50 Pa. Commw. 326 | Pa. Commw. Ct. | 1980
Opinion by
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.
Pursuant to Section 9 of the Act,
The elements of the crime of causing air pollution are found in Section 3(5) of the Act,
(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 in*328 imical 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,
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, including witnesses’ observations. Locust Point Quarries, supra; Rushton Mining Co. v. Commonwealth, 16 Pa. Commonwealth Ct. 135, 328 A.2d 185 (1974).
The DER presented testimony below to the effect that no accepted scientific test exists for measuring emissions from an open area source such as the surface mine involved here, and that the tests described
As to the contention that, even if a conviction could rest solely upon subjective evidence, nevertheless, the evidence adduced by the DER here failed to prove beyond a reasonable doubt that the defendant caused air pollution, we must also disagree. The evidence below reveals that the appellant used a drag-line excavating machine to shovel away dirt and shale so as to expose the coal stratum and that the dirt was then dropped from the dragline shovel into dump trucks. According to the testimony of the DER environmental specialist who investigated the alleged air pollution, the discharges of dust could have been avoided by watering down the area during the excavating operations. The DER also produced four witnesses having homes within 500 feet of the appellant’s mine who specifically testified that in August of 1977 they frequently saw large clouds of dust travel from the strip mine onto their properties. According to these witnesses, the clouds of dust were especially thick and bothersome when the dragline shovel dropped its contents from midair into the dump trucks. The record also reveals that these neighbors experienced accumulations of dust both inside and outside their homes; that even inside their homes they were bothered by dust getting in their eyes and mouths; that the accumulation of dust was so severe as to impair food preparation; that dust
As to the contention that the definition of “air pollution” in Section 3(5) of the Act,
And we believe that the specific enumeration of various contaminants in Section 3(5),
Order
And Now, this 2nd day of April, 1980, the order of the Court of Common Pleas of Washington County is affirmed.
35 P.S. §4008.
35 P.S. §4009.
35 P.S. §4003(5).
Id.
Id.
Id.