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BORTZ COAL COMPANY v. DEPARTMENT ENVIRONMENTAL RESOURCES (01/22/73)

decided: January 22, 1973.

BORTZ COAL COMPANY
v.
DEPARTMENT OF ENVIRONMENTAL RESOURCES



Appeal from the Order of the Environmental Hearing Board in case of In The Matter of: Bortz Coal Company, Georges Township, Fayette County, No. 72-140.

COUNSEL

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

K. W. James Rochow, Assistant Attorney General, with him Michael Alushin, Assistant Attorney General, and Anthony P. Picadio, Assistant Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.

Author: Kramer

[ 7 Pa. Commw. Page 363]

This is an appeal from an Order, dated June 12, 1972, of the Environmental Hearing Board (Board) reinstating and amending an Order of the Air Pollution Commission*fn1 in which the Bortz Coal Company (Bortz)

[ 7 Pa. Commw. Page 364]

    was ordered to operate its beehive coke ovens, at its Smithfield Coke Plant located in Fayette County, in such a manner that emissions from its ovens do not exceed the limits set forth in § 1.3(1) of the Air Pollution Commission Regulation IV. The Order also directed Bortz to submit a plan for such operation by August 1, 1972.

This is the second time this case has been before this Court, and the subject Order of the Board is the result of a remand order issued by this Court on July 9, 1971. For a proper understanding of the holding of this Court in this case, it is essential that the reader refer to our prior Opinion and Order at Bortz Coal Company v. Commonwealth, 2 Pa. Commonwealth Ct. 441, 279 A.2d 388 (1971), for the reason that everything we said there is affirmed herein without reiteration and said Opinion and Order are made a part hereof by reference thereto.

The records made at the original hearing and remand hearing revealed that Bortz has owned and operated approximately 70 beehive coke ovens at its Smithfield Plant for about 50 years. The ovens were built in 1898 and have been in operation since that time. For the past eight or nine years, the Commonwealth's air pollution authorities have been in contact with Bortz concerning the emissions of smoke and particulate matter from the ovens, the culmination of which resulted in various orders of the Commission ordering Bortz to comply with the rules and regulations of what is now known as the Department of Environmental Resources (DER). We remanded the case back to the Commission because of our holding that the Commission had not proven the alleged violation by substantial evidence. The record in the original hearing indicated that the

[ 7 Pa. Commw. Page 365]

Commission's experts had merely made visual observations of the smoke plumes coming from the ovens, while the record indicated that there were acceptable and well-recognized scientific tests available. We there held: "Visual tests and observations are not adequate evidence of a violation where recognized scientific tests are available. . . . This Court cannot close its eyes to the necessity of a regulatory agency proving its case. . . . [W]here there are available established methods for determining violations, those methods must be used." 2 Pa. Commonwealth Ct. at 458-459, 279 A.2d at 398. No appeal was taken from this Court's remand Order.

Subsequent to the original hearing, the Environmental Hearing Board, mandated by Act No. 275, was instituted and organized and the remand hearing was held before P.E. Waters, Esq., one of the three members of the Board, sitting as a Hearing Examiner. (See 71 P.S. § 510-21[f]) At the remand hearing, DER presented evidence through the testimony of four employes of DER, who qualified as experts in their respective fields under the general heading of Air Pollution. Unlike the original hearing, DER presented substantial evidence of air pollution caused by the emissions from Bortz's coke ovens, as measured and determined by the use of a recognized scientific testing device known as a Ringelmann Chart.*fn2 Although DER presented additional testimony concerning the reasons why other tests were not ...


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