Paul A. Manion, Reed, Smith, Shaw & McClay, Pittsburgh, for appellant.
Thomas M. Burke, Asst. Atty. Gen., Pittsburgh, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Pomeroy, J., filed a concurring and dissenting opinion. Jones, former C. J., and Nix, J., took no part in the consideration or decision of this case.
This appeal arises from the December 10, 1975, pretrial order of Commonwealth Court, which precluded appellant, Wheeling-Pittsburgh Steel Corporation (Wheeling), from introducing evidence relevant to the issues of the validity of an administrative order of the Pennsylvania Department of Environmental Resources (DER) and the regulations upon which the order was predicated. The order further denied Wheeling a jury trial.
The facts surrounding this appeal are as follows. On June 9, 1972, appellant requested from appellee a variance from DER's regulations. Title 25, Pennsylvania Code, § 123.13 and § 123.41. Section 123.13 deals with the "Particulate Matter Emissions" and § 123.41 deals with "Visible Emissions." Appellant's request concerned its steel-making operation at its sinter plant in Monessen, Pennsylvania.
On September 25, 1972, pursuant to the variance request of Wheeling, DER issued Administrative Order No. 72-565-V, "Order Granting Temporary Variance." The order provided, inter alia :
"1. The granting of such a variance will not prevent or interfere with attainment or maintenance of
ambient air standards within the time prescribed by the Federal Clean Air Act and Rules and Regulations promulgated thereunder, inasmuch as the variance period requested extends only to April 30, 1973.
"2. The emissions from the source are likely to comply with Section 123.13 inasmuch as, at the expiration of the variance period, said emissions are not likely to exceed 0.02 grains per dry standard cubic foot.
"3. The granting of the variance, as requested, is reasonable inasmuch as the intermediate dates, and the completion dates set forth in the petition and incorporated into this order indicate that the company intends to effect the control of the source as quickly as is reasonably practicable.
"NOW, THEREFORE, this 25th day of September, 1972, the Department hereby grants a variance, as requested in the petition (a copy of said petition is attached hereto and marked Exhibit "A"), and further orders that the Wheeling-Pittsburgh Steel Corporation, its successors and assigns shall:
"(a) on or before April 30, 1973, complete the implementation of the control plan set forth in the aforementioned petition for a variance, which plan is hereby incorporated herein and made a part hereof;
"(b) on and after April 30, 1973, operate its sintering operation located at its plant at Monessen, Westmoreland County, Pennsylvania, in such a manner as to maintain the emissions of particulate matter to within the limits specified in Sections 123.1, 123.13 and 123.41 of Chapter 123 of the Rules and Regulations of the Department of Environmental Resources; and,
"(c) submit bimonthly progress reports to the Department of Environmental Resources, commencing on October 31, 1972 and continuing thereafter until compliance with paragraph (a) of this order is achieved.
"The foregoing variance is granted on condition that paragraphs (a), (b), and (c) of the foregoing order are complied with within the time specified for compliance.
"Compliance with the foregoing order shall be obtained in a manner that will not violate the Environmental Protection Statutes and Rules and Regulations promulgated thereunder.
"Nothing contained in this order shall be construed to prevent or limit the application of the provisions of Chapter 137 of the Rules and Regulations of the Department of Environmental Resources which relates to air pollution episodes.
"Any questions in connection with this action of the Department of Environmental Resources, as well as all progress reports, should be directed to Mr. James K. Hambright, Bureau of Air Quality and Noise Control, Department of Environmental Resources, Post Office Box 2351, Harrisburg, Pennsylvania 17105.