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BORTZ COAL COMPANY v. COMMONWEALTH (07/09/71)

decided: July 9, 1971.

BORTZ COAL COMPANY
v.
COMMONWEALTH



Appeal from Adjudication of the Air Pollution Commission of the Commonwealth of Pennsylvania, Docket No. 69-115 in case of In the Matter of: Air Pollution Commission v. Bortz Coal Company.

COUNSEL

Fred C. Adams, with him Coldren & Adams, for appellant.

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

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Kramer. Judge Manderino concurs in result only.

Author: Kramer

[ 2 Pa. Commw. Page 443]

This is an appeal by the Bortz Coal Company, appellant, (Bortz) from an adjudication (Abatement Order) of the Air Pollution Commission, appellee, (Commission) dated December 1, 1970, in which the Commission affirmed an air pollution abatement order (dated August 22, 1969) of the Department of Health under the Air Pollution Control Act, Act of January 8, 1960, P.L. 2119, 35 P.S. 4001, et seq.

The abatement order, in pertinent part, provides:

"(1) that the Bortz Coal Company shall on and after January 1, 1970, operate the beehive coke ovens at its Smithfield coke plant located in George's Township, Fayette County, in such a manner that the emissions from these operations do not exceed the limits set forth in Section 1.3 of Air Pollution Commission Regulation IV.

"(2) that the Bortz Coal Company shall on and after January 1, 1970, operate the coke pressure, conveyor belts, screens, truck hauling and dumping and open storage piles at its Smithfield coke plant located in George's Township, Fayette County, in such a manner that the air contaminants from these operations are not detectable beyond the plant's property line.

"(3) that the Bortz Coal Company shall on or before November 1, 1969, submit to the Department of Health a plan setting forth the procedures to be used to comply with paragraphs (1) and (2) of this Order. The plan is to contain a detailed description of the methods or devices to be used to control the air pollution."

The Commission in its adjudication of December 1, 1970, affirmed the abatement order of the Department quoted above in all particulars but extended the dates in paragraph (1) to January 1, 1971, and in paragraph (2) to June 1, 1971, and in paragraph (3) to February 1, 1971.

[ 2 Pa. Commw. Page 444]

It is this latter adjudication from which Bortz appeals to this Court.

The record, including the transcript of the hearing before the Commission, reveals that Bortz has owned and operated 70 beehive coke ovens at its Smithfield coke plant for about 50 years. The ovens were built in 1898. Apparently the first discussions between the State air pollution authorities and Bortz concerning alleged air pollution violations by Bortz occurred in 1963. In 1965, Bortz was ordered to file a plan for the control of particulate matter emissions from its ovens. Bortz complied and filed such a plan. In 1969, the problem was again discussed with Bortz by the Region V Air Pollution Control Association.*fn1 Subsequent to the discussion with the Association, the Health Department issued the abatement order.

Bortz raises five issues which will be discussed and ruled upon in the enumerated paragraphs of this opinion.

Because of the fact that for all practical purposes this case represents the first venture of an appellate court of this Commonwealth into what in all probability will become a major development in the law, known generally as environmental law, we believe it would be beneficial to the bar and to the public, to the regulatory agencies, and to the courts, to make several preparatory comments.

Although one would be led to believe from the avalanche of recent publications on the subject of air pollution that it is something new, created by scientists and crusaded by modern youth, it should be pointed out that the law has been concerned with air pollution for centuries. As early as 1306, A.D., the use of "seacoal"

[ 2 Pa. Commw. Page 445]

(as distinguished from charcoal) as fuel was forbidden on penalty of death. City of Portland v. Lloyd A. Fry Roofing Company, 472 P. 2d 826 (1970) and Air Pollution: Its Control and Abatement, Kennedy and Porter; 8 Vand. L. Rev. 854 (1954-55). During her reign, Queen Elizabeth of England forbade the burning of coal in London during sessions of Parliament, and in 1661 A.D., there was a plan to remove all industries in the city of London to its leeward side and to plant sweet-smelling flowers and trees on the windward side. See Fumifugium, National Smoke Abatement Society, Manchester, England (1953). Blackstone (Book III, Chapter 13, pages 167 and 217) describes the legal problems of a lead smelter, the fumes from whose plant were a nuisance, killing the neighboring farmer's corn. See 77 Eng. Rep. 816 and Appeal of Pennsylvania Lead Company, 96 Pa. 116 (1880).*fn2

The point in citing these proofs of prior concern is merely to remind the reader that the law always provided for the protection against private nuisances. There is no doubt that because of the recent notoriety of the condition of the environment that there has been formed a new public policy in this State, as well as in other states of this Nation, that there is need for protection of the public against public nuisances.

That new policy is found in Section 2 of the Air Pollution Control Act, January 8, 1960, P.L. 2119, as amended, by the Act of June 12, 1968, P.L. , No. 92, 35 P.S. 4002, which reads as follows: "It is hereby declared to be the policy of the Commonwealth of Pennsylvania to protect the air resources of the Commonwealth to the degree necessary for the (i) protection

[ 2 Pa. Commw. Page 446]

    of public health, safety and well-being of its citizens; (ii) prevention of injury to plant and animal life and to property; (iii) protection of the comfort and convenience of the public and the protection of the recreational resources of the Commonwealth; and (iv) development, attraction and expansion of industry, commerce, and agriculture."

In carrying out this public policy, the Legislature created the Air Pollution Commission (35 P.S. 4005), under the Department of Health.*fn3 The Commission was directed by the Legislature to establish rules, regulations and standards for the enforcement of the Act. There can be no doubt from a reading of the Act that the legislative intent is to clean the air insofar as is reasonably possible under the police powers granted to the Commonwealth in both the State and Federal Constitutions.

It is well recognized as a principle of American jurisprudence that the Legislature may utilize the establishment of administrative agencies as a part of the legislative process in our tripartite system of government to regulate and control that segment of our society which the Legislature in its wisdom deems necessary of control. See Metropolitan Edison Co. v. P.S.C., 127 Pa. Super. 11, 191 A. 678 (1937). The Legislature may not delegate its legislative function but it may authorize an agency to carry out the legislative intent described in general terms through rules, regulations and standards established by the agency. See Belovsky v. Philadelphia, 357 Pa. 329, 54 A.2d 277 (1947). There are certain constitutional tests to determine whether or not the Legislature has gone too far in its delegation. For example, see Cott Beverage Corp. v. Horst, 380 Pa. 113, 110 A.2d 405 (1955), Commonwealth v. Zasloff, 338 Pa. 457,

[ 2 Pa. Commw. Page 44713]

A.2d 67 (1940), and Harris v. State Board of Optometrical Examiners, 287 Pa. 531, 135 A. 237 (1926). The rules, regulations and standards of the regulatory agency must be reasonable, understandable, available, and must not violate the constitutional rights of any citizen.

Because of the well recognized problems involved in combining in administrative agencies all three functions of a tripartite form of government, viz., legislative, executive and judicial, the agencies and the courts must take care in carrying out their primary function of protecting the public, that they be vigilant to make certain that the individual citizen's rights in property and due process are not violated. Because it is common for the employees of the adjudicating regulatory agency to assume the role of prosecutor, witness and judge of the quasi-judicial functions of the agency, the courts must scrutinize the proceedings, the attitude and approach of the regulatory agency to assure that four centuries of well developed standards of fairness, procedure and substantive law are not washed away with the intense shower of exuberance and well meaning desires. Some environmental lawyers believe that the right to a decent environment may be within the penumbra of the unenumerated natural rights guaranteed by the Ninth Amendment of the United States Constitution. See Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678 (1965). Some lawyers believe that the protection of the environment comes within the public trust doctrine. See 68 Michigan L. Rev. 471 (1970). Only time will tell how far environmental control of the air will be developed, but no matter how it is developed, it must be done within the framework of the law.

We turn now to the five issues raised ...


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