# Appendix — National Wood Preservers, Inc. v. Pennsylvania Department of Environmental Resources > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0113%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 449 U.S. 803 ## Text §'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- [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0113%3A2. Public record. Not legal advice.