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decided: July 3, 1980.


No. 113 March Term 1978, Appeal from the Order of the Commonwealth Court of Pennsylvania at No. 892 C.D. 1976, Reversing in Part the Adjudication of the Environmental Hearing Board of Pennsylvania at No. 72-428-CP-C.


Ward T. Kelsey, Elissa A. Parker, Asst. Attys. Gen., Pittsburgh, for appellant.

William R. Balph, Jr., Chambers, O'Neill, Nicolls, Balph & Paul, New Castle, John Cramer, Reed Smith Shaw & McClay, Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: Nix

[ 490 Pa. Page 401]


I. Procedural History

The Pennsylvania Power Company (PPC), appellee herein, generates and distributes electricity in the western portion of this Commonwealth. The PPC was originally ordered by the Pennsylvania Department of Health, predecessor in interest to the Department of Environmental Resources (DER),*fn1 to limit its emission of particulate matter from its electrical generating station in Lawrence County, Pennsylvania, in order to comply with the particulate collection efficiency established by Regulation V.*fn2 The pollutants were emitted from the five coal powered boilers which supplied the power for the generators. That Order was affirmed on appeal by the Pennsylvania Air Pollution Commission on January 11, 1971.*fn3

The PPC, however, failed to comply and the DER, on January 12, 1972, filed a complaint in equity in the Common Pleas Court of Lawrence County, seeking judicial enforcement of the January 1971 Order. On January 27, 1972, more

[ 490 Pa. Page 402]

    stringent particulate matter regulations and new controls were placed on sulfur dioxide (SO[2]) emissions.*fn4 Cognizant of these changes, the Lawrence County Court ordered the PPC to file a new plan for compliance with the new standards.*fn5 No appeal from this order was taken and the PPC submitted a new plan calling for the installation of additional equipment which would raise the particulate matter collection efficiency to a higher level. In an effort to satisfy the SO[2] emission requirements, since the then existing technology was unable to achieve compliance, PPC offered to construct taller stacks to disperse the pollutant higher into the atmosphere and thereby lessen the ground level concentrations. The DER, without passing upon this PPC proposal, petitioned the Lawrence County Court for an adjudication of contempt, contending that the PPC failed to submit a plan that would assure compliance with the standards. Shortly thereafter, a "Complaint for Civil Penalties" was initiated before the Environmental Hearing Board (EHB) against the PPC, 35 P.S. § 4009.1, alleging violations of the DER pollution control regulations at the Lawrence County plant. 25 Pa.Code §§ 123.11 and 123.22. The proceedings before the EHB were deferred pending the disposition of the contempt action.

After a full hearing, the lower court found that the PPC was not in contempt of the September 1972 Order in that it was "technically impossible" to limit its SO[2] emissions. This finding was upheld on appeal to the Commonwealth Court, 12 Pa. Commw. 212, 316 A.2d 96 (1974) and affirmed by this Court, 461 Pa. 675, 337 A.2d 823 (1975).

The DER then pursued the civil penalty petition pending before the EHB. After a full evidentiary hearing, the EHB assessed civil penalties against the PPC for violations of the

[ 490 Pa. Page 403]

    regulations.*fn6 Adjudication Docket No. 72-428-CP-C April 16, 1976. On appeal, the Commonwealth Court affirmed the penalties assessed for the particulate matter emission violation but reversed those imposed for the sulfur dioxide emissions. 34 Pa. Commw. 546, 384 A.2d 273 (1978). The Commonwealth Court reasoned, "(I)t cannot rationally be contended that the effect obtained by Section 9.1 penalties (35 P.S. § 4009.1) substantially furthers the professed purpose behind the legislation. Any intended regulatory aspect of the civil penalties assessed under Regulation 123.22 fails to further any public interest." That court thus concluded, "the imposition of civil penalties for violation of Regulation 123.22 are in violation of PPC's constitutionally protected property rights." Id., 34 Pa. Commw. at 573, 384 A.2d at 286.

On June 26, 1978, this Court granted the DER's petition for allowance of appeal to review the Commonwealth Court's holding of a constitutional prohibition against the imposition of civil penalties for the failure to comply with standards that are "technologically impossible" to meet. 42 Pa.C.S.A. § 724(a).

II. Merits

The question to be addressed is whether Section 9.1 of APCA, 35 P.S. § 4009.1, is unconstitutional to the extent that it authorizes the EHB, pursuant to a DER request, to assess civil penalties for the violation of an air pollution regulation with which present technology renders compliance impossible. Prior to arriving at an answer as to the constitutionality of the civil penalty provision, it is necessary to determine whether the statute confers the authority upon the DER to set air quality standards which are "technologically

[ 490 Pa. Page 404]

    impossible" at the time of the promulgation of the standard.

A -- The authority to set technically impossible standards

In order to answer this initial question, an understanding of the present environmental regulatory scheme in the area of air pollution control is critical. Responding to the demand for air pollution control to reverse the deteriorating air quality throughout the nation, Congress passed the Clean Air Amendments of 1970, 42 U.S.C.A. § 1857 et seq. (CAA). Major modification of this legislation took place through the amendments enacted in 1977. 42 U.S.C.A. §§ 7401-7626 (Supp.1980).

In an effort to attain the desired national air quality level, the Act created a federal-state cooperative process of environmental regulation and enforcement. Under the CAA scheme, the Environmental Protection Agency Administrator was given the power to promulgate "ambient air quality standards" for each region of the nation.*fn7 Each state within its respective region would then devise and offer for the Administrator's approval a plan known as the State Implementation Plan or SIP "which provides for implementation, maintenance, and enforcement" of the ambient air quality standards within the boundaries of that state. 42 U.S.C.A. § 1857c-5(a)(1). After approval of the SIP, the state becomes the primary regulatory and enforcement organ. Only when the state fails to fulfill its statutory obligation will the federal government (EPA) assert its enforcement authority.*fn8

Under this State's own Air Pollution Control Act (APCA), 35 P.S. § 4001 et seq., the Environmental Quality Board (EQB) was given the authority to "adopt rules and regulations, for ...

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