Appeal from the Order of the Environmental Hearing Board in case of Commonwealth of Pennsylvania, Department of Environmental Resources v. Medusa Corporation, No. 76-085-CP-W; and Medusa Corporation v. Commonwealth of Pennsylvania, Department of Environmental Resources, No. 77-097-W.
William H. Wallace, with him, Michael A. Cyphert; Lloyd R. Persun; William J. Taylor; Kenneth R. Myers; Frank M. Thomas, Jr. ; and, of counsel, Thompson, Hine and Flory; Shearer, Mette & Woodside ; and Morgan, Lewis & Bockius, for petitioner.
Eugene E. Dice, Assistant Attorney General, for respondent.
President Judge Bowman and Judges Crumlish, Jr., Mencer, Rogers, Blatt, DiSalle and Craig. Judges Wilkinson, Jr. and MacPhail did not participate. Opinion by Judge Craig. President Judge Bowman did not participate in the decision in this case. Judge DiSalle did not participate in the decision in this case.
[ 51 Pa. Commw. Page 521]
Medusa Corporation has presented a petition for review of a final adjudication order of the Environmental Hearing Board (EHB), which, after holding hearings upon a civil penalties complaint of the Pennsylvania Department of Environmental Resources (DER) and also upon a DER order appealed by Medusa, imposed violation penalties and a mandate of compliance with the DER order, as more fully discussed below.
[ 51 Pa. Commw. Page 522]
Medusa owns and operates a cement manufacturing facility in York, Pennsylvania, consisting of four kilns with auxiliary equipment, producing portland cement by wet process.
In that process, limestone is ground in the presence of water to form a slurry which is introduced into the kilns and there subjected to heat, resulting in chemical and physical changes which form clinker, a rock-like material in the shape of small balls, which, upon emerging from each kiln, is cooled, mixed with other material and ground into the final form of cement.
Three of the kilns, the gray plant, date from 1955, 1956 and 1969; the fourth kiln, the white plant, began operation in 1963. Each kiln is presently equipped with electrostatic precipitators and an oil-fired burner for preheating the kiln before the introduction of the main heat source, consisting of coal.
Those oil-fired burners were installed in 1973, after DER, pursuant to a 1972 variance application of Medusa, granted Medusa a variance dated February 14, 1973, covering gray plant start-ups, gray plant coolers, white plant steam exhaust and certain fugitive emissions. The variance was requested, and was granted, to extend until December 18, 1973. Among other things, the variance order contained references to the installation of auxiliary heating systems, the activation of the electrostatic precipitators in start-up procedure and the requirement that all sources covered by the variance be brought into compliance on and after December 18, 1973. We will consider details of that variance order below.
On July 7, 1976, DER filed with the EHB the civil penalties complaint against Medusa. As amended on June 16, 1977 and again on October 27, 1977, that complaint sought penalties against Medusa under Section 9 of the Air Pollution Control Act, Act of January 8, 1960, P.L. (1959) 2119, as amended, 35 P.S. § 4009,
[ 51 Pa. Commw. Page 523]
with respect to five counts, the allegations of which can be summarized as follows:
Count I -- hundreds of days of violations as to particulate matter from processes, 25 Pa. Code § 123.13, and as to opacity standards, 25 Pa. Code § 123.41, during start-ups of kilns :
Count II -- twenty days of violations consisting of fugitive emissions contrary to 25 Pa. Code § 123.1;
Count III -- violation of the variance order with respect to the installation of auxiliary heating systems (subsequently not pressed by DER);
Count IV -- violations of 25 Pa. Code § 123.13, concerning particulate emissions from processes during normal operations (a charge subsequently dropped by DER); and
Count V -- air pollution violations, of Section 8 of the Air Pollution Act, 35 P.S. § 4008, and of 25 Pa. Code § 121.7, contrary to standards in 25 Pa. Code §§ 131.2, 131.3.
In the above summary, the emphasis is that of the court. The noncompliance period alleged in the amended complaint extended from December 18, 1973 to October 1, 1977.
Medusa answered the complaint, and the parties exchanged petitions for discovery.
On August 17, 1977, DER issued the DER order which alleged violations as follows: (Numbers refer to the paragraphs of the order, and the emphasis is ours.)
4, 5, 6 -- uncontrolled emissions " during start-ups and reactivations" of the kilns, with precipitators not activated;
7, 8 -- air pollution contrary to ambient air standards as in 25 Pa. Code §§ 131.2, 131.3;
9, 10 -- emissions from gray plant kilns " during normal operations " with precipitators activated,
[ 51 Pa. Commw. Page 524]
contrary to 25 Pa. Code § 123.13 (charge subsequently dropped by DER);
11 -- violation of variance order through failure to install auxiliary heating system ...