Commonwealth v. Bethlehem Steel Corporation

No. 5 (367 A.2d 222, 469 Pa. 578, 9 ERC 2014) (Pa. November 24, 1976)

ELR Digest

The court affirms a lower court order overruling appellant's preliminary objections to the petition of the Department of Environmental Resources (DER) seeking enforcement of a consent order relating to abatement of air pollution from two of appellant's coke ovens. The consent order entitled Bethlehem to apply to DER for modification of the order in certain circumstances and to pursue judicial appeals if its application is rejected. Bethlehem filed such an application in this case, arguing that DER cannot seek judicial enforcement of the consent order while an appeal of its denial of Bethlehem's request for a modification of the order is pending.

Section 10(a) of the Pennsylvania Air Pollution Control Act authorizes DER to seek enforcement of an order "from which no timely appeal has been taken or which has been sustained on appeal." 35 P.S. § 4010(a) (Supp. 1976). The court holds that the consent order falls within this provision because Bethlehem's appeal is from DER's decision denying the application for modification rather than from the consent order itself. Section 10(a) must be construed in accordance with the strongly stated public health purposes of the Act, 35 P.S. § 4002 (Supp. 1976), and in light of the statutory scheme established by the federal Clean Air Act, 42 U.S.C. § 1857 et seq. (Supp. 1976), and the policies that underlie it. Both the state and federal statutes dictate a policy in favor of the enforceability of air pollution abatement orders. These considerations compel the court to conclude that § 10(a) provides no exception for cases where a party is seeking modification of a consent order.

The court rules further that Bethlehem is in error in contending that by agreeing to allow an application for modification, DER agreed not to enforce the order pending appeal of its decision on the application. Bethlehem also argued that the doctrine of primary jurisdiction prevents DER from maintaining this enforcement action. The court holds the doctrine inapplicable in this case, however, because this proceeding is simply for enforcement of the final consent order and in no way interferes with the power of the Environmental Hearing Board or the courts to order modification of that order at some future date.

The full text of this opinion is available from ELR (10 pp. $1.25, ELR Order No. C-1105).

Counsel for Plaintiff-Appellee
Robert H. Yuhnke, Ass't Attorney General
Department of Justice
Capitol Annex, Harrisburg PA 17120
(717) 787-3391

Counsel for Defendant-Appellant
Paul H. Manion
Reed, Smith, Shaw & McClay
P.O. Box 2009, Pittsburgh PA 15230
(412) 288-3131

Roberts, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]