Com. v. Barnes & Tucker Co.

• Decision Date: 06 April 1977
• Citation: 371 A.2d 461,472 Pa. 115
• Parties: , 10 ERC 1559, 7 Envtl. L. Rep. 20,394 COMMONWEALTH of Pennsylvania v. BARNES & TUCKER COMPANY, Appellant.
• Court: Pennsylvania Supreme Court

Page 461

371 A.2d 461

472 Pa. 115, 10 ERC 1559, 7 Envtl. L.

Rep. 20,394

COMMONWEALTH of Pennsylvania v. BARNES & TUCKER COMPANY, Appellant.

Supreme Court of Pennsylvania.

Argued Nov. 15, 1976.

Decided Feb. 28, 1977.

Rehearing Denied April 6, 1977.

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.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY and NIX, JJ.

OPINION OF THE COURT

JONES, Chief Justice.

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.' ¹

In that appeal, we found:

'The third and fourth bases upon which the Commonwealth 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.' 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 ² 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 oppressive to require Barnes & Tucker to abide by the order of the Commonwealth Court.

I

A brief review of the events preceding this appeal and the nature of the discharge of acid mine water at Mine No. 15 will be helpful in the consideration of this appeal. ³ Mine No. 15 is a deep bituminous 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. Most of the area of Mine No. 15 is located in the lowest portion of the Barnesboro Basin. It contains approximately 6,600 acres.

The mine was originally opened in 1915 in the northeast section of the Barnesboro Basin near where the coal outcrops in the vicinity of the West Branch of the Susquehanna. From 1915 until 1969, when the mine was closed, mining operations were conducted along the dip of the coal seam in Mine No. 15, I.e., from the highest elevation of the coal seam at the outcrop near the West Branch in the southwesterly direction to the lowest area of elevation of the coal seam. Barnes & Tucker ceased its mining operations of Mine No. 15 on May 10, 1969, and subsequently sealed the mine openings and completed construction of barriers between the No. 15 mine and the adjacent Mine No. 24--B. ⁴

In late June 1970, 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 the mine, was discovered. This discharge prompted the Sanitary Water Board ⁵ to issue an order (dated July 7, 1970) suspending Barnes & Tucker's permit No. 567MO35. ⁶ This suspension 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. A subsequent Board order (dated July 16, 1970) reinstated permit No. 57MO35 subject to special conditions.

Prior to the reinstatement order of July 16, 1970, the Buckwheat borehole had been plugged, but the pool level in Mine No. 15 was rising to a level which threatened a discharge from a portal in the general vicinity of the Buckwheat borehole now plugged. Barnes & Tucker then proposed to construct relief boreholes and build treatment facilities in that area for the liming of any discharge. This second borehole (Mayberry) was constructed and treatment of its discharge began, but on July 23, 1970, another substantial acid mine water discharge from Mine No. 15 occurred in the vicinity just south of the plugged Buckwheat borehole, which became known as the breakout area. ⁷ This second discharge resulted in another order by the Sanitary Water Board (dated July 28, 1970) which again suspended permit No. 567MO35. Barnes & Tucker then ceased treatment of the discharge at Mayberry the responsibility of which the Commonwealth assumed on August 22, 1970. In the meantime, Barnes & Tucker appealed to the Commonwealth Court from the Board order of July 28, 1970, and the Commonwealth initiated its complaint in equity seeking preliminary and permanent injunctive relief. The Commonwealth's prayer for relief sought to enjoin Barnes & Tucker from operating Mine Nos. 15, 24--B and 24--D, and to require Barnes & Tucker to take immediate steps to treat the acid mine water drainage to attain specified water quality standards.

The Commonwealth and Barnes & Tucker then entered into a stipulation, accepted by the Commonwealth Court, whereby the Commonwealth would continue its liming treatment of the discharge from No. 15 into the West Branch until Barnes & Tucker, pursuant to 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. Barnes & Tucker constructed a treatment facility at Duman Dam and commenced the operation of that facility on November 1, 1970. On February 22, 1971, Barnes & Tucker ceased operating the Duman Dam facility and its operation was assumed by the Commonwealth. On April 13, 1971, the Commonwealth Court issued a preliminary injunction providing for the continued operation of the Duman Dam facility, pending the final determination of the case upon its merits, with the parties sharing the costs of such operation on an equal basis.

Upon remand from this Court, the Commonwealth Court made additional findings of fact and entered a final decree, which reads in pertinent part:

'2. For the purpose of avoiding repetition of such a breakout or the discharge of untreated acid mine water from Mine No. 15 into the waters of the Commonwealth, a public nuisance; and until such time as the likelihood of a reoccurrence of another breakout is past, Barnes & Tucker Company shall cause to be pumped from Mine No. 15 sufficient quantities of mine water to avoid any such breakout and shall maintain a treatment program of the mine water discharge to achieve minimum water quality standards as prescribed by law pertaining to the discharge of acid mine water into the waters of the Commonwealth.

3. Expenses incurred by the Commonwealth in the operation and maintenance of the Duman Dam pumping and treatment facility or sums paid by the Commonwealth to Barnes & Tucker incident to the operation of said pumping and treatment facility by Barnes & Tucker during the course of this litigation as prescribed in our prior Orders of April 13, 1971, June 7, 1973 and September 20, 1974, shall be entered as a money judgment in favor of the Commonwealth and against Barnes & Tucker Company.' It is from this decree that Barnes & Tucker now appeals.

II

In light of the above background, we now move to consider the issue on this appeal concerning the constitutionality of the remedy imposed by the Commonwealth Court. Appellant argues that, since the requirements of The Clean Streams Law already have forced it for economic considerations to cease operation of Mine No. 15, to further compel it to take affirmative steps to treat the acid mine drainage emanating from its now abandoned mine is both an unreasonable exercise of the state's police power and a 'taking' of private property in violation of the Fourteenth Amendment to the United States Constitution. We are not persuaded by appellant's arguments and, therefore, affirm the order of the Commonwealth Court.

The police power is the inherent power of a body politic to enact and enforce laws for the promotion of the general welfare. 'It has long been recognized that property rights are not absolute and that persons hold their property 'subject to valid police regulation, made, and to be made, for the health and comfort of the people. . . . " De Paul v. Kauffman, 441 Pa. 386, 393, 272 A.2d 500, 504 (1971), quoting Nolan v. Jones, 263 Pa. 124, 131, 106 A. 235, 237 (1919). It must be recognized that one who challenges the constitutionality of the exercise of the state's police power, affecting a property interest, must overcome a heavy burden of proof to sustain that challenge. See, e.g., Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Miller v. Schoene, 276 U.S. 272, 48...