkt. 1970. —

Stanley R. Wolfe, Special Assistant Attorney Gen-

eral, with him Philip T. Warman, Special Assistant At-

torney General, and J. Shane Creamer, Attorney General,

for plaintiff.

Cloyd R. Mellott, with him C. Arthur Wilson, Jr.,

and Eckert, Seamans, Cherin & Mellott, and Frank A.

Sinon, Rhoads, Sinon & Reader, for defendant.

OPINION AND ORDER BY PRESIDENT JUDGE BOWMAN,

April 13, 1971:

In this highly technical and controversial case with

little legal precedent for the numerous and complex legal

issues raised, the sole issue before us at the present time

is whether a mandatory preliminary injunction should

issue directing the Barnes & Tucker Company to operate

what is known as the Duman Dam Treatment Facility

pending determination of the case upon its merits.

(Al)

A2 First Commonwealth Court Opinion

In late June 1970, there was discovered a substan-

tial discharge of acid mine water into the West Branch

of the Susquehanna River from the “Buckwheat” bore-

hole of Lancashire Mine No. 15. The No. 15 mining

complex extends from its northeast perimeter on the West

Branch of the Susquehanna River to its southwest perim-

eter at the headwaters of the Allegheny River watershed

where the Duman Dam facility is located.

On July 23, 1970, another substantial discharge from

No. 15 through the earth’s surface into the West Branch

in the vicinity and south of the Buckwheat borehole was

discovered. This discharge point has become known as

the breakout area.

These events precipitated a series of administrative

actions by the then Sanitary Water Board with respect to

certain outstanding mine drainage permits theretofore

issued by the Board to Barnes & Tucker. These permits,

and others previously issued, have bearing upon the

rights and duties of both Barnes & Tucker and the Com-

monwealth under the statutory law then in effect and

that are presently in force. At this juncture, we shall not

further detail or discuss these permits. Suffice it to say

here that Barnes & Tucker had constructed at Duman

Dam a pumping facility pursuant to one of the permits

and briefly operated it prior to cessation of mining activity

in No. 15.

The above-mentioned administrative actions by the

Sanitary Water Board produced an appeal to this Court

by Barnes & Tucker. In the meantime, the Common-

wealth had undertaken to treat the discharge into the West

Branch from No. 15 by a liming process. This treatment

to a large degree prevented further marked pollution of

the West Branch downstream from the Curwensville Dam

and produced a varying but generally favorable level of

First Commonwealth Court Opinion A3

alkalinity of water in the area of the Curwensville Dam

and immediately upstream therefrom; but, by reason of

the treatment, large quantities of sludge were precipitated

along the banks and on the bottom of the West Branch

immediately downstream from the discharge. In a river

which theretofore had substantial acid mine drainage pol-

lution (and which continues to be polluted by acid mine

drainage from sources other than No. 15), the Common-

wealth, upon discovering the discharge from No. 15, was

confronted with the practical problem of how best to cope

with this additional pollution of the Susquehanna River

and particularly its West Branch.

We need not and do not pass upon the action taken

by the Commonwealth in dealing with the problem. It

undertook to treat the discharge by a liming process

and, on August 7, 1970, initiated this action in equity

against Barnes & Tucker. The original complaint sought,

preliminarily and permanently, injunctive relief restraining

Barnes & Tucker from operating No. 15’ or directing that

its mine drainage discharge be treated to meet specified

water quality standards.’

Hearing on plaintiff's application for a preliminary

injunction was fixed by the Court for August 26, 1970.

However, on that day there was presented to the Court

a rather unusual stipulation by the parties. It provided

that the Commonwealth would continue its liming treat-

ment of the discharge from No. 15 into the West Branch

until Barnes & Tucker, in accoraance with specifications

contained in the stipulation, constructed and commenced

operation of the Duman pumping and treatment facility

1. At that time Barnes & Tucker had in fact ceased mining

operations in No. 15.

2. An amended complaint has since been filed which inc'udes

a request for additional relief allegedly consistent with a stipulation

of the parties hereafter discussed.

A4 First Commonwealth Court Opinion

at the southwest end of the mine with the expected result

that the pumping operation at Duman would terminate

discharge from the Buckwheat borehole and breakout area.

Other provisions of the stipulation dealt with the costs of

operating the two facilities and for ultimate responsibility

of payment of costs incurred.

Germane to the present posture of this case and to

the assumption by the Commonwealth of the operation

of the Duman facility are additional provisions in the

stipulation allowing Barnes & Tucker to terminate oper-

ation to the Duman facility* and for resumption of ad-

ministrative adjudication procedures as to some of the

issues here raised.

The Court accepted the stipulation, made it a part

of the record but was not asked to and did not issue a

preliminary injunction embodying the stipulation. Hear-

ing on the preliminary injunction was indefinitely con-

tinued awaiting the outcome of administrative procedures

which the parties had stipulated would be undertaken.

From August 26, 1970 until the Commonwealth re-

newed its application for preliminary injunction in early

March of this year, further pollution of the West Branch

has been effectively stayed and the source tributaries of

the Allegheny River have been spared substantial further

pollution by reason of the operation of the Duman treat-

ment facility, first by Barnes & Tucker and now by the

Commonwealth. However, the original cooperation and

concern by the parties, as demonstrated by the stipulation,

has been displaced by disagreement and bickering, and

progress towards an administrative adjudication of at least

some of the issues now before us has been nonexistent due

in part to the demise of the Sanitary Water Board upon

3. After a minimum of thirty days of operation and with notice

to the Commonwealth of its intent to so terminate, in fact Barnes

& Tucker ceased operating the Duman facility after 114 days.

ong ee Pe ne ce

First Commonwealth Court Opinion A5

the creation of the Department of Environmental Re-

sources in January 1971.

The decision of Barnes & Tucker to terminate its

responsibility for operating the Duman treatment facility—

a right afforded to it under the stipulation—and the as-

sumption of its operation by the Commonwealth prompted

the Commonwealth to renew its application injunction.

After eight days of hearings on preliminary injunc-

tion during which many witnesses, including experts,

testified, and at which approximately 200 exhibits were

introduced, only two things have emerged as being en-

tirely clear; (1) that the underlying legal issues, includ-

ing constitutional questions, present complex and novel

questions with very little precedent in Pennsylvania juris-

prudence, and (2) that a cessation of operation of the

Duman pumping and treatment facility cannot be per-

mitted to occur regardless of existing pollution of the

waters of the Susquehanna River and the headwaters of

the Allegheny River from sources other than discharge

from No. 15. In essence, we conclude from tiie evidence

that irreparable harm would occur if acid mine drainage

from No. 15 is allowed to enter the waters of the Common-

wealth without first being treated.

Defendant correctly contends that so long as the

Commonwealth continues to operate the Duman facility

irreparable harm is not occurring and is not likely to occur.

From this it would have us conclude that the Common-

wealth has failed to prove existing irreparable harm, a

necessary ingredient to the issuance of a preliminary ir

junction. However, the Commonwealth is a volunteer in

the operation of the facility and is under no legal duty to

do so or continue to do so, just as Barnes & Tucker was

under no legal duty (other than by stipulation of the par-

ties) to operate the facility for the period it did pending

a judicial determination of the issues before us.

A6 First Commonwealth Court Opinion

Having concluded that irreparable harm would occur

upon cessation of the operation of the facility, we cannot

close our eyes to the potential irreparable harm if the

Commonwealth as a volunteer decides as a policy matter

to cease operation of the facility.

Thus, we further conclude, under the circumstances

here presented, that irreparable harm although not pres-

ently existing is so close to reality, with calamitous results

if it becomes a reality, that a court in the exercise of its

equitable powers should consider threatened or potential

irreparable harm as the equivalent of existing irreparable

harm. Commonwealth of Pennsylvania v. State of West

Virginia, 43 S. Ct. 658, 262 U. S. 553, affirmed on rehear-

ing, 44 S. Ct. 123, 263 U. S. 350 (1923).

Another essential ingredient to the issuance of a pre-

liminary injunction, particularly one requiring something

to be done, is that it should be granted only where the

right is clear. McDonald v. Noga, 393 Pa. 309, 141 A. 2d

842 (1958); Schwab v. Pottstown Borough, 407 Pa. 531,

180 A. 2d 921 (1962).

We have already observed that the basic legal issues

in this case are complex and with little precedent in our

body of law. The right of the Commonwealth to the

relief it ultimately seeks is not clear at this point in the

case. Does this announced principle—as defendant con-

tends—preclude the issuance of a preliminary injunction?

We think not. While the power of a court of equity to

issue preliminary injunctions should be withheld where

the likelihood of plaintiffs eventual success may be re-

mote—which necessarily requires some preliminary prob-

ing by the Court into the underlying legal issues—the

clarity of right as declared in our decisional law deals with

the right to the preliminary relief sought, not the ultimate

relief sought. It would indeed be a rare case in which

First Commonwealth Court Opinion A7

plaintiff's right to the ultimate relief sought is so clear

prior to trial.

A review of many decisions in which there is an-

nounced the principle that a plaintiff's right to preliminary

injunction should be clear convinces us that its very gen-

erality affords little guidance for its application in other

cases, particularly in those cases, as in this one, where the

public interest is so compelling. It would appear that

this pronouncement is little more than an expression of

caution that courts should exercise this equitable power

with restraint.

Treating it as such, we view this case, based upon

the evidence before us, as one (a) in which it has been

demonstrated that irreparable harm will result if the

Duman facility is not continued in operation, (b) in which

the resulting harm to the public at large could not readily

be corrected, and (c) in which the harm could not be

measured in dollars nor compensated for in damages after

the fact.

In the public interest, we are therefore constrained

to take such steps as may be necessary to assure con-

tinued operation of the Duman facility pending final dis-

position of this litigation. In exercise of our power and

discretion we shall also assign financial responsibility for

such operation pending the outcome of this litigation.

While this step may be both novel and unprecedented we

believe it both reasonable and proper to do so incident to

litigation arising out of new concepts and untested law in

the environmental field. In doing so we would note that

our action is not a marked departure from that which the

parties, in their stipulation before the Court, considered as

an acceptable temporary solution to the problem posed by

the acid mine drainage discharge from No. 15.

Accordingly, we enter the following

A8 First Commonwealth Court Opinion

ORDER

Now, April 13, 1971, it is hereby decreed and ordered

as follows:

1. Effective April 26, 1971, Barnes & Tucker Com-

pany shall assume exclusive responsibility for and under-

take the operation of the Duman Dam pumping and treat-

ment facility and (a) maintain a level of pumping

necessary to avoid acid mine drainage discharge from

Lancashire No. 15 from the Buckwheat borehole in the

breakout area into the West Branch of the Susquehanna

River, (b) maintain a treatment program of the discharge

from Duman Dam to achieve at least equal water quality

levels heretofore achieved in the operation of said treat-

ment facility.

2. In operating the Duman Dam pumping and treat-

ment facility Barnes & Tucker Company shall keep and

maintain correct and adequate records separate from its

regular books of account, of the actual cost of operating

the Duman facility and the amount of capital expendi-

tures deemed necessary to maintain the facility. Capital

expenditures in excess of $200.00 shall, except in an emer-

gency, have the prior approval of the Court.

3. Within five (5) days after the end of each thirty-

day period of operation, Barnes & Tucker Company shall

submit to the Department of Environmental Resources of

the Commonwealth and to the Court a statement of cost

of operation and of capital expenditures made during each

thirty-day period; and within ten (10) days thereafter,

the Commonwealth shall pay to Barnes & Tucker Com-

pany one-half of the statement submitted. Failure of the

Commonwealth to make payment as herein provided

within the prescribed time shall work an automatic dis-

solution of this order from the date of such failure and

First Commonwealth Court Opinion A9

Barnes & Tucker Company henceforth shall be under no

duty or obligation by reason of this order to continue

operation and maintenance of the Duman facility.

4, The expenditures made or paid by each of the par-

ties under this order shall follow the final judgment in the

case and be recovered by the successful party.

5. This order shall continue in effect, except as other-

wise hereinbefore provided, until final determination of

the case upon its merits or until further order of the court.

6. This order is not intended to nor shall it be con-

strued to alter or change the rights and responsibilities

of the parties under their Stipulation and Supplemental

Stipulation of August 26, 1970 with respect to the con-

struction and operation of the Duman Dam pumping and

treatment facility prior to April 26, 1971 nor to other pro-

visions of said Stipulation and Supplemental Siipulation

outside the scope of this order.

Al0 Second Commonwealth Court Opinion

COMMONWEALTH

Dv.

BARNES & TUCKER COMPANY.

-“

w

as

a aa

Argued January 6, 1972, before President Judge

BowMan and Judges CruMuisH, JR., KRAMER, WILKINSON,

Jr., MeNcER, Rocers and BLatrt.

Original jurisdiction, No. 896-A Tr. Dkt. 1970.

Stanley R. Wolfe, Special Assistant Attorney Gen-

eral, with him Richard B. Springer, Assistant Attorney

General and K. W. James Rochow, Assistant Attorney

General, for plaintiff.

Cloyd R. Mellott, with him C. Arthur Wilson, Jr.,

Richard C. Seamans, John R. Kenrick, Frank A. Sinon,

Eckert, Seamans, Cherin & Mellott and Rhoads, Sinon

& Reader, for defendant.

OPINION BY PRESIDENT JuDGE Bowman, April 16,

1973:

By complaint in equity the Commonwealth seeks

a mandatory injunction requiring Barnes & Tucker Com-

pany (B & T), a Pennsylvania corporation, to treat acid

mine drainage discharging from Lancashire Mine No. 15

so long as such discharge does not meet minimum water

quality standards, and which substandard quality of the

discharge is expected to continue for the foreseeable fu-

ture. B & T, the last operator of Mine 15, denies any legal

responsibility for the discharge or its treatment under any

one or more of the legal theories advanced by the Com-

monwealth in support of the relief sought.

Twelve days of hearings have produced a record of

over 1400 pages of testimony and more than 250 exhibits,

which record in turn has produced almost 200 requests for

Second Commonwealth Court Opinion All

findings of fact and conclusions of law by the Common-

wealth and over 300 on the part of B & T.

By agreement of counsel and leave of court the case

has been argued on the facts and the law before the court

en banc and assigned to the Chancellor for adjudication.

In narrative form we shall set forth the history, back-

ground and events out of which this litigation arose and

which is deemed essential to the legal issues raised. This

narrative will encompass the majority of undisputed and

common facts requested to be found by both parties.

Facts essential to the legal issues which are in serious dis-

pute as between the parties on grounds of relevancy, or

of materiality or which are the subject of conflicting evi-

dence will be specifically treated. *

Location and History of Mine No. 15

Mine No. 15, a bituminous deep coal mine, is located

in the “B” or Lower Kittanning seam of coal in an area of

Cambria County and Indiana County, Pennsylvania,

known as the Barnesboro Basin. The Barnesboro Basin

is an area bounded on the east by the Laurel Hill Anti-

cline, on the west by the Nolo Anticline, on the south by

unmined coal, and on the north by the West Branch of the

Susquehanna River. The Laurel Hill Anticline and the

Nolo Anticline represent the highest points of the Basin

in terms of elevation. The lowest portion of the Basin

which lies between those two anticlines is known as the

Barnesboro Syncline. At the southerly end of the Basin,

the Barnesboro Syncline is in unmined coal. From that

point, it progresses eastwardly to a mined area in a mine

* Rulings reserved during the trial on objections to evidence

are set forth in an appendix attached hereto and incorporated herein

by reference thereto, as are requests for findings of fact and con-

usions of law made by the parties but not adopted by the

Chancellor.

Al2 Second Commonwealth Court Opinion

known as the Colver Mine and then northwardly into Mine

No. 15. It then progresses through the length of Mine No.

15 into a mine known as Springfield No. 4 and then out

the northern end of the Basin. Most of the area of Mine

No. 15 is located in the Barnesboro Syncline and is located

in the lowest portion of the Barnesboro Basin. It contains

approximately 6,600 acres.

The driftmouth of Mine No. 15 is located near Baker-

ton on the West Branch of the Susquehanna River at an

elevation of approximately 1,531 feet. A drift opening

in a mine is an opening which is made at a point where

the coal seam in which the mine is located outcrops at or

near the surface of the ground.

From the point where the driftmouth of Mine No. 15

is located at the outcrop of the “B” seam of coal near the

West Branch of the Susquehanna River, the “B” seam of

coal slopes downward in a southwesterly direction.

The earliest mining in Mine No. 15 was in the year

1915 and was done in the northeasterly section of the mine

at or near where the “B” seam of coal outcrops near the

West Branch of the Susquehanna River. From that point,

the mining in Mine No. 15 was done to the dip, that is,

from the highest point of elevation in the mine at the out-

crop down the slope of the “B” seam in a southwesterly

direction to the lowest area of the mine which is at an

elevation of approximately 1,230 feet.

Mine No. 15 was first operated by the Watkins Coal

Co. under the name “Watkins No. 3.” In 1916, the oper-

ation of the mine was taken over by the Watkins Coal

Mining Co., and the mine was operated by that company

under the name “Watkins No. 3” through the year 1922.

In the year 1923, the operation of the mine was taken over

by the Pennsylvania Coal and Coke Corp., which oper-

ated the mine under the name “Pennsylvania No. 18.”

eee ee

Second Commonwealth Court Opinion Al3

The mine was idle during the years 1924 and 1925. In

1926, the mine began to be operated by the Barnes Coal

Co., which continued to operate the mine through the

year 1938. In 1939, B & T acquired the assets of Barnes

Coal Co. and took over the operation of Mine No. 15.

During the entire period of its operation, the total

amount of coal produced from Mine No. 15 was 29,010,131

tons. Of that total production, 25,388,414 tons were pro-

duced prior to January 1, 1966, and 3,621,717 tons were

produced after January 1, 1966. The annual production

of coal from the mine beginning with the year 1960 is as

follows:

Annual Tons

Year of Production

1960 824,923

1961 861,051

1962 1,164,885

1963 1,581,043

1964 1,697,283

1965 1,747,435

1966 1,464,946

1967 1,056,759

1968 886,726

1969 213,286

The portion of Mine No. 15 known as the breakout

area is located on the West Branch of the Susquehanna

River at a point where the “B” seam of coal is within

approximately fifty feet of the surface of the land.

During the final four years of operation of Mine No.

15 (1966-1969) 3,621,717 tons of coal were mined having

a net sale value at $18,198,631 and resulting in a pretax

profit of $2,777,608.

Al4 Second Commonwealth Court Opinion

Less than 10% of the total area of Mine No. 15 was

mined after January 1, 1966 and the area mined after that

date was in the southwesterly part of the mine and was

at an elevation 100 feet to 215 feet lower than the coal

elevation at the breakout area, with the majority of such

mining having at least 150 feet to 200 feet below the coal

elevation at the breakout area. Less than 40% of the area

of Mine No. 15 that was mined after January 1, 1966 was

mined after October 1, 1967.

If the area of Mine No. 15 mined after January 1,

1966 had not been so mined, the breakout of mine water

which occurred in the summer of 1970 along the West

Branch of the Susquehanna River near its driftmouth

would still have occurred.

Coal was last removed from Mine No. 15 on May 10,

1969. Sealing procedures and removal of equipment were

completed at later dates.

On May 10, 1969, there was still mineable coal in

certain areas of Mine No. 15, but B & T ceased operation

of the mine for the reason that it could not economically

afford to pump and treat the water that it would have

had to pump from the mine to continue to operate the

mine.

There is no intention on the part of B & T to reopen

Mine No. 15 or to resume the operation of that mine.

After May 10, 1969, B & T proceeded to complete the

construction of bulkhead seals between Mine No. 15 and

Mine No. 24-B and to seal the other openings in Mine

No. 15.

The construction of the bulkheads between Mine No.

24-B and Mine No, 15 and the sealing of Mine No. 15 by

B & T were done in accordance with the requirements

of the Department of Mines and Mineral Industries of the

Commonwealth in effect at the time the construction and

Second Commonwealth Court Opinion Al5

sealing were done. Concrete seals were not used as pro-

vided for by special condition of a permit hereinafter

referred to.

The driftmouth of Mine No. 15 was sealed with a

type of seal known as an air seal which comported with

requirements of the Department of Mines and Mineral

Industries. An air seal is a seal which will allow water

to flow out of a mine but at the same time will prevent

the entry of air through the seal into the mine.

Until January, 1971, the agency of the Common-

wealth responsible for the regulation and control of the

sealing of coal mines was the Department of Mines and

Mineral Industries. Since then, the responsibility has

been vested in the Department of Environmental

Resources.

Some time prior to September 24, 1969, B & T filed

a closing or abandoned mine map of Mine No. 15 with

the Department of Mines and Mineral Industries in Har-

risburg. On this map, the notation appears—“Abandoned

May 10, 1969.” That notation was written on that map

by Everett Pennington, then an employee of the Depart-

ment of Mines and Minerai Industries whose responsi-

bilities included receiving ..d filing “abandoned” bitumi-

nous mine maps.

THE CERTIFICATE AND PERMIT History OF

Mine No. 15

Prior to the Act of May 8, 1945, P. L. 435, amending

the so-called Pure Streams Act of June 22, 1937, P. L.

1987, 35 P. S. § 691.1 et seq., the statutory law of Penn-

sylvania did not require the operator of a coal mine to

obtain a certificate or permit with respect to the discharge

of mine waters into the streams of the Commonwealth.

Al6 Second Commonwealth Court Opinion

After the 1945 Act became effective and implemented,

a “Certificate of Approval of Mine Drainage” was issued

by the Sanitary Water Board to B & T for Mine No. 15,

which certificate was dated July 22, 1948 and bore the

number 892. By this certificate the Board approved a

plan of mine drainage and disposal whereby discharge

from the mine would be pumped at three pumping sta-

tions and discharged into the West Branch of the Susque-

hanna River without any requirement of treatment or

provision for post-mining discharge. It did, however,

contain the following condition:

“When in the opinion of the Board, because of

changes in the volume or character of the drainage or the

time or manner of disposing of it, or the changed use or

condition of the receiving stream, the herein approved

disposal of mine drainage ceases to be satisfactory to the

Board, then upon notice by the Board, the right herein

granted to discharge such drainage shall cease and become

null and void and, within the time specified by the Board,

the Owner, Operator or Lessee shall adopt such remedial

measures as, in the opinion of the Board, will be

satisfactory.” ;

Based upon an application of B & T dated January 5,

1960, on March 25, 1960, a new permit for mine drainage

and industrial waste disposal was issued by the Board for

Mine No. 15. Under this permit, bearing the number

14326 (sometimes referred to as 19124-M, apparently be-

cause the application was assigned that number), the

Board approved a change of plan of mine drainage for

Mine No. 15 whereby the drainage would be pumped

from the mine at the Duman pumping station located at

the southwest end of the mine at its lowest elevation point

and discharged into Crooked Run, a tributary of Elk

Creek, which flowed to the North Branch of Black Lick

Second Commonwealth Court Opinion Al7

Creek and then to the Conemaugh River, being head-

waters of the Allegheny River. There was no require-

ment in this permit for the treatment of the mine drainage

nor any provision for post-mining discharge. This permit

superseded Certificate No. 892.

On September 15, 1961, B & T filed an application

for a new mine drainage permit for Mine No. 15 and

for two new coal mines which were being opened by it,

one of which was Lancashire Mine No. 24-B in the “B”

seam of coal; and the second of which was Lancashire

Mine No. 24-D in the “D”, or Lower Freeport, seam of

coal. The proposed plan of drainage for Mine No. 15

was the same as that which had previously been covered

by Permit No. 14326, that is, to pump the water from the

mine at the Duman pumping station. In addition, B & T

proposed to drain water from Mine Nos. 24-B and 24-D

into Mine No. 15 for pumping and discharge at the Duman

pumping station.

As disclosed by the application, substantial drainage

from this complex of mines was anticipated to be 6.5 mil-

lion gallons per day and water quality varied from an

expected alkaline state as to drainage from Mine No. 24-D

to that of high acid and iron content in the other areas of

the mining complex.

On December 21, 1964, a new permit bearing No.

564M5 (also sometimes referred to as 564M005) was

issued by the Board to B & T approving the plan of pro-

posed mine drainage as submitted. There was no require-

ment in this permit that the drainage be treated nor was

there any provision for post-mining discharge or the treat-

ment thereof. This permit superseded permit No. 14326.

However, under legislation then in effect (1945 amend-

ments) treatment of the discharge would have been re-

quired had the streams into which the discharge was to

flow not been “unclean” streams.

Al8 Second Commonwealth Court Opinion

We here note parenthetically that the actions of the

parties as to permit No. 564M5 before and after the ef-

fective date of the 1965 amendments to The Clean Streams

Law * and the issuance of a new permit to B & T under

the new legislation (permit No. 567M035, infra) are

matters of great dispute and controversy as between the

parties and directly bear upon the statutory law to be

considered as governing this case.

The certificate and permit history continues by spe-

cific findings of fact.

1. On May 25, 1966, pursuant to Section 31°’ 4) of

the 1965 amendments to The Clean Streams La* & T,

on a form furnished by the Commonwealth, apy.ued for

an extension of time to operate under its mine drainage

permit No. 564M5 which, as then in effect, covered Mines

Nos. 15, 24-B and 24-D. As previously noted, while sub-

stantial drainage from the mining complex was anticipated

and provided for by a pumping facility at Duman Dam,

and the quality of drainage was generally of high acid and

iron content, no requirement for treatment of the drainage

had been imposed nor provision made for post-mining

discharge.

2. Representations made in the body of the May 25,

1966 application and an attached “Summary Report”

recognized continued high volume of discharge from the

mining complex and its high acid and iron content. It

1. Act of August 23, 1965, P. L. 372, effective January 1, 1966,

discussed infra, which radically altered the existing law on the

subject of mine drainage discharges into the waters of the Com-

monwealth. Section 315(d) provided that previously issued mine

drainage permits “shall be deemed to be a permit issued pursuant

to this section . . . [and] shall be valid for one year... or for

such additional —_ as the board might allow.” The amenc-

pom aaa gave the legislation the short title of “The Clean Streams

w.

Second Commonwealth Court Opinion Al9

was further represented that the discharge was to be

treated and there were set forth two alternative plans for

treatment and a time schedule for completion of treatment

facilities.

3. By letter dated November 2, 1966, the Board

granted an extension of permit No. 564M5 to November 1,

1968, “. . . to complete mining operations covered by your

Permit . . . subject to the following stipulations:

“1. That you abide by Conditions numbered 3, 4, 6,

7 & 27 of the ‘Standard Conditions Accompanying Permits

Authorizing The Operation of Coal Mines’ as adopted by

the Sanitary Water Board on January 19, 1966, which shall

be attached to and made a part of your Permit No. 564-

M005.

“2. That you report to the Regional Sanitary Engineer

giving the status of your abatement project, at the times

set forth in Item 18 of your Application for an Extension

of Time.”

4. On November 8, 1966, B & T formally accepted

and agreed “. . . to abide by the special added conditions

incorporated into and made a part of . . .” permit No.

564M5.

5. The special conditions of possible relevancy re-

ferred to are:

“TuREE: No silt, coal mine solids, rock, debris, dirt

and clay shall be washed, conveyed or otherwise deposited

into the waters of the Commonwealth.

“Six: The permittee shall notify the reporting agency

by certified mail that he has completed operations within

fifteen (15) days after mining is completed.

“SEvEN: Whenever, because of an accident or other-

wise, a discharge not allowed by the permit occurs, the

A20 Second Commonwealth Court Opinion

permittee shall immediately telephone the reporting

agency to report such incident and shall promptly take

such steps as are necessary to halt the unauthorized

discharge.”

6. On the form supplied by the Commonwealth for

an extension of time for a pre-1965 amendment permit

is an item (No. 18) for a schedule of completion of cer-

tain steps including “Final Plans and Application” to

which B & T responded by indicating the date of March,

1967.

7. By letter dated March 13, 1967, B & T acknowl-

edged its responsibility under the time extension granted

with respect to permit No. 564M005 to “. . . submit

final plans and application for new mine drainage per-

mit . . . during March 1967” but because of needed ad-

ditional pilot plan studies, further time was needed to

September, 1967.

8. On or about October 17, 1967, B & T filed an

application for a mine drainage permit on a form pre-

scribed for post-1965 amendment permits which appli-

cation pertained to both Mines Nos. 15 and 24. On

March 22, 1968, permit No. 567M035 was issued in re-

sponse to this application subject to terms and conditions

hereinafter set forth.

9. As part of its application resulting in issuance

of permit No. 567M035 there was attached an engineer-

ing report to which was later added an addendum esti-

mating the volume of drainage from both mines. It

was also disclosed for the first time that the closing of

Mine No. 15 was contemplated and it estimated a sub-

stantially reduced drainage after construction of bulk-

heads and the inundation of Mine No. 15 upon cessation

of mining in that mine. The report, however, represented

Second Commonwealth Court Opinion A2]

the contemplated construction of a treatment system for

mine drainage to meet minimum water quality standards

and related subjects of pumping capacity, storage basins,

methods of treatment and sludge removal and disposal.

10. Permit No. 467M035, as issued, was subjected to

certain designated standard conditions and contained the

specific proviso that B & T comply with “. . . all repre-

sentations regarding operation, construction, maintenance

and closing procedures as well as all other matters set forth

in [its] application and its supporting documents.” Per-

tinent standard conditions incorporated into the permit

were:

“(6) ‘The permittee shall notify the reporting agency

[Department of Health] by certified mail that he has com-

pleted operations within fifteen (15) days after mining is

completed.’

“(7) “Whenever, because of an accident or otherwise,

a discharge not allowed by the permit occurs, the per-

mittee shall immediately telephone the reporting agency

to report such incident and shall promptly take such steps

as are necessary to halt the unauthorized discharge.’

“(8) ‘The permittee shall fully comply with the mine

closure procedures set forth in the plan for drainage in an

expeditious manner after mining has been completed.’

“(10) ‘The permittee shall at no time discharge to

the waters of the Commonwealth mine drainage from any

source the pH of which is less than 6.0, or greater than 9.0’

“(11) ‘The permittee shall at no time discharge to

the waters of the Commonwealth mine drainage from any

source containing a concentration of iron in excess of 7

milligrams per liter.’

A22 Second Commonwealth Court Opinion

“(12) ‘The permittee at no time shall discharge to

the waters of the Commonwealth mine drainage from any

source the acid content, of which . . . exceeds its alkaline

content... .

“(27) “Monthly operation reports shall be submitted

to the Board through the reporting agency on forms sup-

plied by the agency. Such reports shall be subn.itted

promptly after the end of each month.’ ”

11. On May 6, 1£u8 (approximately six weeks after

issuance of permit No. 567M035), B & T by letter to the

Department sought a further extension of time to operate

under permit No. 564M5 from November 1968 (the ex-

piration date of the first extension granted to that permit)

to April 1969. In this letter B & T represented it was in

the process of isolating and sealing Mine No. 15 under

supervision of the Department of Mines and Mineral In-

dustries and upon completion and the inundating of the

mine discharge from that mine at Duman Dam (and

another discharge point under another permit not here

relevant) would be completely eliminated until some

future time when pumping would be resumed incident to

mining of the “D” seam.

12. These plans represent a departure from the

closure and drainage plans submitted by B & T in con-

junction with its application for permit No. 567M035 in

that the former contemplated and provided for high

volume drainage and its treatment prior to closure of Mine

No. 15 and reduced drainage and treatment at Duman

Dam after closure of Mine No. 15, presumably from Mine

No. 24 also covered by that permit.

13. Prior to granting the further extension sought with

respect to permit No. 564M5 and in response to a depart-

mental request, B & T submitted a map of the Mine No. 15

Second Commonwealth Court Opinion A23

“B” seam and other information which represented in part

that “[t]here will be no water pumped from this inundated

area of the ‘B’ seam (Lower Kittanning), and all access

points to this mine will be sealed with concrete. This

includes portals, boreholes, shafts, etc. which will be com-

pletely isolated and there will be no sampling points. . . .

Any water pumped to the surface . . . will be that which

will be developed in the ‘D’ seam. . . .”

14. This reply letter of B & T referenced its request,

the department inquiry and its reply to permit No.

567M035 (post-1965 amendment permit) rather than to

permit No. 564M5.

15. By letter dated July 18, 1968, the Board advised

B & T that it was granted a further extension of time to

April 30, 1969, to complete mining operations covered by

permit No. 564M5 subject io the same special conditions

as imposed with respect to the first extension (F. F. 5).

An acceptance form enclosed with the letter was accepted

by B & T.

16. By letter of April 14, 1969, B & T requested a third

extension of time from April 30, 1969, to May 20, 1969, of

permit No. 564M5, assigning as the reason for the request

a coal strike in the area.

17. By letter dated April 30, 1969, the Board granted

the requested further extension for discharge from Mine

No. 15 covered by permit No. 564M5 subject to the same

conditions as imposed incident to the first extension

granted and restated in the second extension. An ac-

ceptance form identical to those accepted by B & T with

respect to the prior two extensions was enclosed but never

accepted and returned to the Board by B & T.

18. By interoffice memo within B & T, it was sug-

gested that the acceptance form not be returned or be

A24 Second Commonwealth Court Opinion

delayed in return to suit the convenience of B & T and

the closing of Mine No. 15.

19. The last two extensions of permit No. 564M5

were sought by B & T and granted by the Board after ap-

plication for permit No. 567M035 had been made by B & T

and issued by the Board.

20. The last two extensions of time granted by the

Board as to permit No. 564M5 were issued by the Board

with knowledge that B & T was in the process of discon-

tinuing the operation of Mine No. 15 upon completion of

the program of isolating, sealing and inundating that mine

as disclosed in the various documents submitted, and that

there would be no anticipated discharge at the Duman

Dam discharge point when the program was completed.

21. The mining of coal in Mine No. 15 ceased on May

10, 1969. However, after that date additional time was

employed in removing equipment and constructing bar-

riers and sealing operations which was consistent with

Board policy of permitting additional time beyond the

termination date of an extended permit for this type of

activity.

22. By letter dated July 2, 1969, B & T advised the

Department that all equipment would be removed and

sealing of Mine No. 15 completed in approximately two

weeks.

23. The closing of Mine No. 15 was completed in late

July 1969, pumping at Duman Dam facility was termi-

nated and the mine began to flood (inundate) as antici-

pated.

24. All procedures incident to sealing and closing

Mine No. 15 met Department of Mines and Mineral Re-

sources requirements but all access points were not sealed

Second Commonwealth Court Opinion A25

with concrete as represented by B & T would be done in

its material submitted to the Board incident to its applica-

tion for permit No. 567M035.

25. Construction of a treatment facility at Duman

Dam by B & T for treatment of drainage from the mining

complex as represented by B & 7 in its various applications

for extension of permit No. 564M5 and its application for

permit No. 567M035 had not been undertaken at the time

of final closure of Mine No. 15.

26. After Mine No. 15 had been closed, samplings of

water level of the mine taken by B & T disclosed a rising

water level in the mine. A later sampling indicated a level

of 1,515 feet. At on elevation of 1,524 feet the pool level

would be at the same elevation as the driftmouth of the

mine posing a threat of discharge from the driftmouth to

_ the West Branch of the Susquehanna River.

27. B & T did not advise the Department of the rising

elevation of the mine pool. During this period it did con-

fer with the Department of Mines and Mineral Industries

concerning gas pockets developing in the flooding mine

and a borehole was made to relieve this condition. This

particular borehole was made at the point at which water

level readings were made.

28. In the latter part of June 1970, a breakout oc-

curred at the northeast end of Mine No. 15 which triggered

this litigation as more fully set forth in the History of this

Proceeding, infra.

29. There is no evidence in this case nor has any

claim been asserted by the Commonwealth that B & T, or

any of its predecessor operators of Mine No. 15, conducted

mining operations contrary to applicable law then in effect

or contrary to certificate No. 892, permits No. 14326 or

No. 564M5 prior to any extension thereof.

A26 Second Commonwealth Court Opinion

30. In applying for the three extensions with respect

to permit No. 564M5 and for permit No. 567M035, B & T

did not intentionally violate or intend to deceive the De-

partment or Board concerning any regulation, guideline or

request of the Department or Board with respect to the

submission of information, data, maps or other documents

incident thereto.

31. That the meaning or interpretation of certain

regulations or guidelines as understood by the staff of the

Department or Board differed from the meaning or inter-

pretation placed upon them by representatives of B & T is

insufficient to find B & T as intending to deceive or mislead

the Department or Board.

32. The Commonwealth, through its departments and

agencies having jurisdiction over mining and mine drain-

age, was possessed of sufficient information, if utilized, to

determine the advisability of granting and the imposition

of appropriate conditions to extensions sought by B & T of

permit No. 564M5 and the granting of permit No. 567M035

to assure compliance with the statutory law then in effect

and regulations promulgated thereunder.

33. Both the Commonwealth and B & T share respon-

sibility for the confusion and uncertainty surrounding the

issuance of two extensions of permit No. 564M5 after

permit No. 567M035 had issued.

EvENTs LEADING TO AND History or THis

PROCEEDING

In late June 1970, there was discovered 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 at the northeast end of

this mine, which condition prompted the Board to issue

Second Commonwealth Court Opinion A27

an order dated July 7, 1970 suspending B & T permit No.

567M035 (the post-1965 amendment permit issued March

22, 1968 covering both Mines Nos. 15 and 24). The sus-

pension 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.

As a matter of fact mining of Mine No. 15 had ceased

at least one year before the date of this suspension order,

and pumping of mine discharge at the Duman Dam facility

had been discontinued soon thereafter.

The suspension order, whatever its intended effect or

legal effect may have been or was, did produce discussions

between the Board and representatives of B & T which

culminated in a Board order dated July 16, 1970, reinstat-

ing permit No. 567M035 subject to added special condi-

tions and acceptance by B & T of the special conditions

modifying the permit.

The special conditions set forth in the reinstatement

order provide, inter alia, that:

“A. The company shall submit complete plans for the

treatment of the discharge from the Lancashire Mine #15

by September 1, 1970, and shall maintain the discharge

within limitations required by Board regulations.

“B. The company shall submit complete plans for the

prevention of pollution after mining operations. have

ceased. Such plans s be submitted no later than

December 31, 1970.”

Prior to the July 16, 1970, reinstatement order of

permit No. 567M035, the Buckwheat borehole had been

plugged (condition 1 of the suspension order of July 7,

1970), but the pool level in Mine No. 15 was rising to a

level which threatened a discharge from a portal in the

A28 Second Commonwealth Court Opinion

general vicinity of the Buckwheat borehole now plugged.

This problem was a subject of the discussions leading to

the reinstatement order. Proposals were made by B & T

to construct relief boreholes (to become known as the

Maberry borehole) and build treatment facilities in that

area for the liming of any discharge. The reinstatement

order followed.

The Maberry borehole was constructed and treatment

of its discharge began, but on July 23, 1970, another sub-

stantial discharge from Mine No. 15 through the earth's

surface was discovered in the vicinity of and south of the

plugged Buckwheat borehole. This discharge point be-

came known as the breakout area. The surface elevation

at the breakout area is 1,495 feet, which is lower than that

at the new Maberry borehole.’

This new discovery precipitated another order by the

Board dated July 28, 1970, again suspending permit No.

567M035, which order also provided, inter alia:

“2. On and after July 30, 1970, the Company is pro-

hibited from operating the mine approved by the permit

and is also prohibited from discharging mine drainage

which does not meet . . . Board standards.

“3. The Company take immediate steps to prevent

the acid discharge which emanates from Lancashire #15

mine from entering the West Branch of the Susquehanna.”

Thereupon B & T ceased treatment of the discharge

at Maberry which responsibility the Commonwealth as-

2. The quality and quantity of mine water discharge from Mine

No. 15 at - + rend points was sharply disputed. It is not necessary

to resolve this dispute, however, as the evidence clearly discloses

the quantity to be substantial, exceeding a million gallons per day.

Its sidity level was in excess of minimum water quality enilents

as clearly recognized by both parties in providing fer and under-

taking to treat the discharge with a liming process to reduce its

acidity.

Second Commonwealth Court Opinion A29

sumed on August 22, 1970. In the meantime the Com-

monwealth filed its original complaint in equity in this

case on August 7, 1970 and B & T appealed to this Court

from the Board order of July 28, 1970, the most recent

suspension of the mentioned permit.

As originally filed, the complaint in equity sought to

enjoin preliminarily and permanently the operation of

Mines Nos. 15, 24-B and 24-D and to require B & T to

take immediate steps to provide adequate treatment of

discharge from Mine No. 15. A hearing on the Common-

wealth’s application for preliminary injunction was fixed

but before the scheduled date and after B & T had an-

swered the complaint, a stipulation of the parties dated

August 26, 1970 was filed in this proceeding and pre-

sented to the Court which accepted the stipulation, made

it a part of the record but was not asked to and did not

issue a preliminary injunction.

Designed to provide a temporary solution to the

problem pending determination of the litigation, the stipu-

lation provided that the Commonwealth would continue

its liming treatment of the discharge from No. 15 into the

West Branch until B & T in accordance with specifications

contained in 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. It was expected that the

pumping operation at Duman Dam would terminate the

discharge at the Maberry borehole and breakout area at

the northeast end of the mine.

- Among the provisions in the stipulation, B & T agreed

to operate the Duman Dam facility for a period of at

least thirty days after which period it could, on five days

notice to the Commonwealth, terminate operation of the

facility.

A30 Second Commonwealth Court Opinion

In accordance with the stipulation, B & T constructed

a treatment facility at Duman Dam and commenced the

operation of that facility on November 1, 1970. It oper-

ated the facility from November 1, 1970 to F ebruary 22,

1971, on which date it ceased operating the facility after

having given the Commonwealth five days prior written

notice of such termination in accordance with the stipu-

lation.

Within hours after B & T commenced operation of

the Duman Dam facility on November 1, 1970, the dis-

charge at the Maberry borehole location ceased.

On or about February 11, 1971, after the operation

by B & T of the Duman Dam facility for over 100 days,

the water level in Mine No. 15 was lowered to an eleva-

tion below the breakout area, and there has not been any

significant discharge at that location since that date. .

Another provision of the stipulation was one provid-

ing for administrative determination of the responsibility

of B & T for abatement of pollution deriving from the

discharge of Mine No. 15 and the legality of the suspen-

sions to permit No. 567M035. Administrative adjudica-

tion has never taken place partly because of the demise

of the Sanitary Water Board upon creation of the Depart-

ment of Environmental Resources and partly because the

original cooperation and concern of the parties as evi-

denced by the stipulation gave way to bickering and

dispute.

On February 19, 1971, after B & T had given notice

of its intent to discontinue the operation of the Duman

Dam facility on February 22, 1971, the Commonwealth

filed a Petition for Injunctive Relief in this proceeding

pursuant to which it sought a special! injunction, without

hearing, requiring B & T to continue to operate the Duman

Dam facility and a preliminary injunction, after hearing,

Second Commonwealth Court Opinion A31

requiring B & T to continue to operate the facility pending

a final decision based upon an administrative hearing

which was then scheduled for March 2, 197].

On February 19, 1971, this Court entered an order

denying the Commonwealth’s request for a special or

ex parte preliminary injunction and fixed February 25,

1971 as the date for a hearing on the Commonwealth’s

request for a preliminary injunction.

On February 22, 1971, B & T ceased operating the

Duman Dam facility, and its operation was taken over

by the Commonwealth.

On February 25, 1971, this Court entered an order

rescheduling the ate for the hearing on the Common-

wealth’s application for a preliminary injunction for March

5, 1971 and directing that the administrative hearing fixed

for March 2, 1971 be stayed.

The hearing on the Commonwealth’s request for a

preliminary injunction commenced on March 5, 1971 and

was completed on March 25, 1971.

On March 17, 1971, the Commonwealth filed an

amended complaint which consisted of four counts. In

the first count, the Commonwealth sought relief against

B & T on the same basis as alleged in its original complaint,

that is, on the basis of orders issued by the Sanitary Water

Board. In the last three counts of the amended complaint,

the Commonwealth sought relief on the basis of new legal

theories not raised in its original complaint.

On March 31, 1971, B & T filed its answer to the

amended complaint.

On April 13, 1971, this Court issued a preliminary in-

junction providing for the continued operation of the

Duman Darn facility pending the final determination of

the case upon its merits, with the parties sharing the costs

of such operation on an equal basis. Under the order, the

A32 Second Commonwealth Court Opinion

expenditures of the parties incurred by reason thereof were

to follow the final judgment in the case and be recovered

by the successful party.

Statutory History oF CLEAN STREAMS LEGISLATION

IN PENNSYLVANIA

Before stating, discussing and resolving the legal

issues raised in this litigation a recital of the statutory

history of clean streams legislation in Pennsylvania will

better focus the legal issues to the facts of the case.

The Act of June 22, 1937, P. L. 1987, 35 P. S. § 691.1

et seq., now known as The Clean Streams Law, as variously

amended, is the current statutory law on the subject of

clean streams. Prior to its enactment in 1937, there was in

effect in Pennsylvania in the year 1915 (the year in which

Mine No. 15 was first operated) the Act of April 22, 1905,

P. L. 260, known as the Purity of Waters Act. This legis-

lation regulated the discharge of sewage into the waters

of the Commonwealth but significantly provided in Section

4 that the act was not to apply to “waters pumped or flow-

ing from coal mines... .”

In 1923 the Act of June 14, 1923, P. L. 793, was en-

acted which empowered the Advisory Board of the De-

partment of Health to promulgate orders and regulations

for the protection of the water supply and the prevention

of pollution. This act also provides that it was not to

apply to“. . . any pollution or contamination caused by

or resulting from water pumped or flowing from coal mines —

or water used in the preparation of coal.”

These acts remained in effect until repealed by the

original enactment of The Clean Streams Law, but the

special status accorded mine drainage into the waters of

the Commonwealth was conditionally continued. As

originally enacted, Section 310 of The Clean Streams Law

eS 8 eee —

Second Commonwealth Court Opinion A33

specifically excluded from the provisions of Article [IIJ—

Industrial Wastes “ . 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 pol-

luting properties of such drainage shall become known.”

There is no evidence that such a determination was ever

made by the Sanitary Water Board prior to its demise.

In 1945 The Clean Streams Law was extensively

amended by the Act of May 8, 1945, P. L. 435. The

definitional section of the act (Section 1) was amended

by redefining “establishment” to include coal mines, and

“pollution” was broadened in meaning to include dis-

charges from coal mines: Section 309, imposing penalties

for discharge of industrial wastes into the waters of the

Commonwealth, was amended to include acid mine drain-

age within its provisions.

However, equal application of the provisions of the

act to coal mines and mine drainage as imposed with

respect to industrial wastes and sewage generally was not

to be accorded. Section 310, which previously excluded

from its coverage acid mine drainage from coal mines, was

amended, inter alia, to read:

“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 pol-

luting 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 de-

voted 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 hun-

A34 Second Commonwealth Court Opinion

dred 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.”

And a new Section 313 was added which provided,

inter alia, 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 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... .”

Certificate No. 892 and permits No. 14326 and No.

564M5 were issued under the provisions of The Clean

Streams Law as amended by the 1945 amendments.

The 1965 amendments to The Clean Streams Law

enacted by the Act of August 23, 1965, P. L. 372, are

critical amendments with respect to several legal issues

raised in this case. As previously noted, the significance

of and application of the 1965 amendments to the exten-

sions of time granted under permit No. 564M5 and the

/

ee

Second Commonwealth Court Opinion A35

issuance of permit No. 567M035 under the 1965 amend-

ments is a source of great dispute between the parties.

The 1965 amendments, generally speaking, eliminated

the distinction between and different treatment accorded

the discharge of acid mine drainage into “clean” and “un-

clean” waters of the Commonwealth and gave the Sanitary

Water Board regulatory powers over all such discharges.

By adding a new Section 4 the General Assembly

found that preexisting law had failed to prevent an in-

crease in the miles of polluted water of the Common-

wealth, that prior special provisions for mine drainage, a

major cause of stream pollution, discriminated against the

public interest, that its polluted waters jeopardized the

economic future of the Commonwealth and that clean un-

polluted streams are essential to such future development.

It also declared as a matter of policy that not only preven-

tion of further pollution is essential but also the restoration

and reclamation of polluted waters was equally essential.

To implement these findings and policy declarations

acid mine drainage was brought within the definition of

industrial waste. Thus discharge of acid mine drainage

became subject to Section 307 of the Act. That section

as originally enacted in 1937 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 treatnient works for the treatment of such indus-

trial wastes, approved by the board, so that if and when

flowing or discharged into the waters of the Common-

wealth the effluent thereof shall not be inimical or injurious

to the public health or to animal or aquatic life, or prevent

A36 Second Commonwealth Court Opinion

the use of water for domestic, industrial or recreational

purposes... .”

The 1965 act also added a new Section 315, which

reads:

“(a) Before any coal mine is opened, reopened, or

continued in operation, an application for a permit approv-

ing the proposed drainage and disposal of industrial wastes

shall be submitted to the Sanitary Water Board. The ap-

plication shall contain complete drainage plans including

any restoration measures that will be taken after operations

have ceased and such other information as the board by

regulation shall require.

“(b) It shall be unlawful to open, reopen, or continue

in operation any coal mine, or to change or alter any ap-

proved plan of drainage and disposal of industrial wastes,

unless and until the board, after consultation with the

Department of Mines and Mineral Industries, has issued

a permit approving the plan or change of plan. A permit

shall not be issued if the board shall be of the opinion that

the discharge from the mine would be or become inimical

or injurious to the public health, animal or aquatic life, or

to the use of the water for domestic or industrial consump-

tion or recreation. In issuing a permit the board may im-

pose such conditions as are necessary to protect the waters

of the Commonwealth. The permittee shall comply with

such permit conditions and with the rules and regulations

of the board.

“(c) The board may modify, suspend or revoke any

permit issued pursuant to this section. Such action may

be taken if the board finds that a discharge from the mine

is causing or is likely to cause pollution to waters of the

Commonwealth or if it finds that the operator is in viola-

tion of any provision of this act or any rule or regulation

of the Sanitary Water Board. An order of the board

Second Commonwealth Court Opinion A37

modifying, revoking or suspending a permit shall take

effect upon notice from the board, unless the order

specifies otherwise. Any party aggrieved by such order

shall be given the opportunity to appear before the board

at a hearing at which the board shall reconsider its order

and issue an adjudication, from which the aggrieved party

may appeal in the manner provided by the ‘Administrative

Agency Law, act of June 4, 1945 (P. L. 1388), as

amended. The right of the board to suspend or revoke a

permit is in addition to any penalty which may be imposed

pursuant to this act.

“(d) Any permit approving the drainage and dis-

posal of industrial wastes from a coal mine and issued by

the board prior to the effective date of this act shall be

deemed to be a permit issued pursuant to this section. The

permit shall be valid for one year from the effective date

of this act or for such additional period as the board might

allow. Nothing herein shall limit the board’s power to

modify, suspend, or revoke any such permit under the

provisions of subsection (c) of this section.”

Although the most recent amendments to the Act

postdate the events of this case, the changes effected have

bearing upon several issues raised. These latest amend-

ments are found in the Act of July 31, 1970, P. L. 653.

Section 315 was again amended and contains this signif-

icant provision:

“A discharge from a mine shall include a discharge

which occurs after mining operations have ceased, pro-

vided that the mining operations were conducted subse-

quent 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).”

Finally, note should be made of legislation enacted in

1955 and 1965 dealing with the problem of pollution of

A38 Second Commonwealth Court Opinion

the waters of the Commonwealth by mine drainage from

abandoned mines. Shortly after the 1965 amendments to

The Clean Streams Law were passed, legislation was en-

acted which required the Commonwealth to initiate a pro-

gram for the correction of pollution from abandoned

mines. Such legislation was contained in the Act of De-

cember 15, 1965, P. L. 1075, 35 P. S. § 760.1, which pro-

vided as follows:

“The Secretary of the Department of Mines and Min-

eral Industries shall initiate an immediate action program

to correct pollution from abandoned deep and strip mines

on each of the watersheds in the Commonwealth of Penn-

sylvania.”

In 1955, both State and Federal funds were made

available to enable the Commonwealth to discharge its

obligations with respect to drainage from abandoned coal

mines. Section 4 of the Act of July 7, 1955, P. L. 258, as

amended, 52 P. S. § 685, appropriated $8,500,000.00:

“. . . to match Federal moneys made available for

the control and drainage of water from anthracite coal

formations, to seal abandoned coal mines and to fill voids

in abandoned coal mines. . . .”

Section 2 of this Act, 52 P. S. § 683, provided that in

the event matching Federal funds became available for

this purpose, “[T]he Department of Mines and Mineral

Industries shall . . . purchase and install pumps, pipes,

machinery, equipment and materials for the purpose of

pumping water from abandoned mines, and shall seal

abandoned coal mines and fill voids in abandoned coal

mines in those instances where such work is in the interest

of public welfare. . . .”

Matching Federal funds were authorized in 1955 by

the Mine Dewatering Act, Act of July 15, 1955, P. L.

87-818, as amended, 30 U. S. C. A. § 571 et seq.

Second Commonwealth Court Opinion A39

After the passage of the above-mentioned legislation

in 1965, funds were made available for this program by

The Land and Water Conservation and Reclamation Act,

Act of January 19, 1968, P. L. (1967), 996, 32 P. S. § 5101

et seq. This Act spoke specifically in terms of using such

funds for the construction of treatment facilities by the

Commonwealth. Thus, $150,000,000.00 was allotted under

the Act to be used by the Commonwealth for this purpose

and otherwise preventing, controlling and eliminating

stream pollution from mine drainage.

Tue LEGAL IssuEs

The Commonwealth poses the issues involved in five

basic questions. In its counterstatement, B & T poses six

basic questions, the first of which, by reason of its general

nature, includes the first three questions posed by the

Commonwealth. The Commonwealth’s fourth question

is within the scope of B & T’s second question. The fifth

and sixth questions posed by B & T—which encompass the

fifth question of the Commonwealth—pose constitutional

questions and issues of estoppel, laches and waiver against

the Commonwealth which need not be considered because

of our disposition of the case on other grounds.

Based upon our findings of fact, we view the legal

issues to be within the first four questions posed by the

Commonwealth and the first three posed by B & T and

restate them to be:

1. Under the provisions of The Clean Streams Law

then in effect, did B & T as a holder of time extended

permit No. 564M5 or permit No. 567M035 (the 1965

amendment permit) assume responsibility for mine water

discharge from Mine No. 15 after cessation of mining and

thereby also become responsible for its treatment to meet

A40 Second Commonwealth Court Opinion

minimum water quality standards established by the

Commonwealth?

2. Did the mine water discharge emanating from

Mine No. 15 impose any responsibility upon B & T for

abatement of the polluting qualities of the discharge under

Section 316 of The Clean Streams Law as then in effect?

3. Did the mine water discharge emanating from

Mine No. 15 constitute a public nuisance under Section 3

of The Clean Streams Law as then in effect for which

B & T is responsible and which it must abate?

4. Did the mine water discharge emanating from

Mine No. 15 constitute a common law public nuisance for

which B & T is responsible and which it must abate?

DISCUSSION

First Issue

There can be no question that prior to May 8, 1945—

the effective date of the 1945 amendments to The Clean

Streams Law—thcre were no provisions in our relevant

statutory law which specifically prohibited, regulated or

authorized the administrative regulation of mine drainage

discharge into the waters of the Commonwealth regardless

of its polluting qualities or whether such discharges oc-

curred during or after cessation of mining.

To the contrary, during the first thirty year period

of the operation of Mine No. 15 by B & T and its prede-

cessors, legislation on the subject of water pollution—

however wise or unwise it might appear in retrospect—

specifically excepted mine drainage from its coverage or

from regulation.

In 1915, the Legislature first gave limited recognition

to the reality that uncontrolled mine drainage discharge

Second Commonwealth Court Opinion A4l1

into the waters of the Commonwealth was inimical to an

ultimate objective of pollution free waters. From 1945 to

January 1, 1966—the effective date of the 1965 amend-

ments to the Act—The discharge of acid mine drainage

into “clean” waters of the Commonwealth was deciared

unlawful and to be a nuisance. To enforce this newly de-

clared legislative policy, existing mines, reopened mines

and newly opened mines were subjected to regulation

through the requirement of obtaining approved plans of

drainage from the Sanitary Water Board (Section 310, as

amended, and Section 313, as added to the Act by the

1945 amendments). During this period, B & T operated

Mine No. 15 under an approved plan of mine drainage

into the West Branch of the Susquehanna River and later

into headwater streams of the Allegheny River basin under

certificate No. 892, permit No. 14326 and permit No.

564M5 (also covering Mines Nos. 24-B and 24-D) without

any requirement for treatment of discharge during or after

cessation of mining.

Although not controlling nor directly on point in

the legal issue under consideration, the decision of the

Dauphin County Court in Sanitary Water Board v. Sun-

beam Coal Corporation, 91 Dauph. 70, 47 D. & C. 2d 378

(1969), is worthy of notation here. In that case, the court

was concerned with the issue of whether the Sanitary

Water Board had the power, under the 1945 amendments,

to deny a permit for an operating mine because of alleged

violations of two other permits which had been issued by

the Board to cover mines which were later closed. In

holding that the Board did not have such power, the court

stated:

' “Of further significance is the fact that the Clean

Streams Act specifically referred to mines being opened,

reopened or continued in operation. Nowhere in the

A42 Second Commonwealth Court Opinion

Clean Streams Act is it suggested or implied that a former

operator of an abandoned mine can be held in ‘violation’

after the mine is closed. Even in the case of Sanitary

Water Board v. Sunbeam Coal Corp., 77 Dauphin 264

(1961), wherein we held that future plans for the drainage

of acid mine water after a mine closed could be required

of an applicant at the time of originally applying for a

permit, does not constitute authority for the proposition

that an applicant can be held in ‘violation’ of a permit after

the mine is closed, when he followed the plans approved

by the board.

“Once the Sanitary Water Board has approved a

drainage plan and the drainage plan has been followed,

the responsibility of the operator ought not to be increased

after the mine has ceased any longer to be a mine.” (Em-

phasis added.) 91 Dauph. at 76-77.

Thus it has been judicially declared, and we believe

correctly, that the 1945 amendments to the Act with re-

spect to obtaining approved plans of mine drainage were

applicable only to then operating mines, those reopened

or newly opened ones, and if the approved plan was com-

plied with, sanctions could not be imposed after cessation

of mining for other “violations.”

This brings us to the 1965 amendments to the Act.

Their proper construction, the meaning of regulations

promulgated thereunder and their application to the facts

of this case are the prime issues in dispute. Although

this case has received wide publicity and has been charac-

terized as one of major importance in the environmental

field, its unique facts surrounding the extensions granted

under the pre-1965 amendments permit and the issuance

of a 1965 amendment permit will make it of little prece-

dent value for the future.

As previously noted, the 1965 amendments to the

Act represented a major change of legislative policy

Second Commonwealth Couri Opinion A43

towards the problem of mine drainage and pollution of

the waters of the Commonwealth. Acid mine drainage

was brought within the definition of industrial wastes

and thereby becomes subject to Section 307 of the Act

(last amended in 1945), which provides in part that

“[nJo person shall hereafter . . . operate, any establish-

ment 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. . . .” (Emphasis added.) For

the first time then, the discharge of acid mine drainage

into polluted waters was prohibited in Pennsylvania, Pitts-

burgh Coal Company v. Sanitary Water Board, 4 Pa. Com-

monwealth Ct. 407, 286 A. 2d 459 (1972).°

Of primary concern here is new Section 315 added to

the Act by the 1965 amendments. Directly applicable to

coal mines, it makes it unlawful to operate a coal mine

without a mine drainage permit, the application for such

a permit to “contain complete drainage plans including

any restoration measures that will be taken after operations

have ceased and such other information as the board by

regulation shall require.” The Board is also authorized to

“, . . impose such conditions as are necessary to protect

the waters of the Commonwealth.” (Subsection (a) and

(b) of Section 315).

Notwithstanding the declared change of legislative

policy and the interdictions of Sections 307 and 315 against

acid mine drainage pollution of our waters, subsection (d)

of Section 315 afforded a limited exception to their ap-

plication. It provided that any permit approving a mine

drainage plan issued prior to January 1, 1966, “. . . shall

be deemed to be a permit issued pursuant to this section

... [and] shall be valid [until January 1, 1967] or for such

additional periods as the board might allow.”

* Allocatur to Supreme Court granted March 24, 1972.

A44 Second Commonwealth Court Opinion

The foundation of the Commonwealth’s argument

on this first issue rests upon B & T’s application for and

the issuance of a mine drainage permit under the 1965

amendments (permit No. 567M035). From this fact the

Commonwealth reasons that B & T subjected itself to

responsibility for the mine drainage from Mine No. 15

after cessation of mining because (a) Section 315 statu-

torily imposed such responsibility upon B & T, (b) the

Board regulations and conditions attached to the permit

imposed such responsibility, or (c) such responsibility

would have been placed upon B & T by provisions of the

permit had the Commonwealth not been misled or de-

ceived by B & T incident to its issuance.

B & T counters by asserting that it never operated

Mine No. 15 under the 1965 amendment permit but com-

pleted its operation and closed the mine under the pre-

1965 permit as extended by law and further extended by

Board action. It also argues that Section 315 does not

statutorily impose such responsibility upon B & T nor do

the regulations adopted thereunder.

Whether Mine No. 15 was operated during the critical

period from January 1, 1966 to cessation of mining on or

about May 31, 1969, under extensions of permit No.

564M005 or under permit No. 567M035, while a source of

great controversy between the parties, is not in our opinion

a controlling fact.

Rather, we view the first issue raised to turn on two

essential questions. Did the 1965 amendments statutorily

impose upon B & T responsibility for the post-mining dis-

charge from Mine No. 15? If not, did the Act empower

the Sanitary Water Board, as an element of an approved

plan of drainage, to require a mine operator to assume

responsibility for post-mining discharge? If so, then a

further question of mixed law and fact arises as to whether

Second Commonwealth Court Opinion A45

or not B & T assumed such responsibility via its extensions

of permit No. 564M005 or permit No. 567M035.

The 1965 amendments, while explicitly bringing mine

drainage within the coverage of the Act as an industrial

waste and equally explicitly requiring permits containing

complete drainage plans for operating mines, are never-

theless silent on the subject of responsibility for mine dis-

charges from then abandoned or closed mines or those

thereafter closed.

As to its applicability, the title of the 1965 amenda-

tory act required “permits for the operation of coal mines”

and continued the scheme of the 1945 amendments, which

applied to mine drainage discharge into “clean” waters of

the Commonwealth. The language found in subsections

(a) and (b) of Section 315 is identical in substance to

that contained in Section 313 of the Act as amended in

1945, and upon which the Court in the Sunbeam case

relied in holding that the Act applied only to operating

mines. Permits were required only as to a mine “opened,

reopened or continued in operation.” Without exception,

throughout the 1965 amendments, they speak only to

duties and responsibilities of operators and the power of

the Board as to such operators.

Significantly, in the same year 1965, the Legislature

recognizing the problem of mine drainage from abandoned

mines to be a problem requiring State action if the legisla-

tive policy enunciated in the 1965 amendments was to be

achieved, passed the Act of 1965 providing for a massive

attack by the State itself with respect to mine drainage

from abandoned mines.

_ Of greater significance, however, are the 1970 amend-

ments to the Act. Section 315, as most recently amended,

for the first time specifically addresses itself to the subject

of responsibility for post-mining discharge. After pro-

A46 Second Commonwealth Court Opinion

hibiting discharge of mine drainage into the waters of the

Commonwealth without a permit or contrary to the rules

and regulations of the Board, it then declares that “a dis-

charge which occurs after mining operations have ceased”

is subject to the regulatory powers of the Board.

In arguing that the 1965 amendments imposed statu-

tory responsibility upon mine operators for mine discharge

after a mine is closed, the Commonwealth primarily relies

upon the last sentence of subsection (a) of Section 315

that a permit application contain a drainage plan “includ-

ing any restoration measures that will be taken after

operations have ceased.” In this language we can find no

such legislative intent, explicit or implied. At most, it

arguably supports the right of the Board to require a mine

operator to assume responsibility for post-mining discharge

as a condition to obtaining a permit under an approved

mine drainage plan.

Considering the title of the 1965 amendatory act

(see Comomnwealth v. Derstine, 418 Pa. 186, 210 A. 2d

266 (1965); City Stores Company v. Philadelphia, 376

Pa. 482, 103 A. 2d 664 (1954), its limitation of reference

to operators of coal mines and the 1970 amendments to

the act, we are persuaded that prior to 1970 the statute

itself did not impose responsibility upon mine operators

for post-mining discharge.

Turning next to the question of whether the Act as

then in force empowered the Board to require a mine

operator to assume responsibility for post-mining discharge

as part of an approved drainage plan upon which a per-

mit is issued, we believe that such right existed in the

Board under Section 315(a) and its general rule making

power under Section 403 of the Act. This view is con-

sistent with that expressed by the Dauphin County Court

prior to the 1965 amendments to the Act in the first Sun-

Second Commonwealth Court Opinion A47

beam case, Sanitary Water Board v. Sunbeam Coal Corp.,

77 Dauph. 264 (1961), and is not disputed by B & T.

This bring us to the third question.

Considering B & T’s application for extensions of time

under permit No. 564M005 and its application for the

1965 amendments permit and the standard and special

provisions imposed by the Board in granting them, did

B & T thereby assume responsibility for mine drainage

from Mine No. 15 after cessation of mining?

As stated in our finding of fact, we have concluded

that B & T in its application for the 1965 amendment per-

mit (No. 567M035) did not intentionally deceive or mis-

lead the Board but made such application consistent with

its understanding of the requirements of the regulations

and those set forth in Mine Drainage Manual (CX70)

issued by the Board. Also, we have found that both B & T

and the Board must share equal responsibility for the con-

fusion surrounding issuance of and actions taken under

the granting of extensions to permit No. 561M005 and

permit No. 567M035 during the critical period in question.

We particularly mention these findings here as il-

lustrative of the inconsistent arguments advanced by the

Commonwealth to place responsibility on B & T for the

mine drainage in question. Strenuously contending that

it was misled and deceived, the essence of one argument

of the Commonwealth is that if it had been given the facts

it would have imposed post-mining discharge responsibility

on B & T under its regulatory powers. This can hardly

support another of its contentions that the Board in fact

did impose such responsibility on B & T under permit No.

567M035.

Nor, in our opinion, did the Board, by regulation then

in effect or by any standard or special condition incor-

porated into extensions of permit No. 564M005 or permit

No. 567M035 impose any such responsibility upon B & T.

A48 Second Commonwealth Court Opinion

No such regulation was introduced into evidence.

Presumably none existed. The contents of Article 900 of

the Board regulations (CX4) and its “guide” captioned

“The Mine Drainage Manual of the Board” (CX10) con-

tain only one specific reference to post-mining drainage

and both speak to the subject of mine drainage plans and

closing procedures showing how a pollutional discharge

will be prevented after completion of mining. With the

exceptions of these references the regulations and manual

direct themselves to operating mines, whether newly

opened, reopened or continuing in operation. In these

documents we cannot find that a permittee lawfully op-

erating a mine consistent with an approved plan of drain-

age and sealing its consistent with prescribed closing

procedures is also held responsible for post-mining drain-

age. The thrust of the regulation is towards closing pro-

cedures designed to prevent post-mining drainage and not

to correction of such a condition if it does occur.

An examination of the Standard Conditions Accom-

panying Permits “Authorizing the Operation of Mines”

(CX10) compels the same conclusion. Particular “stand-

ard conditions” were incorporated by reference into the

extensions of permit No. 561M005 and into permit No.

567 M035. None of these incorporated standard condi-

ions, in our opinion, impose responsibility by regulation

upon B & T for mine discharge from Mine No. 15 after it

was closed.

As noted above with respect to Article 900 of the

Regulations and the “Manual,” these “standard conditions”

speak to and encompass only operating mines, their drain-

age plans and closing procedures to prevent post-mining

discharge. We can find not one single provision in any

of these documents that clearly or even inferentially im-

poses any such responsibility upon B & T as a condition of

its permits.

Second Commonwealth Court Opinion A49

Rules and regulations of administrative agencies, law-

fully adopted, are subject to the same rules of statutory

construction as statutes themselves but obviously cannot

be construed to afford a greater power or right in an ad-

ministrative agency than that imposed by the statute itself.

The Commonwealth argues that the legislative intent as

manifested in the declaration of policy and legislative

findings contained in the 1965 amendments compels a

conclusion that the statute itself imposes post-mining dis-

charge responsibility upon a former operator as do the

Board's regulations consistent with such expressed legisla-

tive intent. Considering the legislative history of clean

streams legislation both prior and subsequent to the 1965

amendments to The Clean Streams Law, there can be no

doubt that the Legislature was fully aware of and con-

versant with the complex problems surrounding mine

drainage from closed mines whether they be characterized

as having been abandoned or otherwise. It is incon-

ceivable that if in 1965 it intended to place responsibility

as argued by the Commonwealth, it would leave the ques-

tion open to inference.

Second Issue

As a separate count in its amended complaint the

Commonwealth asserts by reason of the provisions of Sec-

tion 316 of the Act that B & T is responsible for the mine

water discharge emanating from Mine No. 15 as the “land-

owner’ holding title to or having proprietary interests in

the land encompassing the mine.

Section 316 was added to The Clean Streams Law

by the 1965 amendments. As originally added this sec-

tion merely empowered the Sanitary Water Board to

authorize access by mine operators, government person-

nel and others onto the lands of others who refused such

access where conditions on such land resulted in pollution

A50 Second Commonwealth Court Opinion

of the waters of the Commonwealth. Essentially, its pro-

visions afforded a new tool to combat pollution.

{t was not until the 1970 amendments to Section 316

were enacted (effective July 31, 1970) that the legislature

imposed a conditional and limited responsibility upon

landowners or occupiers for the correction of conditions

which caused or posed a danger of pollution.

Apart from constitutional questions raised by the im-

position of such responsibility upon landowners apparently

without regard to causation or fault, the Legislature, in

continued recognition of the special consideration his-

torically afforded the mine drainage problem, excepted

landowners from the cost of correcting the polluting con-

dition under certain circumstances.

As amended in 1970, Section 316 now provides:

“Whenever the Sanitary Water Board finds that pol-

lution or a danger of pollution is resulting from a condi-

tion which exists on land in the Commonwealth the board

may order the landowner or occupier to correct the con-

dition in a manner satisfactory to the board or it may order

such owner or occupier to allow a mine operator or other

person or agency of the Commonwealth access to the land

to take such action. For the purpose of this section, ‘land-

owner’ includes any person holding title to or having a

proprietary interest in either surface or subsurface rights.

“For the purpose of collecting or recovering the ex-

pense involved in correcting the condition, the board may

assess the amount due in the same manner as civil penal-

ties are assessed under the provisions of section 605 of this

act: Provided, however, That if the board finds that the

condition causing pollution or a danger of pollution re-

sulted from mining operations conducted prior to January

1, 1966, or, if subsequent to January 1, 1966, under cir-

cumstances which did not require a permit from the Sani-

Second Commonwealth Court Opinion A51

tary 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), then the amount assessed shall be

limited to the increase in the value of the property as a

result of the correction of the condition.”

There is no evidence in this record that the Sanitary

Water Board or the Department issued any order at any

time against B & T as a “landowner” under the provisions

of this section. It is also clear from the record that all

operative facts material to the cause of action here as-

serted by the Commonwealth occurred prior to the effec-

tive date of the 1970 amendments on July 31, 1970. None-

theless, some eight months after filing its original

complaint, the Commonwealth now asserts liability on the

part of B & T under this section. Among the contentions

advanced by the Commonwealth to overcome the obvious

barriers it faces is one to the effect that its order of July

28, 1970 (suspending for the second time permit No.

567M035 ), was “intended” to be and should be considered

to be an order under Section 316. As the 1970 amend-

ments were not then in effect such a contention is not only

specious but also illustrative of the total lack of persuasive

support for the Commonwealth’s position on this legal

issue.

The inescapable conclusion is that the Commonwealth

could not have intended and had never attempted to em-

ploy the power given to it under Section 316 with respect

to the mine drainage in question. We need not, therefore,

reach the question of whether or not its provisions un-

qualifiedly and absolutely impose upon a “landowner”

responsibility for pollution by mine drainage from his

lands and, if so, whether such a provision is constitutional

if such responsibility is imposed without regard to causa-

tion or fault.

A52 Second Commonwealth Court Opinion

Third Issue

Another theory advanced by the Commonwealth in

its amended complaint is that under Section 3 of The Clean

Streams Law the discharge of acid mine drainage from

Mine No, 15 into the waters of the Commonwealth consti-

tutes a statutorily declared public nuisance which B & T

has a duty to abate,

As originally enacted Section 3 of the Act provided:

“Discharge of Sewage and Industrial Wastes Not a

Natural Use.—The discharge of sewage or industrial waste

or any noxious and deleterious substances into the waters

of this Commonwealth, which is or may become inimical

and injurious to the public health, or to animal or aquatic

life, or to the uses of such waters for domestic or industrial

consumption, or for recreation, is hereby declared not to

be a reasonable or natural use of such waters, to be against

public policy and to be a public nuisance.”

Its text remained the same until the 1970 amend-

ments, when it was amended to read:

“Discharge of Sewage and Industrial Wastes Not a

Natural Use.—The discharge of sewage or industrial waste

or any substance into the waters of this Commonwealth,

which causes or contributes to pollution as herein defined

or creates a danger of such pollution is hereby declared not

to be a reasonable or natural use of such waters, to be

against public policy and to be a public nuisance.”

The history of The Clean Streams Law and its amend-

ments in 1945, 1965 and 1970, as heretofore set forth, bear

upon this issue and will not be repeated here. It should

be recalled, however, that a 1965 amendment further de-

fined the term “industrial waste” (Section 1 of the Act) to

include “mine drainage” incident to broad amendments to

the Act which at the same time gave the Sanitary Water

—

Second Commonwealth Court Opinion ASS

Board regulatory powers over all such discharges and in

essence eliminated the distinction between and different

treatment accorded mine drainage into “clean” and “un-

clean” waters of the Commonwealth which theretofore

existed,

In resolving this issue we must also consider the pro-

visions of Section 701 of the Act which provides, as it has

since 1937;

“Existing Rights and Remedies Preserved.—The col-

lection of any penalty under the provisions of this act

shall not be construed as estopping the Commonwealth,

or any district attorney or solicitor of a municipality, from

proceeding in courts of law or equity to abate pollutions

forbidden under this act, or abate nuisances under existing

law. It is hereby declared to be the purpose of this act

to provide additional and cumulative remedies to abate

the pollution of the waters of this Commonwealth, and

nothing in this act contained shall in any way abridge or

alter rights of action or remedies now or hereinafter existing

in equity, or under the common or statutory law, criminal

or civil, nor shall any provision of this act, or the granting

of any permit under this act, or any act done by virtue of

this act, be construed as estopping the Commonwealth,

persons or municipalities, in the exercise of their rights

under the common law or decisional law or in equity, from

proceeding in courts of law or equity to suppress nui-

sances, or to abate any pollution now or hereafter existing,

or enforce common law or statutory rights.”

In advancing this argument the Commonwealth re-

lies upon and asserts to be controlling the case of Com-

monwealth ex rel. Shumaker v. New York & Pennsylvania

Company, Inc., 367 Pa. 40, 79 A, 2d 439 (1951), We can-

not agree, On the contrary, if it can be cited as support-

ing either party in this litigation as to this issue, it could

more aptly be cited by B & T.

AS4 Second Commonwealth Court Opinion

In Shumaker, the polluting subject was industrial

waste from a pulp and paper mill operation intentionally

discharged into clean waters of the Commonwealth. As

the Commonwealth correctly points out, our Supreme

Court clearly held that the purpose of Section 701 was to

preserve any and all remedies or rights of action that were

historically available to abate pollutional discharges that

constituted public nuisances, and the Commonwealth was

not restricted to remedies otherwise specifically provided

by the Act. However, as to statutorily declared nuisances

as distinguished from common law nuisances, we cannot

agree that the Legislature, at least until 1965, declared

the discharge of mine drainage into the waters of the

Commonwealth regardless of their purity to be prohibited

and violative of Section 3 of the Act independent of and

without regard to all other provisions of the Act. To so

declare would be to close one’s eyes to the provisions of

The Clean Streams Law as originally enacted and as

amended in 1945, 1965 and 1970 and would render prac-

tically meaningless the original exclusion of mine drainage

from its original provisions and the gradual elimination

of the exclusion culminating in the amendments of 1970.

In Shumaker, there was never any question that the dis-

charge there involved was an industrial waste as defined

by the Act, that its discharge into the waters of the Com-

monwealth was absolutely prohibited without exception

or qualification and that because the case was decided on

pleadings taken to be true, the waters of the Common-

wealth there involved wéye considered to be clean, which

is not the case here.

In our opinion, considering the legislative enactments

predating The Clean Streams Law, its original provisions

and the history of its amendments to the year 1970, the

conclusion is inescapable that prior to 1945, mine drain-

Second Commonwealth Court Opinion ASS

age into the waters of the Commonwealth, clean or other-

wise polluted, was not statutorily declared as a public

nuisance; that in 1945 it was so declared as to discharge

into “clean” waters of the Commonwealth and it was not

until 1965 that mine drainage was unequivocally so de-

clared. The Commonwealth has never asserted that the

waters of the Commonwealth here involved were clean

waters and all the evidence is to the contrary. Hence, as

to the operative facts of this case it cannot be concluded

that the discharge of acid mine drainage of Mine No, 15

constituted a statutorily declared public nuisance contrary

to Sections 3 and 310 of the Act and thereby preserved

for enforcement under Section 701 of the Act.

Fourth Issue

Apart from and independent of any alleged responsi-

bility of B & T under statutory law, the Commonwealth

here asserts that the mine drainage discharge from Mine

No, 15 after cessation of mining constitutes a common

law nuisance for which B & T is responsible as the creator

of the harmful condition and as the owner or having pro-

prietary interests in the land and its subsurface.

In approaching this issue it is imperative that there

be kept in mind the history of the operation and closure

of Mine No. 15 and the statutory law in effect during

these periods. Although the authorities cited by each of

the parties with respect to this issue are instructive, none

were decided within the context of the facts of this case.

At best they afford precedent and guidance for general

principles of law which bear upon but are not decisive of

the issue here raised.

The mine drainage discharge which the Common-

wealth contends to be the nuisance to be abated (in enter-

ing the waters of the Commonwealth) is post-mining

A56 Second Commonwealth Court Opinion

discharge after cessation of mining which occurred as a

natural result of the previous mining operations coupled

with the volume and flow of surface and subsurface waters

in the Barnesboro Basin.

The physical characteristics of Mine No, 15 after

cessation of mining and its sealing might aptly be de-

scribed as an artificial condition of the subsurface of the

land created by the conduct of B & T and its predecessors.

Its location at the lowest subsurface elevation of the

Barnesboro Basin, however, is a natural phenomena, as

is the gross volume of surface and subsurface water which

by reason of percolation and subsurface flow finds its way

into Mine No, 15 by the force of gravity. Although

sharply disputed by the experts for the respective parties

as to the source of the total volume of subsurface water

“generated” in Mine No, 15—some of it said to be “fugi-

tive” water from surrounding mines of higher subsurface

elevation—the fact remains that this artifically created

subsurface condition because of its location produced a

receptacle for underground water—whatever its source—

which receptacle, again because of the forces of nature,

overflowed, In doing so, it breached the land surface and

entered the waters of the Commonwealth.

Under these circumstances, can it be said that a com-

mon law nuisance exists for which B & T is wholly or

partially responsible either as the creator of a harmful

condition or as the owner or possessor of the land on which

the condition exists?

. The futility of attempting—and perhaps the wisdom

of not attempting—to define a public nuisance at common

law and its operative elements to which proven facts in

any given case can be applied is evident in the decisional

law of Pennsylvania on the subject. A careful analysis

of many cases discloses no such definition but only a

Second Commonwealth Court Opinion A5S7

montage of particular elements apparently considered to

be controlling and from which it was concluded that a

public nuisance did indeed exist.

The distinction between a public nuisance and a

private nuisance, as such, poses no particular problem,

The former is one that offends the public at large or a

segment of that public while the latter offends only a

particular person or persons. A distinction drawn be-

tween nuisances in fact and nuisances per se is also found

in many cases both with respect to private and public

nuisances; a nuisance per se being something which is

generally recognized as injurious to health or welfare of

the community so that proof of the nuisance may be made

simply by proof of the act. Hostetter v, Sterner’s Grocery,

Inc., 390 Pa. 170, 134 A, 2d 884 (1957). But such a defini-

tion of a nuisance per se is overbroad and simplistic, as its

application in already decided cases would surely have

produced a result contrary to that actually reached.

The decisional law of Pennsylvania within the lim-

ited subject of the pollution of streams by mining opera-

tions affords some guidance in determination of the issue

under consideration, but in our opinion falls far short of

controlling its outcome.

In Pennsylvania Coal Company wv. Sanderson, 113

Pa, 126, 6 A. 453 (1886), an early landmark case of pri-

vate nuisance, it was held that, in the operation of mining

in the ordinary and usual manner, the operator of the

mine may, upon his own lands lead the water which

percolates into his mine into the streams which form the

natural drainage of the basin although the quantity as

well as the quality of the water in the stream may thereby

be affected, without liability to lower riparian owners for

increased quantity or for rendering the water unfit for

domestic and other purposes. The court said:

A5S8 Second Commonwealth Court Opinion

“The right to mine coal is not a nuisance in itself, It

is, as we have said, a right incident to the ownership of

coal property, and when exercised in the ordinary manner,

and with due care the owner cannot be held for permitting

the natural flow of mine water over his own land, into the

water course, by means of which the natural drainage of

the country is effected.

“There are, it is well known, percolations of mine

water into all mines; whether the mine be operated by

tunnel, slope or shaft, water will accumulate, and, unless

it can be discharged, mining must cease, The discharge

of this acidulated water is practically a condition upon

which the ordinary use and enjoyment of coal lands de-

pends; the discharge of the water is therefore part and

parcel of the process of mining, and as it can only be

effected through natural channels, the denial of this right

must inevitably produce results of a most serious character

to this, the leading industrial interest of the state.

“The defendants were engaged in a perfectly lawful

business, in which they had made large expenditures, and

in which the interests of the entire community were con-

cerned; they were at libert, to carry on that business in

the ordinary way, and were not, while so doing, account-

able for consequences which they could not control; as

the mining operations went on, the water by the mere

force of gravity ran out of the drifts and found its way

over the defendant's own land to the Meadow Brook, It

is clear that for the consequences of this flow, which by

the mere force of gravity, naturally, and without any fault

of the defendants, carried the water into the brook and

thence to the plaintiff's pond, there could be no responsi-

bility as damages on the part of the defendants.” 113 Pa.

at 146-47, 6 A, at 457.

Second Commonwealth Court Opinion A59

While subsequent decisions have declared that San-

derson must be strictly limited to its facts,’ it has never

been overruled. The most salient of its facts were that

the stream in question was already polluted and that the

mine water flowed naturally from the mine.

In McCune v. Pittsburgh and Baltimore Coal Com-

pany, 238 Pa. 83, 85 A. 1102 (1913), also a private

nuisance case, it appeared that mine water was accumu-

lated at the bottom of a bore hole, pumped to the surface

and thence discharged into a stream of clean water run-

ning through plaintiff's property making the stream water

unfit for domestic or farm use. The Supreme Court af-

firmed per curiam on the opinion of the lower court which

said:

“If the doctrine of the Sanderson case is not to be

extended, as we are admonished by the Supreme Court,

it is clear that we have no right to give it application here.

The cases are unlike in nearly every essential particular.

If the remedy sought be denied, this court must go far

beyond the Sanderson case and hold tha: a mine owner

can divert the natural flow of the water in the mine, raise

it artificially to the surface and thereby destroy a pure

stream of water on higher ground. The principle involved

is of far reaching consequence. The exception introduced

in the Sanderson case has resulted in the pollution of

nearly every stream in the western end of the State and it

has become a serious problem how to obtain pure water

sufficient to supply the inhabitants.

“, .. A prima facie case would have been made out

for plaintiff by showing that a stream of pure water flow-

ing through his land was polluted by the action of defend-

ant in pumping mine water from a lower level. Under

3. See v. Union Improvement Co., 7 Kulp 493 (1895),

and Williams v. Union Improvement Co., 6 Kulp 117 71802).

A60 Second Commonwealth Court Opinion

such circumstances an action would lie under the maxim

sic utere. The burden then undoubtedly would be on

defendant to show that the natural use of his property

made such injury unavoidable. . . .

“The defendant has failed to establish that the injury

was unavoidable or to prevent it would necessitate such

expense as would deprive it of the use of its property.

There was no attempt to show that an opening which

would afford natural drainage for the mine water was

impracticable, and the evidence fails to show that the

water . . . can not be discharged otherwise than to the

injury of plaintiff. “The extreme exception to the general

rule’ which was introduced in the Sanderson case does not

control because, as already pointed out, the conditions as

presented in the two cases are unlike. The undoubted

tendency of later cases is to limit rather than extend the

principle of that case. It follows, therefore, that the gen-

eral rule must apply, and that the defendant must use its

own property so as to avoid injury to the plaintiff.” 238

Pa. at 93-95, 85 A. at 1106. Also see Roaring Creek Water

Company v. Anthracite Coal Company of Pittsburg, 212

Pa. 115, 61 A. 811 (1905), a brief per curiam opinion sus-

taining the grant of a preliminary injunction in which it

was shown that defendants were pumping impure water

accumulated in its mine into a pure stream whereby the

stream water became polluted when for “a trifling expense

the mine water could be discharged into another water

course where it would injure no one.”

The salient facts of these cases, which appear to have

impelled a result contrary to Sanderson were the purity

of the stream into which mine water was discharged, the

affirmative act of pumping the mine water and the balanc-

ing of the cost of alternative methods of disposal against

the deleterious impact upon plaintiffs and the use of their

land.

a Gill tine Deiat

ti.

Second Commonwealth Court Opinion A61

In Pennsylvania R. R. v. Sagamore Coal Co., 281 Pa.

233, 126 A. 386 (1924), the Supreme Court was again

faced with its decision in Sanderson; this time on an ap-

peal from dismissal of a complaint in equity by the lower

court in which it was charged that a public water supply

from a pure stream was being polluted by acid mine water

drainage into the stream from an operating mine. It is

not clear whether the mine discharge was pumped into

the stream or naturally flowed into it. In reversing the

lower court, the Supreme Court said the case was con-

trolled by one fact and a single equitable principle,

“, . . the fact that the stream has been polluted, and the

principle that this creates an enjoinable nuisance, if the

public uses the water.” It said this in the context of a

“stream of pure water (one of the very few unpolluted

ones in the section of the State where it is located) .. .

impounded, primarily, for the purpose of furnishing un-

contaminated water... .” It further stated:

“We have, therefore, a situation where the waters of

a stream are devoted to public use. Does the Sanderson

Case apply under these circumstances? That litigation

did not involve the rights of the public to the waters of

streams in any sense. What was affected by the pollution

of the stream was the private concern of that plaintiff.

The case was determined on the balancing of the ‘neces-

sities of a great public industry and a ‘mere personal in-

convenience.’

“It could not be said that a landowner on a water-

course whose rights in the stream are only those of a

riparian proprietor (and none other is shown in defend-

ants ), would have them enlarged to one of property in the

use of the waters by the discovery or development of coal

on his lands.

A62 Second Commonwealth Court Opinion

“Our conclusion is that defendants have no right of

any kind to drain their mine waters into the stream con-

sidering the public use which is made of its waters and that

their so doing constitutes a nuisance which must be

restrained.

“We recognize, however, as evidently the court below

also did, that the public has an indirect interest in the

business of defendants, and hence, applying the principle

that he who seeks equity must do equity, the decrees to be

entered should require plaintiffs (other than the Common-

wealth ), so far as this can reasonably and legally be done,

to afford defendants an opportunity to transport and dis-

pose of the mine water of their respective mines in such a

way as shall minimize the expense of so doing; and the

decrees, after their entry, should be enforced in the same

equitable spirit. In fairness to plaintiffs it should be stated

that their counsel, in oral argument at the bar of the court,

expressed the willingness of their clients to thus cooperate

with defendants.

“The decrees of the court below dismissing plaintiffs’

several bills of complaint are reversed, the bills are rein-

stated, and it is directed that the court below shall enter

decrees, enjoining and restraining defendants, and each of

them, from discharging, pumping or causing or permitting

to flow or to be discharged, any drainage of mine water

from their mines, and from the mines of each of them,

into the waters of Indian Creek, or its tributaries, above

the dam of the Mountain Water Supply Company, after

the expiration of six months from the date of the entry of

the decrees.” 281 Pa. at 246-47, 250-51, 126 A. at 390,

392.

The salient facts of this case were the purity of the

stream in question and its use as a supply of water for

domestic consumption by a large segment of the public.

RON netah eet ns stati os Ben tn

Second Commonwealth Court Opinion A63

Apparently it was not considered as important or con-

trolling, that the mine drainage may have flowed naturally

into the stream.

Although not concerned with mine drainage from

an operating mine or from a closed mine, the Common-

wealth, as to this issue, also relies upon the case of Com-

monwealth ex rel. Shumaker v. New York & Pennsylvania

Company, Inc., supra, discussed at some length under the

Third Issue, supra. As to this issue, the Commonwealth

asserts the case stands for the unqualified principle that

corruption of the waterways when it affects the public use

of a stream or menaces the public health, becomes a public

nuisance which the Commonwealth may seek to abate in

equity. In Shumaker the Court said:

“Corruption of water, when it affects the public use

of a stream or menaces the public health, becomes a public

nuisance which the commonwealth may suppress by crim-

inal proceedings upon indictment for maintaining a public

nuisance and upon conviction the court may in its sentence

include an order requiring abatement of the nuisance: see

Barclay v. Commonwealth, 25 Pa. 503 (1855). Also the

Commonwealth may proceed in equity for an injunction

requiring abatement of the nuisance: Pennsylvania R. R.

et al. v. Sagamore Coal Co., 281 Pa. 233, 126 A. 386

(1924); Com. ex rel. v. Soboleski, 303 Pa. 53, 153 A. 898

(1931); Com. v. Kennedy, 240 Pa. 214, 87 A. 605 (1913);

Com. ex rel. v. Emmers, 221 Pa. 298, 70 A. 762 (1908).

When the Commonwealth so proceeds its right to relief is

not restricted by any balancing of equities, nor by the rule

of ‘damnum absque injuria’ as in Pa. Coal Co. v. Sander-

son, 113 Pa. 126, 6 A. 453 (1886), nor by any question of

possible prescriptive rights for no matter how long con-

tinued stream polluters can acquire no prescriptive or

property righi to pollute as against the Commonwealth:

Pennsylvania R. R. Co. et al. v. Sagamore Coal Co., supra.

A64 Second Commonwealth Court Opinion

“It was upon this law, so established, that section 3 of

Article I of the Pure Streams Act above quoted, was based.

The legislature therefore stood on solid ground in declaring

its public policy and what discharges were to be con-

sidered as public nuisances in contradistinction to private

nuisance, not merely for the purposes of that Act, but

generally. In Commonwealth v. Dietz, 285 Pa. 511, 519,

132 A. 572 (1926), we said, “When the legislature validly

pronounces a particular state of affairs to be a nuisance

prejudicial to the public health, it is as much so as if the

proscribed situation had been considered a “nuisance. . .

at common law,” and “may be prohibited by the same

remedies.”’ To this we may well add it is so, a fortiori,

where the proscribed conditions were already recognized

as a nuisance at common law.” 367 Pa. at 48-9, 79 A. 2d

at 444,

As previously noted, however, this statement was

made in the context of the discharge of industrial wastes

—as then defined by the statute—into a pure stream by the

operator of a pulp and paper mill and at a time in the

legislative history of The Clean Streams Law which ex-

cluded mine drainage from not only regulatory control but

from the definition of industrial waste. Our analysis of

this case as it pertains to common law public nuisance is

simply that if a nuisance at common law can be found to

exist, Sections 3 and 701 of the Act considered together

preserve the right in the Commonwealth to abate it

through equity.

In our opinion, the decisions that we have here re-

viewed and their supporting authority justify our view

that the present case is one of first impressions as to

whether it can be judicially declared today under the

facts of this case that a public nuisance at common law

exists for which B & T has sole or partial responsibility

for its abatement.

Second Commonwealth Court Opinion A65

Of the one or more common facts found in the re-

viewed cases leading the court to conclude that a common

law public or private nuisance existed as a matter of law,

none are present in the instant case. The waters of the

Commonwealth here in question are and for a long period

of time have been polluted by sewage and acid mine

drainage from closed or “abandoned” mines. Except for

some developing recreational uses there is no evidence

that these waters in their polluted state are used for public

purposes. Nor do we have in this case facts supporting

concepts of negligence, foreseeability or unlawful conduct,

being elements of seemingly persuasive force in some of

the cases. Similarly, factors of a present activity on the

part of the owner or user of the land or of a course of

conduct directly producing the deleterious result are ab-

sent in this case.

What we do have is an artificial condition of the

subsurface of the land as a result of the mining activity of

B & T and its predecessors who at all times conducted

their mining operations and the ultimate closure of the

mine in a lawful manner and consistent with statutory

law and regulations then in effect. We further have the

forces of nature at work which forces—given the location

of the closed mine and the volume of water entering it by

percolation and subterranean flow—produced a breakout

which resulted in further polltion of a polluted stream

from the acid mine drainage for . ut of the mine.

For better than one hundred ~ = the State has chosen

to regulate mining and there is no crediv.. evidence in

this case that Mine No. 15 was not operated and eventually

closed consistent with statutory law, regulation or licenses

issued pursuant thereto. With respect to clean stream

legislation, until 1945 the Legislature accorded exemption

to mine drainage from operating mines from declaration

A66 Second Commonwealth Court Opinion

of unlawfulness or regulatory control into the waters of the

Commonwealth, clean or otherwise polluted; and it was not

until 1965 that it chose to exercise regulatory control over

such drainage as to all waters of the Commonwealth and

declare violation to be a statutory nuisance. And it was

not until 1970 that it clearly empowered the government

to place responsibility for post-mining drainage upon an

operator. During this period, as disclosed in the legisla-

tive history, supra, the Legislature recognized and placed

upon the government responsibility for abatement of

mine drainage from “abandoned” mines and provided

funds for such abatement however adequate or inadequate

to the task such funds might be.

Considering the legislative history, the lawful opera-

tion and closure of Mine No. 15 at all times and the other

salient facts of this case, we cannot today declare—solely

for the reason that B & T and its predecessors created a

subsurface artificial condition by reason of mining—that a

breakout of mine water through the forces of nature at

work adjunctive to said artificial condition, constitutes a

public nuisance for which B & T is responsible today. The

Commonwealth, through the Legislature, has recognized

that the pollution or further pollution of the waters of the

Commonwealth by mine drainage is deleterious to the

health and welfare of the citizens of Pennsylvania. As to

the future it has empowered the government to place re-

sponsibility upon operators for post-mining discharge. As

to the past, it has declared that the government shall be

responsible for such discharge for closed or abandoned

mines,

Accordingly, we conclude under the facts of this case

that B & T cannot be held responsible for abatement of

the discharge from closed Mine No. 15 on the theory of

common law public nuisance,

For the foregoing reasons we make the following

Second Commonwealth Court Opinion A67

Conc.usions or Law

1, Barnes & Tucker Company, as the holder of time

extended permit No. 564M5 or as the holder of permit

No. 567M035 did not assume responsibility by reason of

the provisions of The Clean Streams Law or regulation

promulgated thereunder then in effect for mine water dis-

charge from Mine No. 15 after cessation of mining.

2. The mine water discharge emanating from Mine

No. 15 after cessation of mining did not become the re-

sponsibility of Barnes & Tucker Company to abate its pol-

luting qualities under Section 316 of The Clean Streams

Law as then in effect, as the owner or as one having pro-

prietary interests in said mine.

3. The mine water discharge emanating from Mine

No. 15 after cessation of mining does not constitute a pub-

lic nuisance under Section 3 of The Clean Streams Law

as then in effect for which Barnes & Tucker Company is

presently responsible and which it must abate of its pol-

luting qualities.

4. The mine water discharge emanating from Mine

No. 15 after cessation of mining does not constitute a com-

mon law nuisance for which Barnes & Tucker Company is

responsible and which it must abate of its polluting

qualities.

Decree Nist

Now, April 16, 1973, in recognition of the need for

further proceedings to fix money damages to be awarded

on any judgment to be entered consistent with the fore-

going opinion and this decree nisi; of the need for and

public interest in continuation of the preliminary injunc-

tion heretofore issued by order dated April 13, 1971, pend-

A68 Second Commonwealth Court Opinion

ing final disposition of this case; and of the likelihood of

appeal because of the important and novel legal issues

involved, it is hereby Onvenep as follows:

1. If within thirty (30) days of the date hereof no

exceptions are filed by either party to rulings on objec-

tions to evidence, to findings of fact or conclusions of law,

or to refusals to find requested findings of fact or conclu-

sions of law, the hearing judge shall promptly conduct a

hearing to determine the amount of money damages to

be awarded to Barnes & Tucker Company consistent with

prior order of Court dated April 13, 1971, to be followed

by further order of Court directing entry of judgment

which will dissolve the preliminary injunction heretofore

issued: said preliminary injunction to remain in full force

and effect until such further order of Court.

2. If within said thirty (30) days exceptions as afore-

said are filed by either party, said preliminary injunction

shall remain in full force and effect until such exceptions

are ruled upon by the Court and thereafter until further

proceedings as aforesaid are conducted by the hearing

judge, if necessary, and further order of Court entering a

final judgment perfecting right of appeal in the party

against which judgment is entered.°

* The foregoin inion was prepared before and was being

processed to he the aetiten of the Court in this case at the time

the Supreme Court of Pennsylvania handed down its opinion in

Commonwealth v. Harmar Coal Company (No, 89 May Term 1972)

and Commonwealth v, Pittsburgh Company No. 90 May

Term 1972 te this Court in those cases. We have carefull

reviewed ¢ inion of the Supreme Court in those cases and,

while certain observations and ssion contained therein might

ideally suggest some revision of discussion contained in the above

opinion, we are of the opinion that the decision in those cases is not

controlling of this case. To avoid further delay we, therefore, hand

down our opinion in this case without revision.

Second Commonwealth Court Opinion A69

CONCURRING OPINION BY JUDGE MENCER:

I concur in the result reached because, in the words

of President Judge Bowman, “factors of a present activity

on the part of the owner or user of the land or of a course

of conduct directly producing the deleterious result are

absent in this case.” The absence of these factors is the

distinguishing factual feature between this case and the

cases of Pittsburgh Coal Company wv. Sanitary Water

Board, 4 Pa, Commonwealth Ct. 407, 286 A, 2d 459 (1972),

and Harmar Coal Co. v. Sanitary Water Board, 4 Pa.

Commonwealth Ct, 435, 285 A, 2d 898 (1972). My dis-

senting opinions in those two cases contended that there

were violations of the 1965 amendments to The Clean

Streams Law, enacted by the Act of August 23, 1965, P. L.

372, because there was a discharge into the streams as a

result of present activity on the part of the owner or user

of the land or a course of conduct (pumping) directly pro-

ducing the discharge and deleterious results,

I am of the opinion that the 1970 amendments to

Section 316 of The Clean Streams Law, Act of July 31,

1970, P. L. 653, § 12, 35 P. S. § 691.316, could have been

applied in this case but fully agree with the opinion writer

that “[t}here is no evidence in this record that the Sanitary

Water Board or the Department issued any order at any

time against B & T as a ‘landowner’ under the provisions

of this section.”

Finally, the confusion as to whether, during the criti-

cal periods of time in this case, B & T was operating under

permit No, 567M035 or extensions of permit No, 564M005,

coupled with the cessation of all operations and the closing

of Mine No, 15 by late July 1969, nearly one year prior

to the first breakout, leads me to believe that the result

here is legally correct.

A70 First Penna. Supreme Court Opinion

COMMONWEALTH, APPELLANT,

v,

BARNES & TUCKER COMPANY,

Argued November 16, 1973. Before Jones, C. J., EacEn,

O'Brien, Rosarrs, Pomeroy and Nix, JJ.

Appeal, No. 20, May T., 1974, from decree of Com-

monwealth Court, No. 896A Tr. Dkt. 1970. Decree of

Commonwealth Court reversed and matter remanded; re-

argument refused May 31, 1974.

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.

Opinion BY Mn. Cuter Justice Jones, March 25, 1974:

Appellee, Barnes & Tucker Company, engaged in ac-

tive 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 dis-

covered at two different locations. Without detailing the

factual posture which will be discussed infra, the events

which precipitated this appeal are as follows,’ The De-

partment of Environmental Resources filed a complaint in

equity in the Commonwealth Court on August 7, 1970,

seeking preliminary and permanent mandatory injunctions

1, For a more detailed discussion of the factual and ural

ture of this case, see the opinion of the Commonwealth Court at

Pa, Commonwealth Ct. 1, A, 2d 544 (1973).

First Penna. Supreme Court Opinion A7l1

requiring Barnes & Tucker to treet che efflux from Mine

No. 15. After attempts by the Co:smonwealth 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 in-

terim, 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,* and

the remaining count was based on a common law nuisance

theory.

A preliminary injunction was issued by the Common-

wealth 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, Common-

wealth 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 *

to enjoin acid mine drainage from abandoned mines, In

some respects, this is a case of first impression in this Com-

monwealth, requiring an analysis of The Clean Streams

Law and the law of public nuisance. Due to the com-

plexity of the legal questions involved, a preliminary in-

2. Act of June 22, 1937, P. L. 1987, as amended, 35 P. S. § 691.1

et seq. See Section I, infra.

‘3, Prior to the Act of December 3, 1970, P. L, 834, § 30, 71 P. S.

§ 510-103, the Sanitary Water Board was responsible for mine drain-

age. By this Act, however, the Sanitary Water Board was abolished

and its functions were taken over by the Department of Environ-

mental Resources.

A72 First Penna. Supreme Court Opinion

vestigation 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 au-

thorized 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 pro-

vided 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, prac-

tical 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 “establish-

ment” to include coal mines and broadened the definition

of “pollution” to include discharges from coal mines.

Section 309, which imposed penalties for discharge of in-

dustrial 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;

First Penna. Supreme Court Opinion A73

“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 Sani-

tary 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 Com-

monwealth, 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 ‘t is > amendment.”

A new ‘- tion 313 was added by the 1945 amend-

me~’. .0 r+» ‘mn 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 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

A74 First Penna. Supreme Court Opinion

and until the board, after consultation with the Depart-

ment of Mines has approved such plan or change of

akice

In 1965 The Clean Streams Law was again substan-

tially altered by the Act of August 23, 1965, P. L. 372.

A new section was added which detailed legislative find-

ings and declarations of policy:

“Section 4. Findings and Declarations of Policy.—

It is hereby determined by the General Assembly of Penn-

sylvania 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 spe-

cial provisions for mine drainage that discriminate against

the public interest.

“(3) Mine drainage is the major cause of stream pol-

lution in Pennsylvania and is doing immense damage to

the waters of the Commonwealth.

“(4) Pennsylvania, having more miles of water pol-

luted by mine drainage than any state in the nation, has an

intolerable situation which seriously jeopardizes the eco-

nomic future of the Commonwealth.

“(5) Clean, unpolluted streams are absolutely essen-

tial if Pennsylvania is to attract new manufacturing in-

dustries 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 recrea-

tional facilities in the decades ahead.

First Penna. Supreme Court Opinion A75

“The General Assembly of Pennsylvania therefore

declares it to be the policy of the Commonwealth of Penn-

sylvania 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 pol-

lution is recognized as being directly related to the eco-

nomic 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 bring-

ing 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 oper-

ate, 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, ap-

proved by the board, so that if and when flowing or dis-

eharged 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 ap-

proving the proposed drainage and disposal of industrial

A76 First Penna. Supreme Court Opinion

wastes shall be submitted to the Sanitary Water Board.

The application shall contain complete drainage plans in-

cluding any restoration measures that will be taken after

operations have ceased and such other information as the

board by regulation shall require.

“(b) It shall be unlawful to open, reopen, or con-

tinue in operation any coal mine, or to change or alter

any approved plan of drainage and disposal of industrial

wastes, unless and until the board, after consultation of

the Department of Mines and Mineral Industries, has is-

sued a permit approving the plan or change of plan. A

permit shall not be issued if the board shall be of the

opinion that the discharge from the mine would be or

become inimical or injurious to the public health, animal

or aquatic life, or to the use of the water for domestic or

industrial consumption or recreation. In issuing a permit

the board may impose such conditions as are necessary to

protect the waters of the Commonwealth. The permittee

shall comply with such permit conditions and with the

rules and regulations of the board.

“(c¢) The board may modify, suspend or revoke any

permit issued pursuant to this section. Such action may

be taken if the board finds that a discharge from the mine

is causing or is likely to cause pollution to waters of the

Commonwealth or if it finds that the operator is in viola-

tion of any provision of this act or any rule or regulation

of the Sanitary Water Board. An order of the board

modifying, revoking or suspending a permit shall take

effect upon notice from the board, unless the order speci-

fies otherwise. Any party aggrieved by such order shall

be given the opportunity to appear before the board at a

hearing at which the board shall reconsider its order and

issue an adjudication, from which the aggrieved party may

appeal in the manner provided by the “Administrative

First Penna. Supreme Court Opinion A77

Agency Law, act of June 4, 1945 (P. L. 1388), as

amended. The right of the board to suspend or revoke a

permit is in addition to any penalty which may be im-

posed pursuant to this act.

“(d) Any permit approving the drainage and dis-

posal of industrial wastes from a coal mine and issued

by the board prior to the effective date of this act shall

be deemed to be a permit issued pursuant to this sec-

tion. The permit shall be valid for one year from the

effective date of this act or for such additional period

as the board might allow. Nothing herein shall limit

the board’s power to modify, suspend, or revoke any

such permit under the provisions of subsection (c) of

this section.”

The most recent amendments to The Clean Streams

Law were effected by the Act of July 31, 1970, P. L.

653, and again significantly altered the prior law. It

is clear that the 1970 amendments extended the Board’s

control over mining to include regulation of all opera-

tions and discharges. Section 307 now reads in part: “No

person . . . shall discharge or permit the discharge of

industrial wastes in any manner . . . into the waters of the

Commonwealth unless such discharge is authorized by

the rules and regulations of the board or such person . . .

has first obtained a permit from the department. .. .” To

the same end, Section 315(a) now reads in part: “No per-

son . . . 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 board or such person . . . has first ob-

tained a permit from the department.”

Section 316, which had been added in 1965 to require

landowners and occupiers to allow access to the land so

that appropriate corrective measures could be taken, was

A78 First Penna. Supreme Court Opinion

significantly changed. That section now provides a sepa-

rate basis for the imposition of liability for pollution “from

a condition which exists on the land.”

The apposition and effect of The Clean Streams Law,

and its various amendments, to this litigation are crucial

to the resolution of at least three issues raised and will be

discussed at length infra.

Il.

Mine No. 15 is a bituminous deep 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. The mine

contains approximately 6,600 acres, most of which is

located in the lowest section of the basin. The mine was

first opened in 1915 and following a series of different

operators, Barnes & Tucker took over operation of the mine

in 1939 when it acquired the assets of its subsidiary, Barnes

Coal Company, upon that company’s dissolution. During

the operation of the mine by Barnes & Tucker, four differ-

ent certificates or permits were issued by the Sanitary

Water Board for acid mine discharge in connection with

the operation of Mine No. 15.

The first certificate of approval of mine drainage,

Certificate No. 892, was issued by the Sanitary Water

Board on July 22, 1948, pursuant to power conferred

upon the Board in the 1945 amendments. The drainage

plan provided for discharge into Little Brown's Run,

which empties into Brown’s Run, and eventually into the

West Branch of the Susquehanna River.

On March 25, 1960, Permit No. 14,326 (sometimes

referred to as Permit No. 19124-M) was issued in repsonse

to an application of Barnes & Tucker. The plan of drain-

age approved therein provided for the discharge to be

First Penna. Supreme Court Opinion A79

pumped through a borehole into Crooked Run, a tributary

of Elk Creek, which flows into the North Branch of Black-

Lick Creek which, in turn, flows into the Conemaugh

River. These waters are in the Allegheny watershed.

In 1964 Barnes & Tucker wished to open a new mine

in the Barnesboro Basin to conduct mining operations in

both the B and D seams of coal (Mine No. 24). It was

thus necessary to obtain an additional permit to cover

these proposed operations. An application was made to

cover a proposed plan of drainage for all of Barnes &

Tucker's mining operations in both the B and D seams.

On December 21, 1964, Permit No. 564M5 was issued ap-

proving the proposed plan of drainage, which for Mine

No. 15 was the same as it had been under Permit No.

14,326.

As previously stated, the 1965 amendments signifi-

cantly expanded the scope of The Clean Streams Law by

proscribing the discharge of acid mine drainage into all

waters of the Commonwealth and not just “clean” waters.

The 1965 amendments became effective January 1, 1966.

Prior permit holders were treated in Section 315(d) of

the Act, which provided: “Any permit approving the

drainage and disposal of industrial wastes from a coal mine

and issued by the board prior to the effective date of this

act shall be deemed to be a permit issued pursuant to this

section. The permit shall be valid for one year from the

effective date of this act or for such additional period as

the board might allow. Nothing herein shall limit the

board’s power to modify, suspend, or revoke any such

permit under the provisions of Subsection (c) of this sec-

tion.” Pursuant to this section, Barnes & Tucker applied

for and was granted three extensions of time to operate

under its mine drainage permit No. 564M5, subject to cer-

tain conditions. The last extension was effective until

A80 First Penna, Supreme Court Opinion

May 31, 1969. During the period of these extensions, how-

ever, Barnes & Tucker filed an application for a new mine

drainage permit to cover both Mines Nos. 15 and 24 on a

form prescribed for post-1965 amendment permits. This

application was filed on October 17, 1967, and on March

22, 1968, Permit No, 567M035 was issued. The Common-

wealth Court made no finding with regard to which permit

or permits Mine No. 15 was being operated under during

the period from March 1968 until May 1969." In light of

Section 315(d), even a time-extended permit originally

issued prior to the effective date of the 1965 amendments

was to be treated as if issued pursuant to those amend-

ments. Furthermore, under both permits the plan of

drainage for Mine No. 15 was the same. Consequently,

the only legal relevance in a determination of the govern-

iny drainage permit would be the effect of the conditions

imposed upon the issuance of Permit No, 567M035 and

Permit No. 564M5 and the extensions thereto. An analysis

of the Board’s power to impose conditions upon permits

and the effect of those conditions upon the issues presented

in this case will be pursued infra.

Ill.

The Commonwealth Court framed the legal issues in-

volved in this case as follows:

“1. Under the provisions of The Clean Streams Law

then in effect, did B & T [Barnes & Tucker] as a holder

of time extended permit No. 564M5 or permit No, 567M035

(the 1965 amendment permii) assume responsibility for

mine water discharge from Mine No. 15 after cessation of

mining and thereby also become responsible for its treat-

4. After the issuance of Permit No. 567M035, two additional

extensions to Permit No. 564M5 were granted.

First Penna, Supreme Court Opinion A8l

ment to meet minimum water quality standards established

by the Commonwealth?

"2. Did the mine water discharge emanating from

Mine No. 15 impose any responsibility upon B & T for

abatement of the polluting qualities of the discharge under

Section 316 of The Clean Streams Law as then in effect?

"3. Did the mine water discharge emanating from

Mine No. 15 constitute a public nuisance under Section

3 of The Clean Streams Law as then in effect for which

B & T is responsible and which it must abate?

“4. Did the mine water discharge emanating from

Mine No. 15 constitute a common law public nuisance

for which B & T is responsible and which it must abate?”

Since the Commonwealth Court resolved all four of these

questions in favor of Barnes & Tucker, a discussion of the

constitutional question of impbsing responsibility on

Barnes & Tucker and the issues of estoppel, laches, and

waiver against the Commonwealth was obviated. The

findings of fact by the court below are supported by the

record and will not be disturbed on appeal. In the ap-

plication of the law to these facts, however, we are not

in total accord with the Commonwealth Court, and, ac-

cordingly, we reverse. This disposition will therefore

necessitate not only our review of those questions decided

below, but also a discussion of the questions of constitu-

tionality, waiver, estoppel, and laches.

The Commonwealth first contends that Section 315

of the 1965 Clean Streams Law’ imposes responsibility

upon Barnes & Tucker to abate or treat the discharge from

Mine No. 15, This contention is trifurcate: (1) Section

315 expressly imposed such responsibility; (2) the regula-

5. Since a claim under Section 315 of the 1970 law was not

raised by the Commonwealth, we will not raise it sua sponte,

A82 First Penna, Supreme Court Opinion

tions and conditions attached to the drainage permit im-

posed such responsibility; or (3) but for Barnes & Tucker's

deception the Board would have imposed such respon-

sibility by means of regulation or condition upon the

permit.

As earlier discussed, the 1965 amendments to The

Clean Streams Law reflected a significant change in legis-

lative policy towards polluting emissions from coal mines.

The principal effect of the 1965 amendments was to ex-

tend the coverage of the permit provisions by eliminating

any distinction between disc ,arges into clean and unclean

streams. Despite the expression of legislative policy that

the objective of the 1965 amendments was “not only to

prevent further pollution of the waters of the Common-

wealth, but also to reclaim and restore to a clean, unpol-

luted condition every stream in Pennsylvania that is

presently polluted,” 35 P. S. § 691.4, the 1965 amendments

did not provide a blanket interdiction of polluting dis-

charges from coal mines. Section 315 appertained to

opening, reopening, or operating a coal mine.’ Likewise,

Section 307 spoke of the discharge of industrial wastes

resulting from the operation of an establishment. Al-

though the 1965 amendments required a drainage permit

for discharges into “unclean” waters for the first time, Sec-

tion 306 (repealed in 1970), which broadly proscribed the

discharge of industrial waste into the waters of the Com-

monwealth, was retained after the 1965 amendments, and

fore “any coal mine is opened, reopened, or continued in operation.”

Section 315(b) interdicts opening, reopening, or og coal

mine without or in derogation of a nage permit. sub-

section also provides the authority for the Board to promulgate

drainage permit. Section 315(e) deals with modification, yrs

sion, and revocation of drainage permits, and Section 315(d)

with pre-1965 amendment permits.

First Penna, Supreme Court Opinion A83

was limited to the protection of clean waters. The dis-

charge in this case is admittedly not into clean waters.

We therefore find, as did the Commonwealth Court, that

The Clean Streams Law of 1965, and in particular Section

315, did not expressly impose responsibility upon Barnes

& Tucker to abate or treat post-mining discharges.”

Although The Clean Streams Law did not expressly

speak to post-mining discharges as of 1965, it did empower

the Board to promulgate rules and regulations, to attach

conditions to permits, and to require permit applications

to contain “complete drainage plans including any restora-

tion measures that will be taken after operations have

ceased, . . .” This grant of administrative power, how-

ever, must be viewed in the context of the enabling stat-

utory = = - -_ that section deals with drain-

age permits. Accordingly, the only sanctions provided b

Section 315 of the 1965 law for the violation a a rule ra

regulation of the Board, or the breach of a permit condi-

tion, are modification, suspension, or revocation of the

permit as provided in Section 315(c).* We are not called

upon to rule on the propriety of the Board’s revocation of

Permit No. 567M035 because of post-mining discharges

from Mine No. 15.’ Nor because of the limited sanctions

7. This

slature ee ee oy oye , —~ 7] 15. 1008

P. L. 1075, 35 P. S, § 760.1 et seq., which was to alleviate pollution

of streams from abandoned coal mines b anti rtain duti

and powers to the Department of Mines an Mineral Eadusteten. r

8. To the contrary, Section 315 of the 1970 Clean Stre

and Section 307, both after and prior to the 1970 quendmente, aa

sited for the abatement of the discharge through Section 601, 35

9. In this we note that the wisdom of the decisi

Sanitary Water rd v. Subeam Coal Corp., 77 Dauph, 264

1961), and 47 Pa. D. & C. 2d 378 (Dauphin Co, 1969), cited by

& Tucker is not now before us and that those decisions are

inapposite to the disposition of this appeal.

ASA First Penna, Supreme Court Opinion

provided in Section 315, which do not include injunctive

relief, need we review the Administrative Rules and Regu-

lations of the Board on the conditions attached to either

Permit No, 564M5 or Permit No. 567M035, since such

review could have no bearing on this action for a manda-

tory injunction. The relief sought by the Commonwealth

cannot, therefore, be premised on this theory.

The second count of the Commonwealth's amended

complaint asserts responsibility upon Barnes & Tucker

for the post-mining discharge by reason of Section 316

of the 1970 Clean Streams Law. This section provides in

part:

“Whenever the Sanitary Water Board finds that pollu-

tion or a danger of pollution is resulting from a condition

which exists on land in the Commonwealth the board may

order the landowner or occupier to correct the condition

in a manner satisfactory to the board or it may order such

owner or occupier to allow a mine operator or other person

or agency of the Commonwealth access to the land to take

such action. For the purpose of this section, ‘landowner’

includes any person holding title to or having a propriety

interest in either surface or subsurface rights.

“For the purpose of collecting or recovering the ex-

pense involved in correcting the condition, the board may

assess the amount due in the same manner as civil penalties

are asessed under the provisions of section 605 of the act:

Provided, however, That if the board finds that the condi-

tion causing pollution or a danger of pollution resulted

from mining operations conducted prior to January 1,

1966, or, if subsequent to January 1, 1966, under circum-

stances which did not require 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), then the amount assessed shall be

First Penna. Supreme Court Opinion A85

limited to the increase in the value of the property as a

result of the correction of the condition.” Satis

The remedies provided in Section 316 are statutorily

created, and as such are to be strictly construed. In the

present case, there was no administrative order. Conse-

quently, even if the facts of this case would warrant relief

under Section 316, such relief would not be obtainable

through an original equity action in the Commonwealth

Court." The Commonwealth's reliance on that section is

therefore inapt.

The third and fourth bases upon which the Common-

wealth claims relief should be granted are the doctrines

of statutory and common law public nuisances. We find

that relief may be granted under either of these theories.

In order to correct what we believe to be a misinterpreta-

tion of The Clean Streams Law and the law of public

nuisance, we think it advisable to discuss both theories.

Section 3 of The Clean Streams Law has provided

since July 31, 1970, that: “The discharge of sewage or

industrial waste or any substance into the waters of this

Commonwealth, which causes or contributes to pollution

as herein defined or creates a danger of such pollution is

hereby declared not to be a reasonable or natural use of

such waters, to be against public policy and to be a public

nuisance.” Section 601 of the 1970 Clean Streams Law

provides for the abatement of nuisances. That section

provides in part: “(a) Any activity or condition declared

by this act to be a nuisance, shall be abatable in the man-

ner provided by law or equity for the abatement of public

nuisances.”

10. See Section 610 of The Clean Streams Law, 35 P. §S.

|b arn ~ ay he ee orders, and Section 1917-A of The

inistrative , 71 P. S. § 510-17, g the powers and

duties of the Department of Environmental Resources to abate or

remove nuisances.

A86 First Penna. Supreme Court Opinion

The Commonwealth's amended complaint contained

reference to both of these sections and was filed almost

eight months after the effective date of the 1970 amend-

ments. Since the Commonwealth's prayer for relief

abatement of a nuisance—is prospective, the 1970 amend-

ments are clearly applicable. However, although the

Commonwealth Court set forth Section 3 of the 1970 law

in its opinion, the Court did not appear to consider this

section in its disposition. To the contrary, the Court spoke

of the legislative history prior to 1970, the failure of the

Commonwealth to assert that the waters here involved

were “clean waters,” and Section 310 of The Clean Streams

Law. Although Section 310 of The Clean Streams Law

declared the discharge of acid mine drainage into “clean

waters” to be a public nuisance, this section was repealed

in 1965 and would have no bearing on the present case

even if the receiving stream were unpolluted. Section 3

is very clear and not difficult of application. The record

fully supports a finding that the discharge causes or con-

tributes to the pollution of the receiving stream, or at the

least creates a danger of such pollution. We are therefore

of the opinion that Section 3 on its face does provide the

Commonwealth a remedy.

Barnes & Tucker argues that the limited applicability

of Section 315(a) of the 1970 law to only those post-

mining discharges where mining operations have occurred

subsequent to January 1, 1966, under conditions requiring

a permit pursuant to Section 315(b) of the 1965 law,

should likewise obtain to Section 3. Without adjudging

the merits of this contention, we believe that the result we

reach would be unaffected by such a limitation. Whether

Barnes & Tucker was operating Mine No. 15 prior to

closure under either Permit No. 564M5 or Permit No.

567M035, it was operated under circumstances requiring

First Penna. Supreme Court Opinion A87

a permit under Section 315/b) of the 1965 law for pur-

poses of the limitation in Section 315(a) of the 1970 law.

We reach this conclusion without making a finding as to

which permit or permits Barnes & Tucker operated under

subsequent to January 1, 1966, “because Permit No.

567M035 was issued pursuant to Section 315(b) of the

1965 law and Permit No. 564M5, although issued prior to

the effective date of the 1965 law, is, under Section 315(d)

of the 1965 law, deemed to be issued pursuant to this sec-

tion, i.e., pursuant to Section 315(b).

Our holding in regard to the Commonwealth’s claim

based on Section 3 of the 1970 Clean Streams Law is not

inconsistent with our ruling on the first claim based on

Section 315. In ruling upon that contention we restricted

our discussion to the 1965 law because the Commonwealth

had so based its claim. The 1970 law, however, sig-

nificantly altered Section 315 and would, on its face, pro-

vide a basis of relief. That section now provides in per-

tinent part: “No person . . . shall . . . allow a discharge

from amine. . . unless such . . . discharge is authorized

by the rules and regulations of the board or such person

. . . has first obtained a permit from the department. . . .

A discharge from 1 mine shall include a discharge which

occurs after mining operations have ceased, provided that

the mining operations were conducted subsequent to Jan-

uary 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

This text is long and has been trimmed here. Open the source document for the complete record.