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 Pennsylvania v. Barnes & Tucker Company. Case transferred September 1, 1970, to the Commonwealth Court of Pennsylvania.
Stanley R. Wolfe, Special Assistant Attorney General, with him Philip T. Warman, Special Assistant Attorney 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.
President Judge Bowman, sitting as Chancellor in Equity. Opinion and Order by President Judge Bowman.
[1 Pa. Commw. 552 Page 554]
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.
In late June 1970, there was discovered a substantial discharge of acid mine water into the West Branch of the Susquehanna River from the "Buckwheat" borehole 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 perimeter 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 Commonwealth 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.
[1 Pa. Commw. 552 Page 555]
The above-mentioned administrative actions by the Sanitary Water Board produced an appeal to this Court by Barnes & Tucker. In the meantime, the Commonwealth 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 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 pollution (and which continues to be polluted by acid mine drainage from sources other than No. 15), the Commonwealth, 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*fn1 or directing that its mine drainage discharge be treated to meet specified water quality standards.*fn2
Hearing on plaintiff's application for a preliminary injunction was fixed by the ...