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decided: January 24, 1979.


No. 452 January Term 1977, C.D. 1976 affirming the Order of the Court of Common Pleas of Cumberland County at 431 Criminal 1975.


Robert E. Yuhnke, Eugene E. Dice, Asst. Attys. Gen., Harrisburg, for appellant.

John M. Eakin, Mechanicsburg, for appellee.

Eagen, C. J., and Roberts, Nix, Manderino and Larsen, JJ. Pomeroy, former J., did not participate in the consideration or decision of this case. O'Brien, J., did not participate in the decision of this case.

Author: Eagen

[ 483 Pa. Page 353]


Appellee, Locust Point Quarries, Inc. (Quarry) was charged with four counts of violating 25 Pa.Code § 123.1,*fn1 a regulation of appellant, Commonwealth of Pennsylvania, Department of Environmental Resources. Section 4008 of the Air Pollution Control Act*fn2 provides that failure to comply with a regulation adopted pursuant to the Act shall be unlawful, and Section 4009(a) sets forth penalties for conviction of summary offenses which include offenses defined in Section 4008. After a hearing before a district justice in Hampden Township, Quarry was convicted on all four counts, and the court imposed a $2,000 fine and costs.*fn3 Quarry appealed from the decision pursuant to Pa.R.Crim.P. 67 and received a de novo hearing in the Court of Common Pleas of Cumberland County in July of 1975.

[ 483 Pa. Page 354]

After the Commonwealth presented its testimony to the court, Quarry demurred to the evidence. The court sustained the demurrer, holding that, although the Commonwealth witnesses had observed and documented violations of the regulation in the nature of fugitive emissions, the Commonwealth failed to prove an essential element of the cause of action, namely that these emissions had caused or contributed to a condition of air pollution. Commonwealth v. Locust Point Quarries, Inc., 26 Cumb. 20, 72 Pa.D. & C.2d 700 (1975).

The Commonwealth appealed from the order of the Court of Common Pleas to the Commonwealth Court which held a violation of Section 123.1 had been proven. However, the court construed the Department of Environmental Resources regulations to require that Sections 123.1 and 123.13*fn4 be read together and, after finding a failure to prove a violation of Section 123.13, affirmed the order of the Court of Common Pleas. Commonwealth v. Locust Point Quarries, Inc., 27 Pa. Commw. 270, 367 A.2d 392 (1976).

The Commonwealth filed a petition for allowance of appeal to this Court. The petition was granted.

The factual background is as follows:

Robert M. Fink, an "environmental protection specialist" with the Department of Environmental Resources, Bureau of Air Quality and Noise Control, visited Quarry to evaluate air contaminant emissions on four separate days: August 21, 1974, August 26, 1974, August 28, 1974, and September 10, 1974. On each occasion, after obtaining permission to survey the operation, he observed fugitive dust emissions*fn5 from

[ 483 Pa. Page 355]

    several areas of the limestone processing facilities.*fn6 Since the action was terminated in the Court of Common Pleas before Quarry presented any evidence, no factual disputes are presently involved. Rather, the controversy centers on the proper construction to be given the version of 25 Pa.Code § 123.1 in effect at the time of the alleged violations.*fn7

The Commonwealth contends sufficient evidence to support a conviction for violation of Section 123.1 was presented. Quarry contends that regulation standing alone is unreasonable and is defective unless read together with 25 Pa.Code § 123.13. In the alternative, Quarry urges the construction of Section 123.1 adopted by the trial court, namely fugitive emissions must be proven to cause or contribute to a condition of air pollution if they are to give rise to criminal liability.

The Commonwealth Court held that Section 123.13 of the regulations could not be said with certainty to exclude fugitive emissions of particulate matter from its scope, and that it, read together with Section 123.1, would therefore be applicable to fugitive emissions of dust. This conclusion is erroneous for several reasons.

First, it does not comport with principles set forth in the Statutory Construction Act.*fn8 Section 1924 of that Act provides the headings affixed to divisions of regulations, while

[ 483 Pa. Page 356]

    not controlling, are a useful aid in construction. The headings of the divisions of Chapter 123 of Title 25 of the Pennsylvania Code clearly separate "fugitive emissions" from "particulate matter emissions."*fn9 Further, while the definitional provisions of the regulations do not exclude fugitive air contaminants from the definition of particulate matter, they also do not define fugitive air contaminants in terms of particulate matter only.*fn10 Thus, neither term subsumes the other with regard to the material emitted since a fugitive air contaminant is set apart as any air contaminant emitted other than through a flue. Thus, a fugitive emission is an emission of any air contaminant in a specific manner, and the term is applicable not just to particulate matter, but also to sulfur compound, odor, and visible emissions if emitted other than through a flue. Section 1933 of the Statutory Construction Act provides that, when a general provision and special provision of a statute are in conflict, the two shall be construed, if possible, so as to give effect to both. Therefore, the special treatment accorded by the regulations to emission of fugitive air contaminants must be given deference. This conclusion is further supported by Section 1921(a) of the Statutory Construction Act, which provides that a statute is to be construed, if possible, to give effect to all of its provisions. The construction adopted by the Commonwealth Court would render Section 123.1 ineffectual and is, therefore, unacceptable.

Policy considerations as well suggest the rulemakers intended a special regulation for fugitive emissions. Approval of the State Implementation Plan required by the federal

[ 483 Pa. Page 357]

Clean Air Act*fn11 is contingent upon inclusion in the plan of requirements for installation of equipment by owners and operators of stationary sources to monitor emissions from those sources.*fn12 To that effect, Section 4004(2.2) of the Air Pollution Control Act places a duty on the Department of Environmental Resources to require the owner or operator of an air contamination source to install, use, and maintain air contaminant monitoring equipment as the Department may prescribe. Section 4005 of the Act empowers the Environmental Quality Board to adopt rules and regulations prohibiting or regulating any process or source and requiring installation of specified control devices or equipment. Section 123.1 is a technology-forcing regulation, that is, it evidences an intent to pressure owners and operators of sources to either eliminate unmeasurable emissions or to make them measurable. In light of the policy in favor of making emissions of air contaminants measurable and the uncontroverted testimony of two Commonwealth witnesses that rates of fugitive emissions are not measurable by any existing scientific device, the rulemakers clearly intended Section 123.1 to stand alone.

Finally, the Department of Environmental Resources amended 25 Pa.Code § 121.8 subsequent to this controversy "[t]o clarify the meaning in light of a recent Commonwealth Court decision which did not construe that section in the way the agency intended it to be construed."*fn13 [Emphasis

[ 483 Pa. Page 358]

    added.] The amendment specifically directs compliance with Section 123.1 without regard to §§ 123.11-123.13.*fn14 Clearly, the prohibition of fugitive emissions was intended to be effective independent of Section 123.13.

Quarry urges, as an alternative, the construction adopted by the trial court, namely that the Commonwealth must prove the emissions in question caused or contributed to a condition of air pollution. This construction is also unacceptable, once the regulation is considered in the proper context.

The Commonwealth is committed to the conservation and maintenance of clean air by Art. I, § 27 of the Pennsylvania Constitution.*fn15 To that effect, through Section 4002 of the Air Pollution Control Act, the legislature has declared as policy the protection of air resources to the degree necessary for the protection of the health, safety and well-being of the citizens; the prevention of injury to plant and animal life and property; the protection of public comfort and convenience and Commonwealth recreational resources; and the development, attraction and expansion of industry, commerce, and agriculture. In sum, protection of air resources is a matter of highest priority in the Commonwealth. See Commonwealth v. Bethlehem Steel Corporation, 469 Pa. 578,

[ 483 Pa. Page 359367]

A.2d 222 (1976), cert. denied, 430 U.S. 955, 97 S.Ct. 1600, 51 L.Ed.2d 804 (1977).

Moreover, the United States Congress has developed a national policy of air cleanup and protection which is implemented by the Clean Air Act.*fn16 After several attempts to gain the voluntary cooperation of the states in attacking the deteriorating quality of the ambient air failed, the Act was amended in 1970 to establish national ambient air quality standards. The states were required to submit plans for achieving those standards within a prescribed time period to the E.P.A. Administrator for approval. Pennsylvania's Air Pollution Control Act and the regulations promulgated pursuant to the Act are the mechanism by which the Commonwealth plans to meet its responsibilities. The amendments reflect the seriousness of the Congressional intent to reduce the threat to public health and safety posed by air pollution. They are a "drastic remedy to what was perceived as a serious and otherwise uncheckable problem of air pollution," Union Electric Company v. E. P. A., 427 U.S. 246, 256, 96 S.Ct. 2518, 2525, 49 L.Ed.2d 474 (1976), and were intended to "tak[e] a stick to the States." Train v. Natural Resources Defense Council, 421 U.S. 60, 64, 95 S.Ct. 1470, 1474, 43 L.Ed.2d 731 (1975). The requirements of the amendments "are of a 'technology-forcing character,' and are expressly designed to force regulated sources to develop pollution control devices that might at the time appear to be economically or technologically infeasible." Union Electric v. E. P. A., 427 U.S. supra at 257, 96 S.Ct. at 2525. [Citation omitted.] The federal regulations under the Act place a duty in certain instances on the states to formulate a "control strategy" as part of the state implementation plan which takes future increases in air contaminants into account in its formulation of current pollution control measures.*fn17

[ 483 Pa. Page 360]

The complexity of the problems to be solved and the need for a broad control strategy dictate decisions must be made by those possessing the necessary technical expertise. In the instant case, the Department of Environmental Resources is responsible for formulation, implementation, and enforcement of the state plan. "Courts are not scientific experts in the field of air pollution and should not be called upon to solve the scientific problems which the regulators and regulated should solve." Commonwealth v. United States Steel Corporation, 15 Pa. Commw. 184, 190, 325 A.2d 324, 328 (1974). The administrative process provides for public comment and public hearings at the stage when adoption of regulations is being considered and intervention of affected parties would be most fruitful.*fn18 When the Environmental Quality Board promulgated the regulation*fn19 prohibiting certain fugitive emissions, it had already made a determination that such emissions cause or contribute to a condition of air pollution.

Because regulations implementing the Air Pollution Control Act are promulgated pursuant to a grant of legislative power, they enjoy a presumption of reasonableness. The courts have refused to substitute their own judgment for that of agencies possessing technical expertise absent a showing the agency arbitrarily and unreasonably exercised the police power. See Commonwealth v. Harmar Coal Company, 452 Pa. 77, 306 A.2d 308 (1973). The regulation in question, Section 123.1, is reasonably understandable and

[ 483 Pa. Page 361]

    specific, and its publication gave notice to the citizens of the Commonwealth. Aside from enumerated exceptions, fugitive emissions are prohibited because the Board determined they cause air pollution.

Therefore, Quarry's challenge to the sufficiency of the evidence must fail. The Commonwealth presented two witnesses, "environmental protection specialists," who testified to visual observations of fugitive emissions from the quarry operation and also presented three photographic exhibits. The Commonwealth Court has ruled that, if scientific tests are available, fairness requires they be used to measure the rate of emissions from a source, but, when no such tests are available,*fn20 proof of violations must depend upon the weight of the evidence produced. Compare Bortz Coal Company v. Commonwealth, 2 Pa. Commw. 441, 279 A.2d 388 (1971), appeal after remand, 7 Pa. Commw. 362, 299 A.2d 670 (1973) [Commonwealth may not establish violation by visual observations of employee when scientific tests are available] with Rushton Mining Co. v. Commonwealth, 16 Pa. Commw. 135, 328 A.2d 185 (1974) [scientific evidence not exclusive means of proving violation of air pollution regulation].

Underlying Quarry's contentions regarding the proper construction of Section 123.1 is the assumption that the regulation standing alone is unreasonable; however, Quarry has not properly challenged the reasonableness of the regulation. A proper challenge would allege the regulation is not rationally related to the legitimate state objectives set forth in Section 4002 of the Air Pollution Control Act and mandated by the Clean Air Act Amendments.*fn21 Such a challenge must be based upon a claim that the regulation is "unnecessarily stringent and unnecessary for the protection of the public health, safety and welfare."

[ 483 Pa. Page 362]

The order of the Commonwealth Court is vacated and the record is remanded to the trial court for further proceedings consistent with this opinion.

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