§ 123.41. Limitations.
A person may not permit the emission into the outdoor atmosphere of visible air contaminants in such a manner that the opacity of the emission is either of the following:
(1) Equal to or greater than 20% for a period or periods aggregating more than 3 minutes in any 1 hour.
(2) Equal to or greater than 60% at any time.
The provisions of this § 123.41 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended March 3, 1972, effective March 20, 1972, 2 Pa.B. 383.
Notes of Decisions
Denial of Application
On appeal from the Departments refusal to grant applicant permission to reactivate certain coke ovens, where the appellant does not show that the oven would meet the limitations in this title, but shows only the dire need for the coke to be produced, the scope of review is limited to whether constitutional rights were violated, an error of law committed or any necessary finding of fact not supported by the evidence. Rochez Brothers, Inc. v. Department of Environmental Resources, 334 A.2d 790 (Pa. Cmwlth. 1975).
The Department is required to deny an application for reactivation of beehive coke ovens, regardless of economic consequences, when the application does not provide any information which would show that the ovens would meet the limitations applicable to fugitive emissions, and constitutional rights are not violated even though there is no known method to operate beehive coke ovens in compliance with the regulations. Rochez Brothers, Inc. v. Department of Environmental Resources, 334 A.2d 790 (Pa. Cmwlth. 1975).
There is no violation of procedural due process where an order to make certain changes in coke oven operations does not place new or increased legal duties on the operator but only redefines and mitigates what had been an immediate, current legal duty under the regulations and a compliance schedule is specified and no variance request is made. Commonwealth v. Crucible, Inc., 65 Pa. D. & C.2d 151 (1973).
Failure to Appeal
Where the party is aggrieved by the Department order requiring compliance with 25 Pa. Code § 123.41 (relating to limitations), by a certain date, failure to appeal such order bars an attack on the order and the validity of the regulation on which it was predicated, in a subsequent enforcement proceeding brought by the Department. Department of Environmental Resources v. Wheeling-Pittsburgh Steel Corporation, 348 A.2d 765 (Pa. Cmwlth. 1975); affirmed in part remanded in part; 357 A.2d 320 (Pa. 1977); cert. denied 98 S. Ct. 514 (Pa. 1977).
Validity of Order
A steel corporation which is granted an extension of time for compliance with the standards relating to particulate matter emissions may not attack the validity of the order or the regulations on which it was predicated in a subsequent enforcement proceeding, and the corporation does not have the right to trial by jury even though it seeks declaratory relief in its answer to the enforcement petition. Department of Environmental Resources v. Wheeling-Pittsburgh Steel Corporation, 348 A.2d 765 (Pa. Cmwlth. 1975).
This section cited in 25 Pa. Code § 121.8 (relating to compliance responsibilities); 25 Pa. Code § 123.42 (relating to exceptions); 25 Pa. Code § 123.45 (relating to alternative opacity limitations); and 25 Pa. Code § 264.345 (relating to operating requirements).
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