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COMMONWEALTH PENNSYLVANIA v. QUEEN COAL CO. (04/28/71)

decided: April 28, 1971.

COMMONWEALTH OF PENNSYLVANIA
v.
QUEEN COAL CO., A PENNSYLVANIA CORPORATION, OLIVER PAINTER, TRADING AS ALVERTON FUEL COMPANY, AND WILMER MCGIFFIN



Original jurisdiction action in equity to secure relief from alleged violations of the Air Pollution Control Act and from the maintenance of a public nuisance.

COUNSEL

Leonard A. Redlich, with him Robert Y. Cassol, Redlich, Cassol, Redlich & Morocco, and Fred Adams and Ira B. Coldren, Jr., Coldren & Adams, for defendants.

Morris J. Solomon, Assistant Attorney General, with him William M. Gross, Assistant Attorney General, and J. Shane Creamer, Attorney General, for plaintiff.

Rogers, J. Opinion by Judge Rogers.

Author: Rogers

[2 Pa. Commw. 1 Page 2]

The plaintiff in this case, the Commonwealth of Pennsylvania, having taken an appeal from our refusal to grant a preliminary injunction, we provide this opinion in compliance with Supreme Court Rule 63.

The complaint avers that the defendants in their capacities hereinafter set out have modified, altered, rebuilt, refurbished and completely reconstructed an air contamination source, to wit, beehive coke ovens, without obtaining a permit of the Department of Health (now the Department of Environmental Resources); have operated said modified, altered, rebuilt, refurbished and completely reconstructed ovens; and have in such operation permitted smoke darker than No. 2 of the Ringelmann Smoke Chart to be emitted into the outdoor atmosphere. The first count of the complaint alleges that this activity constitutes a violation of Department Regulation III, Section 1.3(1) and Section 8 of the Air Pollution Control Act, 1960, January 8, P.L. (1959) 2119, 35 P.S. 4001. The second count accuses the defendants of having violated Regulation IV, Section 1.3(1) and Section 8 of the Act; and the third count charges the defendant with committing a public

[2 Pa. Commw. 1 Page 3]

    nuisance. The plaintiff seeks an order enjoining the operation of the ovens.

The Department's Regulation III is, in pertinent part, as follows:

"Section 1.1 Definitions.

"(2) 'Modification' Any alteration which will, or might reasonably be expected to increase the amount, or change the effect or the characteristics of the air contamination discharged.

"Section 1.3 Approval to Construct or Modify and Permit to Operate.

"(1) After the effective date of this regulation, no person shall construct an air contamination source or install an air cleaning device on an air contamination source constructed after the effective date of this regulation, or modify an existing air contamination source without first obtaining ...


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