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decided: April 4, 1978.


Appeal from the Order of the Environmental Hearing Board in case of In the Matter of: Commonwealth of Pennsylvania, Department of Environmental Resources v. Pennsylvania Power Company, Docket No. 72-428-CP-C.


William R. Balph, Jr., with him Chambers, O'Neill, Nicolls, Balph & Paul, for appellant.

David T. Buente, Assistant Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate in the decision. Opinion by President Judge Bowman. Judge Kramer did not participate in the decision in this case.

Author: Bowman

[ 34 Pa. Commw. Page 548]

This is an appeal by Pennsylvania Power Company (PPC) of an adjudication by the Environmental Hearing Board dated April 16, 1976, assessing civil penalties in the amount of $195,400 against PPC for numerous violations of the particulate matter and sulfur dioxide (SO[2]) emission limitation standards*fn1 promulgated by the Department of Environmental Resources (DER).*fn2

[ 34 Pa. Commw. Page 549]

Contributing to the complexity of this case is the confusion created by the long tortuous history of litigation between the parties to this suit over the Commonwealth's air quality program pursuant to the Air Pollution Control Act (APCA), Act of January 8, 1960, P.L. (1959) 2119, as amended, 35 P.S. § 4001 et seq., and the rules and regulations promulgated there-under. To facilitate an understanding of this case it is essential to provide an account of these prior legal proceedings. Additionally, for reasons of clarity this opinion will discuss separately each type of violation committed by PPC (i.e., particulate matter and SO[2]).

Background Information

PPC is an energy-producing public utility company certificated to operate in the general territory of

[ 34 Pa. Commw. Page 550]

Western Pennsylvania. PPC distributes electricity to its customers from five coal-fired steam boilers located in Taylor Township, Lawrence County, Pennsylvania. In April of 1970, the Pennsylvania Department of Health*fn3 ordered PPC to install air pollution control equipment and/or to implement process changes designed to limit its boilers' particulate matter emissions. The objective of this order was to bring PPC's boilers in compliance with the then existing particulate matter emission limitation known as Regulation V. The Pennsylvania Air Pollution Commission*fn4 had established this emission limitation on January 28, 1969. Regulation V required particulate collection efficiency to 99 percent.*fn5 PPC's boilers at this time were equipped to remove particulate matter to only a 98 percent efficiency.

PPC, acting under the belief that the Commonwealth's particulate matter emission limitations would soon be made more stringent and that the Commonwealth would also undertake the regulation of SO[2] emissions, appealed this order to the Pennsylvania Air Pollution Commission. It argued before the Commission that compliance with the Department of Health's order should not be required until it was determined whether or not the standards under Regulation V would remain viable. The Commission rejected this argument and affirmed the Department's order on January 11, 1971. The Commission, however, extended the date on which PPC was to submit

[ 34 Pa. Commw. Page 551]

    an abatement plan and schedule for compliance until June 1, 1971. This date for compliance was later extended by agreement of the parties to September 1, 1971. PPC did not appeal from the Commission's order nor did it ever attempt to comply with it.

Thereafter, the Commonwealth on January 12, 1972, filed a complaint in equity in the Court of Common Pleas of Lawrence County, pursuant to Section 10(a) of the APCA, 35 P.S. § 4010(a). This was done in an effort to compel PPC's compliance with Regulation V, as required under the Commission's January 1971 order. On January 27, 1972, the Environmental Quality Board, as anticipated by PPC, abolished Regulation V by amending the regulations with respect to particulate matter emissions and enacted new regulations pertaining to the control of SO[2] emissions.*fn6

Notwithstanding these events, the hearing on the Commonwealth's complaint in equity was held on February 22, 1972. The scope of the hearing, however, went beyond the issues raised in DER's complaint. The trial court took judicial notice of the fact that since the Commission's January 1971 order, the particulate matter emission limitations had become more stringent and that the Commonwealth also had begun the control of SO[2] emissions.*fn7 Consequently, the court issued an order on August 7, 1972, which required PPC to file with DER within 60 days for its approval, an application plan for compliance with the new emission

[ 34 Pa. Commw. Page 552]

    standards. The order also required operational compliance with the new regulations by July 1, 1975. As to Regulation V, it was provided that in lieu of PPC being required to apply for a variance for noncompliance with the Department of Health's 1970 order pertaining to that standard, a supplemental order would be issued setting forth specific actions to be taken by PPC. This supplemental order was issued by the court in December of 1972 and directed PPC to burn coal containing a low ash content until compliance with the new regulations was obtained. This same order provided specific penalties for failure to burn such coal.

PPC chose not to appeal the orders of the lower court and submitted a timely application and plan for abatement to DER for approval. This proposed plan suggested the installation of additional electrostatic precipitators which would remove greater amounts of particulate matter from PPC's boilers' flue gas. The plan stated that this action would allow PPC to meet the new particulate emission limits set under 25 Pa. Code § 123.11. As to PPC's required compliance with the SO[2] emission limitation under 25 Pa. Code § 123.22, however, the plan was less optimistic. Regarding this standard, PPC did not suggest the installation of any type of pollution equipment ostensibly designed to limit the emission of SO[2]. Rather, PPC indicated in its application that the state of the art of SO[2] removal was so unreliable that it was in effect technologically impossible to meet the new DER standard. PPC suggested that to install equipment designed to this end would be futile and wasteful.*fn8 The application therefore

[ 34 Pa. Commw. Page 553]

    proposed the construction of high stacks so as to disperse the SO[2] emitted higher into the atmosphere in an effort to meet ambient air quality standards.*fn9 Actual emission reduction of SO[2] was not suggested in PPC's plan.

DER never informed PPC whether or not its proposals were acceptable as was impliedly required by the trial court's order. PPC was also never requested to provide any additional information to DER in an effort to satisfy any questions which may have existed pertaining to the application. Rather, DER without any further inquiry chose to treat PPC's application as contemptuous of the lower court's 1971 orders. As a result of this decision, two new legal actions were initiated against PPC by DER.

On November 20, 1972, DER filed a contempt petition in the Court of Common Pleas of Lawrence County naming PPC and its President, Ray E. Semmler, as respondents. The petition asked for the incarceration of Semmler as well as a fine of $25,000 per day against both. It was further requested in the petition that these penalties continue until a plan was submitted by PPC which would assure attainment of the Commonwealth's particulate matter and SO[2] emission standards in compliance with the lower court order of August 7, 1972. Additionally, on December 18, 1972, DER commenced a four-count civil penalty action before the Environmental Hearing Board (Board) against PPC for alleged numerous violations of various

[ 34 Pa. Commw. Page 554]

DER pollution control regulations.*fn10 It is the appeal from the decision in this civil penalties action that is now before this Court.

The hearing before the Board on the action for civil penalties was continued pending the determination of DER's contempt petition. In January of 1973, a five day hearing on the contempt petition was held in the Lawrence County Court of Common Pleas. During the hearing both sides produced substantial technical, scientific and engineering evidence exclusively on the question of SO[2] removal.

In its opinion, the court made it clear that it did not reach the question of PPC's application as it pertained to suggestions for the removal of additional particulate matter and found that desulfurization techniques were not such as to enable PPC by any means to comply with DER's emission limitation. Inasmuch as the court found it technologically impossible for PPC to limit its SO[2] emissions, the court concluded that PPC's application was not submitted in contempt of its August 1972 order. This determination was upheld on appeal.*fn11

Facts of Adjudication on Appeal

Immediately following the disposition of the contempt proceeding, the hearing before the Board on DER's action for civil penalties was rescheduled. Count I of this action alleged violations of former

[ 34 Pa. Commw. Page 555]

Regulation V, Count II alleged violations of 25 Pa. Code § 123.11, limiting particulate matter emission, Count III alleged violations of 25 Pa. Code §§ 123.41-.43, pertaining to visible emission limitations and Count IV alleged violations of 25 Pa. Code § 123.22, limiting SO[2] emissions.

After initial consideration and dismissal of preliminary matters raised by PPC, the Board on February 4, 1974, conducted a hearing on the merits of the action. Upon the evidence adduced during this hearing and upon consideration of the legal effects of the various prior legal proceedings between the parties, the Board formulated its adjudication. The net result was that the Board assessed civil penalties against PPC in the amount of $195,400 pursuant to Section 9.1 of the ...

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