Com., Dept. of Environmental Resources v. Bethlehem Steel Corp.
| Decision Date | 24 November 1976 |
| Citation | 469 Pa. 578,367 A.2d 222 |
| Parties | COMMONWEALTH of Pennsylvania, DEPARTMENT OF ENVIRONMENTAL RESOURCES v. BETHLEHEM STEEL CORPORATION, Appellant. |
| Court | Pennsylvania Supreme Court |
Argued Sept. 21, 1976.
Rehearing Denied Jan. 3, 1977. [Copyrighted Material Omitted]
Paul A. Manion, Pittsburgh, for appellant.
Robert E. Yuhnke, Harrisburg, for appellee.
Before JONES C. J., and EAGEN, O'BRIEN, ROBERTS, POMEROY and MANDERINO, JJ.
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. [1] 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. [2] We conclude that it does, and affirm. I.
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. [3] 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, raisingjurisdictional questions, which were overruled by the Commonwealth Court.
II.
A. DER's petition to enforce the order was brought pursuant to section 10(a) of the Air Pollution Control Act. [4] This section authorizes petitions to enforce a DER order 'from which no timely appeal has been taken or which has been sustained on appeal.' [5] 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 still bring an action to enforce the original order pursuant to section 10(a) of the Air Pollution Control Act.
B. Looking only at the language of section 10(a), it might be argued that an appeal from a decision denying modification of an order is an appeal from the order itself, so as to deprive the Commonwealth Court of jurisdiction. Such an interpretation, however, would be totally inconsistent with the purpose of section 10(a). [6]
Section 10(a) of the Air Pollution Control Act must be construed in accordance with the purposes of the Act. [7] The Act's purposes include the 'protection of public health, safety and well-being of (the) citizens . . ..' [8] This declaration of policy, adopted in 1968, replaced an earlier declaration that air resources be maintained within the limits of technological feasibility and economic reasonableness. [9] This change
'. . . disclos(es) a marked shift from combating air pollution within limitations of technical feasibility and economic reasonableness to protection not only of the air resource itself, but also of the public health, property and recreational resources of the Commonwealth.'
Rushton Mining Co. v. Commonwealth, 16 Pa.Cmwlth. 135, 140, 328 A.2d 185, 188 (1974).
We conclude that the adoption of the Air Pollution Control Act makes the preservation of the quality of our air resources a matter of the highest public importance. [10]
In keeping with this policy, the Legislature adopted procedures to facilitate enforceability of the Act. A variety of means of enforcement are provided, including the enforcement of administrative orders, direct proceedings in court for injunctive relief or civil penalties, and actions brought by district attorneys or members of the general public. [11] Emergency enforcement powers are also granted. [12] Moreover, the Legislature restricted the availability of supersedeas during administrative appeals from DER orders. [13]
C. Section 10(a) of the Air Pollution Control Act should also be interpreted in light of the statutory scheme created by the United States Congress in the Clean Air Act Amendments of 1970. [14] These amendments require the Environmental Protection Agency (EPA) to set national air quality standards. [15] The states are then required to submit plans for the implementation of these standards. These plans must be approved by the EPA if they meet eight general criteria set out in the statute. The principal criterion for federal approval is that the state plan ensure that primary air quality standards set by the EPA to protect the public health will be satisfied within three years. [16] In summary, the Clean Air Act Amendments of 1970 create a legislative scheme by which:
'Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State . ...' [17]
Pennsylvania's Air Pollution Control Act provides the mechanism by which the State meets its responsibilities under the Clean Air Act Amendments of 1970. Section 10(a) of the Air Pollution Control Act, provides a means for enforcing the State Implementation Plan. Thus, section 10(a) of the Act, supra, should be interpreted in accordance with the policies underlying the Clean Air Act Amendments of 1970.
Like the Pennsylvania Air Pollution Control Act, the Clean Air Act Amendments of 1970 reflect a legislative determination that air pollution constitutes a serious threat to public health and safety, and that maintaining clean air is a matter of the highest priority:
'(T)he 1970 Amendments to the Clean Air Act were a drastic remedy to what was perceived as a serious and otherwise uncheckable problem of air pollution.'
Union Electric Co. v. EPA, 427 U.S. 246, 256, 96 S.Ct. 2518, 2525, 49 L.Ed.2d 474 (1976). The importance of achieving air quality standards is reflected by the expedited timetable set for EPA and state compliance [18] and by Congress' determination that achieving air quality standards should take priority over economic and technical considerations. As the Supreme Court recently explained:
'Section 110(a)(2)(A)'s three-year deadline for achieving primary air quality standards is central to the Amendments' regulatory scheme and, as both the language and the legislative history of the requirement make clear, it leaves no room for claims of technological or economic infeasibility.'
Id. at 258, 96 S.Ct. at 2526. [19]
Like the Pennsylvania Air Pollution Control Act, the Clean Air Act Amendments of 1970 provide for a variety of enforcement mechanisms. The primary mechanism for enforcement of the Clean Air Act is the enforcement of implementation plans by the states. In addition EPA can issue compliance orders, the violation of which carries severe monetary penalties, and bring actions for injunctive relief. [20] Citizen suits to enforce emission limitations are also encouraged. [21]
Thus, the Clean Air Act, like the Pennsylvania Air Pollution Control Act, dictates a policy in favor of the enforceability of air pollution abatement orders. We will not adopt an interpretation of section 10(a) which is not required by its language and which would deprive the courts of jurisdiction to enforce pollution abatement orders. [22] The health and safety of the public must take priority.
D. We conclude, therefore, that the policies behind both state and federal law compel the interpretation of section 10(a) of the...
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