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Commonwealth v. PBS Coals, Inc.

ELR Citation: 18 ELR 20400
Nos. Nos. 1410 C.D. 1986, 1418 C.D. 1986, 534 A.2d 1130/(Pa. Commw. Ct., 12/15/1987) Aff'd

The court holds two mining companies strictly, jointly, and severally liable under Pennsylvania's Clean Streams law and the state Surface Mining Conservation and Reclamation Act (state SMCRA) for polluting a town's groundwater supply where each company's contribution to the pollution cannot be determined. The court first declines to accept the testimony offered by defendants' expert witnesses concerning land topography and groundwater flow, since there is support in the record for the chancellor's findings. The court then holds that sufficient evidence was presented to establish that defendants caused the pollution of private wells. The court declines to rule on whether a clear and convincing or a preponderance of the evidence standard should be applied, since the chancellor made his ruling based on the stricter standard. The court holds that the Pennsylvania Department of Environmental Resources (DER) did not waive its right to bring suit in a consent decree between it and one of the defendants, since the consent decree was limited to the subject of the reclamation by defendant of mining sites abandoned by its predecessor in interest. The court refuses to consider an argument that DER should be equitably estopped from bringing suit, since it knew of the well contamination when it signed the consent order and failed to inform defendant of its potential liability, because defendant did not raise the issue in the court below.

The court holds that defendants are strictly liable for abatement of a statutory nuisance under §601 of the Clean Streams Law and §18.2 of the state SMCRA. The Supreme Court has held that fault is not aprerequisite to liability under another section of the Clean Streams Law, and the statute clearly prohibits the discharge of mine drainage into groundwater. Although defendants operated their mines pursuant to permits issued by DER, those permits did not authorize the discharges, and both the Clean Streams Law and the state SMCRA, in identical language, make it unlawful not to comply with permit terms. Since it has decided the liability issue on statutory grounds, the court declines to rule on the alternative theory of common-law public nuisance, but concludes, in a note, that the theory could be applied.

The court holds that defendants are jointly and severally liable for the pollution, after reviewing principles espoused in the Restatement (Second) of Torts and case law from other states permitting the imposition of joint and several liability where an indivisible injury has been caused by the concurrent acts of two or more wrongdoers. The court holds that nuisance-creators may be included within the definition of "wrongdoers." Although defendants did not intend to cause pollution, their activities invaded the constitutional rights of Pennsylvania residents to a clean environment and caused damages as a result. Moreover, the Clean Streams Law and the state SMCRA have defined defendants' conduct as unlawful and against public policy.

[The trial court's en banc decision is published at 17 ELR 20204.]

Counsel for Plaintiff
Michael E. Arch, Ass't Counsel
Commonwealth of Pennsylvania Department of Environmental Resources
1303 Highland Bldg., 121 S. Highland Ave., Pittsburgh PA 15206-3988
(412) 645-7440

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

Before CRAIG and DOYLE, JJ., and NARICK, Senior Judge.