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.
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.
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,
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
questions, which were overruled by the Commonwealth Court.
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 ...