Marvin A. Fein, Special Assistant Attorney General, for plaintiff.
Charles W. Herald, with him John D. S. Truxall and Truxall & Herald, for defendant Toro Development Company.
Robert C. McCartney, with him Eckert, Seamans & Cherin, for defendant Ryan Homes, Inc.
Ewing C. Bashor and John L. Chaffo, for defendant O'Block Homes, Inc.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Kramer.
[2 Pa. Commw. 429 Page 430]
These cases are within the original jurisdiction of the Commonwealth Court. They were instituted by the filing of two Complaints in Equity by the Commonwealth of Pennsylvania Department of Health (plaintiff) against Toro Development Company, defendant in both cases (Toro) and a single builder company in each of the two cases.
The plaintiff avers generally that Toro as a land developer with the aid of his agents (the other co-defendants) has collected "great amounts of soil" on its building sites from which, during periods of precipitation, there is a flow and discharge of soils into an unnamed tributary of Abers Creek, located in Allegheny County. Plaintiff alleges that this action by Toro violates
[2 Pa. Commw. 429 Page 431]
Section 401 of the Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. 691.401, which reads as follows: "It shall be unlawful for any person or municipality to put or place into any of the waters of the Commonwealth, or allow or permit to be discharged from property owned or occupied by such person or municipality into any of the waters of the Commonwealth, any substance of any kind or character resulting in pollution as herein defined. Any such discharge is hereby declared to be a nuisance." The plaintiff also alleges that the discharge of the soil by Toro and the other defendants is a clear and present danger because it contaminates the waters of the Commonwealth by altering the physical and chemical properties of the water, by changing the color and taste of the water, by covering fish food organisms with siltlike material, and by rendering the waters harmful, detrimental and injurious to fish and other aquatic life.
Toro filed preliminary objections alleging (a) that the complaint was not sufficiently specific in that it failed to identify and locate the land from which the alleged soil discharge is occurring or occurred, and (b) that because the plaintiff failed to aver that its Sanitary Water Board and the Department of Health (now referred to as Environmental Quality Board of the Department of Environmental Resources, Act of December 3, 1970, P.L. , Act No. 275), had established standards whereby and wherefrom Toro could ascertain and determine whether these soil discharges violated the Clean Streams Act; (c) that the plaintiff had failed to state a cause of action and Toro therefore demurred. Toro also stated in its demurrer that if "any" discharge of soil into the waters ...