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decided: September 25, 1985.


No. 173 E.D. Appeal Docket 1984. Appeal from the Judgment entered August 3, 1984 by the Superior Court at Nos. 1723, 1724 and 1725 of 1982, vacating judgments of sentence for conspiracy and remanding for resentencing of the Ct. of Common Pleas, Luzerne County at Nos. 655, 655-A, 655-B, 656, 656-A, 657 & 657 & 657-A of 1980. Nix, C.j., and Larsen,*fn* Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., filed a dissenting opinion in which Nix, C.j., and Zappala, J., joined.

Author: Larsen

[ 508 Pa. Page 514]


The Commonwealth appeals from the decision of the Superior Court, 332 Pa. Super. 415, 481 A.2d 855 (1984), which reversed the judgments of sentence and vacated appellees' convictions of risking a catastrophe in violation of 18 Pa.C.S.A. § 3302(b).

Following a two-week jury trial in the Court of Common Pleas of Luzerne County, appellees, Elmo Scatena, Gerard Scatena and Louis Scatena*fn1 were convicted of violating the Pennsylvania Clean Stream Law, 35 P.S. § 691.301, § 691.307 and 25 Pa.Code § 97.72; of causing a public nuisance, 18 Pa.C.S.A. § 6504; and of risking a catastrophe. Elmo Scatena was also convicted of conspiracy, 18 Pa.C.S.A. § 903(a). The trial court arrested judgment on the convictions for causing a public nuisance. The appellees were sentenced on all other convictions.*fn2

[ 508 Pa. Page 515]

The Superior Court affirmed the judgments of sentence for violations of the Clean Stream Law and for conspiracy.*fn3 The judgments of sentence for risking a catastrophe were reversed, that court holding there was insufficient evidence to sustain these convictions. The sole issue before us is whether there was sufficient evidence to support the appellees' convictions of risking a catastrophe.*fn4 We hold the evidence was sufficient and reverse.

The testimony and evidence produced at trial established the following: Appellee Elmo Scatena owned and operated a garage and automotive service station known as Highway Auto Service in Pittston, Luzerne County, Pennsylvania. He was assisted in the operation of the business by his two sons, appellees Gerard Scatena and Louis Scatena. From August of 1978 to July of 1979, the appellees knowingly discharged hundreds of thousands of gallons of untreated industrial and chemical wastes into a borehole on the Highway Auto Service premises. The borehole led to an abandoned underground mine where the wastes accumulated. The appellees at first were paid $150.00 and then later $200.00 for each truckload of wastes dumped into the borehole.

Much of the wastes discharged into the borehole consisted of oily sludges and cutting solutions. A substantial portion of these materials were contaminated with metallic chips of iron, chrome, nickel and copper hydroxides. Other wastes deposited into the abandoned mine were more chemical in nature. Some contained sodium methacyrlate, sodium chlorine, sodium sulfate, hydroquinone and pyrogallic acids.*fn5 In addition, at least 66,000 gallons of waste cyanide were dumped into the borehole between August of 1978 and

[ 508 Pa. Page 516]

January of 1979. This avalanche of waste materials deposited into the borehole collected and amassed in the abandoned underground mine stretching below the populated Pittston area. On July 29, 1979, this accumulation of hazardous materials escaped from the mine and a massive volume of black, sludgy, odorous, toxic wastes commenced to discharge into the Susquehanna River. The Susquehanna River is a major waterway in the Luzerne County area serving the population in many significant ways. One of those ways is that it provides raw water intake for the water authority of Danville, Pennsylvania.

The waste discharging into the river was discovered at once by the authorities. On July 30, 1979, the Pennsylvania Department of Environmental Resources (D.E.R.) initiated massive containment measures to control the discharge. Nonetheless, by mid-day on July 31, 1979, the Susquehanna River was polluted with a bank to bank oil sheen for a distance of 35 miles down river from the point of discharge. Additionally, there were oily patches extending for another 25 to 30 miles downstream to Danville.

On August 8, 1979, the Commonwealth performed a rhodamine-wt dye test by pouring 2 to 2 - 1/2 gallons of the dye into the borehole on the Highway Auto premises. The dye was flushed with 1000 gallons of water. Less than 24 hours later the dye had made its way through the mine and into the river. Three days later, measurements revealed that 60.5% of the dye dumped into the appellees' borehole had issued from the mine.

Numerous soil samples taken from near the borehole, within the borehole and at the mine tunnel were analyzed by the D.E.R. All of the samples revealed the presence of the chemical dichlorobenzene.*fn6 In addition, samples taken five days after the discharge began revealed the presence of dichlorobenzene in the raw water intake and the finished water of the Danville Water Company. This same chemical

[ 508 Pa. Page 517]

    was also found in the kitchen sink tap water of a Danville restaurant.

By and large the prodigious containment efforts undertaken by the Commonwealth were successful in controlling the discharge. Nevertheless, measurable amounts of discharge continued for several months. There was also evidence presented concerning: (a) the potentially explosive gases that were escaping from the mine tunnel, and (b) the presence of the chemical cyanide which when coupled with the environment of an underground mine evolves into hydrogen cyanide which has the potential to be released as a deadly gas and disperse in all directions including up and out of holes in the ground.*fn7

The Commonwealth argues that the evidence presented at trial was sufficient to convince beyond a reasonable doubt that the appellees' actions in discharging untreated industrial and chemical wastes into the borehole and abandoned mine which eventually exited into the Susquehanna River risked a catastrophe in violation of 18 Pa.C.S.A. § 3302(b).

Section 3302(b) of the Crimes Code provides:

Risking a catastrophe. -- A person is guilty of a felony of the third degree if he recklessly creates a risk of catastrophe in the employment of fire, explosives or other dangerous ...

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