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COMMONWEALTH PENNSYLVANIA v. HONORABLE ROBERT JUBELIRER (12/07/89)

decided: December 7, 1989.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, PETITIONER,
v.
THE HONORABLE ROBERT JUBELIRER, PRESIDENT PRO TEMPORE OF THE SENATE, THE HONORABLE D. MICHAEL FISHER, CHAIRMAN OF THE SENATE ENVIRONMENTAL RESOURCES AND ENERGY COMMITTEE, THE SENATE OF THE COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS



PETITION FOR REVIEW (IN THE NATURE OF A COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF) WITH NOTICE TO PLEAD.

COUNSEL

Keith E. Welks, Chief Counsel, with him, Richard P. Mather, Asst. Counsel, Dept. of Environmental Resources, Richard D. Spiegelman, Executive Deputy Gen. Counsel, Harrisburg, and Carl H. Shuman, Deputy Gen. Counsel, Office of General Counsel, Office of the Governor, for petitioner.

John P. Krill, Jr., with him, Linda J. Shorey, Ronald W. Chadwell, and R. Timothy Weston, Kirkpatrick & Lockhart, Harrisburg, for respondents, Robert Jubelirer, President Pro Tem. of The Senate, D. Michael Fisher, Chairman of the Senate Environmental Resources and Energy Committee, and The Senate of the Com. of Pa.

James L. Walsh, with him, Vincent C. DeLiberato, Harrisburg, for respondents, Gary D. Hoffman, Director of the Pennsylvania Code and Pennsylvania Bulletin, John Hartman, Director of the Legislative Reference Bureau, and The Legislative Reference Bureau.

S. David Fineman, Fineman & Bach, P.C., Philadelphia, with him, W.C. Matthews, III, Chief Counsel, Coatesville, Independent Regulatory Review Commission, for respondents, John R. McGinley, Jr., Chairman of the Independent Regulatory Review Commission, Commissioner Irvin G. Zimmerman, Commissioner Robert J. Harbison, III, Commissioner Mark Schwartz, Frank J. Ertz, Executive Director of the Independent Regulatory Review Commission, and the Independent Regulatory Review Commission.

Edwin L. Klett, with him, William A.K. Titelman, Christine L. Donohue and William H. Clark, Jr., Pittsburgh, Klett, Lieber, Rooney & Schorling, for amicus curiae, The House of Representatives of the Com. of Pa.

Henry G. Barr, Rhoads & Sinon, Harrisburg, for amicus curiae, Pennsylvania Chamber of Business and Industry.

Douglas Y. Christian, with him, Judith L. Rosenthal, Reed, Smith, Shaw & McClay, Philadelphia, and Stanley L. Arabis, Randor, for amicus curiae, Sun Company, Inc.

Crumlish, Jr., President Judge, and Barry, Colins, Palladino and Smith, JJ. McGinley, J., did not participate in the decision in this case. Colins, Judge, dissenting. Palladino, J., joins in this dissent.

Author: Crumlish

[ 130 Pa. Commw. Page 127]

OPINION

The Pennsylvania Department of Environmental Resources (DER) has filed a petition for review, an application for special relief, and a motion for expedited consideration of the application for special relief addressed to this Court's original jurisdiction. DER asks this Court (1) to declare the Regulatory Review Act (Act), Act of June 25, 1982, P.L.

[ 130 Pa. Commw. Page 128633]

, as amended, 71 P.S. §§ 745.1 -- 745.15,*fn1 unconstitutional and (2) to direct the Legislative Reference Bureau to publish regulations adopted by the Environmental Quality Board (EQB), but disapproved by the Independent Regulatory Review Commission (IRRC) and by the Pennsylvania Senate when proposed for approval by the Governor.

This Court scheduled a hearing for September 7, 1989, on DER's application for special relief. On September 7, 1989, the parties entered into and presented to this Court a stipulation of counsel with a statement of stipulated facts (Stipulation) and a joint application for advancement of argument and argument en banc. We granted the joint application by Order of September 7, 1989, and scheduled en banc argument for October 4, 1989. We also denied DER's application for special relief on the basis that expedited disposition of the petition for review seeking declaratory relief would obviate the need for special relief.

On September 1, 1989, respondents Gary R. Hoffman, Director of the Pennsylvania Code and Pennsylvania Bulletin, John Hartman, Director of the Legislative Reference Bureau, and the Legislative Reference Bureau filed an answer to the petition for review and application for special relief. On September 8, 1989, respondents The Honorable Robert Jubelirer, President pro tempore of the Senate, The Honorable D. Michael Fisher, Chairman of the Senate Environmental Resources and Energy Committee, and the Senate of Pennsylvania filed answers with new matter. Respondents John R. McGinley, Jr., Chairman of the IRRC, Commissioner Irwin G. Zimmerman, Commissioner Robert J. Harbison, III, Commissioner Mark Schwartz, Frank J. Ertz, Executive Director of the IRRC, and the IRRC filed answers with new matter on September 11, 1989.

On October 4, 1989, this Court, sitting en banc, heard argument. Briefs and cross-motions for summary judgment

[ 130 Pa. Commw. Page 129]

    have been filed by the parties. The Pennsylvania Chamber of Business and Industry, the Pennsylvania House of Representatives and Sun Company, Inc., have filed amicus curiae briefs opposing the relief sought by DER. DER has filed reply briefs.

STATEMENT OF FACTS

According to the statement of stipulated facts filed by the parties, the EQB voted on July 9, 1988, to propose amendments to regulations codified at 25 Pa.Code Ch. 129 (relating to standards for sources of volatile organic compounds).*fn2 The EQB proposed the addition of volatility limitations as measured by Reid Vapor Pressure (RVP) applicable to all gasoline sold or exchanged in the Commonwealth beginning in the summer of 1990. The institution of these limitations is a part of the Commonwealth's continuing effort to reduce ozone levels in our environment and thereby promote the public health.

On October 5, 1988, the EQB submitted a copy of the proposed amendments to the IRRC, the Chairpersons of the Senate Environmental Resources and Energy Committee, the House Conservation Commission and the Legislative Reference Bureau. The proposed regulations were published at 18 Pa.B. 4666 on October 15, 1988. Neither the House nor the Senate took action on the proposed regulations by November 4, 1988, the deadline under the Act, because neither was in active session during the statutorily defined review period.

[ 130 Pa. Commw. Page 130]

The IRRC disapproved the proposed regulations by its order of November 2, 1988. That order stated in part "[t]his order constitutes a bar to final publication of IRRC Regulation No. 7-172." (Stipulation, para. 20.) On December 1, 1988, DER returned the proposed regulations to the IRRC pursuant to Section 6(a) of the Act, 71 P.S. § 745.6(a), in original form with a letter submitted for the purpose of added justification. The IRRC once again disapproved the proposed regulations on December 7, 1988, and indicated that its order constituted a bar to final publication. On January 23, 1989, the Governor sent a report in support of the proposed regulations to the General Assembly pursuant to Section 7(b) of the Act, 71 P.S. § 745.7(b).

On February 1, 1989, the IRRC voted to continue its order of December 7, 1988, disapproving of the proposed regulations as resubmitted by DER on December 1, 1988, and as submitted for approval by the Governor to the General Assembly. In addition, pursuant to Section 7 of the Act, 71 P.S. § 745.7, the IRRC voted to transmit the proposed regulations to the General Assembly for consideration in accordance with the procedure set forth in the Reorganization Act of 1955.*fn3 The IRRC's order also stated that it constituted a bar to final publication.

On February 3, 1989, the IRRC transmitted the proposed regulations and its order of February 1, 1989, to the General Assembly. On March 15, 1989, the Senate Environmental Resources and Energy Committee held a public hearing on the proposed regulations in Harrisburg. On April 6, 1989, the House Conservation Committee held a public hearing on the proposed regulations in State College. After the Committee hearings, the Chairman of the Senate Environmental Resources and Energy Committee distributed to the full Senate a "Report and Recommendations on Regulatory Review Report No. 1-Proposed Gasoline Volatility Regulation." (Stipulation, para. 29.)

On April 12, 1989, the Senate voted to adopt Resolution B to Regulatory Review Report No. 1, disapproving the proposed

[ 130 Pa. Commw. Page 131]

    regulations. Mark R. Corrigan, Secretary of the Senate, by letter dated April 12, 1989, notified Arthur A. Davis, Secretary of DER, that the Senate had rejected the regulations. No action was taken on the proposed regulation by the House during the time period authorized under the Reorganization Act of 1955, as referenced in the Act.

On April 18, 1989, the EQB voted to adopt the final RVP regulations. The final regulations were transmitted to the Office of General Counsel for review pursuant to Section 301(10) of the Commonwealth Attorneys Act.*fn4 On April 28, 1989, the Office of General Counsel approved the final regulations for form and legality and then transmitted them to the Office of Attorney General. By letter dated May 3, 1989, the Attorney General advised the Office of General Counsel that pursuant to Section 204(b) of the ...


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