Marvin A. Fein, Barbara H. Brandon, Sp. Asst. Attys. Gen., Harrisburg, for appellant.
William R. Balph, Jr., Chambers, O'Neill, Nicolls & Balph, New Castle, for appellee.
Wallace H. Johnson, Asst. Atty. Gen., Raymond N. Zagone, Atty., Dept. of Justice, Alan G. Kirk, II, Asst. Administrator for Enforcement and Gen. Counsel, E. P. A., Washington, D. C., Joseph M. Manko, Regional Counsel, Region III, Marc E. Gold, Atty., Enforcement Div., Region III, E. P. A., Philadelphia, for amicus curiae E. P. A.
Harold R. Schmidt, Lawrence A. Demase, Edwin J. Strassburger, Rose, Schmidt & Dixon, Pittsburgh, for amici curiae, West Penn Power Co., Monongahela Power Co. and Potomac Edison Co.
Harry H. Voigt, LeBoeuf, Lamb, Leiby & MacRae, Washington, D. C., for amici curiae Edison Electric Institute and Chamber of Commerce of the United States.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., joins in this opinion. Eagen, O'Brien, Roberts and Nix, JJ., concur in the result.
This is an appeal from the Commonwealth Court's affirmance of an order of the Court of Common Pleas of Lawrence County dated April 19, 1973, dismissing the appellant's, Department of Environmental Resources
(DER),*fn1 petition and rule to show cause why the appellee, Pennsylvania Power Company (PPC) and Ray E. Semmler, president of PPC, should not be adjudged in contempt of court. The present litigation arises from the appellee's failure to comply, and its subsequent defense of impossibility to comply, with a prior unappealed court order requiring the appellee to submit a pollution control plan in compliance with newly promulgated particulate matter and sulfur dioxide emission standards.
The primary issue before this Court, namely, whether the trial court abused its discretion or committed error of law in dismissing the DER petition for contempt was previously addressed in a well-reasoned Commonwealth Court opinion (12 Pa. Commw. 212, 316 A.2d 96 (1974)). Nevertheless, since this issue has triggered important corollary, first impression questions concerning the DER's ability to enforce prospective "technology-forcing" environmental standards and the appropriate means for asserting the defense of impossibility to a court order incorporating such standards, we granted allocatur and for reasons hereinafter set forth affirm.
The operation of five coal-fired steam boilers at the electric generating facility of the PPC, located in Taylor Township, Lawrence County, Pennsylvania, provides the subject of this appeal. As early as April 22, 1970, the Pennsylvania Department of Health, predecessor in interest to the DER, issued an order that PPC install air pollution control equipment and/or institute process changes designed to limit particulate emissions to the levels specified in the then existing particulate matter
regulations.*fn2 However, the adoption of more stringent regulations for particulate removal and the establishment of sulfur dioxide emission control appeared imminent. Since the adoption of such regulations would likely necessitate the replacement of any newly installed equipment, the appellee believed delay in installation was warranted. Accordingly, on May 15, 1970, PPC appealed the Department of Health's order to the Pennsylvania Air Pollution Commission. On January 11, 1971, following an adjudicatory hearing, the Commission affirmed the Department's order but extended the date for submission of an abatement plan and schedule until June 1, 1971, and extended the date for compliance until October 31, 1972. PPC never appealed from or complied with the Commission's order.
Failing to obtain compliance through negotiations or by extending the June submission date, the Commonwealth*fn3 filed a complaint in equity and a motion for preliminary injunction to compel compliance with the Commission's January order. Subsequently, on February 22, 1972, a hearing was held on the motion in the Common Pleas Court of Lawrence County.
In the meantime, on January 27, 1972, as had been anticipated by PPC, the Environmental Quality Board of the DER promulgated upgraded regulations for the control of particulate matter and new regulations for the control of sulfur dioxide emissions.*fn4 On January 31,
, these regulations were submitted as part of the Pennsylvania Implementation Plan to the Federal Environmental Protection Agency (EPA) and on May 31, 1972, these regulations received federal approval, pursuant to the Federal Clean Air Act Amendments of 1970 (42 U.S.C.A. § 1857 et seq.)*fn5
Thereafter, taking judicial notice of the new DER regulations and going beyond the issues raised in the DER's complaint, the Court of Common Pleas, on September 1, 1972, issued an amended order*fn6 against PPC requiring compliance with the new regulations by July 1, 1975, and ordering PPC to ...