Appeal from the Adjudication of the Air Pollution Commission of Pennsylvania, Docket No. 70-156, in case of In re: Appeal of North American Coal Corporation.
Heath L. Allen, with him Francis J. O'Gorman, Jr., and Metzger, Hafer, Keefer, Thomas & Wood, and David R. Tomb, Jr., Tomb & Tomb, 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 the result only.
This is an appeal from an adjudication (abatement order) issued by the Air Pollution Commission, appellee (Commission), in effect, ordering the North American Coal Corporation, appellant (North American) to install air pollution control equipment designed to control the emission of particulate matter, within the limits of the Commission's regulations. The Commission's adjudication affirmed the abatement order of the Department of Health issued March 6, 1970.
The pertinent portions of the Health Department's abatement order read as follows:
"(1) That the North American Coal Corporation shall, on or before March 1, 1971, install air pollution control equipment or institute a process change on the air tables located in East Wheatfield Township, Indiana County, Pennsylvania, designed to control particulate matter emissions to within the limits specified in Section 1.3 of Air Pollution Commission Regulation IV.
"(2) That the North American Coal Corporation shall, on and after March 1, 1971, reduce the particulate matter emissions from the air tables located in East Wheatfield Township, Indiana County, Pennsylvania, to a level such that these emissions will not exceed the limits set forth in Section 1.3 of Air Pollution Commission Regulation IV.
"(3) That the North American Coal Corporation shall submit to the Department of Health monthly progress reports, the first report being due on April 1, 1970. Each progress report shall give a detailed account of measures taken to comply with paragraphs (1) and (2) of this order and a schedule for future progress."
The only change which the Commission made to the Health Department's order was the extension of time set forth in paragraph 3 of the order noted above, by extending the compliance date to January 1, 1971.
The record discloses that the appellant owns and operates its Seward Coal Mine, adjacent to the Seward Power Station, in Wheatfield Township, Indiana County. The site of the mine entrance is about one-fifth of a mile from the community of Robindale, where three of the four Commission witnesses reside.
This case involves a somewhat different air pollution problem from the usual smoke cases, in that it involves the emission of particulate coal dust matter from two stacks, 77 1/2 feet in height. These stacks are a part of the operation of two air tables used in the processing of coal. An air table is similar to a screen device in which air is blown by fans through openings in the screen, which literally floats and bounces coal across the screen, leaving refuse material to drop through. In this process, a portion of the product entrapped in the air goes through a 14-foot cyclone process which recovers usable coal and gives off some particulate matter in the air. It is the particulate matter remaining after this process which enters the stacks and is emitted into the outside air. Although there is a dispute in the record concerning the efficiency of the cyclone equipment, both parties agree that the cyclone process does not eliminate 100 percent of the particulate matter.
Appellant raises two issues in this case: It argues (1) that the Commission has not met its burden of proving that appellant's emissions through the two stacks are in excess of the allowable limit specified in the regulations of the Commission; and (2) that the adjudication of the Commission was not based upon substantial evidence sufficient to support its findings.
Interestingly enough, the Commission agrees with the appellant, that the Commission, being the party initiating the proceedings, had the burden of proof in this case. The appellant, however, states that because the Commission is charging it with a violation of the Commission's
regulations that this case is analogous to a criminal case wherein the Commonwealth must prove every essential element of the crime beyond a reasonable doubt. If this case had been brought before a member of a minor judiciary or a court for the purpose of seeking a criminal penalty under Section 9 (35 P.S. 4009) of the Air Pollution Control Act, Act of January 8, 1960, P.L. 2119 et seq., 35 P.S. 4009, there might then be some merit to appellant's contention. However, in this case, the Commission is attempting to enforce an abatement order, after hearing the matter on its merits, based upon an appeal from an adjudication of the Department of Health under Section 5 of the Act (35 P.S. 4005). We agree with the Commission when it states that the comparative degree of proof by which a ...