Appendix — National Wood Preservers, Inc. v. Pennsylvania Department of Environmental Resources

§'0-90

SUPREME COURT OF THE UNI

October Term, 1980

NATIONAL WOOD PRESERVERS, INC., Appellant

Vv.

COMMONWEALTII OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL

RESOURCES, CLIFFORD ROGERS and

VIRGINIA ROGERS,

~~ i,

Appellees

TOWNSIIP OF HAVERFORD, [ntervenor

October Term, 1980 No.

CLIFFORD ROGERS and VIRGINIA ROGERS, Appellants

Vv.

COMMONWEALTI! OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL RESOURCES,

NATIONAL WOOD PRESERVERS, INC.,

Appellees

TOWNSIIIP OF HAVERFORD, Intervenor

ON APPEAL FROM

Tik SUPREME COURT OF PENNSYLVANIA

JOINT APPENDIX OF APPELLANTS

TO JURISDICTIONAL STATEMENTS

STEPHEN R. BOLDEN JAMES S. KILPATRICK, JR.”

MICHAEL S. LUBLINE 15 Rittenhouse Place

ALEXANDER N. RUBIN, JR.* Ardmore, Pa. 19003

FELL, SPALDING, GOFF & RUBIN (215) 649-5200

1800 Penn Mutual Tower Attorney for Appellants

510 Walnut Street Clifford Rogers and

Phila., PA 19106 Virginia Rogers

(215) 925-8300

Attorneys for Appellant

National Wood Preservers, Inc.

Counsel of Record

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA, PA. 19107 (215) 561-4050

TABLE OF CONTENTS TO APPENDIX

Page

. Opinion and Concurring Opinion, Pennsyl-

vania Supreme Court dated April 24, 1980 —

National Wood Preservers, Inc., et al v. Com-

monwealth of Pennsylvania, Department of

Environmental Resources, et al. Pa.

» 414 A.2d 37 (1980) ...........00-, A-1

. Opinion and Order, Commonwealth Court of

Pennsylvania dated May 24, 1978 — Na-

tional Woded Preservers, Inc., et al v. Com-

monwealth of Pennsylvania, Department of

Environmental Resources, et al. 35 Pa. Com-

monwealth Ct. 443, 387 A.2d 142 (1978) .. A-25

. Adjudication and Order’ Environmental

Hearing Board dated July 30, 1976 — In The

Matter of National Wood Preservers, et al. v.

Commonwealth of Pennsylvania, Depart-

ment of Environmental Resources

EIR ane aS eats en is ah ek a A-48

. Opinion and Order on Pre-Hearing Motion to

Environmental Hearing Board dated January

17, 1974 — In Re National Wood Preservers,

ee 8 oe BBG oy ) eee re A-91

. Judgment Pennsylvania Supreme Court

B.D | er A-100

. Notice of Appeal to Supreme Court of United

States dated and filed with Pennsylvania Su-

preme Court on July 3, 1980, by National

Wood Preservers, Inc. .........:....0005: A-101

. Notice of Appeal to the Supreme Court of the

United States, dated and filed on July 10,

1980, by Clifford and Virginia Rogers .... A-107

TABLE OF CONTENTS TO APPENDIX (Continued)

Page

8. Statutes Involved 1970 Amendments, Sec-

tion 316 of Pennsylvania Clean Streams Law,

and Section 602 of Clean Streams Law, Act

of June 22, 1937 P.L. 1987 as amended 35

Pa. Stat. Ann. 691.316 and 691.602 ...... A-113

9. Order of Department of Environmental Re-

sources to National Wood Preservers, dated

PP nc cs oe eek A-116

10. Order of the Department of Environmental

Resources to Clifford Rogers and Virginia

Rogers, dated September 21,1973 ....... A-118

11. Petition for Continuation of Supersedeas Pre-

viously Entered together with Exhibits E-I

Appended thereto, filed by National Wood

Preservers, with Pennsylvania Common-

wealth Court June 21, 1980 ............. A-121

[409]

IN THE

SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

NATIONAL WOOD PRESERVERS, Nos. 66 & 67

INC., CLIFFORD ROGERS and January Term,

VIRGINIA ROGERS, 1979

Appellants

¢.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL

RESOURCES

COMMONWEALTH OF PENNSYLVANIA No. 68

DEPARTMENT OF ENVIRONMENTAL January Term,

RESOURCES 1979

Appellant

v.

SHELL OIL COMPANY,

PHILADELPHIA CHEWING GUM

COMPANY

Appeals from orders of the Commonwealth Court of

Pennsylvania, dated May 24, 197 , Docket Nos. 1389,

1390, 1395 and 1415 C.D. 1976, affirming in part and

reversing in part the orders of Commonwealth of Penn-

sylvania Environmental Hearing Board dated July 30,

1976, at Docket Nos. 73-252-D, 73-249-D, 73-256-D,

73-346-D.

A-]

A-2

OPINION OF THE COURT

ROBERTS, J.

This is a case of first impression. At issue is the con-

struction and constitutionality of Section 316 of The

Clean Streams Law, Act of July 31, 1970, P.L. 653, §12,

amending 35 P.S. §691.316. Section 316 provides in rel-

evant part:

“Whenever the [Department of Environmental

Resources] finds that pollution or a danger of pollu-

tion is resulting from a condition which exists on

land in the Commonwealth the |Department] may

order the landowner or occupier to correct the con-

dition in a manner satisfactory to the |[Depart-

ment]. . .”!

The principal questions presented by this appeal are

whether Section 316 authorizes the Department of En-

vironmental Resources to remedy water pollution result-

ing from conditions other than mine drainage, and

whether Section 316 is a constitutional exercise of the

Legislature’s police power. Like the Environmental

Hearing Board and the Commonwealth Court, we con-

clude that both questions must be answered in the af-

firmative. Accordingly, we affirm the order of the Com-

monwealth Court affirming the order of the

Environmental Hearing Board.

1. The powers of the Sanitary Water Board were transferred to

the Department of Environmental Resources by the Act of

December 3, 1970, P.L. 834, §30(a), 71 P.S. §510-1(22). The Legis-

lature has invested the Department of Environmental Resources

with broad responsibilities and powers in regulating the environ-

ment. See 71 P.S. §510-1; see generally James O. Freedman, Crisis

& Legitimacy 4-5 (1978).

The dispute in this case concerns a parcel of land in

Delaware County owned by appellants Clifford and Vir-

ginia Rogers and leased in part by appellant National

Wood Preservers, Inc.* The Rogers have owned this par-

cel since 1942. In 1947 they leased it to Samuel T.

Jacoby and C. David Jacobs, who then assigned the lease

to National Wood Preservers, Inc. This company, all of

whose stock was owned by Jacoby, conducted a wood

preservative business on the parcel between 1947 and

1963. National Wood Preservers, Inc. used a chemical

caled pentachlorophenol, “a toxic substance. . . lethal

to acquatic organisms in certain concentrations.” In the

course of its operations, National Wood Preservers, Inc.

disposed of waste liquids containing pentachlorophenol

by discharging them into a well which drained into the

ground waters running beneath the premises. In 1963

Jacoby sold his shares in National Wood Preservers, Inc.

to the Goldsteins.* The Goldsteins have continued to op-

erate National Wood Preservers, Inc. as a wood preserva-

tive business on the land in question.

On June 12, 1972, in response to numerous com-

plaints, the Department of Environmental Resources

2. The Rogers’ parcel is described as: “ALL that certain lot or

piece of ground with buildings thereon erected situate in Oakmont,

Delaware County, Pennsylvania, on the northwest side of Eagle

Road, beginning at a point approximately 150 feet northeast of Law-

rence Road, containing 366 feet on Eagle Road, 415 feet on the

north line, 300 feet on the west line and 200 feet on the south line.”

3. Adjudication of Environmental Hearing Board, R.138a-

177a, at R.160a.

4. The July 30, 1963 stock purchase agreement included

Jacoby’s warranty that all pollution problems of National Wood Pre-

servers, Inc. had been cured. On September 17, 1963, Jacoby was

arrested by the Pennsylvania State Police for polluting. By agree-

ment dated December 31, 1964, the Goldsteins released Jacoby

from his warranty in partial consideration of Jacoby’s $35,000 re-

duction of the stock purchase price.

A-4

(DER) initiated its investigation of an oily substance

found in Naylors Run, a stream flowing near appellants’

tract. On the basis of this investigation, which included

the collection and analysis of numerous water samples

from the area around Naylors Run, DER determined

that the ground waters of that tract contain a polluting

substance of pentachlorophenol and fuel oil. In 1973,

pursuant to Section 316 of The Clean Streams Law,

DER issued orders to appellants Rogers and appellant

National Wood Preservers, Inc. to abate this harmful

condition.° Appellants appealed to the Environmental

Hearing Board. The Board consolidated the appeals and

conducted extensive hearings over a thirteen day period.

The Board found inter alia that the pentachlorophenol,

which was mixed with fuel oil in the waters of the Com-

monwealth, constitutes pollution within the meaning of

Section 316, see 35 P.S. §691.1, and that the major

amount of this substance appears to be pooled under the

surface of the property owned by Rogers and leased in

part by National Wood Preservers, Inc. The Board there-

fore ordered appellants, under the supervision of DER,

first to conduct drilling and water sampling to determine

the precise amount and disperson of the pollutant, and

then to remove it.° The Board also found that the pro-

gram for removal of the pollutant outlined in its findings

and order was feasible.’ Appellants filed timely appeals

to the Commonwealth Court. That Court consolidated

the appeals and unanimously affirmed the orders of the

5. The parties stipulate that the sole authority for DER’s orders

is Section 316 of The Clean Streams Law.

6. The Board ordered in the alternative that the Department

conduct the sampling and removal itself, or so order another person

or agency. DER could charge the costs incurred to appellants to the

extent that corrective actions were taken on their land. Additionally,

the Board retained jurisdiction.

7. The Environmental Hearing Board noted that the issue of

ultimate allocation of liability was not before it. Nor is that issue be-

fore this Court, and thus we need not express any view on it.

A-5

Environmental Hearing Board as to appellants. This

Court granted allowance of appeal, also consolidating

the appeals.®

Il

Appellants’ first contention is that the Legislature,

in enacting Section 316, intended to permit the Depart-

ment of Environmental Resources to order a landowner

or occupier to correct a condition which results in pollu-

tion or the danger of pollution only if the condition were

caused by mining operations. Like the Environmental

Hearing Board and the Commonwealth Court, we reject

this contention.

As the previously quoted portion of Section 316

makes evident, the Legislature has clearly and

unambiguously authorized DER to require the correc-

8. Two other actions consolidated previously with the present

actions must be mentioned here. When DER issued corrective or-

ders to appellants in 1973, it also issued corrective orders to Phila-

delphia Chewing Gum Corp. (Gum) and Shell Oil Co. (Shell). Gum

owned a parcel of land adjacent to appellants’ land, where it manu-

factured chewing gum products. Shell operated a gasoline station

on land leased from the Rogers. Shell’s parcel had been leased by

National Wood Preservers, Inc. until 1967, when National Wood

Preservers, Inc. released this portion of its leasehold to Rogers who

rented it to Shell. Neither Gum nor Shell has ever discharged indus-

trial waste into the waters of the Commonwealth when Gum and

Shell appealed from DER’s orders, the Environmental Hearing

Board consolidated their appeals with appellants’. The Board found

that the polluting substance beneath appellants’ land was also be-

neath the land of Gum and Shell, and therefore ordered Gum and

Shell also to take corrective action. The separate appeals of Gum

and Shell from this order were consolidated by the Commonwealth

Court with those of appellants. That court sustained the appeals of

Gum and Shell on the ground that Section 316 was inapplicable to

them. DER failed to file timely appeals from this portion of the Com-

monwealth Court order, and thus this Court now dismisses the

Department's petitions for allowance of appeal as improvidently

vranted.

A-6

tion of water pollution causing conditions without regard

to the source of the pollution. Indeed, the caption of Sec-

tion 316, “Responsibilities of land owners and land occu-

piers,” suggests the section’s breadth. See 1 Pa. C.S.A.

§1924 (“The headings prefixed to . . . sections and

other divisions of a statute shall not be considered to

control but may be used to aid in the construction

thereof.”); compare 35 P.S. §691.2B. The Legislature

has instructed that “[w]hen the words of a statute are

clear and free from all ambiguity, the letter of it is not to

be disregarded under the pretext of pursuing its spirit.”

1 Pa. C.S.A. §1921(b). In accord with this legislative

mandate, this Court must conclude that Section 316 au-

thorizes DER’s actions here.

Our reading of Section 316 is indeed entirely in har-

mony with, and fully in accord with, the Legislature’s

objective, see 1 Pa. C.S.A. §1921(c), as expressly set

forth in Section 4 of the Act, 35 P.S. §691.4:

“(1) Clean, unpolluted streams are absolutely es-

sential if Pennsylvania is to attract new manufactur-

ing industries and to develop Pennsylvania’s full

share of the tourist industry;

(2) Clean, unpolluted water is absolutely essential if

Pennsylvanians are to have adequate out of door

recreational facilities in the decades ahead;

(3) It is the objective of the Clean Streams Law not

only to prevent further pollution of the waters of the

Commonwealth, but also to reclaim and restore to a

clean, unpolluted condition every stream in Penn-

sylvania that is presently polluted;

(4) The prevention and elimination of water pollu-

tion is recognized as being directly related to the

economic future of the Commonwealth; and

(5) The achievement of the objective herein set

forth requires a comprehensive program of water-

shed management and control.”

From this “Declaration of Policy,” enacted in 1970 along

A-7

with the portion of Section 316 relevant here, it is clear

that the Legislature seeks to eliminate all water pollu-

tion, not only water pollution emanating from mines,

and to “reclaim and restore” every polluted stream. Thus

any contrary or narrower reading of Section 316 would

fundamentally undermine the efforts of DER to achieve

these legislative objectives, as well as frustrate the Leg-

islature’s fulfillment of its obligation under Article I, sec-

tion 27 of the Pennsylvania Constitution:

“The people have a right to clean air, pure water,

and to the preservation of the natural, scenic, his-

toric and esthetic values of the environment. Penn-

sylvania’s public natural resources are the common

property of all people, including generations yet to

come. As trustee of these resources, the Common-

wealth shall conserve and maintain them for the

benefit of all the people.”

Nevertheless, appellants claim that Section 316

should be restricted. They cite provisions of The Clean

Streams Law enacted in 1965, see Act of August 23,

1965, P.L. 372, five years before enactment of the rel-

evant portion of Section 316, enacted in 1970. It is

claimed that these provisions, including Section 4 set-

ting forth the purpose of the Act, demonstrate a legisla-

tive concern for mine drainage pollution only. Appellants

also cite another provision of Section 316, enacted in

1965 and inapposite here, which permits DER to “order

such owner or occupier to allow a mine operator or other

person or agency of the Commonwealth access to the

land to take such action.” Additionally, they point to Sec-

tion 316’s proximity to Section 315, enacted in 1965, a

section concerned with mines.

Our consideration of the history of The Clean

Streams Law compels us to reject appellants’ limited

view of the Legislature’s purpose in enacting the rel-

evant portion of Section 316. The 1970 amendments to

A-8

The Clean Streams Law remove any doubt as to the

breadth of the statute’s purpose. Those amendments

eliminate from the very 1965 provisions concerning the

Act’s purpose, upon which appellants rely, any mention

or mine produced pollution.

In any case, even the 1965 provisions to which ap-

pellants refer lend no support to their contention. There

is no doubt, of course, that until enactment of the 1965

amendments to The Clean Streams Law, the Legislature

had not yet authorized a state agency to remedy the

growing pollution problem posed by mine drainage.” See

generally Commonwealth v. Barnes & Tucker, 455 Pa.

392, 395-401, 319 A.2d 871, 873-76 (1974) (Barnes &

Tucker 1); Commonwealth v. Harmar Coal Co., 452 Pa.

77, 83-86, 306 A.2d 308, 312-13 (1973). The 1965

amendments were enacted in part to provide an admin-

istrative remedy for this problem.

It is equally clear, however, that the Legislature also

enacted the 1965 amendments to combat water pollu-

tion generally. The dual purpose of these amendments

becomes clear upon reviewing the “Findings & Declara-

tion of Policy” enacted as part of the 1965 amendments,

§2. Half the findings concerned the problem posed by

mine drainage, and the other half concerned the prob-

9. Prior to the enactment of The Clean Streams Law in 1937,

see Act of June 22, 1937, P.L. 1987, §1 et seq., acid mine drainage

had been excluded from this Commonwealth's water pollution con-

trol. See Purity of Waters Act, April 22, 1905, P.L. 260, §4; and the

Act of June 14, 1923, P.L. 793, §1. As enacted in 1937, Section 310

of The Clean Streams Law exempted acid mine drainage “until

such time as. . . practical means for the removal of the polluting

properties of such drainage shall become known.” When The Clean

Streams Law was amended in 1945, Act of May 8, 1945, P.L. 425,

Section 310 was changed to require the Sanitary Water Board to

protect certain clean waters, though it permitted pollution of already

polluted streams.

A-9

lems of water pollution generally. More important, the

declarations of policy expressly stated:

“It is the objective of the Clean Streams Law

not only to prevent further pollution of the waters of

the Commonwealth, but also to reclaim and restore

to a clean, unpolluted condition every stream in

Pennsylvania that is presently polluted....”

This statement of purpose of The Clean Streams Law,

never before expressly articulated by the Legislature, did

not distinguish between sources of water pollution.

Rather, all water pollution was proscribed. Thus even

appellants’ own argument, turning as it does on the Act

as it existed before enactment of the relevant portion of

Section 316, must fail.

Appellants’ second contention is that Section 316 of

The Clean Streams Law is an impermissible exercise of

the police power, in violation of the Fourteenth Amend-

ment of the United States Constitution and Article I,

section 10 of the Pennsylvania Constitution. Again, we

agree with the conclusion of the Environmental Hearing

Board and the Commonwealth Court to the contrary.

The “police power” is one of the “most essential

powers of government...."” Hadacheck v. Sebastian, 239

U.S. 394, 410, 36 S.Ct. 143, 145, 60 L.Ed. 348 (1915). It

has been variously defined as the power “to promote the

public health, morals or safety and the general well be-

ing of the community,” Commonwealth v. Harmar Coal

Co., supra at 92, 306 A.2d at 316; see DePaul v.

Kauffman, 441 Pa. 386, 393, 272 A.2d 500, 504 (1971),

or as “the inherent power of a body politic to enact and

entorce laws for the promotion of the general welfare,”

Commonwealth v. Barnes & Tucker, 472 Pa. 115, 123,

371 A.2d 461, 465 (1977) (Barnes & Tucker II), or as a

A-10

power extending to “all the great public needs,” Day-

Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 424, 72

S.Ct. 405, 407, 96 L.Ed. 469 (1952).'° The police power

is fundamental because it enables “civil society” to re-

spond in an appropriate and effective fashion to chang-

ing political, economic, and social circumstances, and

thus to maintain its vitality and order. See, e.g., Mugler

v. Kansas, 123 U.S. 623, 668, 8 S.Ct. 273, 301, 31 L.Ed.

205 (1887). “The police power of the state [must there-

fore be|...as comprehensive as the demands of society re-

quire under the circumstances.” Barnes & Tucker II at

126, 371 A.2d at 467. Of necessity, then, the police

power is a broad and flexible power. See, e.g., Berman v.

Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 102, 99 L.Ed. 27

(1954); Euclid v. Ambler Realty Co., 272 U.S. 365, 386-

90, 47 S.Ct. 114, 118-19, 71 L.Ed. 303 (1926). Indeed, it

is the state’s least limitable power. See Hadacheck v.

Sebastian, supra 239 U.S. at 410, 36 S.Ct. at 145.

10. In one of this Court's earliest discussions of the police

power, we observed that Gibbons v. Ogden, 2 U.S. (9 Wheat) 1, 6

L.Ed, 23 (1824) “concedes to the state an ‘immense mass of legisla-

tion which embraces everything within the territory of a state not

surrendered to the General Government, all which can be most ad-

vantageously exercised by the states themselves. Inspection laws,

quarantine laws, health laws of every description, as well as laws

regulating the internal commerce of a state. and those which re-

spect turnpike roads, ferries, &c., are component parts of this mass.’

These and others not enumerated constitute police powers — such

as are exercised in the passage of laws to promote the peace, safety,

good order, health and interests of the state, and are protected by

the 9th and 10th articles of the amendments to the Constitution of

the United States. The powers reserved to the states (says the 45th

number of The Federalist) will extend to all the objects which in the

ordinary course of affairs concern the lives, liberties and property of

the people, and the internal order, improvement and prosperity of

the state.”

Craig v. Kline, 65 Pa. 399, 408 (1870). See also Powell v. Com-

monwealth, 114 Pa. 265, 7 A. 913 (1887), aff'd sub nom, Powell v.

Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 32 L.Ed. 253 (1888):

Commonwealth v. Plymouth Coal Co., 232 Pa. 141, 81 A. 148

(1911),

A-11

A state power as broad as the police power inevitably

gives rise to tensions between the state and holders of

property. Although the police power “may, indeed, seem

harsh in its exercise, [and] usually is on some

individual,...the imperative necessity for its existence

precludes any limitation upon it when not exerted arbi-

trarily.". Hadacheck v. Sebastian, supra at 410, 36 S.Ct.

at 145; see Miller v. Board of Public Works, 195 Ca. 477,

484, 234 P. 381, 383 (1925). Therefore as long as the

Legislature exercises that power in a reasonable and

nonarbitrary manner, the judiciary will not invalidate

the enactment.'!' See City of New Orleans v. Dukes, 427

U.S. 297, 303-04, 96 S.Ct. 2513, 2516-17, 49 L.Ed. 2d

511 (1957); Nebbia v. New York, 291 U.S. 502, 525, 54

S.Ct. 505, 510-11, 78 L.Ed. 940 (1934); Tosto v. Penn-

sylvania Nursing Home Loan Agency, 460 Pa. 1, 9, 331

A.2d 198, 201-02 (1975); accord Sproles v. Binford, 286

U.S. 374, 388, 52 S.Ct. 581, 585, 76 L.Ed. 1167 (1932)

(even when the reasonableness of legislation is “fairly

debatable,” the judiciary must refrain from disturbing

it),

Review of the case law reveals that the police power

has been constitutionally exercised in many ways over

innumerable types of property. See generally Penn Cen-

tral Transportation Co. v. New York, 438 U.S. 104,

11. As Justice Frankfurter in American Federation of Labor v.

American Sash and Door Co., 335 U.S. 538, 553, 69 S.Ct. 258, 265,

93 L.Ed. 222 (1949) (concurring opinion) observed:

“Even where the social undesirability of a law may be convinc-

ingly urged, invalidation of the law by a court debilitates popu-

lar democratic government.

Most laws dealing with economic and social problems are

matters of trial and error. That which before trial appears to be

demonstrably bad may belie prophesy in actual operation. It

may not prove good, but it may prove innocuous. But even if a

law is found wanting on trial, it is better that its defects should

be demonstrated and removed than that the law should be

aborted by judicial fiat. Such an assertion of judicial power de-

flects responsibility from those on whom in a democratic soci-

ety it ultimately rests — the people.”

A-12

123-28, 98 S.Ct. 2646, 2658-62 (1978). Of relevance

here, legislation protecting state water resources has

been held to be within the scope of the police power.

See, e.g., Hudson Water Co. v. McCarter, 209 U.S. 349,

28 S.Ct. 529, 52 L.Ed. 828 (1908); Barnes & Tucker Co.

v. Pennsylvania, 434 U.S. 807, 98 S.Ct. 38, 54 L.Ed.2d

65 (1977), dismissing appeal for want of a substantial

federal question, Barnes & Tucker II, supra; Harmer

Coal Co. v. Pennsylvania, 415 U.S. 903, 94 S.Ct. 1395,

39 L.Ed.2d 460 (1974), dismissing appeal for want of a

substantial federal question, Commonwealth v. Harmar

Coal Co., supra; Commonwealth v. Emmers, 221 Pa. 298,

70 A. 762 (1908).'* Moreover, the police power has been

used to impose new costs on property owners. See, e.g.,

Atchison, T. & S. F. Ry. Co. v. Public Utilities Comm’n,

346 U.S. 346, 74 S.Ct. 92, 98 L.Ed. 51 (1953);

Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 66 S.Ct.

850, 90 L.Ed. 1096 (1946); Erie R. Co. v. Board of Public

Utility Comm’n, 254 U.S. 394, 41 S.Ct. 169, 65 L.Ed.

322 (1921).

In Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38

L.Ed. 385 (1894), the Supreme Court articulated the

standard to be used by courts in determining the validity

under the United States Constitution of a state’s exer-

cise of its police power.

“To justify the State in thus 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 neces-

sary for the accomplishment of the purpose, and not

unduly oppressive upon individuals.”

152 U.S. at 137, 14 S.Ct. at 501. This Court has adopted

this standard in our assessment of regulatory legislation

under the Pennsylvania Constitution. See Common-

wealth v. Harmar Coal Co., supra at 93, 306 A.2d at 317;

12. See generally, Hicks v. Miranda, 422 U.S. 332, 95 S.Ct.

2281, 45 L.Ed.2d 223 (1975) (dismissal for want of a subsuantial

federal question is a decision on the merits).

A-13

Barnes & Tucker I, supra at 418, 319 A.2d at 885;

Barnes & Tucker II, supra at 123, 371 A.2d at 465.

It is fundamental to our jurisprudence that enact-

ments of the Legislature are clothed with a presumption

of constitutional validity, and that appellants, by claim-

ing that an act is unconstitutional, carry a heavy burden

of proof. See, e.g., United States v. Vuitch, 402 U.S. 62,

70, 91 S.Ct. 1294, 1298, 28 L.Ed.2d 601 (1971); In re

William L., 477 Pa. 322, 329, 383 A.2d 1228, 1231

(1978); Tosto v. Pennsylvania Nursing Home Loan

Agency, supra at 16, 331 A.2d at 205, quoting Daly v.

Hemphill, 411 Pa. 263, 271, 191 A.2d 835, 840 (1963)

(“Courts may not declare a statute unconstitutional ‘un-

less it clearly, palpably and plainly violates the Constitu-

tion.’ ’’).

Appellants do not contend that Section 316 fails to

satisfy Lawton’s first prong. As stated above, Article I,

section 27 of the Pennsylvania Constitution imposes a

duty upon the Commonwealth to protect our environ-

ment. Indeed, maintenance of the environment is a fun-

damental objective of state power. As Justice Holmes

wrote:

“!T|he state has an interest independent of and be-

hind the titles of its citizens, in all the earth and air

within its domain....It is a fair and reasonable de-

mand on the part of a sovereign that the air over its

territory should not be polluted...,that the forests on

its mountains, be they better or worse, and what-

ever domestic destruction they have suffered,

should not be further destroyed or threatened...,

that the crops and orchards on its hills should not be

endangered....”

Georgia v. Tennessee Copper Co., 206 U.S. 230, 237-38,

27 S.Ct. 618, 619, 51 L.Ed. 1038 (1907). The Legisla-

ture has long regulated the quality of the waters in the

Commonwealth. See Purity of Waters Act, note 9, supra;

cf. Commonwealth v. Locust Point Quarries, Inc., 483

Pa. 350, 358, 396 A.2d 1205, 1209 (1979) (“In sum, pro-

A-14

tection of air resources is a matter of highest priority in

the Commonwealth.”). In addition, other state legisla-

tures, as well as Congress, have made extensive efforts

to remove the pollution from our nation’s waters. !*

We are also convinced that Section 316 and the or-

ders promulgated thereunder satisfy the first part of

Lawton’s “means” prong. Section 316’s authorization of

DER to order a landowner or occupier to correct condi-

tions on his land causing pollution or a danger of pollu-

tion is “reasonably necessary” for eliminating water pol-

lution. Certainly the owner or occupier of land is well

situated to remove harmful conditions from his jand.

Likewise, the Environmental Hearing Board’s abate-

ment orders are “reasonably necessary” in light of the

Board’s well supported findings that pollution exists un-

der the land of appellants, and that removal of the pollut-

ant is feasible. '*

13. See, e.g.. Bridgeport Hydraulic Co. v. Council on Water

Co. Lands, 439 U.S. 999, 99 S.Ct. 606, 58 L.Ed.2d 674 (1978). af-

firming mem. 453 F.Supp. 942 (D. Conn. 1977) (holds that Con-

necticut Moratorium Act, which restricts sale of surplus lands to

limit watershed pollution, is reasonable exercise of police power);

United States v. Ashland Oil, 504 F.2d 1317 (6th Cir. 1974) (dis-

cusses the many dangers of water pollution which justify congres-

sional enactment of the Federal Water Pollution Control Act, 33

U.S.C. §§1251-1376); Chicago Allis v. Sanitary District, 52 IL2d

320, 288 N.E.2d 436 (1972) (holds that ordinance surcharging in-

dustrial plants’ waste discharge and requiring all plants to install de-

vices to measure discharge is valid exercise of police power); Can-

dlestick v. San Francisco, 11 Cal.App.3d 557, 89 Cal. Rptr. 897

(1970) (California’s McAteer-Petris Act authorizing Bay Conserva-

tion and Development Commission to regulate deposits of fill in Bay

held to be constitutional exercise of police power). See generally

ALI Model Land Development Code §7-201 (Official Draft, 1975).

14. We find that the record amply supports the Environmental

Hearing Board’s findings of fact, and therefore will not disturb

them. See Blumenschein v. Housing Authority, 379 Pa. 566, 573.

109 A.2d 331, 335 (1954) (in absence of arbitrary exercise of agen-

cy’s duties, “judicial discretion may not be substituted for adminis-

trative discretion”); American Power Co. v. S.E.C., 329 U.S. 90, 112.

67 S.Ct. 133, 146, 91 L.Ed. 103 (1946) (The “relation of remedy to

policy is peculiarly a matter of administrative competence.” ) (quota-

tion omitted ).

A-15

Appellants focus their constitutional attack upon

Lawton’s third requirement that the means are not to be

“unduly oppressive upon individuals.” Though it is im-

possible to define this requirement precisely, see

Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct.

987, 990, 8 L.Ed.2d 130 (1962); see generally J. L. Sax,

Takings and the Police Power, 74 Yale L.J. 36 (1964), a

recent opinion of the United States Supreme Court,

Penn Central Transportation Co. v. New York, supra,

identifies two general factors of significance in the judi-

cial determination of whether governmental action is

unduly oppressive. The first consideration is the eco-

nomic impact of the regulation on the property holder.

Id. 438 U.S. at 124, 98 S.Ct. at 2659. Specifically, it is

relevant to compare property values before and after the

regulation, though such a consideration is by no means

conclusive. Compare Euclid v. Ambler Realty Co., supra

(regulation reducing property value by 75% held consti-

tutional) and Hadacheck v. Sebastian, supra (regulation

reducing property value by 87'2% held constitutional)

with Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43

S.Ct. 158, 67 L.Ed. 322 (1922) (regulation rendering

property worthless held unconstitutional).

The second factor identified in Penn Central is the

character of the governmental action. 438 U.S. at 124,

98 S.Ct. at 2659. The greater the extent to which gov-

ernmental interference with property can be character-

ized as a physical intrusion, the more likely it is that

such interference will be considered an unreasonable

exercise of police power. Compare Goldblatt v. Hemp-

stead, supra (regulation prohibiting property’s most ben-

cficial use is valid exercise of police power) and Euclid v.

Ambler Realty Co., supra (regulation prohibiting proper-

tv’s most profitable use held valid exercise of police

power) with Causby v. United States, 328 U.S. 256, 66

S.Ct. 1062, 90 L.Ed. 1206 (1946) (U.S. airplanes taking

off and landing over property held to be a taking since

U.S. is in effect “using” that property ).

A-16

Appellants do not argue that Section 316 is “unduly

oppressive” because of its economic impact or its inter-

ference with their use of the property. Rather, appellants

advance the somewhat unique argument that Section

316 is unduly oppressive because it imposes liability

upon appellants solely on the basis of their ownership or

occupancy of the land in question.'° It is unconstitu-

tional, argue appellants, for DER to issue a corrective or-

der to a landowner or occupier absent a showing of the

party’s responsibility for causing the polluting condi-

tion. '®

We disagree. First it is absolutely clear that the cor-

rective orders here are based on much more than mere

ownership or occupancy. As discussed above, they are

based upon legislation designed to eliminate all water

pollution, and the Environmental Hearing Board’s find-

ings that a substance, determined to be pollution, re-

sides under appellant’s land and can feasibly be re-

moved. There is thus a reasonable and concrete basis for

the corrective orders here.

It is also clear that the validity of an exercise of po-

lice power over land depends little upon the owner or oc-

cupier’s responsibility for causing the condition giving

rise to the regulation.'’ For example, in Penn Central

15. Appellants cite in support of this argument Robinson v.

California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).

Whatever the merits of their argument, appellants’ reliance on Rob-

inson is misplaced. The Supreme Court declared in that case that a

statute criminalizing the “status” of narcotics addiction was uncon-

stitutional. The instant case does not involve a criminal statute, but

rather involves the exercise of police power in a civil regulation,

where there is no requirement of actus reus and mens rea.

16. Appellants assume that they have acted without “fault”

and have not “caused” the pollution. In light of our disposition of

this case, we need not consider this assumption.

17. We note that the imposition of vicarious liability is not an

uncommon means of eliminating water pollution. See Portland Pipe

Line v. Environmental Improvement Commission, 414 U.S. 1035,

A-17

Transportation Co. v. New York, supra, the New York

City Landsmarks Preservation Commission designated

Grand Central Station a “landmark” as part of the City’s

comprehensive program to preserve historic landmarks

and districts. Such a designation meant that the termi-

nal owner was required to maintain the exterior archi-

tecture of the terminal in good repair, that the terminal

facade could net be altered without approval of the Com-

mission, and that the terminal’s economic potential

could not be fully developed by the construction of an of-

fice building atop the terminal. The Supreme Court held

the City’s landmark designation to be constitutional. It is

clear from the facts in Penn Central that the terminal

owner was in no way responsible for causing the termi-

nal’s landmark status: the owner did not “cause” the

condition, nor can he be viewed as being “at fault.” The

Supreme Court disregarded the owner’s lack of responsi-

bility, however, and found the City’s action constitu-

tional.

Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72

L.Ed. 568 (1928) also illustrates that a property holder’s

NOTE 17 -— (Continued )

94 S.Ct. 532, 38 L.Ed.2d 326, dismissing appeal for want of a sub-

stantial federal question, 307 A.2d 1 (Me. 1973) (state statute im-

posing vicarious liability upon oil terminal operators for oil spills

caused by independent carriers who were destined for the operators’

terminals, but over whom the operators had no control, held to be

valid exercise of police power); United States v. Marathon Pipe Line

Co., 589 F2d. 1305 (7th Cir. 1978) (Coast Guard constitutionally

imposed liability under Federal Water Pollution Control Act

§311(b)(6) upon pipeline owner for pipeline rupture and oil spill

caused by third party); United States v. Tex-Tow, Inc., 589 F.2d

1310 (7th Cir. 1978) (imposition of civil penalty upon barge owner

under Federal Water Pollution Control Act §311(b)(6) for oil spill

resulting from puncture of barge hull caused by third party held

valid); Gulf Oil Corp. v. United States, 573 F.2d 1303 (3rd Cir.

1978), affirming mem. United States v. Atlantic Richfield, 429

F.Supp. 830 (E.D. Pa. 1977) (Section 311(b)(6) of Federal Water

Pollution Control Act constitutionally imposes civil penalty upon oil

spiller without regard to fault.

-

A-18

responsibility for the condition to be regulated is not an

important factor in assessing the validity of the regula-

tion. In that case a state agency pursuant to statute or-

dered property owners to cut down a large number of or-

namental red cedar trees growing on their property

because the trees produced cedar rust fatal to apple trees

cultivated on adjacent land. Though the statute

permitted the owners to use the felled trees and recover

the costs of removing the trees, it did not provide com-

pensation for the value of the trees or the diminished

value of the property. The Court nonetheless found the

statute constitutional, holding that a state could properly

make “a choice between the preservation of one class of

property and that of the other.” Id. at 279, 48 S.Ct. at

247. Since the apple industry was important to the state,

the Court concluded that the state had not acted

unconstitutionally “by deciding upon the destruction of

one class of property |without compensation] in order to

save another, which, in the judgment of the legislature,

is of greater value to the public.” Id. The facts in Miller

suggest that the property holders could not have caused

the infection of their red cedar trees. The holding and

discussion in Miller reflect the Court’s conviction that

such a consideration is of little import.'* See also

Goldblatt v. Hempstead, supra; Euclid v. Ambler Realty

18. It is appropriate that a property holder’s responsibility has

little significance in determining the validity of the state regulation.

In criminal law, of course, inquiry into a defendant’s “culpability” is

at the core of guilt determination and punishment. In the field of

tort law, the notion of “fault” is not an inappropriate limitation on

liability because, among other reasons, the beneficiary of tort com-

pensation, like the tortfeasor, is a private party. The notion of fault is

least functional, however, when balancing the interests of a prop-

erty holder against the interests of a state in the exercise of its police

power, because the beneficiary is not an individual but the commu-

nity. As this Court stated in an analogous setting: “The absence of

facts supporting concepts of negligence, forseeability or unlawful

conduct is not in the least fatal to a finding of the existence of a

common law public nuisance.” Barnes & Tucker I, supra at 414,

319 A.2d at 883.

A-19

Co., supra; Hadacheck v. Sebastian, supra. In light of

Penn Central, Miller, and the other cases cited, appel-

lants have failed to persuade us that the Commonwealth

has unconstitutionally exercised its police power.'”

Orders of the Commonwealth Court at Nos. 66 and

67 January Term, 1979 are affirmed. Commonwealth’s

appeals from Commonwealth Court’s orders at No. 68

January Term, 1979 are dismissed.

Mr. Justice NIX did not participate in the consider-

ation or decision of this case.

Mr. Justice FLAHERTY filed a concurring opinion.

19. We note our agreement with the Commonwealth Court's

rejection of appellants’ additional claims that the feasibility of abate-

ment was not sufficiently proven, that the abatement orders are un-

constitutional ex post facto laws, that DER'’s enforcement of Section

316 violates the Equal Protection Clause. and that a provision of

Section 316 not in issue here violates the Equal Protection Clause.

A-20

|J-409]

IN THE

SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

NATIONAL WOOD PRESERVERS, Nos. 66 & 67

INC., CLIFFORD ROGERS AND January Term,

VIRGINIA ROGERS, 1979

Appellants

v.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL

RESOURCES

COMMONWEALTH OF PENNSYLVANIA No. 68

DEPARTMENT OF ENVIRONMENTAL January Term,

RESOURCES 1979

Appellant

VU.

SHELL OIL COMPANY,

PHILADELPHIA CHEWING GUM

COMPANY

Appeals from orders of the Commonwealth Court of

Pennsylvania, dated May 24, 1978, Docket Nos. 1389,

1390, 1395 and 1415 C.D. 1976, affirming in part and

reversing in part the orders of Commonwealth of Penn-

sylvania Environmental Hearing Board dated July 30,

1976, at Docket Nos. 73-253-D, 73-249-D, 73-256-D,

73-346-D.

A-21

CONCURRING OPINION

MR. JUSTICE FLAHERTY

At issue is the constitutionality of a portion of Sec-

tion 316 of The Clean Streams Law, Act of July 31, 1970,

P.L. 653, §12, amending 35 P.S. §691.316, which pro-

vides:

“Whenever the [Department of Environmental

Resources] finds that pollution or a danger of pollu-

tion is resulting from a condition which exists on

land in the Commonwealth the [Department] may

order the landowner or occupier to correct the con-

dition in a manner satisfactory to the |Depart-

momti. ....."

A reading of the majority opinion might lead to the belief

that we adopt the strict liability construction of Section

316 which would compel the expenditure of financial

sums by an owner or occupancy of land based on no

other factor but the ownership or occupancy of the land.

The learned late Judge Bowman, writing the opinion for

the court below well set forth the law regarding this is-

sue, and I quote that portion of the opinion:

“The police power of this Commonwealth may not

be used to require a landowner ‘to abate a public

nuisance existing on-his land where such owner-

ship is unrelated to the forces or conditions result-

ing in a public nuisance.’ Commonwealth v. Barnes

& Tucker Co., 23 Pa. Commonwealth Ct. 496, 509,

353 A.2d 471, 478 (1976), aff'd 472 Pa. 115, 371

A.2d 461 (1977); Commonwealth v. Wyeth Labora-

tories, 12 Pa. Commonwealth Ct. 227, 315 A.2d 648

(1974). The police power of the Commonwealth

may be brought to bear upon a landowner, however,

at least under the theory of common law public nui-

sance, notwithstanding ‘|t]he absence of facts sup-

A-22

porting concepts of negligence, foreseeability or un-

lawful conduct.’ Barnes & Tucker I, supra at 414,

319 A.2d at 883.

Applying these legal principles to the facts of

this case, we believe that requiring these appellants

to spend the financial sums necessary to abate this

condition, based solely upon their ownership or oc-

cupancy of land, would be to employ means unduly

oppressive upon these individuals. We believe that

such an exercise of police power would transcend

‘the parameters of reason’. We believe that EHB’s

conclusion that Section 316 is a declaration of the

strict liability of these appellants to correct the con-

dition is erroneous as a matter of law because such

a construction of Section 316 would permit the

Commonwealth to engage in regulation which con-

stitutes the taking of property without compensa-

tion, and hence, would be an unconstitutional

exerise of police power. (emphasis supplied)

It is the duty of a court, when faced with a con-

struction of a statute involving serious constitu-

tional difficulties, to reject that interpretation in fa-

vor of another construction which will save its

constitutionality. 2A J. Sutherland, Statutes and

Statutory Construction §45.11 (4th ed. C. Sands

1973). ‘Where a statute can be given two construc-

tions, one of which will render it constitutional and

the other unconstitutional, the former construction

must be invoked. Dolan v. Linton’s Lunch, 397 Pa.

114, 152 A.2d 887 (1959); Evans v. West Norriton

Two, Municipal Authority, 370 Pa. 150, 87 A.2d 474

(1952); Fidelity Philadelphia Trust Co. v. Hines,

337 Pa. 48, 10 A.2d 553 (1940).’ Pittsburgh Coal Co.

v. Sanitary Water Board, 4 Pa. Commonwealth Ct.

407, 424-25, 286 A.2d 459, 468 (1972), rev'd on

other grounds, 452 Pa. 77, 306 A.2d 308 (1973). See

also Commonwealth v. MacDonald, supra |464 Pa.

435] at 447, 347 A.2d [290] at 297.

A-23

We believe that there is a construction of Sec-

tion 316 which both comports with the law of public

nuisance and renders that section constitutional as

applied to the factual situation present in this case.

Where the polluting condition is created by the con-

duct of an individual other than the owner or occu-

pier, the owner or occupier of the land on which the

condition exists cannot be liable to take corrective

measures under Section 316 on the basis of the bare

fact of ownership or occupancy. Such an owner or

occupier can be ordered to take corrective meas-

ures, however, if he permitted or authorized the cre-

ation on his land. Such an owner or occupier can

also be ordered to take corrective measures if he (1)

knows or should know of the existence of the condi-

tion on the land; and (2) associates himself in some

positive respect, beyond mere ownership or occu-

pancy, with the condition after its creation. The key

to imposing liability under Section 316 upon an

owner or occupier for the correction of a condition

which he did not create is that such an owner or oc-

cupier, after knowing of the condition, engages in

some affirmative conduct indicating his adoption of

the condition. Essentially, this theory of liability for

owners or occupiers who do not create the condition

is an application to Section 316 of the common law

liability of owners or occupiers who “continue” or

“adopt” a nuisance not created by them. See 66

C.J.S. Nuisances §§83-89 (1950); 58 AM. JUR. 2d

Nuisances §§48-56 (1971).

It has always been recognized that the “right” of

property ownership carries with it a concurrent “obliga-

tion” which is inherent in the basic relationship of an

“owner” of property to society. These “obligations, how-

ever, have always related to the use one puts to property,

not mere ownership. The ancient maxium of the com-

mon law is, “Sic utere tuo ut alienum non lae dus”, 9

A-24

Coke 59 — So use your own property as not to injure

your neighbor. Where society requires, the property of

another can be taken, but only with due compensation.

To construe the Subject Act as providing for strict liabil-

ity, based on nothing more than the ownership or occu-

pation of land, would be to impose on innocent individu-

als the burden which should be born by society as a

whole, thus, an unconstitutional taking.

I, thus, concur only in the result.

—A-25

IN THE

COMMONWEALTH COURT OF PENNSYLVANIA

PHILADELPHIA CHEWING No. 1389

GUM CORPORATION, C.D. 1976

Petitioner

Vv.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL

RESOURCES,

Respondent

SHELL OIL COMPANY, No. 1390

Petitioner C.D. 1976

UV.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL

RESOURCES AND TOWNSHIP OF

HAVERFORD,

Respondents

NATIONAL WOOD No. 1395

PRESERVERS, INC., C.D. 1976

Petitioner

VU.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL

RESOURCES,

Respondent

CLIFFORD ROGERS AND

VIRGINIA ROGERS,

Petitioners

Vv. No. 1415

COMMONWEALTH OF PENNSYLVANIA C.D. 1976

DEPARTMENT OF ENVIRONMENTAL

RESOURCES,

Respondent

A-26

Before: HONORABLE JAMES S. BOWMAN President

Judge, HONORABLE JAMES C. CRUMLISH, JR.,

Judge, HONORABLE ROY WILKINSON, JR.,

Judge, HONORABLE THEODORE O. ROGERS,

Judge, HONORABLE GENEVIEVE BLATT, Judge

Argued: October 4, 1977

OPINION BY PRESIDENT JUDGE BOWMAN

Filed May 24, 1978

At the heart of these consolidated appeals is the fol-

lowing fundamental question: Under what circum-

stances may the Commonwealth order a landowner or

an occupier of land to correct a condition existing on his

land which is causing pollution of Commonwealth wa-

ters, where such polluting condition was created by the

conduct of someone other than the owner or occupier? It

is before us by way of an adjudication and order of the

Environmental Hearing Board (K}HB) which sustained

in part and dismissed in part the appeals of Philadelphia

Chewing Gum Corporation (Gum), Shell Oil Company

(Shell), National Wood Preservers, Inc. (Wood), and

Clifford A. and Virginia M. Rogers (Rogers) from orders

issued by the Commonwealth of Pennsylvania, Depart-

ment of Environmental Resources (DER). These four

appellants had been ordered, pursuant to Section 316 of

The Clean Streams Law,!' to take corrective measures

with regard to what DER determined was a “condition”

existing on land either owned or occupied by them.

Since our disposition of these appeals is, in part, deter-

mined by the differing relationships each appellant has

to the condition involved, we shall first examine the fac-

tual postures of these appellants vis-a-vis the land, the

1. Act of June 22, 1937, P.L. 1987, as amended, added by Sec-

tion 5 of the Act of August 23, 1965. P.L. 372. as amended, 35 P.S.

§691.316.

A-27

waters and the existing condition. We shall next discuss

the construction and applicability of Section 316 of The

Clean Streams Law in situations where the landowner

or occupier did not create the condition which is result-

ing in pollution. Finally, we shall review the constitu-

tional challenges raised to Section 316.

THE LAND

The land involved here is located in Haverford

Township, Delaware County, in the area of the intersec-

tion of Eagle Road and the Penn Central railroad line.

Appellants Rogers and Gum have owned parcels of land

in this area since the 1940’s. Rogers’ property is located

on the northwest side of Eagle Road, Gum’s property on

the southeast side of Eagle Road, across from Rogers’

land. The entire Rogers’ tract is leased, in part to Wood

and in part to Shell. Gum's production plant has been

operating on its tract since 1947.

On January 10, 1947, Rogers leased the entirety of

their tract to Samuel J. Jacoby (Jacoby) and C. David Ja-

cobs (Jacobs), individuals not parties to the instant pro-

ceedings.” On January 24, 1947, Jacoby and Jacobs as-

signed said lease to Wood, a corporation at that time

controlled by Jacoby. From March 28, 1947 until July,

1963, Jacoby conducted a wood preservative business on

this premises. On July 30, 1963, Jacoby sold his entire

interest in Wood to the Goldstein family (Goldstein). At

this time also, Goldstein took assignment of the lease of

the property on which Wood was located. Thereafter,

Wood has continued to operate as a wood preservative

business, under Goldstein’s ownership and control.

On February 10, 1967, Wood, under Goldstein, re-

leased a portion of the above parcel from its leasehold.

2. A petition to join Jacoby as an additional defendant was filed

bv Shell in October, 1973. However, EHB denied said petition. See

In re National Wood Preservers, 64 Pa. D. & C.2d 78 (1974).

A-28

On that same date, Rogers leased said portion of the par-

cel to Shell. Shell subsequently built and, at all relevant

times thereafter, has operated and maintained a gasoline

station on this leased land.

THE WATERS

The waters of the Commonwealth involved here are

the groundwater and certain surface waters in the

geographical area discussed above. The pollutant in-

volved is pentachlorophenol mixed with oil which EHB

found was “present in the ground water and in Naylors

Run, both of which constitute ‘waters of the Common-

wealth.’ ” See Section 1 of The Clean Streams Law, 35

P.S. §691.1, wherein “Waters of the Commonwealth” is

defined.

Naylors Run is a stream which has its source at a

point northwest of the land owned by Rogers and leased

to Wood and Shell. Naylors Run flows in a general

southerly direction along a course which is northeast

and east of the Rogers tract. The stream flows southeast-

erly under Eagle Road via a culvert and continues to

flow in a generally southeasterly direction along a course

east of the Gum tract.

Pentachlorophenol mixed with oil is present in the

groundwater under the surface of appellants’ land. FEHB

found that the pollutant is discharged into Naylors Run

in the following manner:

“Pentachlorophenol mixed with oil flows,

mostly on top of the water table, under the surface

of the property of Rogers’ and leased, in part to Shell

and in part to Wood. This material then flows in a

southwesterly direction under Eagle Road.

Pentachlorophenol mixed with oil flows, mostly on

top of the water table, under the surface of the prop-

erty of Gum. This material then infiltrates the storm

A-29

sewer pipe which is maintained by the Township

. . at points between manhole No. 8 and manhole

No. 9. Pentachlorophenol mixed with oil travels in

this storm sewer pipe and is discharged to Naylors

Run at the terminus of this pipe.”

Although EHB found that “it appears that the major

amount of pentachlorophenol mixed with oil is pooled

under the surface of the property of Rogers’ and leased,

in part to Shell and in part to Wood,” neither the total

volume nor the precise dispersion of the pollutant is

presently known. Indeed, one of the directives contained

in the EHB order which is the subject of the instant ap-

peals requires appellants to perform further well drilling

and samplings of the area’s groundwater in order to de-

termine more definitely the scope of the pollution prob-

lem.

THE CONDITION

In its adjudication, EHB concluded that the “condi-

tion” which is present in this case is “the presence of

pentachlorophenol mixed with oil” under the surface of

appellants’ land. EHB found as fact, however, that nei-

ther Wood, under the ownership of the Goldstein family,

nor Shell, nor Gum had “discharged or permitted the

discharge of industrial waste to the waters of the Com-

monwealth.” The questions arise, therefore, as to how

and when this “condition” came into existence. We be-

gin with EHB’s finding that “|p]entachlorophenol is a

solid organic material which is acidic in nature. It is a

fungicide, a herbicide and a wood preservative.” (Em-

phasis added). EHB found that Wood, during its years

under Jacoby, utilized pentachlorophenol in the opera-

tion of its wood preservative business. As stated by EHB:

“During the course of the operation of this business,

under Jacoby’s ownership, waste liquids were dis-

charged or permitted to be discharged from the sur-

A-30

face of the land upon which said business was con-

ducted to the ground water via a well on said

premises. The Health Officer of the Township and

representatives from the Pennsylvania Department

of Health, the predecessor in duties to D.E.R., took

enforcement action against Jacoby and/or against

said corporation by reason of the discharges of these

waste liquids to the ground water.”

At one point in the “Discussion” section of its adjudica-

tion, EHB characterizes Jacoby as the individual “who

was responsible for the creation of the condition. eG

The record contains ample evidence all of which

seems to lead inescapably to the conclusion that Jacoby’s

conduct created this condition. Complaints by area resi-

dents to township health officials about discoloration of

Naylors Run by an oily brownish substance first began

prior to 1956. Jacoby was contacted by both township

and state officials regarding these complaints. There is

testimony in the record which indicates that Jacoby dis-

continued the use of the disposal well in 1956. Given the

specific findings of fact that neither Wood, under

Goldstein, nor Gum nor Shell has discharged any indus-

trial waste into Commonwealth waters, we must con-

clude that the presence of pentachlorophenol under the

land of these appellants is a direct result of Jacoby’s ac-

tivities prior to and including the year 1956. Given

EHB’s findings of fact pertaining to the subsurface di-

vides and groundwater flow in this area, it appears that

Gum “acquired” the presence of pentachlorophenol un-

der its land due to the downward slope of the subsurface

water table from the site of the disposal well.

Thus, the “condition” which EHB has ordered these

appellants to correct was created by conduct which ap-

pears to have ceased over two decades ago. While the

conduct has ended, the condition lingers on. Moreover,

the very conduct resulting in the condition’s creation

was not performed by any of these appellants.

A-3]

THE APPLICABILITY OF SECTION 316

TO NONMINING ACTIVITIES

Before discussing the proper application of Section

316 to situations where the conduct of an individual

other than the owner or occupier created the condition

causing pollution, we shall address the applicability of

this section to nonmining activities.

During the proceedings below, it was stipulated by

each of the parties that the sole authority for the issu-

ance of the orders by DER was Section 316 of The Clean

Streams Law. On appeal to this Court, each appellant

has argued that Section 316 applies only to pollution re-

sulting from mining operations — specifically, to acid

mine drainage. We are of the view, however, that Sec-

tion 316 is applicable to the type of pollution and condi-

tion present here.

The general legislative history of The Clean

Streams Law has been examined by this Court and by

the Supreme Court on several occasions, and need not

be recounted extensively here. See Commonwealth v.

Barnes & Tucker Co. (Barnes & Tucker 1), 455 Pa. 392,

395-400, 319 A.2d 871, 873-76 (1974); Commonwealth

v. Harmar Coal Co. (Harmar Coal), 452 Pa. 77, 83-86,

306 A.2d 308, 31213 (1973); Commonwealth v. Barnes

& Tucker Co., 9 Pa. Commonwealth Ct. 1, 24-46, 303

A.2d 544, 55566 (1973), rev'd, Barnes v. Tucker I,

supra. Originally enacted in 1937, The Clean Streams

Law thrice has been significantly amended, first in

1945, then in 1965, and again in 1970.* Section 316 was

added as part of the 1965 amendments.

As enacted in 1965, Section 316 provided the fol-

lowing:

“Whenever the Sanitary Water Board finds that

pollution of waters of the Commonwealth is result-

3. The Clean Streams Law was also amended in 1956 when

Section 314, 35 P.S. §691.314, was added.

A-32

ing from a condition which exists on land in the

Commonwealth and that the owner or occupier of

such land has refused to allow a mine operator or

other person or an appropriate agency of the Com-

monwealth access to the land to take whatever

measures are necessary to eliminate the pollution,

the board may order the landowner or occupier to al-

low such access.”

Appellants argue that the 1965 amendments to The

Clean Streams Law were for the purpose of extending

the scope of the statute to pollution resulting from min-

ing activities, a type of pollution theretofore given ‘“spe-

cial” status under The Clean Streams Law. See Section 2

of the Act of August 23, 1965, P.L. 372. Moreover, it is

argued that since Section 316 was added concurrent to

the addition of Section 315, 35 P.S. §691.315, a section

which indisputably applies to mining operations, Section

316 similarly was intended to be limited in applicability

to conditions created by mining activities.

Although the 1965 amendments to The Clean

Streams Law do appear to have been directed mainly to

problems arising from mine drainage, we believe that

the legislative changes made to The Clean Streams Law

by the 1970 amendments to this statute made the sec-

tion applicable to the instant condition and pollution.

Our Supreme Court has commented upon the 1970

amendments to Section 316:

“Section 316, which had been added in 1965 to

require landowners and occupiers to allow access to

the land so that appropriate corrective measures

could be taken, was significantly changed |in 1970].

That section now provides a separate basis for the

imposition of liability for pollution ‘from a condition

which exists on the land.’” Barnes & Tucker I,

supra at 400, 319 A.2d at 876 (emphasis added).

A-33

As amended in 1970, Section 316 presently provides, in

pertinent part:

“Whenever the Sanitary Water Board finds that

pollution or a danger of pollution is resulting from a

condition which exists on land in the Common-

wealth the board may order the landowner or occu-

pier to correct the condition in a maniier satisfactory

to the board or it may order such owner or occupier

to allow a mine operator or other person or agency of

the Commonwealth access to the land to take such

action. For the purpose of this section, ‘landowner’

includes any person holding title to or having a pro-

prietary interest in either surface or subsurface

rights.’

Several points must be noted with regard to the

1970 amendments to The Clean Streams Law generally,

and Section 316 particularly.

Section 4 of The Clean Streams Law, presently enti-

tled “Declaration of Policy” and added in 1965, was

amended in 1970 to delete the specific references to

mine drainage which had originally been contained

therein. See and compare Section 2 of the Act of August

23, 1965, P.L. 372 with Section 3 of the Act of July 31,

1970, P.L. 653. We view the legislature’s deletion of spe-

cific references to mine drainage in Section 4 of The

Clean Streams Law in 1970 as an indication that the leg-

islative declaration of policy underlying The Clean

Streams Law was being correspondingly broadened.

With specific reference to Section 316, it must be

observed first, that the 1965 version provided that the

Board could only order a landowner or occupier to allow

access to the land on which a polluting condition was

found to exist. In 1970, the provisions of Section 316

4. The Sanitary Water Board was abolished and its functions

transferred to the Department of Environmental Resources by Sec-

tion 30(a) of the Act of December 3, 1970, P.L. 834.

A-34

were fundamentally altered. DER is now empowered to

order a landowner or occupier to correct the polluting

condition. No longer is this section a mere key to the

door; it is a framework itself through which pollution of

Commonwealth waters can be combatted.

A second significant change which altered the

scope of Section 316 in 1970 was the addition of the

words “or a danger of pollution”. While previously the

Board could act only after pollution was found to exist,

action can now be taken at an earlier stage when the

danger of pollution becomes apparent.

Thus, we believe that the 1970 amendments to Sec-

tion 316 make that section applicable not cialy to condi-

tions arising from mine drainage, but, more broadly, to

the type of condition causing pollution in this case.

THE APPLICATION OF SECTION 316 TO

LANDOWNERS OR OCCUPIERS WHO DID NOT

CREATE THE POLLUTING CONDITION

EL: HB applied the provisions of Section 316 to appel-

lants utilizing the following reasoning:

“We have found that pollution is resulting from

a condition which exists on land which is owned

and/or occupied by Appellants.

“This finding, standing alone, imposes upon

these Appellants the responsibility to correct such

condition, notwithstanding the fact that this condi-

tion was neither created nor actively maintained by

any of them.

“As applied to these Appellants, Section 316 is a

declaration of their strict liability to correct a condi-

tion based upon the mere fact that they own and/or

occupy the land under which this condition exists.”

Since we believe that serious constitutional problems

arise if the police power of this Commonwealth can be

A-35

wielded against landowners or occupiers whose owner-

ship or occupancy bears absolutely no relationship to the

polluting condition, we hold that EHB committed an er-

ror of law in concluding that Section 316 is a declaration

of strict liability based upon the mere fact of ownership

or occupancy.

In enacting The Clean Streams Law in 1937, the

legislature gave statutory expression to an inherent po-

lice power of the Commonwealth. “The police power is

the inherent power of a body politic to enact and enforce

laws for the promotion of the general welfare.”

Commonwealth v. Barnes & Tucker Co. (Barnes &

Tucker II), 472 Pa. 115, 123, 371 A.2d 461, 465 (1977).

Nearly thirty years prior to the passage of The Clean

Streams Law, our Supreme Court, adopting the lan-

guage of our Superior Court, stated the following with

regard to the police power of the Commonwealth:

“That power undoubtedly extends to all regulations

affecting the health, good order, morals, peace and

safety, of society. . . . That the preservation of the

waters of the state from pollution, involving danger

to health, is a proper subject for the exercise of the

police power, cannot be seriously questioned.” Com-

monwealth v. Emmers, 221 Pa. 298, 306, 70 A. 762,

766 (1908).

More recently, in a case involving Section 315 of The

Clean Streams Law, the Supreme Court stated:

“A State in the exercise of its police power may,

within constitutional limitations, not only suppress

what is offensive, disorderly or unsanitary, but en-

act regulations to promote the public health, morals

or safety and the general well-being of the commu-

nity. Bacon v. Walker, 204 U.S. 311 (1907). This

power has been used to prevent industrial practices

in the use of private property which were injurious

to the public. The Slaughter House Cases, 83 U.S.

A-36

36 (1872). The police power may even be exercised —

over property and current business operations, re-

quiring the destruction of existing property, Miller

v. Schoene, 276 U.S, 272 (1928), or the imposition

of new costs, Queen¥ide iiuls Realth Co., Inc. v.

Saxl, 328 U.S. 80 (1946); The Slaughter House

Cases, 83 U.S. 36 (1872). Regulations maintaining

the State’s water resources have also been held to be

within the scope of the police power. Hudson

County Water Co. v. McCarter, 209 U.S. 349

(1908); Commonwealth v. Emmers, 33 Pa. Superior

Ct. 151 (1907), aff'd, 221 Pa. 298, 70 A. 762

(1908).” Harmar Coal, supra at 92, .306 A.2d at

316-17.

It has been stated that “|t|he police power of the

state is as comprehensive as the demands of society re-

quire under the circumstances.” Barnes & Tucker II,

supra at 127, 371 A.2d at 467. Yet, while the scope of the

police power is extensive, it is not infinite. There exist

certain constitutional standards by which the State’s ex-

ercise of police power must be measured. Our Supreme

Court has deemed “instructive” t'1e standard enunciated

by the United States Supreme Court in Lawton v. Steele,

152 U.S. 133 (1894):

oe

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 upen individu-

als.’ Id. at 137.” Barnes & Tucker I, supra at 418,

319 A.2d at 885.

“In applying these standards a regulation must be meas-

ured by its ‘reasonableness,’ Goldblatt v. Hempstead,

369 U.S. 590 (1962).” Harmar Coal, supra at 93, 306

A.2d at 317. “The exercise of the police power

A-37

is . . . restricted by the parameters of reason.” Barnes

& Tucker I, supra at 419, 319 A.2d at 886.

‘“Reasonableness” as a standard by which to meas-

ure the exercise of police power is not a concept capable

of neat definition. In the case of Hudson County Water

Co. v. McCarter, 209 U.S. 359, 355 (1908), Mr. Justice

Oliver Wendell Holmes stated:

“All rights tend to declare themselves absolute

to their logical extreme. Yet all in fact are limited by

the neighborhood of principles of policy which are

other than those on which the particular right is

founded, and which become strong enough to hold

their own when a certain point is reached. The lim-

its set to property by other public interests present

themselves as a branch of what is called the police

power of the state. The boundary at which the

conflicting interests balance cannot be determined

by any general formula in advance, but points in the

line, or helping to establish it, are fixed by decisions

that this or that concrete case falls on the nearer or

farther side. For instance, the police power may

limit the height of buildings in a city without com-

pensation. To that extent it cuts down what other-

wise would be the rights of property. But if it should

attempt to limit the height so far as to make an ordi-

nary building lot wholly useless, the rights of prop-

erty would prevail over the other public interest, and

the police power would fail. To set such a limit

would need compensation and the power of emi-

nent domain.”

Our Supreme Court has recognized that “|t|here is often

a thin line separating that which constitutes a valid exer-

cise of the police power and that which constitutes a tak-

ing.” Barnes & Tucker I, supra at 418, 319 A.2d at 885.

It is clear, however, that an exercise of police power be-

comes unreasonable if the regulations imposed by the

state become so onerous as to constitute a taking of prop-

A-38

erty which constitutionally requires compensation.

Goldblatt v. Town of Hempstead, 369 U.S. 590, 594

(1962).

The police power of this Commonwealth may not be

used to require a landowner “to abate a public nuisance

existing on his land where such ownership is unrelated

to the forces or conditions resulting in a public nui-

sance.” Commonwealth v. Barnes & Tucker Co., 23 Pa.

Commonwealth Ct. 496, 509, 353 A.2d 471, 478 (1976),

aff'd 472 Pa. 115, 371 A.2d 461 (1977); Commonwealth

v. Wyeth Laboratories, 12 Pa. Commonwealth Ct. 227,

315 A.2d 648 (1974). The police power of the Com-

monwealth may be brought to bear upon a landowner,

however, at least under the theory of common law public

nuisance, notwithstanding “|t|he absence of facts sup-

porting concepts of negligence, foreseeability or unlaw-

ful conduct.” Barnes & Tucker I, supra at 414, 319 A.2d

at 883.

Applying these legal principles to the fact of this

case, we believe that requiring these appellants to spend

the financial sums necessary to abate this condition,

based solely upon their ownership or occupancy of land,

would be to employ means unduly oppressive upon

these individuals. We believe that such an exercise of

5. We recognize that no express language appears in Section

316 which declares a “condition” resulting in pollution to be a pub-

lic nuisance. We recognize further that other sections of The Clean

Streams Law do expressly declare certain activities to be public

nuisances. Present in this case, however, and that process which

DER seeks to have stopped, is the-discharge of this pollutant into

Naylors Run. Section 3 of The Clean Streams Law, 35 P.S. §691.3,

expressly declares such a discharge to be a public nuisance. Thus,

we deem it proper to apply public nuisance law to this factual situa-

tion where the condition is the direct cause of a public nuisance.

Moreover, the Supreme Court has stated that “|a| thing may be a

public nuisance because it is so declared by statute, either explicitly

or implicitly.”

Commonwealth v. MacDonald, 464 Pa. 435, 458, 347 A.2d 290,

303 (1975) (footnotes omitted). We believe that the condition here

constitutes an implicitly declared statutory public nuisance.

A-39

police power would transcend “the parameters of rea-

son”. We believe that EHB's conclusion that Section 316

is a declaration of the strict liability of these appellants to

correct the condition is erroneous as a matter of law be-

cause such a construction of Section 316 would permit

the Commonwealth to engage in regulation which con-

stitutes the taking of property without compensation,

and hence, would be an unconstitutional exercise of po-

lice power.

It is the duty of a court, when faced with a construc-

tion of a_ statute involving serious constitutional

difficulties, to reject that interpretation in favor of an-

other construction which will save its constitutionality.

2A J. Sutherland, Statutes and Statutory Construction

§45.11 (4th ed. C. Sands 1973). “Where a statute can be

given two constructions, one of which will render it con-

stitutional and the other unconstitutional, the former

construction must be invoked. Dolan v, Linton’s Lunch,

397 Pa. 114, 152 A.2d 887 (1959); Evans v. West

Norriton Twp. Municipal Authority, 370 Pa. 150, 87

sot pth (1952); Fidelity Philadelphia Trust Co. v.

Hines, 337 Pa. 48, 10 A.2d 553 (1940).” Pittsburg Coal

Co. v. Sanitary Water Board, 4 Pa. Commonwealth Ct.

407, 424-25, 286 A.2d 459, 468 (1972); rev'd on other

grounds, 452 Pa. 77, 306 A.2d 308 (1973). See also Com-

monwealth v. MacDonald, supra at 447, 347 A.2d at 297.

We believe that there is a construction of Section

316 which both comports with the law of public nui-

sance and renders that section constitutional as applied

to the factual situation present in this case.° Where the

6. We are mindful of the Supreme Court's pronouncement

that “|t}he remedies provides in Section 316 are statutorily created,

and as such are to be strictly construed.” Barnes & Tucker 1, supra

at 407, 319 A.2d at 880. It is clear, however, from the context of the

above quotation, that the Court was addressing the point that ad-

ministrative procedures must be strictly followed by DER before

the remedies provided in Section 316 can be utilized. We do not be-

lieve that the Court intended to suggest that the substantive provi-

sions of Section 316 could not be subjected to judicial construction,

A-40

polluting condition is created by the conduct of an indi-

vidual other than the owner or occupier, the owner or oc-

cupier of the land on which the condition exists cannot

be liable to take corrective measures under Section 316

on the basis of the bare fact of ownership or occupancy.

Such an owner or occupier can be ordered to take cor-

rective measures, however, if he permitted or authorized

the creation of the condition on his land. Such an owner

or occupier can also be ordered to take corrective meas-

ures if he (1) knows or should know of the existence of

the condition on the land; and (2) associates himself in

some positive respect, beyond mere ownership or occu-

pancy, with the condition after its creation. The key to

imposing liability under Section 316 upon an owner or

occupier for the correction of a condition which he did

not create is that such an owner or occupier, after know-

ing of the condition, engages in some affirmative con-

duct indicating his adoption of the condition. Essen-

tially, this theory of liability for owners or occupiers who

do not create the condition is an application to Section

316 of the common law liability of owners or occupiers

who “continue” or “adopt” a nuisance not created by

them. See 66 C.J.S. Nuisances §§83-89 (1950); 58 AM.

JUR. 2d Nuisances §§48-56 (1971).

We turn now to applying the above construction of

Section 316 to appellants in this case.

With respect to Gum, we sustain its appeal on the

ground that EHB improperly applied Section 316 to it.

There is no evidence in the record to indicate that Gum

knew of the existence of this condition prior to the insti-

tution of these proceedings. Nor is there any reason why

Gum, as a landowner adjacent to the land on which the

condition was created, ought to have become aware of

the presence of pentachlorophenol mixed with oil under

its land. Finally, Gum has never engaged in any affirma-

tive conduct which can possibly be viewed as indicating

an association with or its adoption of the condition.

A-4]

With respect to Shell, there is testimony in the re-

cord that a Shell representative, prior to entering into the

lease with Rogers, was shown the disposal well used by

Wood and informed of the past practice of disposing of

chemicals into the well. While this testimony tends to

establish that Shell possessed knowledge of the

underlying pollution problem at the time it became an

occupant, we find no evidence that Shell has ever en-

gaged in any affirmative conduct indicating an associ-

ation with or adoption of the condition. We, therefore,

sustain Shell's appeal on the basis that EHB improperly

applied Section 316 to it.

With respect to Wood, an examination of the record

indicates that its present management, Goldstein, was

wary of pollution problems connected with Jacoby’s op-

eration of the wood preservative business prior to enter-

ing into its agreement to purchase the company in 1963.

Approximately one month prior to purchasing Jacoby’'s

stock on July 30, 1963, Harris Goldstein went to the

business premises and remained there continuously for

that month in order to determine whether to buy the

business. He observed that the equipment used by

Jacoby was in poor condition; that the entire operation

was being conducted on dirt and not on concrete floors;

that oil was being spilled on the ground and that chemi-

cals were improperly stored. Goldstein specifically in-

quired of Jacoby regarding the existence of any pollution

problems and was assured that, although there had been

a pollution problem previously, the problem had been

remedied. Consequently, Goldstein insisted that the fol-

lowing clause be included in the July 30, 1963 stock pur-

chase agreement: “Jacoby represents and warrants

that...there is no litigation pending or threatened against

National Wood, and there are no administrative proceed-

ings pending or threatened against it by any agency or

instrumentality of the federal, state or local govern-

ments, except for a charge of stream pollution since

cured. i

A-42

On September 17, 1963, Jacoby was arrested by the

Pennsylvania State Police for polluting. As a result of

Jacoby’s arrest, Goldstein consulted their attorney about

attempting to force Jacoby to buy back the stock of the

business. However, Goldstein decided to keep the busi-

ness and to attempt to take measures to correct the pol-

lution problem. Some measures were in fact taken in

1964, with the approval of the Pennsylvania Sanitary

Water Board. On December 31, 1964, Goldstein and

Jacoby entered into an agreement whereby Jacoby

agreed to give Goldstein a credit of $35,000 in reduction

of the purchase price of the stock. One of the premises

upon which said reduction was based was Goldstein's

claim that Jacoby had breached the clause in the original

purchase agreement regarding the absence of a stream

pollution problem. As part of the December 31, 1964

agreement also, Goldstein released Jacoby from the war-

ranty in the original agreement that the pollution prob-

lem had been cured.

We are of the opinion that the sequence of events

set forth above establishes clearly that Goldstein, after

knowing of the existence of the condition causing pollu-

tion, engaged in affirmative conduct which indicates an

adoption of the condition. While Goldstein's cooperation

with the Sanitary Water Board in 1964 is commendable,

the fact remains that Goldstein, because of the pollution

problem, considered and then decided against divesting

themselves of the business. After deciding to keep the

business, Goldstein was able to get a reduction in its pur-

chase price, in part because of the pollution problem.

Since Wood's present management knew of the exist-

ence of the condition and engaged in affirmative con-

duct to associate themselves with it, we hold that it was

proper for EHB to conclude that Section 316 applies to

Wood.

With respect to Rogers, we hold that Section 316 is

applicable to them as well. Rogers have owned their

tract since the 1940's and constantly have had industrial

‘

A-43

and business tenants on their land. While the record

presently before us does not reveal when, or even if,

Rogers came to have knowledge of the pollution problem

created by one of their tenants, we believe that Rogers

should have known of the existence of this condition on

their land. Rogers, as owners, have suffered this condi-

tion to continue for over twenty years. They have col-

lected rent from Wood for over thirty years, first from

Jacoby, the creator of the condition, and subsequently

from Goldstein. Thus, we believe that Rogers, over the

course of twenty years, have sufficiently associated

themselves with the existence of this condition to render

reasonable their participation in its abatement.

ADDITIONAL CONSTITIONAL CHALLENGES

Since we sustain the appeals of Gum and Shell on

the ground that EHB improperly applied the provisions

of Section 316 to them, we need not address the addi-

tional constitutional challenges to that section which

they have raised. However, Wood and Rogers have

raised several constitutional challenges to Section 316 to

which we shall now turn.

Both Wood and Rogers have argued that Section

316 is an unconstitutional violation of due process in

that it imposes liability for abatement based upon the

mere “status” of landowner or occupier, rather than

upon conduct. In light of our above discussion of the

proper construction of Section 316, we dismiss these ar-

guments as without merit.

Both Wood and Rogers have argued that DER has

violated their right to equal protection because DER has

engaged in intentional and purposeful discrimination in

the enforcement of Section 316. While it may be true

that there are other landowners and occupiers in the

A-44

area in question under whose land pentachlorphenol

mixed with oil is present, but against whom DER chose

not to proceed, we do not believe that this conduct con-

stitutes unconstitutional discriminatory enforcement.

“Proof of mere laxity of enforcement by the authorities is

not sufficient to establish an impermissible exercise of

discrimination in the enforcement of the law.” The

Kroger Co. v. O'Hara Township, 243 Pa. Superior Ct.

479, 482, 366 A.2d 254, 256 (1976).

Wood and Rogers argue that EHB’s order should be

reversed because EHB failed to apply the rule on the

burden of proving abatement feasibility enunciated by

this Court in Commonwealth v. Wyeth Laboratories,

supra. In Wyeth, a case arising under Section 401 of

The Clean Streams Law, 35 P.S. §691.401, we stated

that where “the power and resources of the Common-

wealth are being brought to bear upon one not affirma-

tively polluting the environment and blameless with re-

spect to the conditions producing the pollution and

simply because of its ownership of the land alleged to be

the source of the pollution” the burden of proving the

feasibility of abatement should fall on the Common-

wealth. Wyeth, supra at 240, 315 A.2d at 655 (emphasis

added). As we have stated above, we do not believe that

either Wood or Rogers is “blameless” with respect to this

condition. More circumstances than mere ownership or

occupancy are present here which justify EHB’s order

directing Wood and Rogers to embark upon an abate-

ment program.

Wood contends that Section 316 is unconstitutional

because it constitutes ex post facto legislation. The argu-

ment essentially is that Jacoby discharged the pollutant

sometime prior to 1963 and Section 316 was not enacted

until 1965. We reject this argument because it is the

present condition of the land which Wood has been or-

dered to correct. Although the seeds culminating in this

~

A-45

condition may have been sewn a number of years ago,

the condition itself still persists.

We have considered the remaining arguments

raised by Wood and find them to be without merit.

Consistent with the foregoing, we issue an Order.

/s/

James S. Bowman,

President Judge

A-46

IN THE

COMMONWEALTH COURT OF PENNSYLVANIA

PHILADELPHIA CHEWING

GUM CORPORATION

Petitioner

Vv.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL

RESOURCES

Respondent

SHELL OIL, COMPANY,

Petitioner

VU.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL

RESOURCES and TOWNSHIP OF

HAVERFORD

Respondents

NATIONAL WOOD

PRESERVERS, INC.,

Petitioner

U.

COMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL

RESOURCES )

Respondent

CLIFFORD ROGERS and

VIRGINIA ROGERS,

Petitioners

v.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL

RESOURCES,

Respondent

No. 1389

C.D. 1976,

No. 1390

C.D. 1976

No. 1395

C.D. 1976

No. 1415

C.D. 1976

A-47

ORDER

NOW, May 24, 1978, the appeals of Philadelphia

Chewing Gum Corporation and Shell Oil Company from

the adjudication and order of the Environmental Hear-

ing Board dated July 30, 1976, are hereby sustained, and

said order, as pertains to said petitioners is hereby re-

versed. The appeals of National Wood Preservers, Inc.

and Clifford A. and Virginia M. Rogers from the adjudi-

cation and order of the Environmental Hearing Board

dated July 30, 1976, are hereby denied, and said order,

as pertains to said petitioners, is hereby affirmed.

James S. Bowman,

President Judge

A-48

COMMONWEALTH OF PENNSYLVANIA

Environmental Hearing Board

Blackstone Building

First Floor Annex

112 Market Street

Harrisburg, Pennsylvania 17101

(717) 787-3483

In the Matter of:

Philadelphia Chewing Gum

Company, National Wood

Preservers, Shell Oil DOCKET NO.

Company & Clifford and 73-253-D

Virginia Rogers 73-249-D

v. 73-256-D

Commonwealth of Pennsylvania 73-346-D

Department of Environmental

Resources

ADJUDICATION

By the Board: Issued, July 30, 1976.

This matter is before the Board on appeals filed by

National Wood Preservers, Inc.' (Wood), Philadelphia

Chewing Gum Corp.” (Gum), Shell Oil Company

(Shell), and Clifford A. Rogers and Virginia M. Rogers,

his wife (Rogers’), from Orders issued to each said Ap-

pellant by the Commonwealth of Pennsylvania Depart-

ment of Environmental Resources (D.E.R.).

In the Orders to Wood, Gum and Shell, each of

which were issued on July 12, 1973, D.E.R. made three

findings, which are set forth as follows:

“WHEREAS, a serious problem of contamina-

tion exists in the ground waters and surface waters

in the area of the intersection of Eagle Road and

Penn Central Railroad in Haverford Township,

1. D.E.R. described this Appellant as National Wood Preserv-

crs.

2. D.E.R. described this Appellant as Philadelphia Chewing

Gum Company.

A-49

Delaware County, Pennsylvania, more specifically

described as on the Lansdowne, Pennsylvania

seven and one half minute topographic quadrangle,

1967, 9.5 inches west and 19.5 inches north of

lower right hand corner; and

“WHEREAS, said contaminant consists of creo-

sote containing pentachlorophenol. Said contami-

nant appears in both ground and surface water in-

cluding waters of the Commonwealth locally known

as Naylor’s Run, a tributary of Cobbs Creek; and

“WHEREAS, said contaminant degrades the

quality of the waters of the Commonwealth. Said

contaminant is therefore subject to the sanctions of

the Clean Streams Law of the Commonwealth of

Pennsylvania.”

By these Orders Wood, Gum and Shell were di-

rected to take concerted action with each other to submit

a proposal to D.E.R., by August 6, 1973, which was to

include:

a. A definition of the specific geographical area

of said creosote contamination.

c. Engineering plans to remove the contami-

nants from the groundwater and surface water to a

degree which will restore the above mentioned wa-

ters to their natural quality.

Wood, Gum and Shell were also directed to provide

to D.E.R., by August 27, 1973, a final proposal of engi-

neering plans for elimination and removal of such con-

tamination and for restoration of said waters which was

acceptable to D.E.R. This final proposal was to include a

time schedule for the implementation thereof.

Each of said Appellants filed timely appeals to this

Board from these Orders. On or about September 7,

A-50

1973, said Appellants and D.E.R. stipulated to a superse-

deas with regard to compliance therewith, pending our

determination of the various appeals.

In the Order issued to Rogers’, on September 21,

1973, D.E.R. made three findings, the language of

which was somewhat different from the language

contained in the Orders which were issued to Wood,

Gum and Shell. These findings are set forth as follows:

“WHEREAS, Clifford A. Rogers and Virginia M.

Rogers, his wife, our (sic) certain land in the area of

the intersection of Eagle Road and Penn Central

Railroad in Haverford Township, Delaware County,

Pennsylvania, more specifically described as on the

Lansdowne, Pennsylvania seven and one _ half

minute topographic quadrangle, 1967, 9.5 inches

west and 19.5 inches north of lower right hand cor-

ner, and

“WHEREAS, the Department of Environmental

Resources (“Department”) of the Commonwealth of

Pennsylvania (“Commonwealth”) has found on the

basis of its inspections, inter alia, September 26,

1972, August 21, 1973 and August 22, 1973, that a

polluting substance containing pentachlorophenol

fuel oil and creosote (“pollutant”) is found in the

groundwaters in the area, including the land owned

by Clifford A. Rogers and Virginia M. Rogers, his

wife; and leased to National Wood Preservers and

Shell Oil Company, as well as the land owned by

Philadelphia Chewing Gum; and in the surface wa-

ters, including Naylor’s Run, a tributary to Cobb

Creek (“waters”), and

“WHEREAS, National Wood Preservers, Phila-

delphia Chewing Gum, and Shell Oil Company, by

Orders dated July 12, 1973 (“Orders”) were directed

to take concerted action to remove the pollutants

and restore to the waters to their natural water qual-

ity in accordance with the specific directives

A-5]

contained in the Orders, appeals from which Orders

have been taken to the Environmental Hearing

Board by National Wood Preservers as Docket No.

73-249, Shell Oil Company as Docket No. 73-256,

and Philadelphia Chewing Gum as Docket No. 73-

233."

In this Order Rogers’ were directed to, either indi-

vidually or jointly with the other Appellants, submit a

preliminary proposal, acceptable to D.E.R., by October

19, 1973, which was to include:

“(1) A definition of the specific geographical

area in which the pollutant is found; and

“(2) A profile of the groundwater table in the

area in which the pollutant is found; and

‘“(3) A proposal to remove the pollutant from

the waters, restoring the waters to their natural

quality.”

Rogers’ were also diiected to provide to D.E.R., by

November 9, 1973, a final proposal to remove said pollu-

tant from said waters and to remove said waters to their

natural quality which was acceptable to D.E.R. This fi-

nal proposal was to include an acceptable time schedule

for the implementation thereof.

Rogers’ filed a timely appeal to this Board from this

Order; on or about October 12, 1973, Rogers’ and D.E.R.

stipulated to a supersedeas with regard to compliance

therewith, pending our determination of the appeal.

On or about October 15, 1973, Shell filed a petition

wherein it sought to join Samuel Jacoby as an “addi-

tional defendant” in these proceedings.’ By our Opinion

and Order dated January 17, 1974, this petition was de-

nied.

3. Samuel Jacoby owned all of the stock issued by Wood until

July 30, 1963. In the petition for joinder, it was alleged that if there

was pollution of the waters of the Commonwealth in the relevant

geographical area, Mr. Jacoby had caused it to occur.

A-52

On November 1, 1973, we entered an Order by

which all appeals were consolidated for hearing.

On January 31, 1974, we entered an Order in which

we granted the petition of the Township of Haverford

(Township) to intervene.* The hearing on these consoli-

dated appeals, before Louis R. Salamon, Esquire, Hear-

ing Examiner, was held on the following dates: Novem-

ber 20, 21, 1974; January 13, 14, 15, 16, 17, 1975; June

23, 24, 25, 26, 27, 30, 1975.

During the course of the hearing, the parties en-

tered into numerous stipulations, the most significant of

which was that the sole basis for the issuance of each

said Order was the language contained in Section 316 of

The Clean Streams Law, Act of June 22, 1937, P.L.

1987, as amended, 35 P.S. §691.316.

The proposed adjudication submitted by Hearing

Examiner Salamon is adopted by the Board with minor

modification.

FINDINGS OF FACT

1. Rogers’ have owned a parcel of land in the Town-

ship of Haverford, Delaware County, for more than

thirty-four years. This parcel is more particularly de-

scribed as follows:

ALL that certain lot or piece of ground with build-

ings thereon erected situate in Oakmont, Delaware

County, Pennsylvania, on the northwest side of Eagle

Road, beginning at a point approximately 150 feet north-

east of Lawrence Road, containing 366 feet on Eagle

Road, 415 feet on the north line, 300 feet on the west

line and 200 feet on the south line.

2. On January 10, 1947, Rogers’ leased this parcel

of land to Samuel T. Jacoby and C. David Jacobs. These

gentlemen assigned their rights under said lease to Na-

4. The relevant geographical area in these proceedings is situ-

ate in the Township.

A-53

tional Wood Preservers, Inc., a corporation which was

controlled by Jacoby.

3. National Wood Preservers, Inc. by Jacoby, con-

ducted a wood preservative business on this parcel of

land between March 28, 1947 and July 30, 1963.

4. National Wood Preservers, Inc., by Jacoby, uti-

lized a substance known as pentachlorophenol in this

wood preservative business. During the course of the op-

eration of this business, under Jacoby’s ownership,

waste liquids were discharged or permitted to be dis-

charged from the surface of the land upon which said

business was conducted to the ground water via a well

on said premises. The Health Officer of the Township

and representatives from the Pennsylvania Department

of Health, the prececessor in duties to D.E.R., took en-

forcement action against Jacoby and/or against said cor-

poration by reason of the discharges of these waste liq-

uids to the ground water.

5. On July 30, 1963, Jacoby sold his entire interest

in this corporation to the Goldstein family; this family

has operated said wood preservative business, Wood, on,

inter alia, the premises above described, at all times

thereafter. Wood, under the ownership of the Goldstein

family, has not discharged or permitted the discharge of

industrial waste to the waters of the Commonwealth.

6. On February 10, 1967, Wood released a portion

of the above described premises from its leasehold. On

that same date, Rogers’ leased this portion to Shell. It is

more particularly described as follows:

ALL THAT CERTAIN lot or piece of ground situate in

Haverford Township, Delaware County, Pennsylvania,

beginning at the point of intersection of the Easterly

right-of-way line of Lawrence Road with the Northerly

right-of-way line of Eagle Road; thence in a Northeast-

erly direction along the Easterly right-of-way line of

Lawrence Road a distance of One Hundred Twenty-nine

feet (129’) more or less to a point; thence in a Northeast-

erly direction along a line perpendicular to the Easterly

t\

A-54

right-of-way line of Lawrence Road a distance of One

Hundred Thirty feet (130') more or less to a point;

thence in an Easterly direction along a line One Hun-

dred Three feet (103') more or less to a point; thence in a

Southeasterly direction along a line One Hundred Three

feet (103°) more or less to a point on the Northerly right-

of-way line of Eagle Road a distance of One Hundred

Sixty feet (160’) more or less to the place of beginning.

7. Shell has operated and maintained a gasoline

service station on said parcel of land at all times there-

after. Shell has not discharged or permitted the dis-

charge of industrial waste to the waters of the Common-

wealth.

8. Gum owns and occupies a parcel of land fronting

along Eagle Road in the Township. This parcel is on the

opposite side of Eagle Road from the parcels which are

owned by Rogers’ and occupied by Shell and Wood; this

parcel is Southwest of the Wood parcel. Gum has not

discharged or permitted the discharge of industrial

waste to the waters of the Commonwealth.

9. Naylors Run, a stream, begins at a point which is

northwest of the Rogers’, Shell, Wood premises which

have previously been described. Naylors Run flows in a

general southerly direction under Woodleigh Road and

Hillcrest Road which are northeast and east, respec-

tively, of the Rogers’ and Shell and Wood premises.

Naylors Run then flows in a general southeasterly direc-

tion under Eagle Road via a culvert. This stream re-

emerges at a point which is southeast of Eagle Road. It

continues to flow in a general southeasterly direction at

points which are east of the Gum premises. It is again

culverted under railroad tracks which are southeast of

the Gum premises, and re-emerges at a point southeast

of the Gum premises. It flows in a general southeasterly

direction until it is again culverted under portions of

roads known as Rittenhouse Circle and Achille Road

which are southeast of the Gum premises. It re-emerges

A-55

at a point southeast of Rittenhouse Circle and continues

to flow in a general southeasterly direction.

10. On June 12, 1972, Joseph A. Feola, who was

then employed by D.E.R. as an environmental protec-

tion specialist, was requested to investigate complaints

of the existence of an oily type material in Naylors Run.

Feola was accompanied on this investigation by Ralph V.

Zampogna, who was then employed by D.E.R. as a

groundwater geologist.

11. During their investigation of Naylors Run on

June 12, 1972, Feola and Zampogna observed a small

pipe which was projecting out of the west bank of the

stream and which was supported by a stone foundation

or headwall. From this pipe, a dark colored material with

a glossy sheen was being discharged to Naylors Run.

12. Feola obtained a sample of the discharge from

this pipe as the discharge was flowing out of the pipe on

June 12, 1972. On that same date, Feola and Zampogna

collected other samples at the following points:

(a) 5-10 feet downstream from this pipe in

Naylors Run.

(b) 155-160 feet downstream from this pipe in

Naylors Run.

(c) Upstream from this pipe at the point where

Naylors Run re-emerges from the culvert under Ea-

gle Road.

(d) From a basement sump at 425 Rittenhouse

Circle.

(e) From a basement sump at 429 Rittenhouse

Circle.

13. On June 13, 1972, Feola visited the Gum prem-

ises. He went into an area where an addition to an exist-

ing building was being constructed and obtained sam-

ples from an area where sewage was being pumped

(sewer injector) and from a hole which he dug in the

earth inside said addition. Each sample was dark black

in color, was iridescent and had an oily odor.

A-56

14. Feola placed a piece of tape on each bottle in

which the samples obtained on June 12 and June 13

were contained. Upon this tape he wrote his sample

number, the sample location, the date when the sample

was obtained and the Township and County where the

samples were obtained. He also recorded this informa-

tion on a D.E.R. Water or Waste Quality Report Form

(WQ report).

15. Feola placed these sample bottles and WQ re-

ports in cardboard containers and on June 13, 1972, he

delivered them to the D.E.R. chemistry laboratory in

Harrisburg. Theodore Kekich, a D.E.R. laboratory tech-

nician, received the samples and the WQ reports. He re-

moved them from the containers, matched each bottle

with the corresponding WQ report, assigned laboratory

numbers to each WQ report and placed these numbers

in a log book. Since Feola had written on each WQ re-

port that he wanted an analysis for oil and

pentachlorophenol, Kekich delivered each sample bottle

and each WQ report to John Maljevac, another D.E.R.

laboratory technician, whose function it was to phys-

ically perform such analysis.

16. Michael Defilippo is and was, at all times re!

evant to this proceeding, a chemist employed by D.E.R.

He is and was in charge of all non-routine analyses

which are and were performed at the D.E.R. chemistry

laboratory in Harrisburg. At the time when these sam-

ples were delivered to Maljevac for such analyses, he

was Maljevac’s supervisor.

17. Defilippo told Maljevac to perform such analy-

ses by employing a method of analysis known as

ultraviolet spectroscopy.

18. Pursuant to instructions given by Defilippo on

June 15, 1972, Maljevac prepared the samples obtained

on June 12, 1972, for ultraviolet spectroscopic analysis

for the presence of oil and pentachlorophenol by extract-

ing each, first with sulphuric acid to make each sample

acidic, and second, with iso-octane, a material which is

A-57

transparent when subjected to ultraviolet radiation.

Each sample, so extracted, was poured into a transpar-

ent quartz cell which, in turn, was placed into a machine

known as a recording spectrophotometer for such ultra-

violet testing.

19. Maljevac did not, on June 15, 1972, extract the

samples obtained on June 13, 1972, with sulphuric acid.

Otherwise, his manner of preparation of these samples

was similar to the manner in which he prepared the

samples obtained on June 12, 1972.

20. Maljevac operated the recording spectro-

photometer so as to produce ultraviolet radiation, the

wave lengths of which ranged from 220 to 350

millimicrons. This ultraviolet radiation was caused to

pass through the cell containing each sample to deter-

mine at what wave lengths the material in each cell

would absorb the ultraviolet radiation. Defilippo, whose

task it was to interpret the written results of each test (a

spectrum) knew in advance that pentachlorophenol ex-

tracted in iso-octane, when a sample has been made

acidic, absorbs ultraviolet light at wave lengths of 248

and 320 millimicrons, that pentachlorophenol extracted

only in isooctane absorbs ultraviolet light at wave

lengths of 292 and 302 millimicrons and that oil in iso-

octane absorbs ultraviolet radiation at a wave length of

253 millimicrons.

21. Oil, which was similar to a fuel oil, was present

in the following samples:

(a) The sample taken from the material

flowing out of the small pipe projecting out of the

west bank of Naylors Run.

(b) The sample taken 5-10 feet downstream

from said pipe.

(c) The sample taken 155-160 feet down-

stream from said pipe.

(d) The sample taken from the sewer injector

on Gum property.

A-58

(e) The sample taken from the hole which

Feola dug on Gum property.

22. Pentachlorophenol was present in the following

samples:

(a) The sample taken from the material

flowing out of the small pipe projecting out of the

west bank of Naylors Run.

(b) The sample taken 5-10 feet downstream

from said pipe.

23. There was no conclusive finding of penta-

chlorophenol in any sample taken on June 13, 1972,

from Gum property since the material in each sample, in

solution only with iso-octane, did not absorb ultraviolet

radiation at wave lengths of 302 and 292 millimicrons.

24. On September 26, 1972, Feola visited the prop-

erty which Wood was leasing from Rogers’; he caused a

well, 24 feet in depth, to be drilled at a point thereon be-

hind the main building; he obtained samples of material

found in that well in the following manner:

(a) By lowering a sampling tube to the bottom

of the well (2 samples taken at this depth).

(b) By collecting liquid which was dripping

from the drill.

(c) By collecting liquid which was on the

ground and which was produced in the drilling op-

eration.

(d) By lowering a sampling tube to a depth of

21.5 feet in the well.

25. Feola placed a piece of tape on each bottle in

which the samples obtained on September 26, 1972

were contained. Upon this tape he wrote his sample

number, the sample location, the date when the sample

was obtained and the Township and County where the

samples were obtained. He placed a piece of tape over

A-59

the cap of each bottle to provide a “legal seal”. He also

recorded this information on a WQ report.

26. Feola placed these sample bottles and WQ re-

ports in a cardboard container and on September 26,

1972, he sent the container to the D.E.R. chemistry lab-

oratory in Harrisburg by bus. Kekich received these

samples and these WQ reports on September 27, 1972.

He removed them from the container, matched each

bottle with the corresponding WQ report, assigned labo-

ratory numbers to each WQ report and delivered each

bottle and each WQ report to Maljevac for spectroscopic

analysis for oil and pentachlorophenol.

27. Pursuant to instructions given by Defilippo,

Maljevac mixed one of the samples collected from the

bottom of the well with the sample collected at a depth of

21.5 feet in the well. Maljevac physically analyzed these

samples for the presence of oil and pentachlorophenol by

the method of ultraviolet spectroscopy. He also analyzed

the second sample collected from the bottom of the well

by a method of infrared spectroscopy, pursuant to

instructions given by Difilippo. Maljevac prepared each

sample, other than that used for infrared spectroscopy,

in the same fashion as he had prepared the samples

which were obtained on June 13, 1972. Defilippo inter-

preted each spectrum produced by virtue of these analy-

Ses.

28. Oil was present in each sample obtained on

September 26, 1972.

29. Pentachlorophenol was present in the following

samples:

(a) The combined samples obtained from the

bottom of the well and from a depth of 21.5 feet in

the well. These combined samples were also quanti-

tatively analyzed by Defilippo by use of and by refer-

ence to a known standard of pentachlorophenol

made by Defilippo. The pentachlorophenol content

of these combined samples was 1,000 milligrams

per liter (mg. 1).

A-60

(b) The sample obtained by collecting liquid

which was on the ground and which was produced

in the drilling operation. Quantitative analyses of

this sample indicated a pentachlorophenol content

of 1,000 mg. 1.

(c) The sample obtained from the bottom of

the well which was not combined.

30. On August 21, 1973, Zampagna took the fol-

lowing action:

(a) He caused a well, at least 20 feet deep, to

be drilled on the property which Shell was leasing

from Rogers’. This well was situate at a point near to

the southern boundary line of the property which

Wood was leasing from Rogers’.

(b) He lowered a sample bottle into that well

and obtained a sample of an oily, dark material.

(c) He traveled to an existing well on the prop-

erty which Wood was leasing from Rogers’. This

well was situate at a point which was slightly east of

the main building of Wood.

(d) He lowered a sample bottle into that well

and obtained a sample of an oily, dark material.

(e) He wrote his sample number, the sample

location, the date when each sample was obtained

and the Township and County where each sample

was obtained on a tape which was placed on each

sample bottle. He also recorded this information on

a WQ report.

31. The oily, dark material which Zampogna found

in the existing well on the property which Wood was

leasing from Rogers’ rose to a height of 4 '2 feet above

the water table at that point.

32. On August 22, 1973, Zampogna took the fol-

lowing action:

(a) He obtained a sample of an oily, dark mate-

rial from the well which he had caused to be drilled

A-61

on the property which Shell was leasing from Rog-

ers’.

(b) He caused a well, approximately 20 feet

deep, to be drilled on Gum property at a point on the

southerly side of the newly constructed addition to

Gum’s existing building.

(c) He lowered a sample bottle into that well

and obtained a sample.

(d) He wrote his sample number, the sample

location, the date when each sample was obtained

and the Township and County where each sample

was obtained on a tape which was placed on each

sample bottle. He also recorded this information on

a WQ report.

33. Zampogna sent the samples which he obtained

on August 21 and 22, 1973, to the D.E.R. chemistry lab-

oratory in Harrisburg, by bus. These samples and the ac-

companying WQ reports were received at said laboratory

on August 28, 1973, by a D.E.R. employee whose name

is unknown. Each bottle was matched with the corre-

sponding WQ report, laboratory numbers were assigned

to each WQ report and each sample bottle and WQ re-

port was delivered to Maljevac for spectroscopic analysis

for oil and pentachlorophenol.

34. Pursuant to instructions given by Defilippo, on

or about August 28, 1972, Maljevac performed an

ultraviolet spectroscopic analysis on each such sample

for the presence of oil and pentachlorophenol. However,

he used water instead of iso-octane as a solvent in the

extraction process. He also analyzed all of these samples

but the one which he obtained from the well on Gum

property by the method of infrared spectroscopy.

Defilippo interpreted each spectrum produced by virtue

of these analyses.

35. Oil was present in each sample obtained on Au-

gust 21 and 22, 1973.

36. Pentachlorophenol was present in the following

samples:

A-62

(a) The sample obtained from the well on the

property which Shell was leasing from Rogers’. This

sample was also quantitatively analyzed _ by

Defilippo by use of and by reference to a known

standard of pentachlorophenol made by Defilippo.

The pentachlorophenol content of this sample was

2,600 mg.1.

(b) The sample obtained on August 21, 1973,

from the well on the property which Wood was leas-

ing from Rogers’. A quantitative analysis of this

sample, per such known standard, demonstrated a

pentachlorophenol content of 10,000 mg. 1.

(c) The sample obtained from the well on the

property which Wood was leasing from Rogers’. A

quantitative analysis of this sample, per such

known standard, demonstrated a_ pentachlo-

rophenol content of 4,000 mg. 1.

37. On December 10, 1973, Feola and Zampogna

obtained samples from the following points:

(a) In Naylors Run at Woodleigh Road.

(b) From the small pipe which was projecting

out of the west bank of Naylors Run.”

(c) Upstream from said small pipe at the point

where Naylors Run re-emerges from the culvert un-

der Eagle Road.”

(d) 155-160 feet downstream from his small

pipe, in Naylors Run.‘

38. Feola placed a piece of tape on each bottle in

which the samples obtained on December 10, 1973 were

contained. Upon this tape he wrote his sample number,

the sample location, the date when the sample was ob-

tained and the Township and County where the samples

5. See Findings of Fact Nos. 11 and 12 tor same sampling

point.

6. See Finding of Fact No. 12(d) for same sampling point.

7. See Finding of Fact No. 12(c) for same sampling point.

A-63

were obtained. He placed a piece of tape over the cap of

each bottle to provide a “legal seal”. He also recorded

this information on a WQ report.

39. Feola placed these sample bottles and WQ re-

ports in a cardboard container and he sent the container

to the D.E.R. chemistry laboratory in Harrisburg by bus.

Maljevac received these samples and these WQ reports

on December 11, 1973. He removed them from the con-

tainer, matched each bottle with the corresponding WQ

report, assigned laboratory numbers to each WQ report

and prepared for spectroscopic analysis of each sample

for oil and pentachlorophenol.

40. Pursuant to instructions given by Defilippo, on

or about December 11, 1973, Maljevac performed an

ultraviolet spectroscopic analysis on each such sample

for the presence of oil and pentachlorophenol. He used

water instead of iso-octane as a solvent in the extraction

process. He also analyzed the sample obtained from said

small pipe by the method of infrared spectroscopy.

Detilippo interpreted each spectrum produced by virtue

of these analyses.

41. The following results were obtained by virtue of

these analyses.

(a) In the sample obtained from Naylors Run

at Woodleigh Road, only unidentifiable trace

organics were present.

(c) In the sample obtained at a point upstream

from said small pipe at the point where Naylors Run

re-emerges from the culvert under Eagle Road, only

unidentifiable trace organics were present.

(d) In the sample obtained at a point 155-160

feet downstream from said small pipe, in Naylors

Run, oil and 6 mg.1. of pentachlorophenol were

present.

42. On January 23, 1974, Feola obtained samples

from the following points:

A-64

(a) From the small pipe which was projecting

out of the west bank of Naylors Run.

(b) Upstream from said small pipe at the point

where Naylors Run re-emerges from the culvert un-

der Eagle Road.

(c) In Naylors Run behind 429 Rittenhouse

Circle.

43. Feola placed a piece of tape on each bottle in

which the samples obtained on January 23, 1974 were

contained. Upon this tape he wrote his sample number,

the sample location, the date when the sample was ob-

tained and the Township and County where the «.iiples

were obtained. He also recorded this information on a

D.E.R. Water or Waste Quality Report Form (WQ re-

port).

44. Feola placed these sample bottles and WQ re-

ports in a cardboard container and on or about January

24, 1974, he delivered this container to the D.E.R.

chemistry laboratory in Harrisburg. These samples and

the accompanying WQ reports were received at said lab-

oratory by a D.E.R. employee whose name is unknown.

Each bottle was matched with the corresponding WQ

report, laboratory numbers were assigned to eachWQ re-

port and each sample bottle and each WQ report was de-

livered to Maljevac for spectroscopic analysis for oil and

pentachlorophenol.

45. Pursuant to instructions given by Defilippo, on

or about January 28, 1974, Maljevac performed an

ultraviolet spectroscopic analysis on each such sample

for the presence of oil and pentachlorophenol. He used

water instead of iso-octane as a solvent in the extraction

process. He also analyzed the sample obtained in

Naylors Run behind 429 Rittenhouse Circle by the

method of infrared spectroscopy. Defilippo interpreted

each spectrum produced by virtue of these analyses.

46. The following results were obtained by virtue of

these analyses:

(a) The sample obtained from the flow from

A-65

said small pipe, oil was present and_ penta-

chlorophenol was present.

(b) In the sample obtained at a point upstream

from said small pipe at the point where Naylors Run

re-emerges from the culvert under Eagle Road, only

unidentifiable trace organics were present.

(c) In the sample obtained in Naylors Run be-

hind 429 Rittenhouse Circle, oil and 4 mg.1. of

pentachlorophenol were present.

47. In the general area of the Township in which

the land owned and/or occupied by the Appellants is sit-

uate, there are two observable divides. A “divide” is a

point on the ground at which the land on either side

thereof slopes away in opposite directions.

48. The first such divide runs in a general northerly

and southerly direction. On the easterly side of this di-

vide, the slope of the land is in a general southeasterly

direction towards the property owned by Rogers’ and oc-

cupied by Shell and Wood and towards the property

owned by Gum.

49. The second such divide runs in a general eas-

terly and westerly direction. On the northerly side of this

divide, the slope of the land is in a general northeasterly

direction towards the property owned by Gum.

50. The point where the Shell gasoline is situate is

at an elevation of 310 feet above sea level. The property

which Wood occupies is at an elevation of 305 feet above

sea level. The Gum property is at an elevation of 305 feet

above sea level. Naylors Run, at a point where it is

nearest to the main building of Gum, is at an elevation of

300 feet above sea level.

51. The highest point below the surface of the

ground at which ground water completely fills or satu-

rates soil and other materials at any given poini is called

the water table.

52. Naylors Run is the surface expression of the

water table in this area. It is actually ground water

which flows at the surface.

A-66

53. Immediately below the surface of the land

which is owned and/or occupied by Appellants there is

approximately twelve feet of man made material. Be-

neath this man made material there is approximately

eighteen feet of natural, unconsolidated material con-

sisting of silty sands and gravel. Below this natural,

unconsolidated material there is bedrock.

54. As a general proposition, where there is

unconsolidated material, the water table is a subtle re-

flection of the surface topography. This means that the

flow of ground water will be in the same direction as the

slope of the surface land.

55. In respect to the land owned and/or occupied by

Appellants, ground water flows from the north-south di-

vide, by gravity, in a southeasterly direction towards this

land and towards Naylors Run at various points in

Naylors Run which are northeast, east and southeast of

this land.

56. In respect to the land owned by Gum, ground

water flows from the east-west divide, by gravity, in a

northeasterly direction towards this land and towards

Naylors Run at various points in Naylors Run which are

southeast of this land.

57. Although the natural topography of the surface

of the land owned and/or occupied by Appellants has

been altered by activities such as construction, this has

little effect on the direction of the flow of ground water.

58. The water table at the point where the well was

drilled on the property which Shell leases from Rogers’

and at the points where the two wells are drilled on the

property which Wood leases from Rogers’ is between

twenty and twenty-five feet below the surface of the

ground.

59. Pentachlorophenol mixed with oil is, for the

most part, insoluble in water. This means that this mix-

ture exists and flows on top of the water table.

60. Pentachlorophenol mixed with oil is present

under the surface of the property owned by Rogers’ and

A-67

leased, in part, to Shell and, in part, to Wood.

61. The small pipe which Feola observed on June

12, 1972, which was projecting out of the west bank of

Naylors Run is the terminus for a thirty-inch storm

sewer which is maintained by the Township or by an Au-

thority of which the Township is a member. At the point

where material flowing in this pipe enters Naylors Run,

the pipe which comprises this storm sewer is not under

property owned by Gum. From this point of termination,

this storm sewer is laid in a southwesterly direction, and

is, in part, under property owned by Gum. The storm

sewer is joined by a twelve inch sewer pipe which comes

from the direction of a building on property owned by

Gum at a manhole, designated as No. 9. The pipe contin-

ues to be laid in a southwesterly direction, and is, in part,

under property owned by Gum. At a manhole, desig-

nated as No. 8, which is on Gum property, the pipe is

laid, for a short distance in a northwesterly direction on

Gum property at points which are immediately adjacent

to a Gum Building. At a manhole, designated as No. 7,

which is on Gum property, the placement of the pipe is

in a general westerly direction, under property of various

owners. The pipe continues westerly under Lawrence

Road and it is then located in various directions in and

around Achille Road and Eagle Road.

62. On April 11, 1975, employees of the Radnor

Havertord Marple Sewer Authority caused the following

portions of this storm sewer to be examined by means of

a television camera which was pulled through these por-

tions via a cable:

(a) From a manhole at Lawrence Road to mani-

hole No. 7.

(b) From manhole No. 9 to manhole No. 8.

(c) From manhole No. 8 to manhole No. 10.”

8. Mr. Dunn, an emplovee of the Radnor Haverford Marple

Sewer Authority testified that manhole No. 10 was the small pipe

which projected out of the west bank of Naylors Run.

c

Pan

A-68

63. From the video tape of the inside of this storm

sewer a significant flow thereto was visualized from the

twelve inch sewer line which joins this storm sewer at

manhole No. 9.

64. There were leaks in the pipe which comprises

this storm sewer beginning at a point which is four feet

trom manhole No. 9 and ending at a point which is one

hundred eighty feet from manhole No. 9 as it is laid to-

wards manhole No. 8.

65. C. R. Pennoni, a Registered Professional Engi-

neer in Pennsylvania, is the engineer for the Township.

He has a great deal of experience in obtaining samples of

water to determine whether there are contaminants

therein.

66. On May 12, 1975, Pennoni entered manhole

No. 9 and he observed an oily, slippery black material

present in the storm sewer pipe at this point. He also ob-

served a flow in the twelve inch pipe which joins man-

hole No. 9. He observed solid material at the bottom of

this twelve inch pipe which was not oily and slippery.

67. On May 27, 1975, Pennoni sampled in the fol-

lowing manner at manhole No. 9:

(a) He filled three sample jars with liquid from

the flow in the bottom of the storm sewer pipe.

(b) He scraped material from the concrete sur-

face of the storm sewer pipe and placed this mate-

rial into another sample jar.

(c) He filled three additional sample jars with

liquid from the flow in the twelve inch pipe.

(d) He scraped material from the vitrified clay

surface of the twelve inch pipe and placed this ma-

terial into another sample jar.

68. On May 12, 1975, Pennoni entered manhole

No. 8 and he sampled at manhole No. 8 by filling three

sample jars with liquid from the flow at the manhole in-

vert.

A-69

69. Pennoni placed a piece of tape on each sample

jar in which the samples obtained on May 12, 1975,

were contained. Upon this tape he wrote the date when

each sample was obtained, the location where each sam-

ple was obtained, the manhole number, the size of the

pipe, and he indicated that these were liquid samples.

He sealed the cap of each sample jar with another piece

of tape, placed each jar in a box and gave the box to

Osgood, who was with him when he sampled.

70. Osgood drove to Harrisburg with the box in

which these sample jars were contained and on May 13,

1975, he delivered the box to the D.E.R. chemistry labo-

ratory. The samples were refrigerated at the laboratory

until May 15, 1975. On that date Osgood copied the in-

formation which Pennoni had placed on the sample jars

onto five WQ reports. Only five WQ reports were needed

because the contents of the three sample jars from the

flow in the bottom of the storm sewer pipe at manhole

No. 9 were poured into one container, because the con-

tents of the three sample jars from the liquid from the

flow in the twelve inch pipe were poured into one con-

tainer, and because the contents of the three sample jars

from the flow at the invert at manhole No. 8 were poured

into one container.

71. On May 15, 1975, Defilippo placed laboratory

numbers on the five WQ reports, prepared each of the

five samples for ultraviolet spectroscopic analysis for the

presence of pentachlorophenol, utilized the recording

spectrophotometer and obtained the following results:

(a) In the combined sample of the liquid from

the flow in the twelve inch pipe, no pentachlo-

rophenol was detected.

(b) In the sample of the material scraped from

the surface of the twelve inch pipe, no pentachlo-

rophenol was detected.

(c) In the combined sample of the liquid from

the flow in the bottom of the storm sewer pipe at

A-70

manhole No. 9, 8 mg.1. of pentachlorophenol were

present.

(d) In the sample of the material scraped from

the surface of the storm sewer pipe at manhole No.

9, pentachlorophenol was detected.

(e) In the combined sample of the liquid from

the flow at the invert at manhole No. 8, .01 mg.1. of

pentachlorophenol was present.

72. Pentachlorophenol mixed with oil flows, mostly

on top of the water table, under the surface of the prop-

erty of Rogers’ and leased, in part to Shell and in part to

Wood. This material then flows in a southwesterly direc-

tion under Eagle Road, a highway owned and main-

tained by the Commonwealth of Pennsylvania.

Pentachlorophenol mixed with oil flows, mostly on top of

the water table, under the surface of the property of

Gum. This material then infiltrates the storm sewer pipe

which is maintained by the Township, or by an Author-

ity of which the Township is a member, at points be-

tween manhole No. 8 and manhole No. 9. Pentachlo-

rophenol mixed with oil travels in this storm sewer pipe

and is discharged to Naylors Run at the terminus of this

pipe.

73. Although it appears that the major amount of

pentachlorophenol mixed with oil is pooled under the

surtace of the property of Rogers’ and leased. in part to

Shell and in part to Wood. there has not been sufficient

testing performed to determine:

(a) The total volume of this material under the

surface of the property which is owned by and/or

leased to Appellants.

(b) How widely this material is dispersed un-

der the surface of the property which is owned by

and/or leased to Appellants.

74. There has been sufficient testing performed to

determine:

A-7]

(a) That this material is not present in Naylors

Run upstream from the terminus of the storm sewer

pipe at the west bank thereof.

(b) That this material is present under prop-

erty owned and/or maintained by the Common-

wealth of Pennsylvania, the Township or an Author-

ity of which the Township is a member, and by

landowners or occupiers, the identities of whom or

which have not been disclosed in this proceeding.

75. Pentachlorophenol is a solid organic material

which is acidic in nature. It is a fungicide, a herbicide

and a wood preservative. It is a toxic substance and it is

lethal to aquatic organisms in certain concentrations.

76. In order to determine the volume of pentachlo-

réphenol under the surface of the property which is

owned by and/or leased to Appellants and in order to de-

termine how widely this material is dispersed thereun-

der, many more wells must be drilled on said property, to

the water table, and additional sampling from these

wells must be performed.

77. At the conclusion of this additional drilling and

sampling program, a program designed to remove this

material could be instituted. This removal program

could consist of pumping the major concentration of this

material from below the surface of the property owned

by Rogers’ and leased, in part to Shell and in part to

Wood, and properly disposing of it. The second aspect of

this removal program could consist of the construction

of a trench, which is at least as deep as the depth of the

excavation for said storm sewer, from the west bank of

Navlors Run to manhole No. 8. This ttench should be

constructed above, or to the northwest of the storm

sewer, in order that it can capture this material as it

flows toward the storm sewer. At the terminus of this

trench a collecting device could be installed so that the

material flowing in this trench can be collected and

properly disposed of before it reaches Naylors Run.

A-72

78. It is impossible to assess the cost of such a re-

moval program until the further drilling, testing and

sampling is completed.

79. The participation of landowners and occupiers,

in addition to Appellants, is necessary in order to com-

plete this further drilling, testing, sampling and removal

program.

80. Wood, by its present management, has been

aware of the pollution problems which have been de-

scribed above for a number of years. Wood, by its present

management, has cooperated with D.E.R. and its prede-

cessor entity, the Pennsylvania Department of Health, in

the earlier efforts to remedy these pollution problems on

and off the property which Wood occupies.

DISCUSSION

As we stated earlier in this Adjudication, the parties

stipulated that the sole authority for the issuance of the

Orders from which these consolidated appeals have

been taken is Section 316 of The Clean Streams Law,

supra.

Section 316 provides as follows:

*§691.316 Responsibilities of landowners and land

occupiers.

“Whenever the Sanitary Water Board finds that

pollution or a danger of pollution is resulting from a

condition which exists on land in the Common-

wealth the board may order the landowner or occu-

pier to correct the condition in a manner satisfactory

to the board or it may order such owner or occupier

to allow a mine operator or other person or agency of

the Commonwealth access to the land to take such

action. For the purpose of this section, “landowner”

includes any person holding title to or having a pro-

prietary interest in either surface or subsurface

rights.

“For the purpose of collecting or recovering the

A-73

expense involved in correcting the condition, the

board may assess the amount due in the same man-

ner as civil penalties are assessed under the provi-

sions of section 605 of this act: Provided, however,

That if the board finds that the condition causing

pollution or a danger of pollution resulted from min-

ing operations conducted prior to January 1, 1966,

or, if subsequent to January 1, 1966, under circum-

/ stances which did not require a permit from the

Sanitary Water Board under the provisions of sec-

tion 315(b) of this act as ii existed under the amen-

datory act of August 23, 1965 (P.L. 372), then the

amount assessed shall be limited to the increase in

the value of the property as a result of the correction

of the condition.

“If the board finds that the pollution or danger

of pollution results from an act of God in the form of

sediment from land tor which a complete conserva-

tion plan has been developed by the local soil and

water conservation district and the Soil Conserva-

tion Service, U.S.D.A. and the plan has been fully

implemented and maintained, the landowner shall

be excluded from the penalties of this act.” (foot-

notes omitted)

All Appellants have taken the position that Section

316 is unconstitutional because, as to them, it imposes

responsibilities to correct a condition when they neither

caused or created such condition nor were at fault as to

its continued existence.

Several of the Appellants submit that Section 316 is

unconstitutionally vague, that Section 316 is void be-

cause it constitutes a taking without due process of law

and that it is invalid ex post facto legislation.

We are aware that the constitutionalitv of Section

316 has been questioned. See Commonwealth of Penn-

9. These powers were transferred to D.E.R by the Act of

December 3. 1970. No. 275. P.L. 834. 71 PS. 8510-1 (22).

A-74

sylvania vs. Barnes & Tucker Company, 9 Pa. Cmwlth.

1, 303 A.2d 544, 564 (1973) reversed on other grounds,

455 Pa. 392, 319 A.2d 871 (1974); Acid Mine Drainage

and The Pennsylvania Courts, 11 Duquesne Law Re-

view, 495, 511 (1973).

Although this Board has, in the past, ruled on the

constitutionality of other sections of The Clean Streams

Law, see e.g. City of Uniontown vs. Commonwealth

ofPennsylvania Department of Environmental Re-

sources, EHB Docket No. 72-203, issued June 19, 1973,

we must be mindful of the statement made by Judge

Bowman, speaking for the Commonwealth Court of

Pennsylvania in St. Joe Minerals Corporation us. God-

dard, 14 Pa. Cmwlth. 624, 324 A.2d 800, 802 (1974),

that this Board does not have the authority to pass upon

the constitutionality of a statute.

For purposes of this Adjudication, we will presume

that Section 316 is constitutional. We will leave to the

Courts the task of engaging in the indepth analysis

which is required to finally decide these questions. We

suggest, however, that the Courts should be guided by

the following language of the Supreme Court of Penn-

sylvania in Commonwealth of Pennsylvania us. Harmar

Coal Company, 452 Pa. 77, 306 A.2d 308, 316-317

(1973), appeal dismissed, 415 U.S. 903 (1974):

z A state in the exercise of its police power

may, within constitutional limitations, not only sup-

press what is offensive, disorderly or unsanitary, but

enact regulations to promote the public health, mor-

als or safety and the general well-being of the com-

munity. Bacon v. Walker, 204 U.S. 311, 27 S.Ct.

289, 51 L.Ed. 499 (1907). This power has been

used to prevent industrial practices in the use of pri-

vate property which were injurious to the public.

The Slaughter House Cases, 83 U.S. 36, 16 Wall.

36, 21 L.Ed. 394 (1873). The police power may

even be exercised over property and current busi-

A-79

ness operations, requiring the destruction of exist-

ing property, Miller v. Schoene, 276 U.S. 272, 48

S.Ct. 246, 72 L.Ed. 568 (1928), or the imposition of

new costs, Queenside Hills Realty Co., Inc. v. Sax],

328 U.S. 80, 66 S.Ct. 850, 90 L.Ed. 1096 (1946);

The Slaughter House Cases, 83 U.S. 36, 16 Wall.

36, 21 L.Ed. 394 (1873). Regulations maintaining

the state’s water resources have also been held to be

within the scope of the police power. Hudson

County Water Co. v. McCarter, 209 U.S. 349, 28

S.Ct. 529, 52 L.Ed. 828 (1908); Commonwealth v.

Emmers, 33 Pa. Super. 151 (1907), aff'd, 221 Pa.

298, 70 A. 762 (1908). “|9,10] the constitutional

standards to apply in determining whether the po-

lice power was properly exercised were set forth in

Lawton v. Steele, 152 U.S. 133, 137, 14 S.Ct. 499,

501, 38 L.Ed. 385 (1894):

“*To justify the state in. . . interposing its au-

thority in behalf of the public, it must appear-First,

that the interest of the public . . . require such in-

terference; and, second, that the means are reason-

abTy necessary for the accomplishment of the pur-

pose, and not unduly oppressive upon individuals.’

“In applying these standards a regulation must be

measured by its “reasonableness,” Goldblatt v.

Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d

130 (1962). Debatable questions as to “reasonable-

ness” are not for the courts but for the legislature

and therefore the presumption of reasonableness is

with the state. Id. at 595-596, 82 S.Ct. 987 (citations

omitted ).”

Kach of the Appellants contends that Section 316 is

inapplicable in these consolidated appeals for the reason

that Section 316 applies only to the correction of a condi-

tion which exists because of pollution from mine drain-

age. In support of this contention appellants state that

the legislative history of the 1970 amendments to The

A-76

Clean Streams Law, one of which amendments is to

Section 316, clearly indicates that these amendments:

are directly solely at the regulation of the coal mining in-

dustry. Appellants also point to the fact that the mention

of Section 315 of The Clean Streams Law, supra, 35 P.S.

§691.315,'° in the language of Section 316, clearly

shows that the Legislature intended that Section 316

was to apply solely to coal mining situations.

We disagree with this contention. In the first place,

the 1970 amendments to The Clean Streams Law are

major revisions to that statute in which the Legislature

includes new language as to the discharge of sewage

and all industrial wastes to the waters of the Common-

wealth and in which, inter alia, the Legislature provides

a definition of the term “pollution” which is so suffi-

ciently broad that even a most cursory observation of

that definition would clearly reveal that “pollution” can

be from contaminants other than acid mine drainage.

The legislative history of these amendments dem-

onstrates that they were not directed solely at the mining

industry. This is illustrated by the comments of Rep.

Wilt contained in I Pa. Legislative Journal-House, p.p.

1728-1729, as follows:

“As you are aware, H.B. 1353 will further regu-

late discharge and industrial waste, at the same

time giving the Water Board greater leverage in

dealing with potential pollution in coal mining. .

Under H.B. 1353 the Water Board will also be

better equipped to deal with other industries and

communities that contribute to the degradation of

our streams. None should be permitted to escape

the duty of helping to keep our waters clean. If the

coal industry, during an era of tremendous pres-

sures that exact ever rising operating expense has

been able to meet its environmental obligations with

10. This section deals exclusively with the operation of and the

discharges from a mine.

A-77

expediency, then there is no reason why any seq-

ment of our industry or society should lag in the ef-

fort that is so vital to the preservation of an essen-

tial natural resource.” (Emphasis supplied)

While we cannot disagree that Section 316 was in-

tended to be an effective tool which could be utilized by

D.E.R. to seek relief from a situation where, for instance,

mine drainage created as the result of mining operations

long since abandoned is present on land and is causing

pollution or a danger of pollution, we would not limit its

applicability to such a situation. '!

In order for Section 316 to be applicable to Appel-

lants in these matters, we must determine whether

D.1.R. has produced competent evidence to prove that

pollution or a danger of pollution is resulting from a con-

dition which exists on land which is owned and/or occu-

picd by Appellants.

In order for this burden to be sustained, it is neces-

sary for D.E.R. to prove that a polluting substance (the

“condition” ) existed on land which is so owned and/or

occupied and that this “condition” has reached or threat-

ens to reach the waters of the Commonwealth.

At various times between June 12, 1972 and May

12, 1975, D.E.R. personnel and, in one case, the Town-

ship engineer, obtained samples of material at points on

the water table below the surface of land owned by Gum

11. This Board has never placed such limitation on the applica-

bility of Section 316. See Gossett v. Commonwealth of Pennsylvania

Department of Environmental Resources, E.H.B. Docket No.71-

125, issued July 25, 1972, (Section 316 applied to situation where

vasoline was found on land): Harmuth ov Commonwealth of Penn-

sylvania Department of Environmental Resources, KAALB. Docket

No, 72-333. issued February . 1973, (Section 316 applied to situa-

tion where lechate from land fill was causing pollution); Sibley et al.

&. Commonwealth of Pennsylvania Department of Environmental

Resources, ALB. Docket No. 73-160-C. issued October 21, 1975

(Section 316 applied to situation where untreated sewage existed on

haunocl, )

A-78

and below the surface of land owned by Rogers’ and

leased by Rogers’ in part to Shell and in part to Wood.

At various times between June 12, 1972 and Janu-

ary 23, 1974, D.E_R. personnel obtained samples of ma-

terial from Naylors Run at points near to the land which

is owned and/or occupied by Appellants.

D.E.R. contends that these samples were analyzed

at its chemistry laboratory in Harrisburg and that from

the results of these analyses it is clear that pollution or a

danger of pollution to the waters of the Commonwealth

is resulting from a “condition” which exists on each par-

cel of land which is owned and/or occupied by these Ap-

pellants.

Appellants contend that D.E.R. failed to present evi-

dence which is sufficient to connect the testimony of the

analyses of these samples with these samples as ob-

tained in the field. They contend that D.E.R. has not es-

tablished a “chain of custody” of these samples.

ach person who obtained a sample the analysis of

which was sought to be introduced in this matter has

testified as to the manner in which he obtained it and as

to the manner in which he identified it. kKach such sam-

ple was analyzed by Maljevac who gave a lucid explana-

tion of his method of analysis. If the results of these anal-

yses are to be inadmissible, as contended by Appellants,

we must find that there is a fatal gap in the chain of cus-

tody between the time when each such sample was ob-

tained and the time when each such sample was ana-

Ilvzed. See Commonwealth v. Williams, 458 Pa. 319. 326

A.2d 300, 302 (1974).

As to the samples which were obtained by Feola and

Zampogna on June 12 and 13, 1972, there is no chain of

custody problem. Each person who handled these sam-

ples between the time they were obtained and the time

they were analyzed was identified and presented compe-

tent testimony with regard to the particular function

which each performed.

As to the samples which were obtained by Feola on

A-79

September 26, 1972, the only “gap” in the “chain of cus-

tody” is that these samples were shipped to said labora-

tory by bus. We have held, in Commonwealth of Penn-

sylvania Department of Environmental Resources v,

Rushton Mining Company, et al. &.H.B. Docket No. 72-.

361-CP-D, issued March 12, 1976, that the fact that

samples were shipped to said laboratory by bus did not

preclude D.E.R. from introducing the analyses if those

samples into evidence where there was no evidence of-

fered to indicate that the samples had been tampered

with. No such evidence has been introduced in this con-

solidated matter.

As to the samples which Zampogna obtained on Au-

vust 21 and 22, 1973, we find that these samples were

also shipped to said laboratory by bus and that no testi-

mony was presented as to which D.E.R. employee re-

ceived these samples and delivered them to Maljevac tor

analysis.

In Commonwealth v. Jenkins, 231 Pa. Superior Ct.

490, 332 A.2d 490 (1974), a criminal case, the Court

held that there was no rule requiring the prosecution to

produce as witnesses all persons who were in a position

to come into contact with the article sought to be intro-

duced into evidence. The Court also held that physical

evidence could be property admitted despite gaps in tes-

timony regarding custody,

Although we believe that D.E.R. was “sloppy” in the

handling of these samples, we hold that the failure to

identify the person who received these samples is not a

fatal gap in the chain of custody. See United States v.

Clark, 425 F.2d 827, 832-833 (3rd Cir., 1970).

As to the samples which Feola obtained on

December 10, 1973, and on January 23, 1974, and as to

the samples which Pennoni obtained on May 12, 1975,

we find that there are no new or different chain of cus-

tody problems trom those which we have already deter-

mined to be non-fatal to the admissibility of the results of

analyses of carlier obtained samples.

A-80

We reject the contention that D.E.R. has failed to

establish a chain of custody as to these samples.

To the extent that Appellants, or some of them, con-

tend that the actual samples and/or the actual sample

bottles should have been brought to the hearing, such

contention is also rejected. The material which com-

prised each sample was used in the analysis and the bot-

tles were cleaned and used in other D.E.R. activities. /.p-

pellants certainly could have obtained their own samples

at each and every D.E.R.-Township sampling point and

caused an analysis to be made of them.

The next contention advanced by Appellants as to

these samples is that they were not analyzed according

to the methods and procedures described in the current

edition of “Standard Methods for the Examination of

Water and Waste Wastewater.” Appellants contend that

this failure to adhere to the methods and procedures de-

scribed in said publication is fatal to the admissibility of

the analyses of these samples because such adherence is

required by virtue of 25 Pa. Code §91.42, a regulation

governing D.E.R. , ;

Defilippo, the D.E.R. chemist who supervised these

analyses, did not know whether the methods and proce-

dures described in said publication were followed in

whole or in part. This Board does not know the answer to

this question either, since Appellants presented no evi-

dence that those methods and procedures were not fol-

lowed. We will presume that these analyses were per-

formed in conformity with the mandate of 25 Pa. Code

§91.42 in the absence of evidence to the contrary.

The final contention advanced by Appellants as to

the admissibility of the results of the analyses of these

samples is that all of them were not quantitatively ana-

lyzed. We find no requirement that quantitative analysis

of every such sample must be made, although we do not

doubt, in context of this particular matter, that addi-

tional quantitative analyses would have been helpful in

A-8]

gaining more insight into the solution of the problems

which gave rise to the issuance of these Orders.

We have found that pentachlorophenol mixed with

oil is present under the surface of the property owned

and/or occupied by each Appellant. These substances

constitute the “condition which exists on land in the

Commonwealth” which must be found by D.E.R. to trig-

ger the application of Section 316.'* Such “condition”

must, however, be found to be causing pollution or a

danger of pollution to further justify the application of

Section 316.

In Section | of The Clean Streams Law, supra, 35

P.S. §691.1, the term “pollution” is defined as follows:

ee Ft

Pollution’ shall be construed to mean contamina-

tion of any waters of the Commonwealth such as

will create or is likely to create a nuisance or to ren-

der such waters harmful, detrimental or injurious to

public health, safety or welfare, or to domestic, mu-

nicipal, commercial industrial, agricultural, recrea-

tional, or other legitimate beneficial uses, or to live-

stock, wild animals, birds, fish or other aquatic life,

including but not limited to such contamination by

alteration of the physical, chemical or biological

properties of such waters, or change in tempera-

ture, taste, color or odor thereot, or the discharge of

any liquid, gaseous, radioactive, solid or other sub-

stances into such waters. The board shall determine

when a discharge constitutes polltition, as herein

detined, and shall establish standards whereby and

wherefrom it can be ascertained and determined

whether any such discharge does or does not consti-

tute pollution as herein defined,”

We have found that pentachlorophenol is a solid or-

ganic material which is acidic in nature, which is a

fungicide and a herbicide, which is used as a wood pre-

12. See Gosset o. Commonwealth of Ponnsyloanta Department

of kncironmental Resources, supra

A-82

servative, which is toxic and which is lethal to aquatic

organisms in certain concentrations. We have found

that pentachlorophenol mixed with oil changed the color

of Naylors Run at the point in that stream to which it

was first discharged. We have found that this material

was present in the ground water and in Naylors Run,

both of which constitute “waters of the Common-

wealth.”

We have no_ difficulty in holding — that

pentachlorophenol mixed with oil in the waters of the

Commonwealth constitutes pollution within the mean-

ing of Section 316. Pollution is resulting from a condi-

tion which exists on land which is owned and/or occu-

pied by Appellants.

We reach the point where it is necessary to examine

the directives contained in the Orders to Appellants in

light of the facts which have developed during the

course of the 13 days of hearings in this consolidated

matter.

We have found that pollution is resulting from a

condition which exists on land which is owned and/or

occupied by Appellants.

This finding, standing alone, imposes upon these

Appellants the responsibility to correct such condition,

notwithstanding the fact that this condition was neither

created nor actively maintained by any of them.

As applied to these Appellants, Section 316 is a dec-

laration of their strict liability to correct a condition

based upon the mere fact that they own and/or occupy

the land under which this condition exists.

If Section 316 is to withstand a constitutional chal-

lenge, it must be declared to be a valid exercise of the

police power. Commonwealth of Pennsylvania. v.

Harmar Coal Company, supra, It must be noted that a

valid exercise of the police power is one which is re-

stricted by the parameters of reason. Commonwealth of

Pennsylvania v. Barnes and Tucker, 155 Pa, 392, 319

A.2d 871, 886 (1974).

A-83

We have found that this same condition which ex-

ists on land which ts owned and/or occupied by Appel-

lants also exists on land which is owned and/or occupied

by persons or entities who or which have not been sub-

jected to D.E.R. action. We have found that this condi-

tion and the pollution which results therefrom cannot be

abated without the participation of these other landown-

ers and/or occupiers.

D.E.R. has directed these Appellants to institute

and implement a correction program which would, of

necessity, require all of them to take action outside the

veographical boundary of the land which they own

and/or occupy.

Although such directives would be a proper exercise

of the authority of D.E.R. if these Appellants were found

to be in violation of other sections of The Clean Streams

Law in which, inter alia, certain activities are declared to

be a nuisance, we take the position that*ection 316 pro-

vides the authority to D.E.R. to require a landowner or

occupier to correct a condition only on the land which is

owned or occupied by such person or entity.

Any other construction of the authority which is

vranted to D.E.R. under Section 316 would, in our view,

unreasonably penalize a person or entity who or which

has the misfortune of having a pollution problem under

land which he or it owns and/or occupies, which he or it

neither created nor actively maintained.

Any other interpretation of the authority which ts

vranted to D.E.R. under Section 316 would, in our view,

provide further grounds for claims that this Section is

unconstitutional and that enforcement of this Section,

insofar as that enforcement required a landowner or oc-

cupier to take action outside his or its land, would be dis-

criminatory,

Since it is presumed that the General Assembly in

the enactment of a statute does not intend a result which

is cither unreasonable or unconstitutional, See Section 3

ol the Statutory Construction Act of 1972, the Act of No-

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vember 25, 1970, P.L. 707, 1 Pa. C.S.A. §1922'*, our in-

terpretation of Section 316 is consistent with the inten-

tion of the General Assembly.

Since we have found that Section 316 applies to

these Appellants to the extent that they can be required

to take corrective action on land.which is owned and/or

occupied by them, it would be logical for the directives

contained in these Orders to be amended to require that

Appellants take action which is consistent with our in-

terpretation of the responsibilities of each of them under

Section 316.

Although this Board has the authority to substitute

our discretion for that of D.Fk.R. by amending these

directives,'' we must first deal with the contention of

13. The relative liability of the various appellants ts a question

that must be taken up, if at all, in private litigation among the par-

ties. See our prior opinion in this case on the issue of joinder, 64 D &

C 2.d 78 (1974). Section 316 is not predicated upon tault but upon

the existence of pollution or danger of pollution on an owner or oc-

cupier’s land. We would think that under common law tort princi

ples, any liability to be assigned for the pollution condition here

would fall first on the Jacoby, who was responsible for the creation

of the condition; and second, depending to some extent on ques-

tions of corporate succession that were not raised in this proceed.

ing. on National Wood Preservers, which succeeded Jacoby in the

business; and third, or perhaps jointly with National Wood Preserv-

ers, on the owners of the property from which the pollution was

venerated. We doubt that Shell as a tenant of property that has a

ground water pollution problem that it did not cause, or Gum as the

owner of property that received ground water pollution trom other

property could be held liable for that pollution on any common law

theory of responsibility, However, Section 316 clearly authorizes the

Department to ignore the issue of fault, as it is done here, and pro-

ceed against whoever owns or occupies land so as to remedy a pollu-

tion problem as quickly as possible. We might preter a more delicate

balancing of responsibility in the Department's action, but we can-

not say that their approach is unauthorized.

14. See Warren Sand & Gravel Co., Inc. et al. v. Common-

wealth of Pennsylvania Department of Environmental Resources.

Pa. Cmwith. 341 A.2d 556, 565-566 (1975); East Pennsboro Town-

a

A-85

Appellants that upon the state of the record in this mat-

ter no orders to them are justified.

Appellants directed our attention, in this regard, to

the decision of the Commonwealth Court of Pennsylva-

nia in Commonwealth of Pennsylvania vs. Wyeth Labo-

ratories, Division of American Home Products Corpora-

tion, 12 Pa. Cmwlth. 227, 315 A.2d 648 (1974). In

Wyeth, the Court held that where an entity is held in vio-

lation of Section 401 of The Clean Streams Law, supra,

35 P.S. §691.401,'? simply because of its ownership of

land and for conditions created long prior to its owner-

ship, the burden of proving that abatement is possible,

Without being practically prohibitive, rests upon the

Commonwealth, (Through D.E.R.)

Appellants argue that Wyeth applies here and that

1).:.R. has completely failed to meet its burden of proof

of such feasibility.

We are not persuaded that the holding in Wyeth is

applicable to a case arising under Section 316. Although

the facts in a Section 316 case may be quite similar to

the facts in Wyeth, the language of Section 316 is such

that we believe that the Legislature clearly intended the

responsible party to have the primary burden as to all

phases of correction, including the primary burden to

show that correction was not feasible. ;

We need not decide the issue of whether the hold-

ing in Wyeth is applicable to these consolidated matters

NOTE 14 — (Continued)

ship Authority v. Commonwealth of Pennsylvania Department of

Eneironmental Resources, 18 Pa. Cmwlth, 58, 334 A.2d 798, 804

(1975).

15. Section 401 of The Clean Streams Law provides that “It

shall be unlawful for any person or municipality to put or place into

anv of the waters of the Commonwealth, or allow or permit to be

discharged from property owned or occupied by such person or mu-

nicipality into any of the waters of the Commonwealth any sub-

stance of any kind or character resulting in pollution as herein

defined, Any such discharge is hereby declared to be a nuisance,

A-86

because we are going to issue an Order which contains

directives which are different from those which the

D.E.R. made. These new directives will require these

Appellants to take action which, based upon our reading

of all the testimony in this record, is feasible. Further-

more, we are going to retain jurisdiction in these consoli-

dated appeals to decide any questions of feasibility

which may arise.

There is a final contention to be determined. Appel-

lants, or some of them, believe that D.E.R. is estopped

from requiring them to correct this condition because of

the failure of D.E.R. and its predecessor, the Pennsylva-

nia Department of Health to take appropriate enforce-

ment action to cause abatement of this pollution uae

lem which has existed for many years.

We dismiss this contention. In the first place, we

have not received sufficient information as to the extent

of prior enforcement activities to be able to decide

whether they were patently insufficient under The

Clean Streams Law as it existed during the period when

Samuel Jacoby operated National Wood Preservers, Inc.

In the second place, where the state police power is

found to exist, it is not lost by non-exercise, but remains

to be exerted as local exigencies may demand. See Com-

monwealth of Pennsylvania vs. Barnes & Tucker Com-

pany, 455 Pa. 392, 319 A.2d 871, 884 (1974).

CONCLUSIONS OF LAW

This Board has-jurisdiction over the parties and

the bn: matter af these consolidated appeals.

2. Section 316 of The Clean Streams Law is consti-

tutional.

3. Section 316 of The Clean Streams Law is appli-

cable to conditions which exist on land in the Common-

wealth of Pennsylvania which result in pollution or a

A-87

danger of pollution even if such conditions are unrelated

to coal mining operations.

4. A condition, the presence of pentachlorophenol

mixed with oil, exists on land which is owned by Rogers’

and occupied by Shell and by Wood and on other land

which is owned by Gum. This condition results in pollu-

tion within the meaning of Sections 1 and 316 of The

Clean Streams Law.

5. A landowner and/or a tenant may be ordered, by

virtue of the authority given to D.E.R. under Section 316

of The Clean Streams Law to correct a condition which

exists on land which they own or occupy. A landowner

and/or a tenant may not be ordered, pursuant to Section

316 of The Clean Streams Law, to correct a condition on

land which they neither own nor occupy.

6. Where D.E.R. issues orders pursuant ‘2 *! dnéake

ercise of its discretion, this Board, based upon the record

before us on appeal from such orders, may substitute its

discretion for that of D.E.K. and modify or amend such

orders,

7. Neither D.E.R. nor this Board is estopped from

exercising the authority given under Section 316 of The

Clean Streams Law in these consolidated appeals.

ORDER

AND NOW, this 30th day of July, 1976, the appeals of

National Wood Preservers, Inc., Philadelphia Chewing

Gum Corp., Clifford A. Rogers and Virginia M. Rogers,

his wife, and Shell Oil Company from Orders dated July

12, 1973, and September 21, 1973, issued by the Com-

monwealth of Pennsylvania, Department of Environ-

mental Resources are sustained in part and are dis-

missed in part.

It is further Ordered that said Orders are hereby

modified to provide as follows:

IA. Within thirty (30) days from the date of this Or-

A-88

der Rogers and Shell (as to property leased to Shell) and

Rogers and Wood (as to property leased to Wood) and

Gum shall submit to D.E.R. a map and all other neces-

sary supportive da

This text is long and has been trimmed here. Open the source document for the complete record.