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Commonwealth v. Spangler

Commonwealth Court of Pennsylvania

January 23, 2015

Commonwealth of Pennsylvania, Department of Environmental Protection
v.
Douglas W. Spangler and Susan M. Spangler, Appellants

Argued: December 8, 2014.

Appealed from No. 615 CIVIL 2012. Common Pleas Court of the County of Somerset. Klementik.

Marc T. Valentine, Somerset, for appellants.

Greg Komain Venbrux, Pittsburgh, for appellee.

BEFORE: HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge. OPINION BY JUDGE McCULLOUGH.

OPINION

Page 322

PATRICIA A. McCULLOUGH, Judge

Douglas W. Spangler and Susan M. Spangler (together, Appellants) appeal from the September 18, 2013 order of the Court of Common Pleas of Somerset County (trial court) granting the petition for rule to show cause filed by the Department of Environmental Protection (Department)

Page 323

and permitting the Department to investigate, remediate, and clean up contamination on Appellants' property pursuant to the Hazardous Sites Cleanup Act (HSCA).[1] Having concluded that Appellants' assertions of error are either waived or lack merit, we affirm.

Facts and Procedural History

Appellants are record owners of real property located in Jenner Township, Somerset County, where a farmhouse is situated and occupied by Appellant Douglas Spangler's mother (the Site). (Findings of Fact (F.F.) at 2-3.) On January 26, 2012, the Department's Emergency Response personnel, local firefighters, and the Somerset County Hazmat team responded to the Site after a cap to a steel 275-gallon home heating oil tank was mysteriously -- and allegedly criminally -- removed and its contents, approximately 150 gallons of home heating oil, released into the ground. (F.F. at 6, 8.) The responding agencies attempted to mitigate the damage caused by the spill, which travelled to a ditch in a road near a marshy area and a stream. (F.F. at 7, 9-10.) On January 27, 2012, a specialist investigated the Site on behalf of the Department and stated that the spill would need to be cleaned up immediately. (F.F. at 18-19.)

On January 30, 2012, the Department issued a compliance order to Appellants requiring them, within thirty days, to remove the contamination and stabilize the numerous heating oil tanks and plastic storage containers (collectively, the " Containers" ) on the property to prevent future releases. (F.F. at 25; Reproduced Record (R.R.) at 222a-23a.) Appellants did not appeal this order. (Trial court op. at 3.)

Thereafter, the Department inspected the Site and monitored the conditions on the property, observing that Appellants failed to clean up the contaminated soil or secure the Containers. In September 2012, Appellants signed an agreement that granted the Department access to part of their property and summarized the Department's proposal to remove visibly contaminated soil and any deteriorating Containers. Pursuant to the agreement, the Department collected samples from the Containers, surface water, and soil, and sent them to a lab to be tested; analytical reports revealed that the aqueous layer of the composited containerized liquids contained levels of zinc, benzene, and methyl ethyl ketones. Appellants later rescinded the agreement, and the Department continued to monitor the Site from public roads, discovering that Appellants failed to clean up the contamination or stabilize the Containers. (R.R. at 145a, 162a-72a, 225a, 234a-35a, 307a-11a.)

On August 30, 2012, the Department filed a petition to show cause, requesting the trial court to issue a rule regarding why the Department should not have access to the Site under sections 501 and 503 of the HSCA, 35 P.S. § § 6020.501, 503.[2] The trial court issued the rule on September 5, 2012, and Appellants filed an answer on January 22, 2013.

On April 2, 2013, the trial court held a hearing, after which it made the following relevant findings of fact in an order ...


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