People v. Atchison, Topeka & Santa Fe Railway Co.

WAPNER, J. pro tem.

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On June 7,-1968, appellant was convicted of violating section 24242 of the Health and Safety Code. Defendant seeks a reversal of that conviction.

We shall now examine the section in question and the facts as they were presented to this court pursuant to an engrossed statement on appeal. Section 24242, California Health and Safety Code, provides: “ A person shall not discharge into the atmosphere from any single source of emission whatsoever any air contaminant for a period or periods aggregating more than three minutes in any one hour which is: (a) As dark or darker in shade as that designated as No. 2 on the Ringel

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mann Chart, as published by the United States Bureau of Mines, or (b) Of such opacity as to obscure an observer’s view to a degree equal to or greater than does smoke described in subsection (a) of this section. ”

The testimony disclosed that the emissions complained of occurred when the engine started moving again after stopping. Defense witnesses testified and explained the operation of a diesel locomotive.

Without going into the technical testimony elicited during the course of the trial it is enough for our purposes here to relate that the testimony disclosed that from the time the diesel engine starts moving from a standstill there is from 1-3 minutes during which the engine emits black smoke. This is what the witness called “lag-time” black smoke. Defense witnesses further testified and the evidence is undisputed that there is now no known way to prevent black smoke from being emitted when the engine starts from a standstill. The witness stated that it would be impossible to operate the railroad in Los Angeles County without producing this “lag-time smoke” each time an engine started up from a standstill.

There is no denying that the purpose of section 24242, Health and Safety Code, (health of the public) is a valid one. However, the question here involved is whether or not the particular section places an undue and unreasonable burden on appellant’s operations in interstate commerce. Here the evidence is uncontradicted that appellant as of now has no known method of curing the defect in question.

Huron Portland Cement Co.