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NATIONAL WOOD PRESERVERS v. COMMONWEALTH PENNSYLVANIA DEPARTMENT ENVIRONMENTAL RESOURCES. COMMONWEALTH PENNSYLVANIA (04/24/80)

decided: April 24, 1980.

NATIONAL WOOD PRESERVERS, INC., CLIFFORD ROGERS AND VIRGINIA ROGERS, APPELLANTS,
v.
COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL RESOURCES. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLANT, V. SHELL OIL COMPANY, PHILADELPHIA CHEWING GUM COMPANY



Nos. 66 & 67 January Term, 1979, No. 68 January Term, 1979, 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 Pennsylvania Environmental Hearing Board dated July 30, 1976, at Docket Nos. 73-253-D, 73-249-D, 73-256-D, 73-346-D.

COUNSEL

Stephen R. Bolden, Daniel B. Michie, Jr., Philadelphia, for appellant in No. 66.

J. Stoke Adams, III, Philadelphia, Kenneth A. Clouse, Media, Leonard Dubin, Philadelphia, James S. Kilpatrick, Jr., Ardmore, Dennis M. Coyne, Asst. Atty. Gen., and Alan V. Vaskas, Chester Springs, for appellees in No. 66.

James S. Kilpatrick, Jr., Ardmore, for appellant in No. 67.

J. Stoke Adams, III, Philadelphia, Kenneth A. Clouse, Media, Leonard Dubin, Stephen R. Bolden, Philadelphia, Dennis M. Coyne, Asst. Atty. Gen., and Alan V. Vaskas, Chester Springs, for appellees in No. 67.

Dennis M. Coyne, Asst. Atty. Gen., for appellant in No. 68.

J. Stoke Adams, III, Philadelphia, Kenneth A. Clouse, Media, Leonard Dubin, Stephen R. Bolden, Philadelphia, James S. Kilpatrick, Jr., Ardmore, and Alan V. Vaskas, Chester Springs, for appellees in No. 68.

Eagen, C. J., and O'Brien, Roberts, Larsen and Flaherty, JJ. Nix, J., did not participate in the consideration or decision of this case. Flaherty, J., filed a concurring opinion.

Author: Roberts

[ 489 Pa. Page 224]

OPINION OF THE COURT

This is a case of first impression. At issue is the construction 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 relevant part:

"Whenever the [Department of Environmental Resources] finds that pollution or a danger of pollution is

[ 489 Pa. Page 225]

    resulting from a condition which exists on land in the Commonwealth the [Department] may order the landowner or occupier to correct the condition in a manner satisfactory to the [Department] . . . ."*fn1

The principal questions presented by this appeal are whether Section 316 authorizes the Department of Environmental Resources to remedy water pollution resulting 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 conclude that both questions must be answered in the affirmative. Accordingly, we affirm the order of the Commonwealth Court affirming the order of the Environmental Hearing Board.

I

The dispute in this case concerns a parcel of land in Delaware County owned by appellants Clifford and Virginia Rogers and leased in part by appellant National Wood Preservers, Inc.*fn2 The Rogers have owned this parcel 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 called pentachlorophenol, "a toxic substance . . . lethal to acquatic organisms in certain

[ 489 Pa. Page 226]

    concentrations."*fn3 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 groundwaters running beneath the premises. In 1963 Jacoby sold his shares in National Wood Preservers, Inc. to the Goldsteins.*fn4 The Goldsteins have continued to operate National Wood Preservers, Inc. as a wood preservative business on the land in question.

On June 12, 1972, in response to numerous complaints, the Department of Environmental Resources (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 groundwaters 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.*fn5

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 Commonwealth, 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

[ 489 Pa. Page 227]

Board therefore ordered appellants, under the supervision of DER, first to conduct drilling and water sampling to determine the precise amount and dispersion of the pollutant, and then to remove it.*fn6 The Board also found that the program for removal of the pollutant outlined in its findings and order was feasible.*fn7 Appellants filed timely appeals to the Commonwealth Court. That court consolidated the appeals and unanimously affirmed the orders of the Environmental Hearing Board as to appellants. This Court granted allowance of appeal, also consolidating the appeals.*fn8

II

Appellants' first contention is that the Legislature, in enacting Section 316, intended to permit the Department of

[ 489 Pa. Page 228]

Environmental Resources to order a landowner or occupier to correct a condition which results in pollution or the danger of pollution only if the condition were caused by mining operations. Like the Environmental Hearing ...


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