Appeal from decree of Commonwealth Court of Pennsylvania, No. 191 Commonwealth Docket, 1971, in case of Commonwealth of Pennsylvania v. Queen Coal Co., Oliver Painter t/a Alverton Fuel Company and Wilmer McGiffin.
Morris J. Solomon, Assistant Attorney General, with him Louis R. Salamon, and William M. Gross, Assistant Attorney Generals, and J. Shane Creamer, Attorney General, for Commonwealth, appellant.
Vincent J. Morocco, with him Leonard A. Redlich, and Redlich, Cassol, Redlich & Morocco, for appellee.
Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Eagen. Mr. Justice O'Brien and Mr. Justice Roberts join in this dissent.
The decree is affirmed by an evenly divided Court. Costs on appellees.
Dissenting Opinion by Mr. Justice Eagen:
This is an appeal from the denial of a preliminary injunction by the Commonwealth Court. At the behest of the Secretary of Environmental Resources, the Commonwealth of Pennsylvania, through the office of the Attorney General, filed a suit in equity seeking preliminary relief to enjoin appellees from operating beehive coke ovens,*fn1 in Mt. Pleasant Township, Westmoreland County, Pennsylvania. The Commonwealth's complaint alleged two violations of the Air Pollution Control Act, Act of January 8, 1960, P. L. (1959) 2119, as amended June 12, 1968, P. L. [ILLEGIBLE WORD], No. 92, 35 P.S. § 4001 et seq. (Supp. 1971), and the rules and regulations promulgated thereunder: (1) operation of an air contamination source after modification, without a permit; (2) violation of Regulation IV because the ovens were emitting
smoke from a combustion unit in excess of the regulatory standard set forth in Regulation IV, which is Ringelmann No. 2. The Commonwealth also alleged that the operation of the ovens created a public nuisance. After studying the record, it is my view that the evidence clearly established that the ovens were emitting smoke in violation of Regulation IV, and this, in itself, required the issuance of the injunction requested.*fn2
The salient facts are these. The beehive coke ovens in controversy were put in operation late in 1969, after approximately sixteen years of nonuse. Immediately after the ovens began operating, residents of the area began to suffer great discomfort due to the noxious odor which was discharged from the ovens as a result of the coking process. A resident of the area, one Helen A. Fitch, lodged a complaint with the Department of Health (the predecessor of the Department of Environmental Resources) and an immediate investigation was undertaken.
The inquiry showed that the ovens were in full operation, and the by-products of the coking process were being discharged directly into the air, without any attempt to filter out the noxious pollutants. A letter was dispatched from the Department requesting that appellees take immediate steps to control the air pollution. One of the appellees responded saying an engineer would be contacted, and plans would be submitted to the Commonwealth showing how the problem would be corrected. Five months later, no steps had been taken to correct the problem, nor had a qualified pollution engineer been consulted.
The following testimony was developed at the hearing before the court below by ...