Commonwealth v. PBS Coals, Inc.

No. 73 Civil 1984 (Pa. Ct. C.P. Somerset Cty. April 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

[17 ELR 20204]

Coffroth, J.:¹

Opinion

This equity case is before the Court en banc on the post-trial motions of defendants. After thoroughly reviewing the extensive record, we are satisfied that it supports the findings and conclusions set forth in the Adjudication and the accompanying Decree Nisi of June 28, 1985, of the trial Judge.³

Accordingly, we shall deny defendants' post-trial motions. We make the following comments on matters raised in argument on the motions:

a. Theories of Liability: Plaintiffs contend that defendants are strictly liable for causing mine drainage pollution of private water supplies pursuant to statute, the Clean Streams Law and the Surface Mining Conservation and Reclamation Act, and that defendants are also liable for such pollution on common law theories of private and public nuisance. Defendants, particularly defendant Fetterolf, contend that insofar as the substantive liability is concerned, this case is controlled by Wheatley v. Baugh, 25 Pa. 528, 64 Am. Dec. 721 (1855), which holds that where a spring, supplying water to private property, has its source in percolating water as distinguished from a regular and constant underground water course, ceases to flow because of mine pumping operations on other land, the mining operator is not liable for loss of the spring unless the loss was occasioned by malice or negligence, because ". . . percolations spread in every direction through the earth, and it is impossible to avoid disturbing them without relinquishing the necessary enjoyment of the land. Accordingly, the law has never gone so far [17 ELR 20205] as to recognize in one man a right to convert another's farm to his own use, for the purposes of a filter." Id., 25 Pa. at 532. See Fetterolf brief page 80 stating that ". . . the present case is governed by the underlying principles of Wheatley v. Baugh, supra, which have never been directly or indirectly renounced as common law of Pennsylvania," and brief page 84.

Although Wheatley v. Baugh, supra, may still have vitality in cases involving some types of interference with percolating waters, compare Catale v. Rich, 19 D&C 3d 371 (1980), it has lost validity in cases involving the discharge of industrial waste into the waters of the Commonwealth by virtue of statutory pre-emption of control over such cases. Today's public concern for environmental harm of all sorts is evident on all sides, is common knowledge, and has transformed social policy from that earlier existing in this Commonwealth when we were more concerned with industrial development and were largely ignorant or unaware of its environmental and social costs, resulting in numerous controlling statutes. In this coal-producing state, ". . . the growing pollution problem posed by acid mine drainage," National Wood Preservers v. Commonwealth et al., 489 Pa. 221, 230, 414 A.2d 37 [10 ELR 20724] (1980), and its harmful effects upon our waters, has been of particular concern. The principal statute instantly applicable is "The Clean Streams Law" (35 PS § 691.901), Act of 1937 PL 1987 as amended, 35 PS §§ 691.1 et seq. Section 301 (§ 691.301) thereof proscribes generally the discharge of industrial waste into waters of the Commonwealth, and § 315 (§ 691.315) prohibits the discharge of mine drainage specifically. Section 1 (§ 691.1) specifically includes mine drainage in the definition of "industrial waste," and defines "waters of the Commonwealth" as including ". . . springs and all other bodies or channels or conveyance of surface or underground water, or parts thereof, whether natural or artificial, within the boundaries of this Commonwealth." Emphasis added; thus, the Act includes and abolishes any prior distinction between underground watercourses and percolations insofar as the discharge of industrial waste is concerned. Section 401 (§ 691.401) further makes any polluting discharge into waters of the Commonwealth a nuisance.⁴ See also the Surface Mining Conservation and Reclamation Act, Act of 1945 PL 1198 as amended, 52 PS §§ 1396.1 et seq., particularly § 4.2(a) and (f), § 1396.4b(a) and (f).

The statute not only makes a violation a nuisance, it does not abolish the common law of nuisance, either public or private. Commonwealth v. Barnes & Tucker Co., 455 Pa. 392, 408, 319 A.2d 871 [4 ELR 20545] (1974), theories of statutory and common law public nuisance are both valid; accord; Commonwealth ex rel. Shumaker v. New York & Pennsylvania Co., Inc., 367 Pa. 40, 79 A.2d 439 (1951), and Commonwealth v. Seven Springs, 27 Somerset Legal Journal 18 (1971). Section 701 of the Clean Streams Law, 35 PS § 691.701, expressly preserves all existing rights and remedies.⁵ Hence, common law private nuisance principles in this area also have continued validity. A common law public nuisance is defined in Restatement of Torts 2d § 821B as follows:

§ 821B. Public Nuisance

(1) A public nuisance is an unreasonable interference with a right common to the general public.

(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or

(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.

A private common law nuisance exists when one's use of his land unreasonably interferes in a nontresspassory manner with another's use and enjoyment of his land. See: PLE, Nuisance § 1; Restatement of Torts 2d § 821D; Commonwealth et al. v. Reitz Coal Co., 42 Somerset Legal Journal 329, 335 (1982) at note 2. See also Restatement of Torts 2d § 849. From the foregoing it is apparent that liability under the statute and under common law principles of nuisance is not at all dependent upon traditional concepts of culpable fault such as malice, negligence and the like. See National Wood Preservers v. Commonwealth et al., supra, headnotes, 10 and 11. Hence, we accept plaintiffs' theory of substantive liability and reject the defense contention based on Wheatley v. Baugh, supra.

b. Causation and Consent Decree: Defendants contend that there is insufficient evidence of causation by them of the pollutions in suit; defendant Fetterolf further contends that even if such causation is established, the consent decree between Fetterolf and DER releases Fetterolf from such liability. Plaintiffs respond that: (1) the evidence clearly established causation, and (2) the consent decree (paragraphs 23 and 24, Exhibit 1) excuses only specifically identified violations by the former operator of the property and expressly preserves the right to take proceedings for enforcement of discharge violations by Fetterolf. We agree with plaintiffs on both issues. Accordingly, the consent order grants no permission for discharge of polluting mine drainage in operations thereunder; nor is such charge otherwise exempt or permitted. See Permits (trial Exhibits BB, CC, DD and EE); see also 25 Pa. Code § 91.5 which requires that exemption of a discharge from permit requirements be explicit. A further comment may be in order here. Fetterolf's argument assumes that the discharges in suit were those of a former owner, not Fetterolf. As should be clear from the evidence, and the citation in note 2 of the Adjudication of Commonwealth v. Sarver (No. 2), 36 Somerset Legal Journal 199, 202 (1979), the trial Judge's finding of causation was based in large part on the coincidence of waterwell contamination having the characteristics of mine drainage, with defendants' mining in nearby land. As stated in Sarver:

Where conditions which have existed for a long period of time change coincidentally with the occurence of a new event, which in common experience may have caused the change, there is sufficient evidence of causation to go to a jury. Mazza v. Berlanti, 206 Pa. Super. 505, 510 (1965); Bumbarger v. Walker, 193 Pa. Super. 301, 308 (1960); PLE, Water § 85.⁶

c. Joint and Several Liability: We cite as additional authority supporting imposition of joint and several liability upon defendants in this case, Restatement of Torts 2d § 433B which provides as follows:

§ 433 B. Burden of Proof

(1) Except as stated in Subsections (2) and (3), the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff.

(2) Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or moreof the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.

(3) Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the [17 ELR 20206] plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.

Order

NOW, this 30th day of April, 1986, defendants' post-trial motions are denied. The Decree Nisi shall be entered as the Final Decree.

Adjudication

This is an equity action filed by plaintiff alleging that by reason of wide-spread pollution of water wells on various properties in the Village of Petersburg, Stonycreek Township, Somerset County, Pennsylvania caused by mine drainage unlawfully discharged from mining operations of defendants in the vicinity of the village, defendants have created a public nuisance — warranting equitable relief restoring an unpolluted water supply to said properties, and for associated equitable relief. Intervernor plaintiffs have filed a trespass complaint joining in the averments of liability for public nuisance contained in the original complaint by plaintiff, and seeking money damages for harm to them and their properties in Petersburg.

The prime defense of each defendant is that there is insufficient evidence to establish clearly and convincingly that: (a) the pollution in the wells is from mine drainage, and (b) whatever the nature of the pollution its source is not the property of operations of defendants.

From the evidence we reach the following findings and conclusions:

1. The evidence is clear and convincing that the water wells which are the water supply for the properties of Petersburg landowners Margaret Friedline, Fred and Emogen Zerfoss, Ronald and Nancy Fleegle, Calvin and Bernice Walker, Glenn and Bessie Stutzman, and Elwood and Sherry Yoder and Bruce and Dorothy Yoder (intervenors) are and have been for some time polluted with mine drainage.¹

2. The evidence is clear and convincing that the source of the polluting mine drainage is effluent from one or more or all of the several strip mining operations of defendants identified in the evidence as Stutzman (PBS). Ross and Mostoller (both Fetterolf), but the evidence does not sufficiently establish which of the three sites is or are the polluting source.²

3. The polluting discharge of mine drainage is unauthorized and therefore unlawful, and creates a public nuisance.³

4. Defendants are jointly and severally liable for the consequences of the pollution.⁴

5. Plaintiff is entitled to injunctive and associated relief to abate the public nuisance.

6. Intervenors are entitled, in addition to the benefit of the injunctive relief awarded the Commonwealth, money damages in the amount set forth in the Decree Nisi.⁵

Decree Nisi

NOW, June 28th, 1985, IT IS ORDERED AND DECREED as follows:

1. Defendants, PBS Coals Inc. and Fetterolf Mining Inc. shall without unnecessary delay provide the homes of Margaret Friedline, Fred and Emogen Zerfoss, Ronald and Nancy Fleegle, Calvin and Bernice Walker, Glenn and Bessie Stutzman, Bruce and Dorothy Yoder and home and dairy farm of Elwood and Sherry Yoder, with permanent alternative water supplies adequate in quantity and quality for their domestic and agricultural purposes.

2. Said defendants shall prepare and implement a plan to prevent further groundwater pollution from the Stutzman, Ross and Mostoller mining operations.

3. Said defendants shall pay to intervenors, Elwood and Sherry Yoder, money damages in the amount of $50,798.00.

4. Said defendants shall pay to intervenors Bruce and Dorothy Yoder money damages in the amount of $4,071.60.

5. Costs on defendants.

1. This case was assigned to this writer on April 9, 1986.

3. The trial Judge was Judge Coffroth, then President Judge. He reached mandatory retirement age on Sunday, June 30, 1985.

4. Section 401 provides as follows:

§ 691.401. Prohibition against other pollutions

It shall be unlawful for any person or municipality to put or place into any of the waters of the Commonwealth, or allow or permit to be discharged from property owned or occupied by such person or municipality into any of the waters of the Commonwealth, any substance of any kind or character resulting in pollution as herein defined. Any such discharge is hereby declared to be a nuisance.

5. Section 701 provides as follows:

§ 691.701. Existing rights and remedies preserved

The collection of any penalty under the provisions of this act shall not be construed as estopping the Commonwealth, or any district attorney or solicitor of a municipality, from proceeding in courts of law or equity to abate pollutions forbidden under this act, or abate nuisances under existing law. It is hereby declared to be the purpose of this act to provide additional and cumulative remedies to abate the pollution of the waters of this Commonwealth, and nothing in this act contained shall in any way abridge or alter rights of action or remedies now or hereafter existing in equity, or under the common law or statutory law, criminal or civil, nor shall any provision in this act, or the granting of any permit under this act, or any act done by virtue of this act, be construed as estopping the Commonwealth, persons or municipalities, in the exercise of their rights under the common law or decisional law or in equity, from proceeding in courts of law or equity to suppress nuisances, or to abate any pollution now or hereafter existing, or enforce common [footnote omitted] law or statutory rights.

6. Such coincidence was also apparently the basis for the conclusion of causation in Wheatley v. Baugh, supra.

1. "Clear and convincing evidence" is a level of proof and persuasion intermediate between a "preponderance or greater weight of the evidence" and "beyond reasonable doubt" and denotes evidence which is "highly probable." See: Kolcun Estate, 42 Somerset Legal Journal 218, 246, 249 (1983).

The parties debate whether the burden of proof in a case of this kind for injunction requires clear and convincing evidence. Plaintiff, in the negative, cites: Shearer v. Insurance Company of North America, 397 Pa. 566, 156 A.2d 182 (1959); O'Toole v. Braddock Borough, 397 Pa. 562, 155 A.2d 848 (1959); Se'Ling Hosiery v. Margulies, 364 Pa. 45, 70 A.2d 654 (1950); Hughes v. Emerald Mines Corp., 303 Pa. Super. 426, 450 A.2d 1 (1981); Noerr v. Lewistown Smelting & Refining Inc., 60 D&C2d 406 (1973). Defendants, in the affirmative, cite: Sparhawk v. Union Passenger Railway Company, 54 Pa. 401 (1867); Philadelphia Appeal, 78 Pa. 33 (1975); Deemer v. Bell's Run Railroad, 212 Pa. 491 (1905); Robinson v. Philadelphia, 400 80, 161 A.2d 1 (1960); Shryock v. Association of United Fraternal Buyers, 135 Pa. Super. 428, 5 A.2d 581 (1939); Brown v. Lehman, 141 Pa. Super. 467, 5 A.2d 513 (1940); West Nottingham Township v. Daw Associates, 23 Chester 252 (1975); PLE, Injunctions § 88; 8 Standard Pennsylvania Practice, Chapter 36 § 110; McCormick On Evidence (2nd Edition (1984)) § 340.

In light of our finding of clear and convincing evidence we need not decide the point.

2. On causation, see cases cited in the briefs of the parties. Compare Sarver v. Commonwealth (No. 2), 36 Somerset Legal Journal 199, 202 (1979).

3. See Commonwealth (DER) et al. v. Reitz Coal Company, 42 Somerset Legal Journal 329 (1982) at note 2 defining public and private nuisances. Compare Makoczy v. Weaver, 33 Somerset Legal Journal 193 (1976), and Commonwealth v. Seven Springs Farm Inc., 27 Somerset Legal Journal 18 (1971).

4. See Sleasman v. Brooks et al., 43 Somerset Legal Journal 89, 32 D&C3d 187 (1984).

5. On measure of damages, see: Sturtz v. Yoder's Milk, 30 Somerset Legal Journal 1, 26 (1975); Wade v. S.J. Groves & Sons Co., 283 Pa. Super. 464, 424 A.2d 902 (1981).