7 Pa. Commw. 429 | Pa. Commw. Ct. | 1973
Opinion by
This is an appeal from an Order dated May 31, 1972 (as amended on June 1, 1972), issued by the Environmental Hearing Board (Board) assessing a “civil penalty” in the amount of $5,000 against the United States Steel Corporation (USS), the Board having concluded that USS had discharged from one of its facilities oils constituting industrial waste in violation of Sections 307 and 401 of The Clean Streams Law, Act of June 22, 1937, P. L. 1987, as amended, 35 P.S.
By coincidence, and as a matter of interest, we note that the Act of December 3, 1970, P. L. 834, No. 275, 71 P.S. §§510-1 et seq., which made so many changes in The Administrative Code of 1929, Act of April 9, 1929, P. L. 177, 71 P.S. §§51 et seq., became effective on the same date that the alleged violation in this case was charged, namely December 3, 1970. On that date, the Legislature provided for a separate “Environmental Hearing Board” by virtue of Section 20 of Act No. 275 (71 P.S. §510-21), in which section a hearing procedure was established, and under which DER could bring its charges against anyone alleged to be in violation of any of the Acts within the jurisdiction of DER. The Board was given the authority to make adjudications, together with the power to appoint hearing examiners. The Board, however, did not come into exist
The Legislature anticipated the problems which might arise during the transition period when so many of the administrative agencies were being reformed and regrouped, and it provided, in Section 35 of Act No. 275 (effective January 19, 1971) at 71 P.S. §510-108 (b), that: “All powers granted by this act to the Environmental Hearing Board shall be exercised by the Department of Environmental Resources until the Governor has issued his proclamation stating that the Environmental Hearing Board is organized and ready to perform the powers, duties and responsibilities granted to it by this act.” The reason for this section is obvious; the Legislature realized that it could not hold all of such environmental problems in a hiatus or an undeclared moratorium until the Environmental Hearing Board was formally organized. It authorized DER to proceed as it had, under prior statutes. In view of the fact that the Board is specifically permitted to hold hearings through appointed hearing examiners, and did so in this case, we conclude that there has been no depletion of any rights under the theory of due process of law to USS in this case.
We have reviewed very carefully the entire proceeding and find that if was accomplished in a fair maimer. USS was provided with all of the notices, opportunities and rights to which it was entitled in this case. In administrative law, it is quite common for testimony
The record in this case establishes that on October 7, 1970, USS secured the appropriate permits from DER for the construction of a water treatment facility intended to treat the effluent contained in its outfall 3-28, running into the Monongahela River. On December 3, 1970, this facility was still under construction, and it became operational on March 25, 1971.
On or about December 3, 1970, officials of DER received reports of a water pollution condition on the Monongahela River somewhere between the Homestead and Rankin Bridges. On that date, DER sent one of its environmental protection specialists, Ms. Margaret Belli (Belli), to investigate. Belli, together with a representative of the United States Coast Guard, proceeded downstream in a small motor boat. As they approached the Pittsburgh and Lake Erie Railroad Bridge, the southerly pier of which is close to outfall 3-28, they noticed an “iridescent” slick or “sheen” on the water. Upon investigation, Belli and the Coast Guardsman, both of whom were witnesses, observed brownish-black specks, or nodules, in a fluid running at the rate of about 2,000 gallons per minutes, which, when combined with the river water, spread out into larger iridescent areas flowing downstream. Belli took three samples of the river water, under what is described as a “grab sample” technique. Under this technique, a bottle about seven inches high, designed to contain about a pint of liquid, is pushed under the surface until it is filled within about one-quarter inch
Belli and the Coast Guardsman appeared immediately after their investigation at the plant site and gained admittance to the plant. They met at least two USS personnel who had some authority in pollution matters. Neither Belli nor the Coast Guardsman was
On the merits of the case, USS relies upon an argument developed through three opinions of this Court, namely, A. P. Weaver & Sons v. Sanitary Water Board, 3 Pa. Commonwealth Ct. 499, 284 A. 2d 515 (1971) ; wealth Ct. 441, 279 A. 2d 388 (1971); and North, American Coal Corporation v. Commonwealth, 2 Pa. Comerican Coal Corporation v. Commonwealth, 2 Pa. Commonwealth Ct. 469, 279 A. 2d 356 (1971). In the A. P. Weaver case, we held that DER would be held to the burden of supporting its allegations by “substantial evidence.” We reiterate everything we said there. In this case, the record made presents adequate, substantial evidence from which a reasonable man could conclude that the discharge from USS outfall 3-28 contained sufficient oily substance so as to cause a heavy iridescence in violation of Section 307 of The Clean Streams Law (35 P.S. §691.307). This section reads
The first section of The Clean Streams Act sets forth the definition of industrial waste. At 35 P.S. §691.1, it is stated: “‘Industrial waste’ shall be construed to mean any liquid, gaseous, radioactive, solid or other substance, not sewage, resulting from any manufacturing or industry, or from any esablishment, as herein defined. . . . ‘Industrial waste’ shall include all such substances whether or not generally characterized as waste.”
Article 600, Section 10 of the Bules and Regulations of the Sanitary Water Board (since the reorganization, now adopted by DEB) reads as follows: “Waste waters discharged to the waters of the Commonwealth shall show no more than a slight iridescence and shall at no time contain more than 30 ppm of oil or such lesser amount as the Board may specify for a particular stream as being necessary for the proper I>rotection of the public interests therein.”
As the Board concluded and USS contended, the record does not permit a finding of the oil content in the discharge from outfall 3-28, because Belli was not able to obtain a sample directly from the flow of that effluent. Somehow USS has interpreted our opinions in Bortz, supra, and North American Coal, supra, to mean that failure to do the impossible will prohibit DEB from enforcing the law and its rules and regulations. This Court has never intended such a result.
Without reservation, our review of the record made in this case clearly establishes that in addition to the visual observations, the Commonwealth investigator obtained sufficient credible evidence which was later scientifically proven to contain sufficient effluent at the point of discharge so as to establish the violation alleged and found by DER and the Board in this case. The detailed explanation of the procedures carried out by Belli and her partner at the three points, mentioned hereinbefore, is a reasonable approach to the presentation of a prima facie case of a violation. Upon the presentation of such evidence, it was incumbent upon the respondent, USS, to either destroy or weaken this
We conclude, therefore, that the record in this case supports, with substantial evidence, the findings and conclusions of the Board that USS on December 3, 1970, at its outfall 3-28 violated Section 307 of The Clean Streams Law and DEB’s Begulation Article 600, §10. In passing, we note that the Board concluded that USS was also in violation of Section 401 of The Clean Streams Law, 35 P.S. §691.401, which reads: “It shall be unlawful for any person or municipality to put or place into any of the waters of the Commonwealth, or allow or permit to be discharged from property owned or occupied by such person or municipality into any of the waters of the Commonwealth, any substance of any kind or character resulting in pollution as herein
The first section of the Act, 85 P.S. §891.1, defines pollution as follows: “ ‘Pollution’ shall be construed to mean contamination of any waters of the Commonwealth such as will create or is likely to create a nuisance or to render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic, municipal, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life, including but not limited to such contamination by alteration of the physical, chemical or biological properties of such waters or change in temperature, taste, color or odor thereof, or the discharge of any liquid, gaseous, radioactive, solid or other substances into such waters. The board shall determine when a discharge constitutes pollution, as herein defined, and shall establish standards whereby and wherefrom it can be ascertained and determined whether any such discharge does or does not constitute pollution as herein defined.”
USS contends that because the original complaint does not specifically mention Section 401 of the Act as being a charge of the violation, it was improper for the Board to hold USS in violation of such an unspecified section of The Clean Streams Law. USS is correct in its contention, if the complaint does not put it on notice that it is being charged with such a violation. The problem with USS’s contention, however, is that paragraph 4 of the complaint is sufficient in content, although admittedly general in nature, to put USS on notice that it was in violation of the provisions of Section 401. If we were in the business of rendering advice to DER, we would recommend that it specifically mention each and every section of which it charges a citizen of being in violation — rather than relying on general statements. It could happen in a case that the
The last contention of USS creates a more difficult problem for this Court. That problem arises out of the fact that when the adjudication was issued on May 31, 1972, the civil penalty found and assessed by tbe Board was set at $2,000. This figure was filed and published. The following day a correction was made to the adjudication amending it to read “$5,000” in place of the “$2,000” figure. The order attached to the adjudication indicates that “5” was superimposed upon the “2”, and the “2” was not fully erased. There is no explanation on the record whatsoever for this discrepancy, and there is no reason given for the increase in the civil penalty finally assessed.
The authority for civil penalties is found in Section 605 of the Act, 35 P.S. §691.605, wherein it is stated: “In addition to proceeding under any other remedy available at law or in equity for a violation of a provision of this act or a rule or regulation of the board or an order of the department, the board, after hearing, may assess a civil penalty upon a person or municipality for such violation. Such a penalty may be assessed whether or not the violation was wilful. The civil penalty so assessed shall not exceed ten thoxisand dollars ($10,000) plus five hundred dollars ($500) for each day of continuing violation. In determining the amount of the civil penalty the board shall consider the wilfullness of the violation, damage or injury to the waters of the Commonwealth or their xises, cost or restoration, and other relevant factors.” The only mention in the adjudication concerning the basis for the civil penalty is the Board’s reference to its assertion that the violation need not be wilfxil for the assessment
We therefore
Obdeb
And Now, this 6th day of February, 1973, based upon the foregoing opinion, the within matter is remanded back to the Environmental Hearing Board for the purpose of amending its final order dated May 31, 1972, to be consistent with its first published conclusions in its adjudication so that the civil penalty is set at $2,000, with all other provisions of said order to remain as stated therein.
See West Penn Power Company v. Pa. Public Utility Commission, 174 Pa. Superior Ct. 123, 100 A. 2d 110 (1953).