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ROCHEZ BROS. v. COMMONWEALTH PENNSYLVANIA (03/19/75)

decided: March 19, 1975.

ROCHEZ BROS., INC., D/B/A LUCERNE COKE CO., APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLEE



Appeal from the Order of the Environmental Hearing Board in case of In the Matter of: Commonwealth of Pennsylvania, Department of Environmental Resources v. Rouchez Brothers, Inc., d/b/a Lucerne Coke Company, Docket No. 73-367-B.

COUNSEL

Ralph H. German, with him William S. Smith and Houston, Cooper, Speer & German, for appellant.

Eric R. Pearson, Special 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

[ 18 Pa. Commw. Page 139]

This is an appeal filed by Rochez Brothers, Inc., d/b/a Lucerne Coke Company (Lucerne) from an order of the Environmental Hearing Board (Board) dated March 25, 1974 which affirmed the refusal by the Department of Environmental Resources (DER) to approve Lucerne's application to reactivate its beehive coke ovens.

Most of the basic facts are not in dispute. In 1952, 264 beehive coke ovens*fn1 were constructed about one and a half miles northeast of Homer City in the County of Indiana. The ovens are located in a valley along a stream and against a steep hillside which rises for 100 to 200 feet immediately to the north of the coke ovens. The prevailing wind direction is from the south. The coke ovens are located in what may be described as a rural area with about six inhabitated houses located in the village of Tide some 200 yards to the southeast of the operation and an uninhabitated farm now used for the growing of pine trees immediately to the north. The beehive coke ovens were in continuous operation from 1952 until August 11, 1971, except for one short interval. High volatile coal was burned in these coke ovens until

[ 18 Pa. Commw. Page 1401967]

and thereafter low volatile coal (which gives off less emissions) was burned. Originally coal was obtained from a mine in close proximity to the ovens, but later the low volatile coal was obtained from a mine located at Barnesboro some miles away. Between 1965 and August 11, 1971, all but 53 of the ovens had been renovated and repaired by the relining of the ovens on the inside and the rebuilding of the oven walls on the outside.

In the operation of a beehive coke oven, a fire is started inside the oven with wood, oil and a low grade of coal. After the oven reaches the desired temperature of approximately 2,000 degrees Fahrenheit, metallurgical coal is charged into the oven through the trunnel ring. The carbonization of the coal then begins and the oven is partially sealed, allowing a controlled amount of oxygen to enter for the carbonization process. During the first several hours of the process, after the charging of the oven, great amounts of smoke, gases and particulate matter are released into the air. Thereafter the amount of emissions becomes reduced and the process continues from between 72 to 120 hours, after which the discharge door is torn down, the coke sprayed with water and then removed from the oven.

The record indicates that Lucerne's coke ovens, if activated, would produce about 750 tons of metallurgical coke each day from about 1,300 tons of coal (an average yield of about 57%).*fn2 The record in this case shows that the emissions from Lucerne's coke ovens are the minimum emission possible through the use of the best available technology on beehive coke ovens. However, the record also establishes beyond any doubt that there is no technology available at the present time to

[ 18 Pa. Commw. Page 141]

    control emissions from beehive coke ovens, and Lucerne does not contend that its ovens will meet the applicable environmental regulations.

On August 15, 1973, Lucerne submitted an application to reactivate its 264 beehive coke ovens for a minimum period of two years for the purpose of supplying the Jones & Laughlin Steel Corporation (J&L) blast furnaces located at Pittsburgh, Aliquippa and Cleveland. The application noted that the reason the coke ovens had been shut down on August 11, 1971 was that the demand for metallurgical coke had declined, but stated that due to the energy crisis there is now a "dire need" for metallurgical coke. On October 5, 1973 DER refused to approve the application for reactivation of these coke ovens because Lucerne had not provided any information which showed that the beehive coke ovens would meet the limitations set forth in the DER regulations applicable to fugitive emissions.*fn3 Lucerne appealed to the Board admitting that it could not meet the technical standards set forth in the DER regulations but arguing that DER had erred in not taking into account the economic factors involved in the proposed reactivation. In the hearing before the Board Lucerne presented extensive testimony concerning the operation of its coke ovens and the allegedly dire need for this coke in J&L's blast furnace operations. The testimony indicated that J&L might be forced to close down one or more of its blast furnaces unless it is assured of an adequate coke supply, and that if this occurred it would mean the loss of a substantial number of jobs.

In its well-reasoned opinion, the Board made 32 findings of fact, and concluded that DER had not erred in refusing to approve Lucerne's application to reactivate its beehive coke ovens. On appeal to this Court, Lucerne argues that the Board's findings are not supported by

[ 18 Pa. Commw. Page 142]

    substantial evidence, that the Board committed error in not taking into account the economic impact of DER's refusal and lastly, that the regulations involved, with which beehive coke ovens cannot possibly comply, are unconstitutional because they ...


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