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BETHLEHEM STEEL CORPORATION v. COMMONWEALTH PENNSYLVANIA (09/06/78)

decided: September 6, 1978.

BETHLEHEM STEEL CORPORATION
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



Appeals from the Order of the Environmental Hearing Board in case of In the Matter of: Bethlehem Steel Corporation v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 75-017-W and 75-134-W.

COUNSEL

Albert J. Tomalis, Jr., with him Keefer, Wood, Allen and Rahal, for petitioner.

Eugene E. Dice, Assistant Attorney General, for respondent.

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

Author: Bowman

[ 37 Pa. Commw. Page 481]

On September 19, 1972, petitioner, Bethlehem Steel Corporation (Bethlehem), applied to the Department of Environmental Resources (DER) for a variance pursuant to 25 Pa. Code § 141.2 et seq. from regulations promulgated pursuant to the Air Pollution Control Act (APCA), Act of January 8, 1960, P.L. (1959) 2119, as amended, 35 P.S. § 4001 et seq., relating to emissions from draw furnaces operated at its plant in Steelton, Dauphin County.*fn1 See 25 Pa. Code § 123.41 et seq. The application stated specifically that the rate of emissions was, at that time, unknown. See generally Department of Environmental Resources v. Locust Point Quarries, Inc., 27 Pa. Commonwealth Ct. 270, 367 A.2d 392 (1976) (allocatur granted). The variance sought was an extension of time to September 15, 1975, in which Bethlehem proposed to have installed, over the furnace ports, hoods and thermal afterburners to consume the "oily smoke" produced by said furnaces.

On September 24, 1973, DER granted Bethlehem a variance until May 22, 1975, by which time Bethlehem

[ 37 Pa. Commw. Page 482]

    would be required to implement the pollution control plan set forth in its application and to operate its furnaces in compliance with regulations. DER also imposed upon the variance other conditions not here relevant.*fn2

No appeal was taken by Bethlehem from this order.

During October, 1973, Bethlehem completed tests on the emissions from its draw furnaces -- the so-called "Rossnagle" test -- the results of which became available during December, 1973.

On November 19, 1974, DER issued what it denominated as a "Clarification of [25 Pa. Code] § 123.1 -- Prohibition of Certain Fugitive Emissions."*fn3 The pertinent portions of Section 123.1 are as follows:

(a) No person shall cause, suffer, or permit the emission into the outdoor atmosphere of any fugitive air contaminant from any source other than the following:

(9) Other sources and classes of sources determined by [DER] to be of minor significance

[ 37 Pa. Commw. Page 483]

    with respect to the achievement and maintenance of ambient air quality standards or with respect to causing air pollution.

The "Clarification" provided, in part:

Section 123.1 has been mistakenly characterized as an absolute prohibition against certain fugitive emissions. This mistaken interpretation results from reading the initial operative language of subsection (a) of § 123.1 in the absence of the exceptions (1) through (9).

This discussion makes it possible to succinctly state the intent of § 123.1 . . . is to obtain a degree of control of fugitive emissions such that any remaining emission is of minor significance with respect to achievement and maintenance of ambient air quality standards or with respect to causing air pollution.

Armed with its "Rossnagle" test results and this "Clarification," which it believed to be a shift in DER policy from requiring total control to acknowledging the exception in Section 123.1(a)(9), Bethlehem, on November 21, 1974, applied to DER for an exemption pursuant to Section 123.1(a)(9) on the ground that the "Rossnagle" test results did indeed prove that the emissions from its draw furnaces were of "minor significance."

On December 20, 1974, DER, by letter, denied said application, stating:

The Department has not received any information that provides a basis for determining whether the test results obtained by Rossnagle ...


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