Commonwealth v. Barnes & Tucker Company

No. 896-A (Pa. Commw. Ct. March 2, 1976)

ELR Digest

On remand from the supreme court, 455 Pa. 392, 319 A.2d 871, 4 ELR 20545, the Pennsylvania commonwealth court determines that the only scheme that can effectively abate another acid mine water breakout from defendant's Mine No. 15 is continued pumping and treatment, and holds that such abatement of a public nuisance does not amount to an uncompensated taking of private property. The supreme court unequivocally declared that the acid mine drainage is a public nuisance; that absence of negligence, foreseeability or unlawful conduct does not prevent a finding of nuisance; that laches, waiver and estoppel are not available against prosecution by the Commonwealth; and that persons cannot acquire prescriptive rights to pollute. The supreme court rejected the defendant's assertion that abatement would deny it due process and equal protection and instructed this court to determine whether the acid pollution treatment in this case constitutes a taking, or goes beyond the parameters of reason.

The record in this case establishes that the volume of water flowing into Mine No. 15 precludes abatement by sealing the mine from intrusion or breakout. There is no current alternative except treatment of the water.

As to whether this abatement amounts to a taking, the court makes extensive findings of fact for probable review by the supreme court. The more important findings are: 7.2 million gallons of water must be pumped per day from Mine No. 15 to avoid pressure leading to a breakout at a monthly cost of $30,000 to $50,000; the evidence is inconclusive as to whether a breakout would occur if fugitive mine water from nearby mines were barred and only water generated from the surface entered Mine No. 15; no evidence indicates when Mine No. 15 will achieve a static water level without pumping.

The traditional criteria that establish negligence or unlawful conduct do not apply in this case, since negligence is merely one type of conduct that may cause a public nuisance. W. Prosser, Law of Torts, § 88 at 595. The defendant's mining activity caused the subsurface void and is the dominant "but for" cause of the acid mine discharge. Lack of proof of proximate cause in traditional negligence theory cannot assume constitutional proportions to challenge the abatement of a public nuisance.

In terms of economic impact, Pennsylvania courts have upheld against takings challenges exercises of the police power that entirely suppressed a business, Commonwealth v. Emmers, 221 Pa. 298, 70 A. 762 (1908), at whatever the cost to the agent causing the proscribed conduct, Erie R. Co. v. Bd. Pub. Util, Comm'rs, 254 U.S. 394 (1921), or forced the company out of ousiness, Bortz Coal Co. v. Commonwealth, 2 Pa. Com. Ct. 441, 272 A.2d 388 (1971). These prenouncements are not absolute, however, where further proceedings might be necessary to determine whether the abatement expense would be prohibitive. Commonwealth v. Wyeth Laboratories, 12 Pa. Com. Ct. 227, 315 A.2d 648 (1974). A proper exercise of the police power by legislative enactment does not constitute a taking per se regardless of its economic impact. The means of enforcement of such enactments must be scrutinized to determine their reasonableness measured by available alternatives and the balance of conflicting public and private interests. In this case there is no method of determining the abatement's economic impact, since the defendant did not introduce any new evidence as to its capital structure or profits and losses, if any. The defendant contends that the cost of operating the current treatment facility, considered apart from all other corporate expenses, constitutes a taking. Such insulation of expenses cannot serve to establish a taking, when measured against the adverse impact of the untreated mine waters on human health and safety and, less obviously, on the environment in general.

The defendant is enjoined from allowing a discharge of untreated acid mine water drainage from Mine No. 15 into waters of the Commonwealth, and is ordered to pump a sufficient quantity of mine water to prevent such discharge. Prior expenses of treatment shall be paid to the Commonwealth.

The full text of this opinion is available from ELR (23 pp. $3.00, ELR Order No. C-1039).

Counsel are listed at 4 ELR 20545.

Bowman, P.J., for the entire bench.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]