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RUSHTON MINING COMPANY v. COMMONWEALTH PENNSYLVANIA (11/15/74)

decided: November 15, 1974.

RUSHTON MINING COMPANY, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Centre County in case of Commonwealth of Pennsylvania v. Rushton Mining Company, No. 1973-133. Transferred to the Commonwealth Court of Pennsylvania from the Superior Court of Pennsylvania, January 14, 1974.

COUNSEL

Richard M. Sharp, for appellant.

Robert E. Yuhnke, Assistant Attorney General, for appellee.

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

Author: Bowman

[ 16 Pa. Commw. Page 137]

Appellant, Rushton Mining Company, operates a deep mine in Rush Township, Centre County. On July 11, 1972, the Department of Environmental Resources (DER) filed a criminal complaint charging appellant with violations of the Air Polluton Control Act, Act of January 8, 1960, P.L. (1959) 2119, as amended, 35 P.S. § 4001 et seq. (Supp. 1974-1975) (Act). This complaint alleged that on or about June 9, 1972, the appellant, by the emission of coal dust into the atmosphere, caused "air pollution" as defined in the Act. Specifically, appellant was charged under Section 8 of the Act, 35 P.S. § 4008, with failing to comply with Regulation 121.7 of the Rules and Regulations of DER, 25 Pa. Code § 121.7. The complaint further charged that appellant, in violation of Section 8, failed to comply with an order issued to appellant on June 11, 1970, by the Department of Health, the predecessor of DER. This order, in pertinent part, prohibited appellant from causing air pollution in the operation of its facilities in Rush Township.

Pursuant to Section 9 of the Act, 35 P.S. § 4009, summary proceedings were held before a justice of the peace. Appellant was found guilty of the offense charged and was sentenced to pay the maximum fine of $500.00. An appeal was taken to the Court of Common Pleas of Centre County, where a de novo hearing was held. The Court of Common Pleas affirmed the summary conviction and refused appellant's motion in arrest of judgment, from which order an appeal was taken to the Pennsylvania Superior Court, which, on appellant's motion, transferred the appeal to this Court.

The correlative elements of the criminal offense of "causing air pollution" are found in the Act and a regulation adopted under its authority. DER Regulation

[ 16 Pa. Commw. Page 138121]

.7 states that "[n]o person shall cause, suffer, or permit air pollution as that term is defined in the act."*fn1 Section 3(5) of the Act, 35 P.S. § 4003(5), defines "air pollution" as follows: "(5) 'Air pollution.' The presence in the outdoor atmosphere of any form of contaminant including but not limited to the discharging from stacks, chimneys, openings, buildings, structures, open fires, vehicles, processes, or any other source of any smoke, soot, fly ash, dust, cinders, dirt, noxious, or obnoxious acids, fumes, oxides, gases, vapors, odors, toxic or radioactive substances, waste, or any other matter in such place, manner, or concentration inimical or which may be inimical to the public health, safety, or welfare or which is, or may be injurous to human, plant or animal life, or to property, or which unreasonably interferes with the comfortable enjoyment of life or property." (Emphasis added.) Section 8 of the Act, 35 P.S. § 4008, lists the various criminal offenses: "It shall be unlawful to fail to comply with any rule or regulation or to fail to comply with any order of the department, to violate or to assist in the violation of any of the provisions of this act or rules and regulations adopted hereunder . . . ." (Emphasis added.) Sections 3(5) and 8 of the Act, as they appear above, are the provisions of the law as it existed at the time of appellant's alleged offense. Both sections were subsequently amended by the Act of October 26, 1972, P.L. , No. 245. Regulation 121.7 has been in the form set forth above since its adoption.

Appellant appeals from its conviction on three grounds: (1) that Regulation 121.7 is improper and

[ 16 Pa. Commw. Page 139]

    unenforceable in that, at the time of appellant's alleged offense, the General Assembly did not intend the definition of "air pollution" as contained in Section 3(5) to be the basis for a criminal offense under the Act; (2) that evidence in the form of testimony as to visual observations cannot support a conviction under the Act; and (3) that the scientific evidence introduced by the Commonwealth in the lower courts was irrelevant to show that emissions from appellant's ...


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