ELR Citation: ELR 20393
No(s). 297 C.D (Pa. Commw. Ct. Jul 9, 1971)

Air Pollution Commission's abatement order cannot stand where hearing examiner's finding that petitioner's coke ovens violated state air pollution standards was based upon visual observations of expert witness unaided by Ringelmann Smoke Chart or other available scientific methods for determining smoke and particulate discharge. Substantial evidence requirement for commission decision not met in such instance. Hearing examiner also erred in failing to admit economic data from company charged with violating air pollution standards because such data could have been relevant to establishment of compliance date. Case remanded to Commission for establishment of violations through available tests or dismissal of abatement order.

Pennsylvania Air Pollution Control Act that adequately defines both the purpose of the regulation and the subject to be regulated and invests Commission with authority for devising appropriate regulatory standards is not an unconstitutional delegation of legislative authority. Despite fact that Commission regulations as applied might require beehive coke over operator in business since 1898 to shut down, this does not constitute confiscation of property without due process because there is no prescriptive right to injure others. Exemption of government bodies from penalty section of Act does not constitute invidious discrimination in violation of Due Process Clause of Fourteenth Amendment

Counsel for Bortz Coal Company:
Fred C. Adams
Ralph K. Barclay
Coldren and Adams
Gallatin National Bank Bldg.
Uniontown, PA 15401
(412) 437-2711

Counsel for Pennsylvania:
Morris J. Solomon
William M. Gross Assistant Attorneys General
Harrisburg, PA 17105
(717) 787-2837

Judge Manderino concurs in result only.