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decided: March 2, 1976.


Original jurisdiction in case of Commonwealth of Pennsylvania v. Barnes & Tucker Company.


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

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

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.

Author: Bowman

[ 23 Pa. Commw. Page 497]

In reversing this Court and remanding the case to us for further proceedings consistent with its opinion, Commonwealth v. Barnes & Tucker Company, 455 Pa. 392, 319 A.2d 871 (1974), the Supreme Court in our analysis of its opinion, has unequivocally declared:

(1) that the discharge of acid mine drainage from Mine No. 15 into the waters of the Commonwealth constitutes a public nuisance at common law as well as under the applicable statutory law, and that relief could be granted under either of these theories.

(2) that the absence of facts supporting concepts of negligence, foreseeability or unlawful conduct is not fatal to a finding that a common law nuisance exists.

[ 23 Pa. Commw. Page 498]

(3) that the doctrine of laches, waiver or estoppel as against the Commonwealth are not available to Barnes & Tucker; nor can those who pollute streams acquire prescriptive or property rights to so pollute as against the Commonwealth.

Having so declared, the Supreme Court then addressed itself to the issue of whether relief should be granted in these words: "[h]aving determined that there is a basis upon which the Commonwealth could be granted relief, we must now determine whether relief should be granted." Barnes & Tucker, supra, 455 Pa. at 414, 319 A.2d at 883. (Emphasis in original.) However, the Supreme Court did not resolve this issue but instead, remanded the proceedings to this Court.

It is this language and that found in subsequent portions of its opinion that has produced total disagreement as between the parties of the issues on remand.

In addressing itself to the broad issue of whether relief should be granted against Barnes & Tucker in abatement of the instant public nuisance, the Supreme Court totally rejected, in our view, a number of constitutional arguments advanced by Barnes & Tucker. As to these arguments, it said:

"The imposition of liability in this case also requires our consideration of constitutional objections based on the Fourteenth Amendment to the United States Constitution and article I, Section 10, of the Pennsylvania Constitution. We do not believe that a finding of liability for and responsibility to abate the discharge from Mine No. 15 would deny Barnes & Tucker due process of law,*fn13 or equal protection of

[ 23 Pa. Commw. Page 499]

    the law,*fn14 in violation of either the United States or Pennsylvania constitutions." 455 Pa. at 416-17, 319 A.2d at 884.

In response to other constitutional arguments advanced by Barnes & Tucker, the Supreme Court identifies the issues on remand as we understand its opinion. These issues are more circumscribed than as posed by Barnes & Tucker but not so simplistic as posed by the Commonwealth, which insists that our sole responsibility is to determine whether alternate means of abatement are

[ 23 Pa. Commw. Page 500]

    available if Barnes & Tucker offered additional evidence on this subject, which it did not.

The critical portions of the Supreme Court's opinion from which we identify our responsibility on remand as circumscribed by its pronouncements heretofore referred to, are found in the following exerpts:

"Whether it is a 'taking of property' to require Barnes & Tucker to treat or abate the discharge from Mine No. 15 is a more difficult question. The power of the Attorney General to abate public nuisances is an adjunct of the inherent police power of the Commonwealth. There is often a thin line separating that which constitutes a valid exercise of the police power and that which constitutes a taking. The United States Supreme Court has abnegated any generally applicable standards in this area, but the classic rule of Lawton v. Steele, 152 U.S. 133 (1894), is instructive.

"'To justify the State in . . . interposing its authority in behalf of the public, it must appear, first, that the interests of the public . . . require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.' Id. at 137.

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

[ 23 Pa. Commw. Page 501]

"We recognize that when the Commonwealth brings an equity action to abate a public nuisance its right to relief is not restricted by any balancing of equities, nor by any rule of damnum absque injuria. [Citations omitted.] The exercise of the police power is nevertheless restricted by the parameters of reason. Whether the Commonwealth's use of such power in this case would be unduly oppressive upon Barnes & Tucker would naturally depend on the relief granted. The prayer for relief was for the abatement or treatment of the discharge from Mine No. 15. On the present record it would be impossible for this Court to fashion an appropriate decree. The precise nature of relief which would be warranted and reasonable in this case must rest with the chancellor who may need to take additional testimony and make additional findings of fact in so determining."*fn16 455 Pa. at 418-20, 319 A.2d at 885-86.

[ 23 Pa. Commw. Page 502]

Addressing ourselves first to the possibility of sealing and isolating Mine No. 15, the record of the case discloses no definitive testimony or other evidence on this subject, nor did either party on remand choose to offer additional evidence on this subject. While the volume and source of mine water "generated" in Mine No. 15 and flowing into it from adjoining and nearby subsurface mines by reason of pressure or gravity are highly disputed as between the parties' experts, there is no dispute that the volume of mine water flowing into and accumulating in it precludes any effort to perfectly seal it from adjoining mines, to seal it against a breakout, or to foreseeably estimate a diminution of volume enabling the mine itself to reservoir the mine water.

On the record before us, if the discharge of acid mine drainage from Mine No. 15 "must be abated" there is no alternative method of relief available to that of the treatment of the discharging mine water. The one known and demonstrated methed treatment as disclosed by the record is by the method and means employed at the Duman Dam facility. Other means and methods may exist or develop in future technology. However, if Barnes & Tucker is to be required to abate this public nuisance, the chancellor, in fashioning the abatement relief, has before him no alternatives and must order abatement by this means and method, subject, of course, to future modification of the abatement order upon proper proof and showing of feasibility of an alternative course of action.

[ 23 Pa. Commw. Page 503]

Leading to the difficult issue of whether the only abatement relief that can be fashioned by this Court would equate an unconstitutional taking of property of Barnes & Tucker or be beyond the "parameters of reason," the Supreme Court strongly suggests the relevancy of the quality and quantity of mine water generated in Mine No. 15 and mine water finding its way into Mine No. 15 from adjoining or nearby subsurface mines.

In our original opinion, Commonwealth v. Barnes & Tucker Company, 9 Pa. Commonwealth Ct. 1, 303 A.2d 544 (1973), we made extensive findings of fact in both narrative form and by enumerated findings which we deemed essential to the opinion as rendered. We did not, however, make such findings particularly directed to this subject. Having again reviewed ...

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