ELR Citation: ELR 20545
No(s). 20 (Pa. Mar 25, 1974)

The Supreme Court of Pennsylvania reverses a decision of the Commonwealth Court and grants the state Department of Environmental Resources (DER) a permanent injunction on theories of public and statutory nuisance against discharge of acid drainage from a closed, inactive coal mine into a stream.The court finds that the pollution of a stream from which water is used in any manner by the general public constitutes a public nuisance per se under §27 of the Pennsylvania Constitution and prior state case law. The court finds a statutory basis for this suit in §3 of the Pennsylvania Clean Streams Act of 1970, which allows an action for nuisance against any person who discharges sewage or industrial waste into any state waters if that discharge creates or contributes to a danger of pollution. The court rejects plaintiff's arguments based on the Clean Streams Act of 1965, as well as defenses of laches, waiver, estoppel, due process, and equal protection, but indicates that the availability of statutory remedies to the DER would have been greater had it properly pleaded the provisions of the 1970 Act and correctly followed administrative procedure. See also Pennsylvania v. Harmar Coal Co., 3 ELR 20336.

Counsel for Plaintiff
James Rochow Asst. Attorney General
State Office Building
Harrisburg, PA 17120

Counsel for Defendant
Cloyd R. Mellot
C. Arthur Wilson, Jr.
John P. Kendrick
Eckert, Seamans, Cherin & Mellott
42nd Floor, 600 Grant Street
Pittsburgh, PA 15219