§ 123.1. Prohibition of certain fugitive emissions.

 (a)  No person may permit the emission into the outdoor atmosphere of a fugitive air contaminant from a source other than the following:

   (1)  Construction or demolition of buildings or structures.

   (2)  Grading, paving and maintenance of roads and streets.

   (3)  Use of roads and streets. Emissions from material in or on trucks, railroad cars and other vehicular equipment are not considered as emissions from use of roads and streets.

   (4)  Clearing of land.

   (5)  Stockpiling of materials.

   (6)  Open burning operations.

   (7)  Blasting in open pit mines. Emissions from drilling are not considered as emissions from blasting.

   (8)  Coke oven batteries, provided the fugitive air contaminants emitted from any coke oven battery comply with the standards for visible fugitive emissions in § §  123.44 and 129.15 (relating to limitations of visible fugitive air contaminants from operation of any coke oven battery; and coke pushing operations).

   (9)  Sources and classes of sources other than those identified in paragraphs (1)—(8), for which the operator has obtained a determination from the Department that fugitive emissions from the source, after appropriate control, meet the following requirements:

     (i)   The emissions are of minor significance with respect to causing air pollution.

     (ii)   The emissions are not preventing or interfering with the attainment or maintenance of an ambient air quality standard.

 (b)  An application form for requesting a determination under either subsection (a)(9) or §  129.15(c) is available from the Department. In reviewing these applications, the Department may require the applicant to supply information including, but not limited to, a description of proposed control measures, charac-teristics of emissions, quantity of emissions and ambient air quality data and analysis showing the impact of the source on ambient air quality. The applicant is required to demonstrate that the requirements of subsections (a)(9) and (c) and §  123.2 (relating to fugitive particulate matter) or of the requirements of §  129.15(c) have been satisfied. Upon such demonstration, the Department will issue a determination, in writing, either as an operating permit condition, for those sources subject to permit requirements under the act, or as an order containing appropriate conditions and limitations.

 (c)  A person responsible for any source specified in subsections (a)(1)—(7) or (9) shall take all reasonable actions to prevent particulate matter from becoming airborne. These actions include, but not be limited to, the following:

   (1)  Use, where possible, of water or chemicals for control of dust in the demolition of buildings or structures, construction operations, the grading of roads or the clearing of land.

   (2)  Application of asphalt, oil, water or suitable chemicals on dirt roads, material stockpiles and other surfaces which may give rise to airborne dusts.

   (3)  Paving and maintenance of roadways.

   (4)  Prompt removal of earth or other material from paved streets onto which earth or other material has been transported by trucking or earth moving equipment, erosion by water, or other means.

 (d)  The requirements contained in subsection (a) and §  123.2 do not apply to fugitive emissions arising from the production of agricultural commodities in their unmanufactured state on the premises of the farm operation.


   The provisions of this §  123.1 adopted September 10, 1971, effective September 11, 1971, 1 Pa.B. 1804; amended March 3, 1972, effective March 20, 1972, 2 Pa.B. 383; amended August 12, 1977, effective August 29, 1977, 7 Pa.B. 2251. Immediately preceding text appears at serial pages (4620) and (24610).

Notes of Decisions

   Agency Authority

   Although the Department of Environmental Resources under the Air Pollution Control Act (35 P. S. §  4001 et seq.) had been granted specific authority by the Legislature to regulate ‘‘air contamination sources’’ producing ‘‘air pollution’’ that includes obnoxious odors, nowhere was there any grant of authority to the Public Utility Commission, either directly or indirectly, to regulate air pollution emanating from a public utility. Country Place Waste Treatment Co. v. Pennsylvania Public Utility Commission, 654 A.2d 72 (Pa. Cmwlth. 1995).

   Application Properly Denied

   The Department was required to deny an application for reactivation of beehive coke ovens, regardless of economic consequences, when the application did not provide 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 this title. Rochez Brothers Inc. v. Department of Environmental Resources, 334 A.2d 790 (Pa. Cmwlth. 1975).

   Burden of Proof

   Testimony by the environmental group’s president that the air was polluted (that is, ‘‘fuming’’ resulted from the reaction process used to treat waste at the industrial processors facility) was not credible on the issues relating to the existence or cause of air quality problems as would shift the burden of proof to the Department of Environmental Resources to justify the issuance of the solid waste disposal permit. Concerned Citizens of Yough, Inc. v. Department of Environmental Resources, 639 A.2d 1265 (Pa. Cmwlth. 1994).

   The Commonwealth need not prove that the fugitive dust emissions in question caused or contributed to a condition of air pollution because the determination that such emissions cause or contribute to a condition of air pollution had already been made at the time the section was promulgated, and the section is reasonably understandable and specific. Department of Environmental Resources v. Locust Point Quarries, Inc., 396 A.2d 1205 (Pa. 1979).

   Clearing of Land

   Environmental Hearing Board did not err in finding asphalt plant operator’s extracting soil down to bedrock to prepare area for blasting was not exempt from ‘‘clearing of land,’’ Department of Environmental Protection defined clearing of land as the removal of trees, brush and surface vegetation and not the removal of overburden down to bedrock. Eureka Stone Quarry v. Dep’t of Envtl. Protection, 957 A.2d 337, 348 (Pa. Cmwlth. 2008).


   Since §  123.2 (relating to fugitive particulate matter) applies only to the nine exemptions listed in (a)(1)—(9), the two sections do not overlap and either one can stand alone as a basis for a violation. Medusa Corp. v. Department of Environmental Resources, 415 A.2d 105 (Pa. Cmwlth. 1980).

   Criminal Prosecution

   To prove a criminal violation of this section, as modified by §  123.13 (relating to processes), scientific evidence must be introduced proving beyond a reasonable doubt that the offensive fugitive emissions exceeded the permissible maximum set forth in §  123.12 (relating to incinerators). Department of Environmental Resources v. Locust Point Quarries Inc., 367 A.2d 392 (Pa. Cmwlth. 1976).


   To properly challenge the reasonableness of this section, evidence must be presented to establish that the section will not aid in reaching national ambient air quality standards and that the proscribed activity is insignificant as a cause of air pollution. Department of Environmental Resources v. Locust Point Quarries, Inc., 396 A.2d 1205 (Pa. 1979).

   A conviction for violation of this section cannot be sustained absent sufficient visual and/or scientific evidence to establish that the quarry dust observed by Department agents was such as to constitute air pollution as defined by the Air Pollution Control Act. Commonwealth v. Locust Point Quarries Inc., 72 Pa. D. & C.2d 700 (1975).

   Fugitive Emissions

   A fugitive emission is an emission of an air contaminant in a specific manner and it includes particulate matter, sulfur compounds, odor and visible emissions if emitted other than through a flue. Department of Environmental Resources v. Locust Point Quarries, Inc., 396 A.2d 1205 (Pa. 1979).

   General Comment

   This section was intended to stand alone and be construed independently of §  123.13 (relating to processes). Department of Environmental Resources v. Locust Point Quarries, Inc., 396 A.2d 1205 (Pa. 1979).

   Minor Significance

   The comment by the Environmental Hearing Board that the operator failed to invoke the ‘‘minor significance’’ exception of (a)(9) was proper because the exception existed throughout the relevant time period of 1973 to 1976, and the procedural provisions added by a 1977 amendment were immaterial. Medusa Corp. v. Department of Environmental Resources, 415 A.2d 105 (Pa. Cmwlth. 1980).

   A rock quarry was not a source of minor significance within the meaning of §  127.14 (relating to exemptions) if nothing in the record supported such a determination and the DER had not so determined. Mignatti Construction Co., Inc. v. Environmental Hearing Board, 411 A.2d 860 (Pa. Cmwlth. 1980).


   A request for a grace period for compliance with a temporary variance did not have a res judicata effect on a subsequent request for an exemption from emission control requirements under this provision, since there was no identity of the thing sued for. Bethlehem Steel Corporation v. Department of Environmental Resources, 390 A.2d 1383 (Pa. Cmwlth. 1978).

   On appeal from the Department’s refusal to grant applicant permission to reactivate certain coke ovens, if the appellant did not show that the oven would meet the limitations in this title, but showed 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 was not supported by the evidence. Rochez Brothers, Inc. v. Department of Environmental Resources, 334 A.2d 790 (Pa. Cmwlth. 1975).

Cross References

   This section cited in 25 Pa. Code §  77.108 (relating to permit for small noncoal operations); 25 Pa. Code §  121.8 (relating to compliance responsibilities); 25 Pa. Code §  123.2 (relating to fugitive particulate matter); 25 Pa. Code §  123.42 (relating to exceptions); 25 Pa. Code §  129.15 (relating to coke pushing operations); and 25 Pa. Code §  264.521 (relating to design and operating standards).

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