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COMMONWEALTH PENNSYLVANIA v. PBS COALS (12/15/87)

decided: December 15, 1987.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES AND ELWOOD D. YODER, SHERRY YODER, BRUCE L. YODER AND DOROTHY C. YODER
v.
PBS COALS, INC., AND FETTEROLF MINING, INC. PBS COALS, INC., APPELLANT. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES AND ELWOOD D. YODER, SHERRY YODER, AND BRUCE YODER V. PBS COALS, INC., AND FETTEROLF MINING, INC. FETTEROLF MINING, INC., APPELLANT



Appeals from the Order of the Court of Common Pleas of Somerset County in the case of Commonwealth of Pennsylvania, Department of Environmental Resources and Elwood E. Yoder and Sherry Yoder, and Bruce S. Yoder and Dorothy C. Yoder v. PBS Coals, Inc. and Fetterolf Mining, Inc., No. 73 Civil, 1984.

COUNSEL

John J. Dirienzo, Jr., Fike, Cascio & Boose, for appellant, PBS Coals, Inc.

Gilbert E. Caroff, for appellant, Fetterolf Mining, Inc.

Michael E. Arch, Assistant Counsel, with him, Ward T. Kelsey, Assistant Counsel, for appellee, Commonwealth of Pennsylvania, Department of Environmental Resources.

John E. Childe, Jr., for appellees, Elwood D. Yoder, et al.

Judges Craig and Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 112 Pa. Commw. Page 3]

This consolidated equity action was brought by the Department of Environmental Resources (DER) to compel two coal mining companies, PBS Coals, Inc. (PBS) and Fetterolf Mining, Inc. (Fetterolf) to replace the polluted water supplies of seven households and a dairy farm*fn1 in the village of Petersburg, Somerset County. The Yoders (two households and the dairy farm) were granted permission to intervene as plaintiffs, and sought both replacement of their wells, and monetary damages. One to three surface mining sites were alleged to have contaminated the Petersburg water supplies: the Stutzman site (PBS) and the Ross and Mostoller mines (Fetterolf). All are within one-third of a mile of Petersburg. The suit was brought pursuant to Section 601 of the Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.601, and Section 18.2 of the Surface Mining Conservation and Reclamation Act, Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. § 1396.20.

[ 112 Pa. Commw. Page 4]

Following the conclusion of the trial, the chancellor issued an adjudication and decree nisi in favor of the DER and the Yoders. He held PBS and Fetterolf to be jointly and severally liable for the water contamination, and ordered the two companies to provide the residents with permanent alternative water supplies, to implement a plan to prevent further pollution, and to pay damages to the intervenors.

PBS and Fetterolf both filed post-trial motions, which were heard before a court en banc. The court en banc unanimously denied the motions, adopting the findings and conclusions of the chancellor, and ordering that the decree nisi be entered as the final decree. PBS and Fetterolf have appealed to this Court.

Both appellants assert that the evidence with respect to causation was insufficient to hold them responsible for the pollution of the Petersburg wells. We have carefully reviewed the record, and must disagree. First of all, we are mindful that

     an appellate court is bound by the chancellor's findings of fact, approved by a court en banc, to the same extent as it would be bound by the findings of a jury. The test in either case is whether the findings are adequately supported by the record and whether the factual inferences and legal conclusions based on the findings are correct. . . . Where credibility of the witnesses is important, the chancellor's findings are entitled to particular weight because of the opportunity which was his to observe the demeanor of witnesses on the stand.

Brentwater Homes, Inc. v. Weibley, 471 Pa. 17, 21, 369 A.2d 1172, 1174 (1977) (citations omitted). Secondly, the appellees are entitled to the benefit of the most favorable inferences from the evidence, and this is true even where the trial judge has not made detailed findings

[ 112 Pa. Commw. Page 5]

    of fact covering all potential areas of dispute. Blue Anchor Overall Co. v. Pennsylvania Lumberman's Mutual Ins. Co., 385 Pa. 394, 123 A.2d 413 (1956).

The record in the instant matter is voluminous. It includes more than 2000 pages of testimony, and over 100 exhibits were admitted into evidence. The chancellor, in addition to accepting the evidence, testimony, and legal briefs and arguments, viewed the mine sites and the Petersburg area. Although neither he nor the court en banc made detailed factual findings, the following summary is consistent with our mandate to view the evidence in the light most favorable to appellees, and is based on the chancellor's express findings that the wells in question were polluted with mine drainage, and that one, two, or all three of the appellants' mine sites were responsible.

The three mining sites are adjacent to one another and form an arc surrounding Petersburg. The Stutzman site is to the north of the village, and is bordered by the Ross site to the west. The Mostoller site lies to the west and southwest, beside the Ross mine. Petersburg lies in a valley and is located topographically downslope of the mining sites. Approximately 200 acres were strip-mined on the three properties.

The residents testified that their water supplies were of good quality before mining began. The DER collected pre-mining samples of several of the households' water, which revealed only small quantities of sulphate and iron, pollutants characteristic of mine drainage, which were found in greatly increased quantities in the post-mining samples. The residents began to notice the degradation of their water supplies from mid-to-end 1980. They testified that the water is malodorous, has a bitter taste and is discolored. It has stained cookware, dishes, laundry and fixtures in their houses a reddish-brown color, and has caused corrosion and clogging

[ 112 Pa. Commw. Page 6]

    of plumbing. The milking equipment at the dairy farm has been similarly stained and corroded, and the plumbing damaged.

PBS conducted surface mining at the Stutzman site from 1975, completing reclamation of the site in 1979. It had operated pursuant to a Mine Drainage Permit issued by the DER; the permit, however, did not authorize discharge of mine drainage into the groundwaters of the Commonwealth. PBS's mining activities interrupted the flow of three nearby springs -- the Knupp-Shank, Becker and Friedline springs -- for which it drilled replacement wells. The original wells, however, all became contaminated.

The Knupp-Shank and Becker springs*fn2 which were dewatered are located 100 yards from the Stutzman site. The contaminated Becker replacement well lies between that site and the Stutzman, Walker, Yoder, Zerfoss and Fleegle households. In its answer to DER's complaint, PBS admitted its liability for dewatering the Friedline spring. It drilled a replacement well, which has since degraded to the point it is essentially unusable for domestic purposes.

The Ross and Mostoller mines were operated by Fetterolf's predecessors, Cardinal Mines, then Summit Mines, beginning in 1974 and 1979, respectively. Fetterolf purchased the leases for these sites in 1981, following Summit's bankruptcy. It subsequently entered into negotiations with the DER, terminating in the conclusion of a consent order and agreement on May 27, 1982, which provided, inter alia, that the DER would transfer the Mine Drainage Permit for the Ross site upon Fetterolf's promise to complete the reclamation work left unfinished by Summit. (Fetterolf's sister company, Mid-Continent, was surety on the reclamation bonds

[ 112 Pa. Commw. Page 7]

    posted by Summit. As Summit did not perform the reclamation, the DER declared forfeiture of the bonds. Fetterolf then became involved, and, by performing the reclamation work at the Mostoller site, relieved Mid-Continent of liability for a portion of the bonds, since released by the DER).

Fetterolf's predecessor began surface coal mining at the Ross site in 1974. After Fetterolf acquired the lease and arranged for the transfer of the Mine Drainage Permit,*fn3 it began mining in August, 1982. Since mining began at that site, four wells adjacent to it, known as the Lamberson, Lamberson-Supanick, Rosey-Snyder, and Fetty wells,*fn4 have become degraded with high concentrations of sulphates and iron.

The Mostoller site was mined by Summit in 1979 and 1980. After it acquired the lease, and before it concluded the consent order with the DER, Fetterolf replaced two water wells -- those of Jerry and Clifford Mostoller*fn5 -- which had become contaminated. These wells were located directly across a road from the Mostoller site. Fetterolf did no mining at the site, but performed reclamation work in accordance with the terms of the consent order.

At trial, four expert witnesses testified regarding the type of pollution present in the residents' wells and its source. There was much testimony concerning the topography of the land and the flow of groundwater. Keith Brady, a DER hydrogeologist, testified that the three mine sites in question are ...


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