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Commonwealth v. Coward

Citation: 10 ELR 20729
414 A.2d 91/489 Pa. 327, (Pa., 04/30/1980)

Affirming the lower court, the Pennsylvania Supreme Court holds that, pursuant to the Pennsylvania Clean Streams Law, the state Department of Environmental Resources (DER) may order the closing of a landfill and cleanup of the pollution discharged. The landfill operators had failed to comply with orders to submit a landfill plan and obtain a permit; the DER therefore issued an order closing the landfill, which the operators appealed, and obtained an injunction to abate the nuisance from the commonwealth court. The court notes that under the Clean Streams Law, failure to comply with a DER order is a nuisance, and the DER is authorized to file suit to seek an injunction to abate the nuisance. The DER is not barred by the doctrine of election of remedies because its request for cleanup of pollution discharges is "supportive" of the requests for enforcement of its earlier orders and included in the remedial nature of the relief sought. Furthermore, the court rejects appellants' argument that the preliminary injunction was issued improperly since it does not maintain the status quo. Affirmative injunctive decrees are permissible where necessary to provide equity; in this case the injunction is warranted because the DER must change the status of the parties to protect the public interest.

Counsel for Appellants
Richard H. Galloway
Ackerman & Galloway
11 N. Main St., Greensburg PA 15601
(412) 836-0700

Counsel for Appellee
Howard J. Wein, Ass't Attorney General
Department of Environmental Resources
5407 Guarino Rd., Pittsburgh PA 15217
(412) 521-8170

Before EAGEN, C.J., and O'BRIEN, ROBERTS, NIX, MANDERINO, LARSEN and FLAHERTY, JJ.

MANDERINO, J., did not participate in the decision of this case.