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COMMONWEALTH PENNSYLVANIA v. BARNES & TUCKER COMPANY (02/28/77)

decided: February 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
BARNES & TUCKER COMPANY, APPELLANT



COUNSEL

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

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

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

Author: Jones

[ 472 Pa. Page 117]

OPINION OF THE COURT

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

In that appeal, we found:

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

[ 472 Pa. Page 118]

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

We went on in our opinion to hold that:

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

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

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

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


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