Appeal from the Order of the Court of Common Pleas of Cumberland County in case of Commonwealth v. Locust Point Quarries, Inc., No. 431 Criminal 1975.
Eugene E. Dice, Assistant Attorney General, for appellant.
John M. Eakin, for appellee.
President Judge Bowman and Judges Mencer and Blatt, sitting as a panel of three. Opinion by President Judge Bowman.
[ 27 Pa. Commw. Page 271]
Appellee, Locust Point Quarries, Inc., operates a limestone quarrying plant in Silver Spring Township, Cumberland County. On February 4, 1975, the Department of Environmental Resources (DER) executed a criminal complaint charging appellee with four counts of violating Chapter 123, Section 123.1 of the Rules and Regulations of the DER (Regulations), 25 Pa. Code § 123.1, contrary to Section 8 of the Air Pollution Control Act (Act), Act of January 8, 1960, P.L. (1959) 2119, as amended, 35 P.S. § 4008. Specifically, the complaint alleged that on August 21, 26 and 28, and on September 10, 1974, appellee did "cause, suffer or permit the emission into the outdoor atmosphere of a fugitive air contaminant (said contaminant being limestone dust) from the . . . operations located at its plant. . . ."
Pursuant to Section 9 of the Act, 35 P.S. § 4009, summary proceedings were held before a district justice. Appellee demurred to the Commonwealth's evidence and was found guilty on all counts. A fine of $2,000.00 was imposed. An appeal was taken to the Court of Common Pleas of Cumberland County where a de novo hearing was held and the conviction reversed. It is from this decision that DER appeals.
The Commonwealth's case at the de novo hearing, where again appellee demurred, consisted of testimony
[ 27 Pa. Commw. Page 272]
from two "environmental protection specialists"*fn1 and three photographs purporting to illustrate the allegedly illegal fugitive emissions. The record shows that on the four dates in question fugitive emissions of limestone dust were observed emanating from various points along the process.*fn2 However, no measurements were taken of these emissions as to the amount of particulate matter involved, the distance it traveled, or over how long a period of time it was produced.
Judge Weidner of the court below, in his decision to reverse the summary conviction, found that fugitive emissions had indeed been present as alleged, but reasoned that proof of a violation of Section 123.1 of the Regulations could not support a criminal conviction without a concurrent showing of "air pollution" as defined in Section 3(5) of the Act, 35 P.S. § 4003(5). We affirm the decision of the court below, but shall not impose upon DER the burden of proving "air pollution" in every prosecution brought under Section 123.1. See Commonwealth v. Harmar Coal Co., 452 Pa. 77, 306 A.2d 308 (1973).
To dispose of this appeal it is necessary to examine the language of the Act and those regulations promulgated pursuant to ...