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Commonwealth v. PBS Coals, Inc.

Citation: 17 ELR 20204
No. No. 73 Civil 1984, (Pa. Ct. C.P. Somerset Cty., 04/30/1986)

The court holds two mining companies strictly, jointly, and severally liable under Pennsylvania's Clean Streams Law, the state's Surface Mining Conservation and Reclamation Act, and common law public and private nuisance for polluting a town's groundwater supply where each company's contribution to the pollution cannot be determined. The court first holds that defendants are strictly liable under the Clean Streams Law. The statute proscribes the discharge of industrial waste, which includes mine drainage, into the state's waters. The court rules that the statute applies to discharges into groundwater. Although defendants cite a case holding that mine operators are not liable for loss of a spring that has its source in percolating waters, the Clean Streams Law abolishes historical distinctions between underground watercourses and percolating waters for the purposes of industrial waste discharges. The court next holds that the defendants are liable for a statutory public nuisance under both the Clean Streams Law and the state Surface Mining Conservation and Reclamation Act. The court also holds that defendants are strictly liable under common law public and private nuisance.

Turning to the issue of causation, the court holds that a consent decree between one of the defendants and the state Department of Environmental Resources does not release the defendant from liability. The court also holds that sufficient evidence has been presented to establish that defendants caused the pollution. The trial judge's finding of causation was properly premised on findings that the groundwater had been contaminated by mine drainage and that defendants' mining operations are located nearby. The court holds that defendants are jointly and severally liable for the pollution, noting that the Restatement (Second) of Torts allows for joint and several liability where it is unclear as to which of two or more tort-feasors actually caused the harm.

Counsel for Plaintiff
Michael B. Arch, Ward T. Kelsey, Ass't Counsel
Department of Environmental Resources
1303 Highland Bldg., 121 S. Highland Ave., Pittsburgh PA 15206-3988
(412) 665-4940

Counsel for Defendant PBS Coals, Inc.
John J. Dirienzo Jr.
Fike, Cascio & Boose
Scull Bldg., 124 N. Center St., P.O. Box 431, Somerset PA 15501
(814) 445-7948

Counsel for Defendant Fetterolf Mining, Inc.
Gilbert B. Caroff
707 U.S. Bank Bldg., 215 Franklin St., Johnstown PA 15901
(814) 535-7817