Raymond H. Conaway, Zimmer, Kunz, Loughren, Hart, Lazaroff, Trenor, Banyas & Conaway, P.C., Pittsburgh, for petitioner.
Zelda Curtiss, Gail A. Myers, Asst. Counsels, Pittsburgh, for respondent.
Before Crumlish, Jr., President Judge, Colins, J., and Barbieri, Senior Judge.
Western Pennsylvania Water Company (WPW) petitions for review of an order of the Environmental Hearing Board (Board) dated August 25, 1988 which denied the Department of Environmental Resources' (DER) Motion of Summary Judgment and denied WPW's appeal from DER's order of September 13, 1988.
WPW is a Pennsylvania corporation which sells drinking water to customers in Washington County. In May, 1983, WPW acquired a twenty-foot wide permanent easement and right-of-way across the property of Leah Bellaire in order to extend its distribution system in McDonald Borough, Washington County. Mrs. Bellaire's property is located near the center of an active oil field discovered in the 1890's.
On November 10, 1983, during excavations and pipe laying activities on the easement, Alex Paris Contracting Co., a contractor hired by WPW, encountered an abandoned oil well about one and one-half feet below the ground surface.*fn1 At the same time, a greenish substance determined to be
[ 127 Pa. Commw. Page 28]
crude oil seeped into the trench that they were digging. DER oil and gas inspectors visited the site of the abandoned oil well on November 11, 13, and 14, 1983 at which time they instructed WPW to collect the oil, gather up the contaminated soil and have it properly disposed of but not to cover the abandoned well. Paris employees pumped the water and oil from the open trench into a 500 gallon tank over a three to four week period subsequent to the incident. The portion of the mixture deemed to be water was drained out of the tank on to the ground surface. The contaminated soil was removed from the trench and placed on to a pile seven to eight feet high on the adjacent grounds. The trench was then completely backfilled, covering over the abandoned well.
DER issued an order to WPW on September 13, 1984, pursuant to Sections 5, 316, 402 and 610 of what is commonly referred to as the Clean Streams Law, Act of June 22, 1937, P.L.1987, as amended, 35 P.S. §§ 691.5, 691.316, 691.402 and 691.610; Sections 502 and 503 of the Gas Operations, Well-Drilling Petroleum and Coal Mining Act, Act of November 30, 1955, P.L. 756, as amended, (Gas Operations Law), 52 P.S. §§ 2502 and 2503, repealed by Section 606(a) of the Act of December 19, 1984, P.L. 1140,*fn2 Sections 104(7) and 602 of the Solid Waste Management Act, Act of July 7, 1980, P.L. 380, as amended, (SWMA), 35 P.S. §§ 6018.104(7) and 6018.602; and Section 1917-A of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, added by Section 20 of the Act of December 3, 1970, P.L. 834, 71 P.S. § 510-17. This order directed WPW to : (1) within thirty days file with the Bureau of Oil and Gas Management a notice of intent to plug the well and a plat of the abandoned oil well pursuant to Section 205 of the Gas Operations Law, 52 P.S. § 2205;*fn3 (2) within thirty days
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of filing the notice if intent to plug the well and a plat, to plug the well in accordance with Section 206(c) of the Gas Operations Law, 52 P.S. § 2206(c); (3) submit a plan within 30 days to the Bureau of Oil and Gas Management setting forth the measures WPW will take to prevent the occurrence of such pollutional incidents in the future and measures WPW will take should such a pollutional event occur; (4) within thirty days, submit to the Bureau of Solid Waste Management an ER-SWM-14 request for approval for disposal of asolid waste for the disposal of the contaminated soil in an approved landfill and within twenty-one days of written department approval, dispose of the contaminated soil in the approved landfill; and (5) within forty-five days, submit to the Department for its approval a report prepared by a hydrogeologist determining the extent of ground water contamination in the vicinity of the oil well and the Hi-View water well,*fn4 and proposing abatement measures, and a schedule for implementation.
WPW appealed that order to the Board on October 15, 1984. On December 11, 1985, DER filed a Motion for Summary Judgment with respect to WPW's liability under Section 316 of the Clean Streams Law. On January 10, 1986, the Board ruled that any evidence bearing on foreseeability or negligence with respect to WPW's excavation activity would be excluded at the forthcoming hearing as irrelevant pursuant to National Wood Preservers, Inc. v. Department of Environmental Resources, 489 Pa. 221, 414 A.2d 37 (1980). A hearing on the merits was held before the Board on January 21 through January 23, 1986. The Board issued an Adjudication and Order on August 25, 1988 which denied ...