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decided: February 28, 1974.


Appeal from the Order of the Court of Common Pleas of Lawrence County, in case of Commonwealth of Pennsylvania v. Pennsylvania Power Company, No. 2 of 1972.


Marvin A. Fein, Special Assistant Attorney General, for appellant.

William R. Balph, Jr., with him Chambers, O'Neill, Nicolls & Balph, for appellee.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Kramer.

Author: Kramer

[ 12 Pa. Commw. Page 214]

This is an appeal filed by the Commonwealth of Pennsylvania, Department of Environmental Resources (DER) from an order of the Court of Common Pleas of Lawrence County (dated April 19, 1973) dismissing DER's petition and rule to show cause why Pennsylvania Power Company (PPC) and Ray E. Semmler, President of PPC (Semmler), should not be adjudged in contempt of court. This case involves very important first impression questions of law concerning the enforceability of unappealed orders of a regulatory agency (and an order of court) where, in a contempt proceeding for noncompliance, there is a finding of impossibility of performance by a court.

After a complete study of this entire record and upon analysis of the many technical, scientific and engineering points contained therein, it was tempting to issue a per curiam opinion affirming the order of the court below based upon its excellent opinion. However, because of the additional emphasis placed by counsel in their briefs and in arguments before this Court on the legal question concerning the defense of impossibility of performance of a court order in a contempt proceeding, we believe it necessary to file a complete opinion disclosing the basis of our holding. In order to facilitate an understanding of that holding, it is necessary to set forth certain pertinent facts taken from the record and for the most part determined in the findings of fact of the court below.

PPC is a duly certified public utility rendering electric service to the public in western Pennsylvania. It owns and operates an electric generating plant in the Village of West Pittsburgh in Lawrence County. The plant has a production capability of 430 megawatts utilizing five coal-fired steam boilers, which were installed between 1939 and 1964. Following the receipt of several complaints (some dating back to at

[ 12 Pa. Commw. Page 215]

    least 1962), officials of DER (and its predecessor agencies) conferred with officials of PPC in an attempt to alleviate the problem through particulate control devices being placed in or attached to the smokestacks. In an attempt to comply with the regulations of DER, PPC installed two new electrostatic precipitators and replaced three mechanical dust collectors with electrostatic precipitators so that the particulate collection efficiency for all of the stacks was set at 98 percent. On January 28, 1969, the Pennsylvania Air Pollution Commission adopted Regulation V, which increased the particulate collection efficiency to 99 percent. On April 22, 1970, the Department of Health issued an order requiring PPC to comply with the Regulation V provisions. It should be noted at this point that in 1970 there were no regulations for the control of sulfur dioxide (SO[2]). PPC filed an appeal from this order with the Air Pollution Commission and a hearing was held. At the hearing (October 15, 1970), it was PPC's contention that it should not be required to meet the new provisions of Regulation V until after the Commonwealth's environmental regulatory agencies promulgated new regulations for the control of SO[2], which were then under consideration. On January 11, 1971, the Air Pollution Commission rejected the contention of PPC and affirmed the order of the Department of Health, extending the time for compliance to June 1, 1971. PPC took no appeal from this adjudication.

By agreement of the parties, the date for compliance was extended to September 1, 1971, and no further extensions were ever granted. Further conferences were held, with no concrete results. Thereafter, on January 12, 1972, DER filed a complaint in equity in the Court of Common Pleas of Lawrence County praying for an order which would mandate compliance with the order of the Air Pollution Commission of January 11, 1971. Just two weeks after the filing

[ 12 Pa. Commw. Page 216]

    of this suit, on January 27, 1972, the Environmental Quality Board of DER promulgated its regulations for the control of SO[2] and further amended the regulations with respect to particulate matter. After hearing, the court granted the Commonwealth's motion for a preliminary injunction and on August 7, 1972 and September 1, 1972, the court issued an order which went beyond the prayer of the original petition in that the court took cognizance of the newly adopted (January 27, 1972) regulations and ordered PPC to comply therewith. It ordered PPC to file a plan for compliance by October 7, 1972. It is again to be noted and emphasized that PPC did not take an appeal from any of the orders of court. However, in October 1972, PPC submitted a timely application for approval of its plan to comply with the court order. The record indicates that PPC's application provided for compliance with the particulate control provisions of DER's regulations, but that it did not contain any specific control mechanisms for the removal of SO[2], as required by the new regulations and the court order. Instead, PPC's application provided for the construction of high stacks in order to control SO[2] emissions, and PPC takes the position that such stacks were the only means available to control such emissions.

DER neither rejected nor accepted the application, nor did it request additional information or conferences concerning the application. Instead, on November 20, 1972, DER filed the petition for contempt which instituted the proceeding presently before this Court on appeal. In its complaint, DER set forth generally the facts noted above and prayed for "the incarceration" of Semmler "in a penal institution until such time that the Order of September 1, 1972 is complied with by Penn Power" and the imposition of a fine of twenty-five thousand dollars per day against Penn Power and Semmler until said order was complied

[ 12 Pa. Commw. Page 217]

    with. After a complete hearing, the court below on April 19, 1973, dismissed the complaint on the basis that it was "impossible" for the defendants to comply with that portion of the court's order requiring the control of SO[2] emissions under the provisions of "Title 25, Chapter 123, Sections 11 and 22 of the Rules and Regulations." The court further concluded that the conduct of the defendants did not represent a "willful disregard or disobedience" of the court's orders, that the defendants should not be ...

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