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COMMONWEALTH PENNSYLVANIA v. BETHLEHEM STEEL CORPORATION (11/24/76)

SUPREME COURT OF PENNSYLVANIA


decided: November 24, 1976.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES
v.
BETHLEHEM STEEL CORPORATION, APPELLANT

COUNSEL

Paul A. Manion, Pittsburgh, for appellant.

Robert E. Yuhnke, Harrisburg, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Manderino, J., concurs in result. Nix, J., did not participate in the consideration or decision of this case.

Author: Roberts

[ 469 Pa. Page 583]

OPINION OF THE COURT

This is an appeal from an order of the Commonwealth Court overruling preliminary objections of the Bethlehem Steel Corporation (Bethlehem) to the petition of the Department of Environmental Resources (DER) seeking enforcement of a consent order.*fn1 The order provides that, in certain circumstances, Bethlehem may apply to DER for modification, and that any action taken on such an application can be appealed to the Environmental Hearing Board (EHB) and the courts. The question before us today is whether the Commonwealth Court has jurisdiction to entertain an action for enforcement of the consent order during the pendency of an appeal from DER's decision to deny an application for modification.*fn2 We conclude that it does, and affirm.

[ 469 Pa. Page 584]

I.

The consent order is an air pollution abatement order agreed to by DER and Bethlehem, after extensive negotiations, on February 25, 1972. DER approved air pollution abatement plans submitted by Bethlehem to implement the order. These plans required Bethlehem to cease operation of its Franklin Coke Oven Battery No. 17 at its Johnstown Plant by May 31, 1975. Bethlehem also was required to submit an application for a permit to construct equipment to control emissions at Coke Oven Battery No. 5 at its Bethlehem Plant by March 1, 1975.

By the terms of the consent order, Bethlehem is entitled to apply for modification of the order or the modification plans in certain circumstances. If DER rejects the application for modification, Bethlehem may appeal to the EHB and the courts.*fn3 On September 17, 1973,

[ 469 Pa. Page 585]

Bethlehem applied for an extension of time to continue operating Franklin Coke Oven Battery No. 17 at its Johnstown Plant beyond the scheduled termination date. DER denied this application on February 18, 1975, and Bethlehem appealed to the EHB.

In the meantime, Bethlehem adopted a change in corporate planning which called for continued operation of the Franklin Coke Oven Batteries, and efforts were made to negotiate a resolution of the differences between Bethlehem and DER. Bethlehem also applied for an extension of time for compliance with the plans relating to Coke Oven Battery No. 5 at its Bethlehem Plant. DER denied this application on March 6, 1975.

On May 15, 1975, after further negotiations, Bethlehem submitted to DER proposed modifications of the original abatement plans applicable to both the Coke Oven Battery No. 5 at its Bethlehem Plant and to the Franklin Coke Oven Battery No. 17 at its Johnstown Plant. As this application superseded its earlier application, Bethlehem stipulated to dismissal of the earlier appeal pending before the EHB. On June 16, 1975, DER denied Bethlehem's latest requests for modification, and Bethlehem's appeal to the EHB from this denial is still pending.

Finally, on July 25, 1975, DER filed a petition to enforce the consent order in the Commonwealth Court. Bethlehem filed preliminary objections, raising jurisdictional

[ 469 Pa. Page 586]

    questions, which were overruled by the Commonwealth Court.

II.

A. DER's petition to enforce the order was brought pursuant to section 10(a) of the Air Pollution Control Act.*fn4 This section authorizes petitions to enforce a DER order "from which no timely appeal has been taken or which has been sustained on appeal."*fn5 Since the order DER seeks to enforce was reached by consent of the parties it is an order "from which no timely appeal has been taken" and therefore is enforceable in the Commonwealth Court.

Bethlehem insists that the order cannot be enforced in the Commonwealth Court pending the outcome of its appeal of DER's denial of its application to modify the order. But it is the DER decision not to modify the order, rather than the order itself, which Bethlehem has appealed to the EHB. The original air pollution abatement order remains in effect, and is still an order from which no timely appeal has been taken. Therefore, DER can still bring an action to enforce the original order pursuant to section 10(a) of the Air Pollution Control Act.

B. Looking only at the language of section 10(a), it might be argued that an appeal from a decision denying

[ 469 Pa. Page 587]

    modification of an order is an appeal from the order itself, so as to deprive the Commonwealth Court of jurisdiction. Such an interpretation, however, would be totally inconsistent with the purpose of section 10(a).*fn6

Section 10(a) of the Air Pollution Control Act must be construed in accordance with the purposes of the Act.*fn7 The Act's purposes include the "protection of public health, safety and well-being of [the] citizens . . . ."*fn8 This declaration of policy, adopted in 1968, replaced an earlier declaration that air resources be maintained within the limits of technological feasibility and economic reasonableness.*fn9 This change

". . . disclos[es] a marked shift from combating air pollution within limitations of technical feasibility and economic reasonableness to protection not only of the air resource itself, but also of the public health, property and recreational resources of the Commonwealth."

Rushton Mining Co. v. Commonwealth, 16 Pa. Commw. 135, 140, 328 A.2d 185, 188 (1974).

We conclude that the adoption of the Air Pollution Control Act makes the preservation of the quality of our air resources a matter of the highest public importance.*fn10

[ 469 Pa. Page 588]

In keeping with this policy, the Legislature adopted procedures to facilitate enforceability of the Act. A variety of means of enforcement are provided, including the enforcement of administrative orders, direct proceedings in court for injunctive relief or civil penalties, and actions brought by district attorneys or members of the general public.*fn11 Emergency enforcement powers are also granted.*fn12 Moreover, the Legislature restricted the availability of supersedeas during administrative appeals from DER orders.*fn13

C. Section 10(a) of the Air Pollution Control Act should also be interpreted in light of the statutory scheme created by the United States Congress in the Clean Air Act Amendments of 1970.*fn14 These amendments require the Environmental Protection Agency (EPA) to set national air quality standards.*fn15 The states are then required to submit plans for the implementation of these standards. These plans must be approved by the EPA if they meet eight general criteria set out in the statute. The principal criterion for federal approval is that the state plan ensure that primary air quality standards set by the EPA to protect the public health will be satisfied within

[ 469 Pa. Page 589]

    three years.*fn16 In summary, the Clean Air Act Amendments of 1970 create a legislative scheme by which:

"Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State . . . ."*fn17

Pennsylvania's Air Pollution Control Act provides the mechanism by which the State meets its responsibilities under the Clean Air Act Amendments of 1970. Section 10(a) of the Air Pollution Control Act, provides a means for enforcing the State Implementation Plan. Thus, section 10(a) of the Act, supra, should be interpreted in accordance with the policies underlying the Clean Air Act Amendments of 1970.

Like the Pennsylvania Air Pollution Control Act, the Clean Air Act Amendments of 1970 reflect a legislative determination that air pollution constitutes a serious threat to public health and safety, and that maintaining clean air is a matter of the highest priority:

"[T]he 1970 Amendments to the Clean Air Act were a drastic remedy to what was perceived as a serious and otherwise uncheckable problem of air pollution."

Union Electric Co. v. EPA, 427 U.S. 246, 256, 96 S.Ct. 2518, 2525, 49 L.Ed.2d 474 (1976). The importance of achieving air quality standards is reflected by the expedited timetable set for EPA and state compliance*fn18 and

[ 469 Pa. Page 590]

    by Congress' determination that achieving air quality standards should take priority over economic and technical considerations. As the Supreme Court recently explained:

"Section 110(a)(2)(A)'s three-year deadline for achieving primary air quality standards is central to the Amendments' regulatory scheme and, as both the language and the legislative history of the requirement make clear, it leaves no room for claims of technological or economic unfeasibility."

Id. at 258, 96 S.Ct. at 2526.*fn19

Like the Pennsylvania Air Pollution Control Act, the Clean Air Act Amendments of 1970 provide for a variety of enforcement mechanisms. The primary mechanism for enforcement of the Clean Air Act is the enforcement of implementation plans by the states. In addition EPA can issue compliance orders, the violation of which carries severe monetary penalties, and bring actions for injunctive relief.*fn20 Citizen suits to enforce emission limitations are also encouraged.*fn21

Thus, the Clean Air Act, like the Pennsylvania Air Pollution Control Act, dictates a policy in favor of the enforceability of air pollution abatement orders. We will not adopt an interpretation of section 10(a) which is not required by its language and which would deprive the courts of jurisdiction to enforce pollution abatement

[ 469 Pa. Page 591]

    orders.*fn22 The health and safety of the public must take priority.

D. We conclude, therefore, that the policies behind both state and federal law compel the interpretation of section 10(a) of the Pennsylvania Air Pollution Control Act suggested by a literal reading of its terms. The consent order in this Court is one "from which no timely appeal has been taken," and therefore an enforcement action may be brought in the Commonwealth Court pursuant to section 10(a). Section 10(a) provides no exception for cases where a party is seeking modification of an order and the policies expressed in both state and federal law prevent us from writing any such exception into the statute.

Bethlehem may ultimately prevail in its efforts to have the order modified, and thus could be subject to unnecessary expense if the present order is enforced. This possibility, however, would not justify the conclusion that the courts are without jurisdiction to enforce the order. Such a conclusion would leave the courts powerless to enforce the order -- even where it is highly unlikely that the order will be modified and where continued pollution in violation of the order presents a serious danger to the

[ 469 Pa. Page 592]

    public.*fn23 In effect, the mere application for an extension would operate as a stay; an applicant could continue to pollute for the period required to appeal to the EHB and the courts. Such a result would be totally at odds with the strong legislative policy expressed in both the Air Pollution Control Act and the Clean Air Act. The modification proceedings must be carried out on the polluter's time, not at the expense of the general public.*fn24

III.

A. In addition to its argument that section 10(a) does not apply when modification proceedings are pending, Bethlehem contends that the doctrine of election of remedies foreclose DER from invoking the jurisdiction of the Commonwealth Court. Bethlehem does not raise an election of remedies argument in the strict sense.*fn25 Rather, Bethlehem appears to be arguing that the order, by its terms, precludes enforcement pending the outcome of modification proceedings.*fn26 Bethlehem contends that by agreeing to that portion of the consent order which allows it to apply for modification, DER

[ 469 Pa. Page 593]

    agreed not to enforce the order until its decision on modification has been upheld on appeal.

We do not interpret the consent order to foreclose enforcement pending the outcome of modification proceedings. Paragraph 9 of the order only provides that the order "may be modified" by the DER, and preserves the right to appeal from its decision. It does not provide that enforcement will be stayed pending any appeals from the DER's decision. It is apparent that the purpose of this paragraph is to ensure that DER will consider Bethlehem's application, and to allow Bethlehem to appeal DER's decision. The paragraph was included to escape the general rule that an administrative agency's denial of a motion to reopen is not subject to judicial review, see SEC v. Louisiana Public Service Commission, 353 U.S. 368, 77 S.Ct. 855, 1 L.Ed.2d 897 (1957); Martin Marietta Corp. v. FTC, 376 F.2d 430 (7th Cir. 1967), not as a limitation on the DER's enforcement power. This Court is most hesitant to construe any agreement as a limitation on the DER's enforcement powers, and, in the absence of clear and specific language to the contrary, will not do so here.*fn27

B. Finally, Bethlehem contends the doctrine of primary jurisdiction prevents DER from maintaining this action.*fn28 Primary jurisdiction is a flexible

[ 469 Pa. Page 594]

    doctrine, designed to coordinate the work of agencies and courts. Davis, ยง 19.01, supra at 5; L. Jaffe, Judicial Control of Administrative Action 121 (1965).

"The precise function of the doctrine of primary jurisdiction is to guide a court in determining whether the court should refrain from exercising its jurisdiction until after an administrative agency has determined some question or some aspect of some question arising in the proceeding before the court."

Davis, supra at 3. The doctrine reflects a principle:

". . . that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created . . . for regulating the subject matter should not be passed over."

Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952). In such cases, the initial determination is left to the administrative agency both because its decision is necessary for the "protection of the integrity of the regulatory scheme." United States v. Philadelphia National Bank, 374 U.S. 321, 353, 83 S.Ct. 1715, 1736 (1963), and may be of "material aid" to the courts, Ricci v. Chicago Mercantile Exchange,

[ 469 Pa. Page 595409]

U.S. 289, 305, 93 S.Ct. 573, 582, 34 L.Ed.2d 525 (1973).

The doctrine of primary jurisdiction has no application here. DER, the agency with primary responsibility for enforcing the Air Pollution Control Act, is not being bypassed. Indeed, DER is the party bringing the action. Having obtained a consent order, DER has decided that enforcement is necessary. Under section 10(a) of the Act, the court's duty is to determine whether there has been compliance with the order. This duty is well within the conventional experience of judges, and enhances, rather than interferes with, the integrity of the regulatory scheme.*fn29

Bethlehem insists that the doctrine of primary jurisdiction prevents the Commonwealth Court from proceeding until the EHB has acted on its application for modification. The consent order remains valid, however, and failure to comply is unlawful.*fn30 Even if the proceedings before the EHB involved a timely appeal from the consent order itself, rather than an appeal from an application for modification, Bethlehem would be expected to comply with the order.*fn31

This is an enforcement proceeding, based on the original consent order, not a proceeding to determine Bethlehem's right to modification. Thus, the Commonwealth Court is not being called upon to make a decision which should be decided initially by an administrative agency. Nor will enforcement decree impair the integrity of the regulatory process. A judicial determination that Bethlehem

[ 469 Pa. Page 596]

    presently is not in compliance with the consent order in no way interferes with the power of the EHB or the courts to modify the order at some future date.*fn32 There is no reason to stay judicial enforcement pending the decision of the EHB.

In summary, the doctrine of primary jurisdiction, and the policies underlying it, do not justify a conclusion that section 10(a) of the Air Pollution Control Act is inapplicable during the pendency of modification proceedings.

Based on the clear language of section 10(a) of the Air Pollution Control Act, and the strong legislative policy in favor of effective enforcement of air pollution control standards, we hold that the Commonwealth Court has jurisdiction over this action.

Order affirmed.


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