Original jurisdiction in case of Commonwealth of Pennsylvania, Department of Environmental Resources, Petitioner v. Bethlehem Steel Corporation, Respondent.
Robert E. Yuhnke, Assistant Attorney General, for petitioner.
Paul A. Manion, with him Robert M. Walter, Robert W. Watson, Jr., and Reed, Smith, Shaw & McClay, for respondent.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.
[ 23 Pa. Commw. Page 388]
This case is before us on the preliminary objections of Bethlehem Steel Corporation (Bethlehem) to the petition of the Department of Environmental Resources (DER) seeking enforcement of Air Pollution Abatement Order No. 72-533 (order) which resulted from a consensual agreement executed on February 25, 1972 by Bethlehem and DER. The order provides, among other things, that Bethlehem submit an application for a permit to construct equipment to control emissions of air contaminants resulting from the pushing operation at Coke Oven Battery No. 5 at its Bethlehem, Pennsylvania, plant by March 1, 1975 and that Franklin Coke Oven Battery No. 17 at Bethlehem's Johnstown, Pennsylvania, plant cease operation by May 31, 1975. Paragraph 9*fn1 of that same order provides that Bethlehem may seek modification of the order under certain circumstances. An application for modification of the order is now on appeal to the Environmental Hearing Board (EHB).
Bethlehem raises a question of the jurisdiction of this Court, issues of primary jurisdiction, exhaustion of administrative remedies, and ripeness for review and also
[ 23 Pa. Commw. Page 389]
pleads a demurrer. All these preliminary objections concern the effect of the pending action for modification before the EHB on a petition to enforce the order of February 25, 1972. Bethlehem urges, in effect, that by the terms of paragraph 9 an application for modification acts as a supersedeas in any action by DER to enforce the original order. We do not agree.
Bethlehem fails to recognize in its arguments that the action to enforce the order to which it agreed and the application for modification before the EHB, though based to some extent on the same factual material, are procedurally distinct.
Section 10(a) of the Air Pollution Control Act*fn2 authorizes petitions to enforce orders from which no timely appeal has been taken or which have been sustained on appeal. Bethlehem contends that its appeal on the modification application is in reality an appeal from the original order. If this were true, an action for enforcement would be premature. However, it is clear that Section 10(a) contemplates by its very nature appeals from an adversary proceeding, not from a consensual agreement. Here the parties agreed to be legally bound, and no appeal from the consent order was contemplated. The order was final and binding the moment it was executed. When the time for performance had run, DER could properly petition for enforcement.*fn3
We next address Bethlehem's contention that DER must elect to pursue its action either in the courts or through the administrative process. Bethlehem asserts that our decision in Department of Environmental Resources v. Leechburg Mining Co., 9 Pa. ...