Appeals from the Orders of the Environmental Hearing Board in cases of In the Matter of: Philadelphia Chewing Gum Corporation, Docket No. 75-253-D; Shell Oil Company, Docket No. 73-256-S; National Wood Preservers, Inc., Docket No. 73-249-D; and Clifford and Virginia Rogers, Docket No. 73-346-D.
Leonard Dubin, with him Jeanne P. Wrobleski, Andrea B. Wapner, and, of counsel, Blank, Rome, Klaus & Comisky, for appellant, Philadelphia Chewing Gum Corporation.
J. Stokes Adams, III, with him Alan V. Vaskas, and Hepburn, Ross, Willcox & Putnam, for appellant, Shell Oil Company.
Stephen R. Bolden, with him Fell, Spalding, Goff & Rubin, for appellant, National Wood Preservers, Inc.
James S. Kilpatrick, Jr., with him Haws & Burke, for appellants, Clifford and Virginia Rogers.
Dennis M. Coyne, Assistant Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers and Blatt. Opinion by President Judge Bowman.
[ 35 Pa. Commw. Page 446]
At the heart of these consolidated appeals is the following fundamental question: Under what circumstances 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 waters, 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 (EHB) 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, Department of Environmental Resources (DER). These four appellants had been ordered, pursuant to Section 316 of The Clean Streams Law,*fn1 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, determined by the differing relationships each appellant has to the condition involved, we shall first examine
[ 35 Pa. Commw. Page 447]
the factual postures of these appellants vis-a-vis the land, the 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 resulting in pollution. Finally, we shall review the constitutional challenges raised to Section 316.
The land involved here is located in Haverford Township, Delaware County, in the area of the intersection 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 Jacobs (Jacobs), individuals not parties to the instant proceedings.*fn2 On January 24, 1947, Jacoby and Jacobs assigned 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.
[ 35 Pa. Commw. Page 448]
On February 10, 1967, Wood, under Goldstein, released a portion of the above parcel from its leasehold. On that same date, Rogers leased said portion of the parcel to Shell. Shell subsequently built and, at all relevant times thereafter, has operated and maintained a gasoline station on this leased land.
The waters of the Commonwealth involved here are the groundwater and certain surface waters in the geographical area discussed above. The pollutant involved 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 Commonwealth.'" 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 southeasterly 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. EHB 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,
[ 35 Pa. Commw. Page 449]
under the surface of the property of Gum. This material then infiltrates the storm 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 appeals requires appellants to perform further well drilling and samplings of the area's groundwater in order to determine more definitely the scope of the pollution problem.
In its adjudication, EHB concluded that the "condition" 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 neither 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 Commonwealth." The questions arise, therefore, as to how and when this "condition" came into existence.
We begin 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." (Emphasis added.) EHB found that Wood, during its years under Jacoby, utilized pentachlorophenol in the operation of its wood preservative business. As stated by EHB:
[ 35 Pa. Commw. Page 450]
During the course of the operation of this business, under Jacoby's ownership, waste liquids were discharged or permitted to be discharged 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 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 adjudication, EHB characterizes Jacoby as the individual "who was responsible for the creation of the condition. . . ."
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 residents 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 discontinued 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 industrial waste into Commonwealth waters, we must conclude that the presence of pentachlorophenol under the land of these appellants is a direct result of Jacoby's activities prior to and including the year 1956. Given EHB's findings of fact pertaining to the subsurface divides and groundwater flow in this area, it appears that Gum "acquired" the presence of pentachlorophenol under its land due to the downward slope of the subsurface water table from the site of the disposal well.
[ 35 Pa. Commw. Page 451]
Thus, the "condition" which EHB has ordered these appellants to correct was created by conduct which appears to have ceased over two decades ago. While the conduct has ended, the condition lingers on. Moreover, the very conduct resulting in the ...