Opinion
Argued September 10, 1996.
Decided October 18, 1996.
Appeal from the Environmental Hearing Board (EHB), No. 90-375-W.
Robert B. Hoffman, Harrisburg, for Petitioner.
Melanie G. Cook, Assistant Counsel, for Respondent.
Before McGINLEY and PELLEGRINI, JJ., and SILVESTRI, Senior Judge.
Adams Sanitation Company appeals from an order of the Environmental Hearing Board (Board) which made final its previous order granting partial summary judgment in favor of the Department of Environmental Protection (Department).
The Department was known as the Department of Environmental Resources when this action commenced. The Department has subsequently been renamed the Department of Environmental Protection.
The facts are as follows. On July 22, 1977, Adams Sanitation Company (ADSCO), entered into a lease with Netta S. Deatrick to operate a sanitary landfill on an approximately 108 acre site owned by Deatrick in Tyrone Township, Adams County. On February 2, 1979, ADSCO received a permit to dispose of solid waste on the site from the Department. Keystone Sanitation Company Inc., by agreement dated October 22, 1983, acquired ADSCO's assets, name and trade-name, as well as the foregoing lease. Keystone assigned the lease to its new wholly owned subsidiary, Adams Sanitation Company (Adams), on November 15, 1983.
Adams began operating the former ADSCO landfill in February of 1984. At the time of Adams takeover, ADSCO had land-filled 78 acres of the 108 acre site. Adams intended to fill the remaining 30 acres of the site, and accordingly, submitted an application to the Department, noting that although the property included 108 acres, it only intended to fill the 30 acres of the site which ADSCO had not filled.
A permit was issued by the Department, and Adams began operations, filling approximately 8.8 acres of the 30 acres covered by the permit. Adams did not deposit any waste in the 78 acre portion of the site which ADSCO had previously filled, ( see Pre-hearing stipulations, ¶ 6, 9; R.R. 29a). Adams did, however, operate and maintain a leachate collection and treatment system which was installed by ADSCO on this portion of the site, including repairing holes in the liners of the three treatment lagoons which were part of the system. Adams also submitted monthly discharge monitoring reports to the Department regarding the leachate system. In addition to the foregoing activities performed by Adams on the 78 acre portion of the site previously filled by ADSCO, Adams eliminated erosion gullies and performed revegetation work in this area. (Pre-hearing stipulations, ¶ 18, 20, 22, 30, 31; R.R. 31-33a).
On August 21, 1990, the Department, by letter, advised Adams that it was responsible for water supply contamination at the Strine residence which was located on a tract of land adjacent to the 78 acre portion of the site previously filled by ADSCO. The letter directed Adams to provide a replacement water supply to the Strine residence. On October 22, 1990, the Department issued another order to Adams, directing Adams to develop and implement a program to abate groundwater and surface water contamination emanating from the landfill. Adams timely appealed both orders and both appeals were consolidated on December 4, 1990.
The Department moved for summary judgment with respect to Adams' appeals. Both parties agreed, for purposes of the motion, that the contamination of the Strine water supply resulted from volatile organic contaminants emanating from the 78 acre portion of the landfill which ADSCO had used to dispose of waste prior to Adams' operation of the site. The Board, by order dated April 5, 1994, granted the Department partial summary judgment and required Adams to restore or replace the Strine water supply and to submit and implement a groundwater pollution abatement plan addressing the entire 108 acre site.
The Board denied summary judgment in part; however the subject of the denial is not herein relevant.
In its appeal here, Adams asserts that the Board erred in requiring it to replace the Strine water supply since it did not dispose of the waste which caused the harm to the Strine water supply. Adams also asserts that the Board erred in requiring it to submit and implement a ground water pollution abatement plan for the entire site.
Our scope of review of Board decisions is limited to determining whether the Board committed constitutional violations, errors of law, or whether any necessary findings of fact made by the Board were unsupported by substantial evidence. Willowbrook Mining Co. v. Department of Environmental Resources, 92 Pa. Commw. 163, 499 A.2d 2 (1985).
The Board, in concluding that Adams was responsible for replacing the Shrine water supply, relied on Section 273.245 (a) of the Department's regulations, 25 Pa. Code § 273.245 (a), which provides, in relevant part, as follows:
A person or municipality operating a municipal waste landfill which affects a water supply by degradation, pollution or other means shall restore or replace the affected water supply with an alternate source that is of like quantity and quality to the original supply at no additional cost to the owner. . .
On the basis of the foregoing Section, the Board concluded that because Adams, in February of 1984, began conducting solid waste landfill operations at the "Adsco Landfill," ( see Pre-hearing stipulations, ¶ 5, ¶ 8; R.R. 29a) and that because there was no dispute that the "Adsco Landfill" polluted the Strine water supply, the Department had the authority to direct Adams to replace the Shrine water supply and abate the pollution.
Adams maintains that Section 273.245 (a) of the regulations, 25 Pa. Code § 273.245 (a), relied on by the Board, conflicts with Section 1104 of the Municipal Waste Planning, Recycling and Waste Reduction Act, Act of July 28, 1988, P.L. 556, as amended, 53 P. S. § 4000.1104, and that pursuant to the defenses provided in Section 1104 (d), it cannot be found liable for the contamination of the Strine water supply. We disagree.
Section 1104 (a) provides as follows:
(a) Alternative water supply requirement. — Any person owning or operating a municipal waste management facility that adversely affects a public or private water supply by pollution, degradation, diminution or other means shall restore the affected supply at no additional cost to the owner or replace the affected supply with an alternate source of water that is of like quantity and quality to the original supply at no additional cost to the owner. If any person shall fail to comply with this requirement, the department may issue such orders to the person as are necessary to assure compliance.
Subsection (d) of Section 1104, relied upon by Adams, relates to Subsection (c) of Section 1104. These Sections provide, in relevant part, as follows:
(c) Rebuttable presumption. — Unless rebutted by one of the four defenses established in subsection (d), it shall be presumed that the owner or operator of a municipal waste landfill is responsible for the pollution, degradation or diminution of a public or private water supply that is within one-quarter mile of the perimeter of the area where solid waste management operations have been carried out.
(d) Defenses. — In order to rebut the presumption of liability established in subsection (c), the owner or operator must affirmatively prove by clear and convincing evidence one of the following four defenses:
. . . . .
(4) The owner or operator did not cause the pollution, degradation or diminution.
Adams argues that the record demonstrates that it, as the owner/operator of the landfill, did not cause the pollution to the Strine water supply, since the undisputed facts demonstrate that the pollution came from that portion of the landfill which ADSCO had filled prior to Adams leasing the 108 acres. By this assertion, Adams would have this court distinguish between the 30 acres of the site which Adams intended to fill, of which it filled 8.8 acres, and the remaining 78 acres which ADSCO filled prior to Adams leasing the entire 108 acres; this we cannot do.
While it is true that the parties have stipulated that the contamination of the Strine water supply originated from that portion of the landfill that was filled by ADSCO prior to Adams leasing the property, it is undisputed that Adams has been in control of, and the operator of, the entire 108 acre site since February of 1984. As such, Adams is responsible for any and all contamination emanating from the entire 108 acre site; not just contamination emanating from the 8.8 acres of the 30 acres it filled.
Based on the foregoing, we conclude that the Board properly upheld the Department's directive that Adams was responsible for replacing the Strine water supply. We now turn to the issue of whether the Board properly upheld the Department's order directing Adams to develop and implement a program to abate groundwater and surface water contamination emanating from the landfill.
The Board concluded, on the basis of Section 316 of the Clean Streams Law, Act of June 22, 1937, P.L. 1987, art. III, as amended, 35 P. S. § 691.316, that Adams, as the lessee of land where pollution was emanating, was responsible for correcting the condition.
Section 316 provides, in relevant part, as follows:
Whenever the department finds that pollution or a danger of pollution is resulting from a condition which exists on land in the Commonwealth the department may order the landowner or occupier to correct the condition in a manner satisfactory to the department or it may order such owner or occupier to allow a mine operator or other person or agency of the Commonwealth access to the land to take such action. For the purpose of this section, "landowner" includes any person holding title to or having a proprietary interest in either surface or subsurface rights . . .
Adams argues that pursuant to our holding in Philadelphia Chewing Gum Corp. v. Department of Environmental Resources, 35 Pa. Commw. 443, 387 A.2d 142 (1978), affirmed in part and appeal dismissed in part, sub nom. National Wood Preservers, Inc. v. Department of Environmental Resources, 489 Pa. 221, 414 A.2d 37, appeal dismissed, 449 U.S. 803, 101 S.Ct. 47, 66 L.Ed.2d 7 (1980), the Department, in order to impose liability under Section 316, must demonstrate that the landowner/occupier knew or should have known of the existence or condition on the land and that the landowner/occupier associated itself with the condition after its creation. Adams maintains that because the Department failed to make such a showing here, it improperly ordered Adams to develop and implement a program to abate groundwater and surface water contamination emanating from the landfill. We disagree. Contrary to Adams' assertion, the record reveals that these requirements were satisfied.
We note that Adams cites to our decision in North Cambria Fuel v. Department of Environmental Resources, 153 Pa. Commw. 489, 621 A.2d 1155 (1993), affirmed without opinion, 538 Pa. 377, 648 A.2d 775 (1994), as requiring the Department to make the foregoing showing; however, we note that while we did discuss the holding of Philadelphia Chewing Gum in North Cambria, it was Section 315 of the Clean Streams Law, 35 P. S. § 691.315 that was at issue in that case. Here, only Philadelphia Chewing Gum is relevant.
Specifically, as noted previously herein, Adams took over the entire 108 acre ADSCO landfill operation in February of 1984. Adams operation of the landfill was not limited to the 30 acres of the site which it intended to fill. To the contrary, Adams operated and maintained a leachate collection and treatment system which was installed by ADSCO on the 78 acre portion of the site it previously filled; Adams repaired holes in the liners of the three treatment lagoons which were part of the leachate system; and Adams submitted monthly discharge monitoring reports to the Department regarding the system. Moreover, Adams eliminated erosion gullies and performed revegetation work in the 78 acre portion of the site previously filled by ADSCO. (Pre-hearing stipulations, ¶ 18, 20, 22, 30, 31; R.R. 31-33a).
Given the foregoing undisputed facts, we conclude that Adams, as the operator of the entire 108 acre landfill operation, knew or should have known of the condition on the land, and that it positively associated itself with the condition after its creation as required by Philadelphia Chewing Gum. Accordingly, the Board correctly upheld the Department's order that Adams develop and implement a program to abate groundwater and surface water contamination emanating from the landfill and we will affirm the Board's order.
ORDER
AND NOW, this 18th day of October, 1996, the order of the Environmental Hearing Board dated December 8, 1995 is affirmed.
Isaacs v. Luzerne County Board of Assessment Appeals ............. 2469CD95 10/1/96 Luzerne County Vacated and 5183-C Remanded
Garrett Group v. County of Schuylkill .......... 3514CD95 10/3/96 Schuylkill County Affirmed S-1922-93, S-1923-93 S-1924-93
Neupert v. Comm., Dept. of Trans., Bureau of Driver Lic ....... 1385CD95 10/4/96 Allegheny County Affirmed SA 310-1994
Shrewsbury Housing, Inc. v. Assessment Office of York County .............. 195CD96 10/4/96 York County Affirmed 95-SU-02226-08
Stevens v. Municipality of Washington Township. 175CD96 10/4/96 Franklin County Affirmed A.D. 1994-420
Comm., Dept. of Trans., Bureau of Driver Lic. v. Schmidt .......... 1909CD95 10/7/96 Allegheny County Vacated and SA 3946-1994 Remanded
Kent v. Comm., Dept. of Trans. Bureau of Driver Lic ....... 1585CD96 10/7/96 Pike County Affirmed 139-PHI-96
PA State Police, Bureau of Liquor Control Enforcement v. Jen 'N Eves, Inc. 2968CD94 10/16/96 Indiana County Affirmed 6 Misc. 94
Stevens v. Upper Southampton Township ............ 2089CD95 10/17/96 Bucks County Affirmed 94-09269-09
Stevenson, In re ...... 885CD96 10/17/96 Clinton County Affirmed 266-96
Diehl v. Mount Holly Springs Borough Council ..... 410CD96 10/17/96 Cumberland County Affirmed 94-3074
Atherton Street General Partnership v. Board of Assessment Appeals of Centre County .... 2774CD95 10/17/96 Centre County Affirmed 1994-509
H.A. Steen Industries, Inc. v. Plymouth Township Zoning ..... 702CD95, 10/17/96 Montgomery County Affirmed 703CD95, 94-14449, 704CD95, 94-14168, 705CD95 94-14167, 94-14166
Scarnati v. City of Pittsburgh Police Dept ......... 986CD96 10/18/96 Allegheny County Affirmed AR 94-8727
Rauso v. Comm., Dept. of Trans., Bureau of Driver Lic ................. 2834CD95 10/18/96 Delaware County Affirmed 94-4188
Bailey v. Comm., Dept. of Trans. Bureau of Driver Lic ................. 875CD96 10/18/96 Delaware County Affirmed 95-14328
Ralpho Township Board of Supervisors v. Capozello ........ 296CD96 10/18/96 Northumberland Reversed County CV-95-883
Czubowicz-Drouse v. Mid Valley School District ..... 459CD96 10/18/96 Lackawanna County Vacated and 95-Civil-1311 Remanded
McCullough v. Comm., Dept. of Trans., Bureau of Driver Lic ................ 3282CD95 10/18/96 Allegheny County Affirmed Sa 1708-1995 Opperman v. Silver Spring Township Authority ........... 271CD96 10/21/96 Cumberland County Affirmed 95-4324 EQ
Burdulis v. Comm., Dept. of Trans., Bureau of Driver Lic ................. 3508CD95 10/21/96 Bucks County Reversed 95-7275
Purple Orchid, Inc. v. PA State Police, Bureau of Liquor Control Enforcement. 216CD96 10/21/96 Philadelphia Vacated and County Remanded 9508-0112
Griffith v. Comm., Dept. of Trans., Bureau of Driver Lic ................. 3509CD95 10/22/96 Bucks County Reversed 95-7273
Comm., Dept. of Trans., Bureau of Driver Lic. v. Yoder ............... 1830CD95 10/22/96 Indiana County Affirmed 11454 C.D. 1994
Comm., Dept. of Trans., Bureau of Driver Lic. v. Killion ............. 3571CD95 10/22/96 Philadelphia Affirmed County 128 Sept. Term 95
Hickey v. Comm., Dept. of Trans., Bureau of Driver Lic ................. 1060CD96 10/22/96 Chester County Reversed 96-00944 Lyons v. Comm., Dept. of Trans. Bureau of Driver Lic ................. 3510CD95 10/22/96 Bucks County Reversed 95-4289-176
Comm., Dept. of Trans., Bureau of Driver Lic. v. Stone ............... 395CD96 10/22/96 Erie County Affirmed 13448-1995
Stenulis v. Comm., Dept. of Trans., Bureau of Driver Lic ................. 2540CD95 10/22/96 Lehigh County Reversed 95-C-1334
Sokolovitch v. Township of Centre .............. 2856CD95 10/24/96 Berks County Affirmed 1514-95 AD
Civil Service Commission of Radnor Township v. Hill .... 313CD95, 10/24/96 Delaware County Reversed 367CD95 91-8256
Petrovich v. Comm., Dept. of Trans., Bureau of Driver Lic ................. 1083CD96 10/24/96 Allegheny County Affirmed SA 2081-1995
Starks v. Comm., Dept. of Trans., Bureau of Driver Lic ................. 1992CD95 10/25/96 Bucks County Affirmed 94-9918
Wise v. Comm .......... 1094CD96 10/25/96 Philadelphia Affirmed County MR95-004995
Fenton v. Comm., Dept. of Trans., Bureau of Driver Lic ................. 1061CD96 10/25/96 Mercer County Vacated and 1995-4611 Remanded
McClure v. Comm., Dept. of Trans., Bureau of Driver Lic ................. 2448CD95 10/28/96 Delaware County Reversed 95-7267
Halpern v. Comm., Dept. of Trans., Bureau of Driver Lic ................. 331CD96 10/28/96 Allegheny County Reversed SA 95-2659
Comm., Dept. of Trans., Bureau of Driver Lic. v. Langan .............. 3353CD95 10/28/96 Lackawanna County Affirmed 95 Civ 3175
Donahue v. Comm., Dept. of Trans., Bureau of Driver Lic ................. 621CD96 10/29/96 Chester County Reversed 95-08627
Collare v. Zoning Hearing Board of Warrington Township. 3425CD95 10/29/96 York County Affirmed 95-SU-01692 Vacated and Remanded
Carignan v. Township of Silver Spring .... 87CD96 10/29/96 Cumberland County Affirmed 94-3422
St. George Greek Orthodox Church v. Saltis .............. 2128CD95 10/30/96 Delaware County Affirmed 93-14613
Lubin v. City of Philadelphia ........ 701CD96 10/30/96 Philadelphia Affirmed County 406 Feb. Term 1995
Norristown Area Educational Support Personnel Association v. Norristown Area School District ..... 2126CD95 10/31/96 Montgomery County Affirmed 94-23557