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MIDWAY COAL COMPANY v. COMMONWEALTH PENNSYLVANIA (04/02/80)

decided: April 2, 1980.

MIDWAY COAL COMPANY, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, APPELLEE



Appeal from the Order of the Court of Common Pleas of Washington County in case of Department of Environmental Resources, Commonwealth of Pennsylvania v. Midway Coal Company, No. 1099 of 1977.

COUNSEL

David R. Cashman, of Cauley, Birsic & Conflenti, for appellant.

Thomas Y. Au, Assistant Attorney General, for appellee.

Judges Wilkinson, Jr., Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt. President Judge Bowman did not participate in the decision in this case. Judge DiSalle did not participate in the decision in this case.

Author: Blatt

[ 50 Pa. Commw. Page 327]

Appellant, Midway Coal Company, operates a strip mine in Washington County near McDonald, and on October 3, 1977 the Department of Environmental Resources (DER) filed a criminal complaint charging it with violating 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 DER alleged that the appellant caused the discharge of airborne dust from its property during the month of August, 1977 so as to "cause air pollution" under Section 8 of the Act.*fn1

Pursuant to Section 9 of the Act,*fn2 summary proceedings were held before a district justice and on November 14, 1977 the appellant was convicted of violating the Act and received the maximum fine of $100.00. It appealed to the Court of Common Pleas of Washington County which, after a de novo hearing, affirmed the conviction. It has now appealed here pursuant to our appellate jurisdiction under Section 762(a)(2) of the Judicial Code, 42 Pa. C.S. § 762(a)(2).

The elements of the crime of causing air pollution are found in Section 3(5) of the Act,*fn3 which 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

[ 50 Pa. Commw. Page 328]

    or which may be inimical to the public health, safety, or welfare or which is, or may be injurious to human, plant or animal life, or to property, or which unreasonably interferes with the comfortable enjoyment of life or property.

The appellant argues: (1) that a conviction for causing air pollution cannot rest on the subjective testimony of witnesses because DER regulations promulgated under the Act provide specific scientific tests for measuring airborne particulates to determine a violation; (2) that, even if subjective testimony is admissible, DER failed to prove a violation here beyond a reasonable doubt; and (3) that the definition of "air pollution" in Section 3(5) of the Act,*fn4 is unconstitutionally vague.

As to the first contention, it has been held that, if an acceptable scientific test is available to measure the rate of emissions from a pollution source, proof of a violation of the Act must include evidence of such a test. Department of Environmental Resources v. Locust Point Quarries, Inc., 483 Pa. 350, 396 A.2d 1205 (1979); Bortz Coal Co. v. Commonwealth, 2 Pa. Commonwealth Ct. 441, 279 A.2d 388 (1971). On the other hand, it has also been held that, if no scientific test is available to measure the alleged pollution, proof of a violation of the Act may rest on the evidence as a whole, ...


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