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decided: February 27, 1974.


Appeal from the Order of the Court of Common Pleas of Chester County in case of Commonwealth of Pennsylvania v. Wyeth Laboratories, Division of American Home Products Corporation, No. 2233 of 1971.


Hershel J. Richman, Special Assistant Attorney General, for appellant.

Richard E. McDevitt, with him Eugene I. Caffrey and Montgomery, McCracken, Walker & Rhoads, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman. Dissenting Opinion by Judge Mencer. Judge Blatt joins in this dissent.

Author: Bowman

[ 12 Pa. Commw. Page 229]

Wyeth Laboratories (Wyeth) owns property in the Borough of West Chester, Chester County, where it is engaged in the manufacture of chemical products. This property was purchased by Wyeth for this purpose in 1948, but prior thereto, the property was used by the Borough as a public dump and pest house. Inter alia, waste gypsum, other chemicals, and other trash and refuse were dumped onto this property prior to Wyeth's purchase. Due to the underlying nonpermeable claytype soil of the property (six to eight feet thick), flowing subsurface waters are under pressure, and consequently large amounts of pressurized, underground percolating waters drain throughout the vicinity of the Wyeth property. Two unnamed streams flow into the property from the north and east, join on the property, and exit the property at the southern boundary, soon to flow into an unnamed tributary of Goose Creek, and from there into Goose Creek itself.

In 1956, at the request of West Chester Borough, Wyeth encased in porous concrete pipes the two above mentioned streams along the natural courses of the rivulets. One of the pipes runs directly through the former dump. The subsurface waters percolating through the former dump site have picked up pollutants (called leachate), and said waters have seeped through the somewhat porous concrete pipes to intermingle with the waters of the encased streams. The quality of the waters that are encased in the pipes, therefore, is degraded as the streams pass through Wyeth's property.

Acting through the Department of Environmental Resources (DER), the Commonwealth filed a complaint

[ 12 Pa. Commw. Page 230]

    in equity in the Court of Common Pleas of Chester County seeking a mandatory injunction requiring Wyeth to abate the pollution of the encased streams, alleging it to be a public nuisance. This complaint contained two counts. The first count invoked the provisions of Section 401 of The Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.401 (Supp. 1973-1974), and alleged therein that Wyeth had permitted contaminated percolating waters to intermingle with the uncontaminated encased streams, thereby permitting water pollution to occur on its property. The second count invoked the provisions of Section 301 of the same statute, 35 P.S. § 691.301 (Supp. 1973-1974), regarding discharge of industrial waste, but relief sought under this count was abandoned by the Commonwealth during the course of litigation.

Incident to its complaint in equity, Commonwealth filed a motion for preliminary injunction, which after hearing, was refused as the lower court was not then satisfied that the Commonwealth's right to the relief it sought was clear.

At the trial on the merits, the Commonwealth's experts confronted Wyeth's experts on the issue of how the waters were being polluted; where the source of the pollution was; what, if any, pollution abatement systems had been, or were being implemented; and how effective those systems were.

The Commonwealth introduced expert testimony from the Director of Engineering for Chester County Health Department, Thomas H. Cahill, who was experienced in the design and construction of sanitary and storm sewers, and was familiar with the conditions existing on the Wyeth property. By testing, Mr. Cahill concluded that a severe pollutant was being discharged into the encased streams flowing through the Wyeth property. He could not, however, identify the specific

[ 12 Pa. Commw. Page 231]

    area where discharge of pollutants was taking place on the Wyeth property. Rather, he pointed to potential catch basins on the Wyeth property where pollutants might have collected in the event of leakage or spillage from chemical storage tanks and from various valves, which could possibly have seeped into subsurface waters via a storm sewerage system. This is purely speculative and of no probative value.

Testimony by the Regional Sanitary Engineer of DER, Christian Beechwood, was directed toward possible solution of Wyeth's pollution problems. He advanced one of several alternatives available to Wyeth, to wit, intercepting the waters flowing onto the Wyeth property from the north and east and re-routing them away from the Wyeth property. Further, he suggested the possibility of collecting pollutant discharges and treating them before discharging them into Commonwealth waters.

The Commonwealth introduced testimony from an aquatic ecologist, who noted that the normal aquatic life was absent from the streams' waters below the point from which they exited the Wyeth property. He did not state where pollution specifically originated; he did not offer a solution to the condition of the streams. Joseph P. Smurda, Assistant Director of Water Control in DER, next testified to the degradation of the streams as they crossed through Wyeth's property, but he did not identify the specific source of pollution. Dr. Robert Schoenberger, Professor of Environment at Drexel University, identified the probable sources of the stream pollution to be sundry organic and inorganic substances, some of which had also been found on the Wyeth property.

Wyeth introduced in defense expert testimony from its sanitary engineer, who explained that no industrial waste drained into the storm sewer system and that extreme measures had been taken to protect against ...

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