Opposition — West Penn Power Co. v. Train

75-974 ‘

in the Supreme Court of the

YnjtedD States

October Term, 1975

No. 74-2050

WEST PENN POWER COMPANY,

a Corporaticn,

Petitioner

Vv.

RUSSELL TRAIN, Administrator of the Environmental

Protection Agen o? the United States of America,

MAURICE K. G*’DDARD, Individually and as Secretary

of the ———, of Environmental Resources and the

DEPAR NT OF ENVIRONMENTAL RESOURCES of the

Commonwealth of Pennsylvania,

Respondents

ANSWER TO PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT FOR RESPONDENTS MAURICE K.

GODDARD AND THE DEPARTMENT OF ENVIRON-

MENTAL RESOURCES, COMMONWEALTH OF PENNSYL-

DENNIS J. HARNISH

Special Assistant Attorney

514 Executive House

Apartments

101 South Second Street

P. O. Box 2357

Harrisburg, Pa. 17120

Atto for Maurice K.

and The Depart-

ment of Environmental Re-

sources

Of Counsel:

WILSON OBERDORFER, Director

Bureau of Legal Services

518 Executive House Apartments

101 South Second Street

P. O. Box 2357

Harrisburg, Pa. 17120

—_

Murrelle Printing Co., Law Printers, Box 100, Sayre, Pa. 18840

TABLE OF CONTENTS

Counter-Statement of the Case ............... 1

Respondents Request To Be Stricken as Parties

Should This Court Issue a Rule 25 Order

Granting the Requested Writ ............ 4

Reasons for Denying the Writ ................ 7

A. The issues raised in this appeal are moot 7

B. In addition to the mootness of the appeal,

DER and Goddard respectfully suggest that

the reasons, individually and collectively,

set forth in the numbered paragraphs of Pe-

titioner’s petition for granting the writ do

not constitute the necessary special and im-

portant reasons for issuing the writ, but

rather represent specious and questionable

arguments concerning a soundly-reasoned

opinion of a Court of Appeals .......... 8

~ 1. State variance does not stay federal en-

' DW cn oman aden ey eee eos 8

2. This matter is not ripe for judicial re-

GD scévacskedecebesasebaeensees 11

3. Issuance of a notice of violation by

EPA under the Federal Clean Air Act is

not a final agency action under the Ad-

ministrative Procedure Act ........... 13

GD, cst nid Dee avablaniel oats de eee 16

REE os cvonevcedbsSeonsdws budnbtoevecs 17

TABLE OF CITATIONS

CASES:

Abbott Laboratories vs. Gardner, 387 U.S. 136

ER re Ser te Si ch oe 12, 13, 14, 15

Federal Power Commission vs. Hope Natural Gas

Company, 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed.

Dr i audan evden’ edhékd soueneketeess 15

Federal Power Commission vs. Metropolitan Edison

Company. 304 U.S. 375, 58 S.Ct. 963, 82

eS er ee es oe 15

Getty Oil vs. Ruckelshaus, 467 F.2d 349 (3d Cir.

1972), cert. denied 409 U.S. 1125 (1973) 9,12, 15

Rochester Telephone Company vs. U.S., 307 US.

125, 59 S.Ct. 754, 83 |..Ed. 1147 ....... 15

Toilet Goods Association vs. Gardner, 387 U.S.

» S yee. RL Be ! yee 12,13

Train vs. NRDC, Inc., 43 U.S.L.W. 4467 (US.

Agel 16, 1975), 7 ERC 0735 ...........-. 8,9

STATUTES:

(Federal) Administrative Procedure Act, Act of

September 6, 1966, Pub. L. 89-554, 80 Stat.

381, 5 U.S.C. §551, et seq. (1967 ed.):

EE DUPED ccc cccesscccvereees 12

GED . cece: oeenceseus 5

a er 11

DT «o. cssupuueuseheenbas dues 12

(Federal) Clean Air Act of July 14, 1955, c. 360,

Title I, §101, formerly §1, as added Decem-

ber 17, 1963, Pub. L. 88-206, §1, 77 Stat.

392, renumbered and amended October 20,

1965, Pub. L. 89-272, Title I, §101 (2) (3), 79

Stat. 992; November 21, 1967, Pub. L. 90-148,

§2, 81 Stat. 485, 42 U.S.C. §1857, et seq.

(1969 ed.):

I ll ah a 14

I a ek A ee 13, 14

(Pennsylvania) Administrative Agency Law, Act

of June 4, 1945, P.L. 1388, §1, as amended

71 PS. §1710.1, et seq. (Supp. 1975-1976) .. 2

(Pennsylvania) The Administrative Code of 1929

(Act of April 9, 1929, P.L. 177, Art. I, $1), as

amended 71 P.S. §501-1, et seq. (Supp. 1975-

1976):

Dy MED 6 <caavendeaeseuneueres 2

REGULATION:

Pennsylvania Department of Environmental Re-

sources, Title 25, Pennsylvania Code:

De DEED sadcockwed ese secanemeens 1,10

OTHER AUTHORITY:

United States Supreme Court Rules, 28 U.S.C.

Dt? <cnestsveceee¥eGeueeeaseees 4

Counter-Statement of the Case l

COUNTER-STATEMENT OF THE CASE

Petitioner bases its appeal on the argument that since

it has a variance from the Pennsylvania sulfur dioxide

emission standards granted by the Commonwealth of Penn-

sylvania, Department of Environmental Resources

(“DER’’), the United States Environmental Protection

Agency (“EPA”) should not be allowed to enforce these

same standards under the Federal Clean Air Act. DER

and its Secretary, Maurice K. Goddard (“‘Goddard”’), as-

sert that Petitioner’s argument is not well-grounded either

in fact or law.

As to the factual situation, on page 8 of the statement

of the case section of its petition for writ of certiorari in

the above-captioned matter, Petitioner states that “On Sep-

tember 13 1973, despite the pendency of Petitioner’s vari-

ance application which, as provided by the implementa-

tion plan, operated as an automatic stay of prosecution,

the Administrator issued to Petitioner a notice of viola-

tion . . . which asserted, inter alia, that Boiler No. 33 was

in violation of the sulfur emission standards contained in

the Pennsylvania implementation plan.”’

DER and Goddard submit that, to the extent that an

‘automatic stay of prosecution” existed on September 13,

1973 pursuant to §141.5 of DER’s rules and regulations,

this stay expired on September 19, 1973 when DER issued

an order to Petitioner requiring compliance with said sul-

fur emission standards on or before June 30, 1976 since

a stay of prosecution under §141.5 terminates under that

2 Counter-Statement of the Case

section when DER acts upon the variance application.

Moreover, the DER order of September 19, 1973 which

appears as Exhibit A hereto and was presented to the

Court of Appeals for the Third Circuit (‘Court of Ap-

peals’’) as Petitioner’s Exhibit ‘B’”’, was conditioned upon

Petitioner’s full compliance with a schedule or timetable

providing for the planning, purchasing, construction, and

installation on site of the necessary emission control equip-

ment.

There is no evidence in the record to indicate that

Petitioner has complied with any of the conditions set

forth in the variance order of September 19, 1973 and,

to the contrary, DER submits that Petitioner has not so

complied with those conditions. Thus, said variance order

itself forms no stay of prosecution. Moreover, Petitioner

appealed the order of September 19, 1973 to the Pennsyl-

vania Environmental Hearing Board pursuant to Pennsyl-

vania’s Administrative Agency Law and Administrative

Code of 1929 and this Board has not yet issued an adjudi-

cation based upon said appeal. Pursuant to Section 1921-

A of the Administrative Code of 1929, 71 P.S. §510-1921-

A, no action of DER shall be final until a person aggrievec

thereby exhausts his right of appeal to the Environmental

Hearing Board. Therefore Petitioner cannot rely upon

said variance order, which is not yet a final order, as a

stay of prosecution.

Finally, DER would emphasize the material contained

in the footnote on page 10 of Petitioner’s petition for writ

of certiorari. As is noted there, the Petitioner has already

obtained from the Court of Appeals a stay of all EPA en-

forcement activities until thirty days following the disposi-

tion by said Court of Appeals of the Petitioner's petition

Counter-Statement of the Case 3

for review of the sulfur dioxide emission limitations con-

tained in the Pennsylvania implementation plan. To the

knowledge of DER the Court of Appeals has issued no

final opinion concerning said petition for review.

4 Request To Be Stricken as Parties

RESPONDENTS REQUEST TO BE STRICKEN AS PAR-

TIES SHOULD THIS COURT ISSUE A RULE 25

ORDER GRANTING THE REQUESTED WRIT

DER and Goddard recognize that they are deemed to

be parties before this Court in this matter pursuant to Rule

21(6) of this Court since they were at least nominal par-

ties before the Court of Appeals whose judgment is herein

sought to be reviewed. DER and Goddard further recog-

nize that this Court will not receive a motion to dismiss an

entire petition for a writ of certiorari, Rule 24 (2).

Nevertheless, pursuant to Rule 24(2) this Court ap-

parently does consider objections to jurisdiction which

are presented, as here, in briefs in opposition to petitions

for certiorari.

Furthermore, it would appear that, along with an

order granting a writ for certiorari under Rule 25, this

Court could order that DER and Goddard be stricken as

parties.

DER and Goddard submit that those portions of the

lower Court opinions which dismissed the action below

as to them have not been raised as issues for review by this

Court. Wherefore, Petitioner should be deemed to have

waived its arguments with regard to the status of the

Respondents, DER and Goddard, as parties hereto by fail-

ure to raise these issues in its petition.

In support of this argument Respondent herein would

respectfully direct this Court's attention to the following

portions of the record.

Request To Be Stricken as Parties 5

In its opinion, reprinted as Appendix B to the Peti-

tioner’s petition beginning at 42a, the United States Dis-

trict Court for the Western District of Pennsylvania granted

the motions to dismiss of both DER and Goddard. A re-

view of the opinion beginning at 54a indicates that the

dismissal as to DER was on the basis of the Eleventh

Amendment to the Constitution of the United States while

that Court found it did not have jurisdiction over Goddard

to require him to modify or amend the Pennsylvania state

implementation plan.

The Court of Appeals noted in its opinion as reprinted

at page 11a of the Petitioner’s petition that Petitioner's

motion for reconsideration challenged only the dismissal

as to Goddard and not the dismissal as to DER. Thus,

Petitioner abandoned its attempts to implead DER at the

Court of Appeals level.

As to Goddard’s status, the Court of Appeals, as re-

ported on page 16a of the Petitioner’s petition, held that

“The APA [Administrative Procedure Act] provides, in

certain instances, for judicial review of agency action.

5 U.S.C. §701 (b) (1) defines ‘agency’ as ‘each authority

of the Government of the United States... .’ The APA

does not extend the state agencies. Thus, it could not af-

ford the District Court jurisdiction of West Penn’s suit

against Goddard, who is Secretary of a Pennsylvania

agency.” The reasons for granting the writ of certiorari

advanced by Petitioner do not assign as an error of the

Court of Appeals to be reviewed on certiorari by this Court

the aforequoted construction “agency action’ under the

APA. No other ground of jurisdiction is pressed in said

petition. Thus, even if all of the arguments set forth in

Petitioner’s petition find merit with this Court, the deci-

6 Request To Be Stricken as Parties

sion of the Court of Appeals to dismiss the action with

respect to Goddard and the decision of the United States

District Court for the Western District of Pennsylvania

to dismiss the action with regard to DER should stand as

the law of this case and these parties should be stricken as

parties to the instant action.

Whether or not this Court decides that DER and

Goddard should remain as parties to this matter, the fol-

lowing arguments address the issue of whether the writ

should be granted. If this Court decides that DER and

Goddard should be stricken as parties then the following

remarks are to be construed as the arguments of an amicus

curiae.

Reasons for Denying Writ 7

REASONS FOR DENYING THE WRIT

A. The issues raised in this appeal are moot, Pur-

suant to Rule 19 of this Court “A review on Writ of Cer-

tiorari is not a matter of right, but of sound judicial dis-

cretion, and will be granted only where there are specia!

and important reasons therefore.”” Keeping this guideline

in mind, it should be quite obvious that a writ of certiorari

should not be issued in a matter which has become moot.

In fact, such a situation would be the opposite of the situa-

tion necessitating the issuance of a writ since there would

be no important or special reason for the issuance of the

writ in a moot situation. The relief initially requested by

Petitioner in the District Court and then in the Court of

Appeals, to wit, an injunction against the enforcement of

a notice of violation issued by EPA until it obtained a

declaratory judgment as to whether Petitioner's ‘‘tall stack

strategy” could produce compliance with the Pennsylvania

state implementation plan, has, in fact, already been

granted,

As is noted on page 10 in the footnote of the Peti-

tioner’s petition and the counter-statement of the case here-

in, the Petitioner herein has also petitioned the Court of

Appeals for review of the Pennsylvani. state implementa-

tion plan with regard to its tall stack strategy for meeting

sulphur dioxide emission standards and said matter is pend-

ing before the Third Circuit Court of Appeals.

Furthermore, as noted in the same footnote, on May

19, 1975 the Third Circuit Court of Appeals issued a stay

of all enforcement activities by the Administrator of EPA

8 Reasons for Denying Writ

pending its decision on said petition for review. It is the

understanding of DER and Goddard that the Administrator

of EPA and the Petitioner have requested the Court of

Appeals to approve extensions of said stay through the

present date and that said Court of Appeals has granted

said extensions. It would therefore appear to be a waste

of this Court’s valuable time to consider further the above-

captioned matter.

B. In addition to the mootness of the appeal, DER

and Goddard respectfully suggest that the reasons, indi-

vidually and collectively, set forth in the numbered para-

graphs of Petitioner’s petition for granting the writ do not

constitute the necessary special and important reasons for

issuing the writ, but rather represent specious and ques-

tionable arguments concerning a soundly-reasoned opin-

ion of a Court of Appeals.

1. State variance does not stay federal enforcement.

The first reason offered by Petitioner for granting

the writ is (at numbered paragraph 1) that review of the

decision of the Court of Appeals is necessary to clarify

federal-state relationships under the Clean Air Act. In

this argument, Pet’‘ioner, having discussed this Court's

opinion in Train vs. NRDC, Inc., 43 U.S.L.W. 4467 (U.S.

April 16, 1975), 7 ERC 1735, characterizes the instant

case as presenting an important corollary, to wit, whether

the Administrator of EPA may ignore a valid variance pro-

vision of a state implementation plan by taking enforce-

ment action which conflicts with the provisions of the plan.

Actually, the Train case reemphasizes the need for

approval of a variance by EPA before that variance can be

Reasons for Denying Writ 9

-_ considered a part of a state implementation plan under the

Clean Air Act. In reaching its decision in that matter this

Court upheld the construction of the Clean Air Act prof-

ferred by EPA rather than that profferred by certain of

the United States Courts of Appeal. At 7 E.R.C. 1739

this Court held that ‘‘Without going so far as to hold that

the agency construction of the act was the only one it

permissibly could have adopted, we conclude that it was,

at the very least, sufficiently reasonable that it should

have been accepted by the reviewing Court.” In this mat-

ter EPA and DER, the relevant administrative agencies,

both agree that the enforcement activities of EPA are not

suspended per se by the existence of a variance granted

by the state agency unless and until that variance is

adopted by EPA as part of the state implementation plan.

Moreover, the Third Circuit Court of Appeals has

demonstrated in the instant matter, a swell as in Getty Oil

vs. Ruckelshaus, 467 F.2d 349 (3d Cir. 1972) , cert. denied

409 U.S. 1125 (1973), that it knows how to cure the so-

called Getty Oil dilemma, i.e., federal enforcement pend-

ing state review of its implementation plan, by issuing a

stay of enforcement against the EPA Administrator where

it deems that step to be necessary and/or desirable.

To hold that federal enforcement of a state imple-

mentation plan can be automatically suspended by a “‘pro-

posed”’ revision to a state implementation plan notwith-

standing EPA’S refusal to adopt said revision to that plan

would go against the entire history of and need for the

Clean Air Act as painstakingly set forth in the Train case,

supra. As this Court noted in Train, it is the obligation

of EPA to determine compliance of a state implementa-

tion plan with achievement of national ambient air quality

10 Reasons for Denying Writ

goals. The interpretation profferred by Petitioner would

frustrate this clear statutory purpose by collapsing the

federal state structure to a single layer in which a state

could for example, grant a variance on an illegitimate basis

and thereby stop EPA as well as its own regulatory agency

from taking enforcement action.

Furthermore, even if it is assumed for the sake of

argument that on the date that the notice of violation

presently appealed was issued an automatic stay of pros-

ecution was in effect in Pennsylvania as to both the Penn-

sylvania DER, and EPA under 25 Pa. Code $141.5, it is

also true that as of September 19, 1973, the date upon

which DER issued its variance order, said automatic stay

of execution terminated by the terms of §141.5. Thus,

following September 19, 1973, the only obstacle to en-

forcement action was pursuant to the terms and conditions

of the order itself.

As stated above in the counter-statement of the case,

the aforesaid order (which is attached as Exhibit A)

granted a variance running to and including June 30, 1976

with regard to emissions of sulphur compounds. However,

the foregoing variance was granted on condition that the

obligations set forth in paragraphs a, b, c, d, e, and f of the

order were fully met, within the time specified for com-

pliance and, “*. . . on the following further conditions: (1)

on or before April 1, 1974, details of the company’s plan

shall be submitted to the Department [DER] setting forth

a detailed description of the methods or devices to be used

to control the sulphur dioxide emissions from Boiler No.

33 and a schedule indicating the dates upon which inter-

mediate steps of the plan are to be completed; (2) pur-

chase orders for equipment necessary for compliance with

Reasons for Denying Writ 11

paragraph of this order shall be placed no later than July

1, 1974, and proof thereof shall be submitted to the De-

partment within five (5) days after such orders are

placed; (3) on-site construction or installation of the emis-

sion control equipment shall be initiated on or before De-

cember 1, 1974...”

There is no evidence on the record that Petitioner has

complied with any of the aforesaid conditions. To the

contrary, DER respectfully submits it has not received any

of the aforesaid plans or purchase orders, nor has construc-

tion or installation been initiated in accordance with the

aforesaid order. For this reason, whatever protection the

aforesaid variance granted against either the state or fed-

eral enforcement activities, said variance has become in-

effective by the terms of that variance due to the conduct

of Petitioner itself and cannot, at this point in time, act as

a defensive shield of the Petitioner against either DER or

EPA.

2. This matter is not ripe for judicial review.

The point raised at paragraphs numbered 2 through

5 of Petitioner’s petition, which deal with questions of

statutory construction under the Federal Administrative

Procedure Act, 5 U.S.C. §§701 et seq., individually and

collectively, present no meaningful question to this Court.

Assuming for the moment that the Petitioner is correct in

its assertion in numbered paragraph 2 that the Adminis-

trative Procedure Act, 5 U.S.C. §702, creates an inde-

pendent jurisdictional grant to the United States District

Courts; assuming, as Petitioner suggests in paragraph 3,

that the issuance of a notice of violation by the Administra-

tor of EPA is not such “action committed to agency dis-

12 Reasons for Denying Writ

cretion by law” as to fall under the exclusionary wording

of the Administrative Procedure Act, 5 U.S.C. §701 (a)

(2); and assuming, further, that the notice of violation

presently appealed is a “final agency action’’, as that term

is defined under 5 U.S.C. §704, as suggested in Petition-

er’s paragraph 4, it, nevertheless, fails to follow that Pe-

titioner is entitled to its day in the federal District Court

in this proceeding.

In Abbott Laboratories vs. Gardner, 387 U.S. 136

* (1967), and Toilet Goods Association vs. Gardner, 387

U.S. 156, 87 S.Ct. 1520 (1967), this Court found that,

even in those instances where the Administrative Proce-

dure Act would otherwise create an opportunity for judi-

cial review, this opportunity was discretionary on the part

of the Court whose review was solicited and the prospec-

tive reviewing Court still must determine whether the

matter was ripe for judicial review. As this Court stated

at Abbott Laboratories, supra, at pages 148 and 149,

“The injunctive and declaratory remedies are discretion-

ary, and courts traditionally have been reluctant to apply

these to administrative determinations unless these arise

in the context of a controversy ripe for judicial resolution

... the problems is best seen in a two-fold aspect, requiring

us to evaluate both the fitness of the issues for judicial

decision and the hardship to the parties of withholding

court consideration.”

The District Court for the District of Delaware in

Getty Oil vs. Ruckelshaus, 342 F. Supp. 1006 (DC Del.) ,

4 ERC 1141 (affirmed and cert. denied supra) , withheld

jurisdiction to review an order of EPA which is surely, a

more “final” act than, as here, a mere notice of violation.

The District Court of Delaware found that, although the

Administrative Procedure Act did provide a jurisdictional

Reasons for Denying Writ 13

grant and while review was not foreclosed on the basis

of §307 of the Clean Air Act, at least for questions which

could not have been raised in the context of an originally

filed 307 petition, that Court would refrain from exercising

its discretion to grant a stay of enforcement.

In affirming the District Court, the Third Circuit

Court of Appeals, in effect, held that the requested stay,

which would be a preliminary injunction, was barred by

the existence of an adequate remedy at law and/or Plain-

tiff’s failure to exhaust its exclusive statutory remedy, to

wit, Plaintiff's failure to pursue a §307 petition to review

the state implementation plan before said Court of Ap-

peals.

Since, as stated above, Petitioner has obtained a

stay of EPA enforcement of the Pennsylvania state im-

plementation plan provisions with regard to sulphur di-

oxide pending a decision on its petition for review of those

provisions filed with the Third Circuit pursuant to §307,

there is no hardship to Petitioner if the District Court re-

frains from exercising whatever jurisdiction it may have in

the instant matter. Furthermore, the matter is much more

fit for judicial review under Petitioner’s petition to review

than in the instant matter. Therefore, under the two-fold

test set forth in Abbott Laboratories and utilized in, inter

alia, Toilet Goods Association and Getty Oil the present

matter was properly dismissed by the Courts below.

3. Issuance of a notice of violation by EPA under

the Federal Clean Air Act is not a final agency action un-

der the Administrative Procedure Act.

The preceding assumption of the finality of agency

action was made for the sake of argument only. Actually,

14 Reasons for Denying Writ

it is the position of DER and Goddard that the Third Cir-

cuit Court of Appeals properly resolved all of the ques-

tions as to finality of agency action and to this extent said

opinion is adopted and incorporated by reference herein.

Of special interest is that portion of the Court of Appeals’

opinion, reprinted on page 18a of the Petitioner’s petition,

which holds that a notice of violation is not an appropriate

decision point in the administrative procedure to enable a

Court to adequately address the issues therein. As the

Court of Appeals notes, the state implementation plan

standards themselves are analogous to the regulations re-

viewed in Abbott Laboratories, supra, and would have

provided a ground for review. Of course, such a review

was provided as of statutory right under §307 of the Clean

Air Act, but the present Petitiouer failed to avail itself of

that section. However, the notice of violation issued un-

der the implementation plan is not a “final agency action”

or an appropriate review point, since, under section 113a

(4), of the Clean Air Act, a petitioner has the right, fol-

lowing receipt of a notice of violation, to discuss the alle-

gations set forth therein and the remedies therefor with

EPA at an administrative conference. 42 U.S.C. §1857C

8(a) (4). Only after this conference may the Environ-

mental Protection Agency issue a compliance order. Ob-

viously, it is only after the conference and following the

issuance of a specific order that a given “‘source”’ under-

stands the manner and the timing in which it is to come

into compliance with a state implementation plan.

It is only following these steps that EPA has com-

pleted its administrative function of applying its expertise

to the particular factual situation of a given “‘source”’ and

it is only upon such a record that a Court may adequately

exercise its rightful judicial review. All the cases cited in

Reasons for Denying Writ 15

Petitioner’s petition on the ripeness issue bear out the

above-stated principle set forth in Abbott Laboratories,

supra, that judicial review of agency action should not be

exercised until the agency’s expertise is fully exercised; an

action is simply not “final” before this point. (Also see

Federal Power Commission vs. Hope Natural Gas Com-

pany, 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333; Rochester

Telephone Company vs. U.S., 307 U.S. 125, 59 S.Ct. 754,

83 L.Ed. 1147; Federal Power Commission vs. Metropoli-

tan Edison Company, 304 U.S. 375, 58 S.Ct. 963, 82 L.Ed.

1408.)

The due process argument set forth at numbered para-

graph 5 of the Petitioner’s petition is in reality a ripeness

argument in other dress. Essentially, Petitioner repeats

its statement that it is somehow unfair to subject Petitioner

to the potential of enforcement actions before it has a

chance to obtain judicial review of the state implementa-

tion plan upon which said actions could be based. Of

course, in the instant situation the Petitioner has obtained

the stay of enforcement that it solicited at both the state

and federal levels. However, even if it had not so obtained

a stay at this time, DER and Goddard suggest that the

Court of Appeals’ arguments with respect to due process

were correct and that the instant Petitioner has no right to

more than one meaningful day in Court. In this regard, the

above-named persons also accept and incorporate by ref-

erence the reasoning of the Delaware District Court set

forth in Getty Oil, supra. Finally, in regard to due process,

since due process is, as this Court has often noted, based

upon the judicial implementation of an underlying concept

of fairness, the above-named persons must point out that

the Petitioner is the party seeking to utilize an unfair pro-

cedure. It is the Petitioner which is attempting, on the

ee

16 Reasons for Denying Wri:

one hand, to overturn the variance order issued September

19, 1973 by DER in proceedings before the Pennsylvania

Environmental Hearing Board and at the same time to use

this variance order to proicct itself against enforcement

actions by both DER and EPA. To compound the un-

fairness of Petitioner’s actions it is seeking to utilize a

variance order based upon conditions which it has not ful-

filled as a defensive shield.

CONCLUSION

For these reasons, a writ of certiorari should not be

issued to review the judgment and opinion of the Third

Circuit Court of Appeals.

Respectfully submitted,

DENNIS J. HARNISH

Spec. Ass’t. Attorney General

Attorney for Maurice K. God-

dard and the Department of

Environmental Resources

Of Counsel:

WILSON OBERDORFER, Director,

Bureau of Legal Services

Appendix 17

APPENDIX—EXHIBIT A

(Petitioner’s Exhibit ‘B’’)

COMMONWEALTH OF PENNSYLVANIA

Department of Environmental Resources

Fulton National Building

200 North Third Street

P. O. Box 2063

Harrisburg, Pa. 17120

September 19, 1973

Certified Mail #143736

West Penn Power Company

800 Cabin Hill Drive

Greensburg, Pennsylvania 15601

Attention: Mr. Ralph J. Gunkle, Jr.

Secretary-Treasurer

Order No. 73-708-V

Gentlemen:

ORDER GRANTING TEMPORARY VARIANCE

Pursuant to Chapter 141, Section 141.2 of the Rules

and Regulations of the Department of Environmental

Resources, the West Penn Power Company submitted a

petition for a temporary variance dated September 15,

1972 and amended on June 7, 1973 requesting a variance

from the air contaminant emissions limitations of Sections

123.11, 123.22 and 123.41 of Chapter 123 for the four

boilers located at its Mitchell Power Station in Courtney,

Union Township, Washington County, Pennsylvania. Said

18 Appendix

petition indicated that said source is presently emitting air

contaminants in violation of the limitations set forth in

Sections 123.11, 123.22 and 123.41 and is causing air

pollution as defined in the Air Pollution Control Act, the

Act of January 8, 1960, P.L. 2119, as amended, 35 P.S.,

§4001, et seq.

The petition as amended seeks a variance from the

particulate matter and visible emissions limitations of Sec-

tions 123.11 and 123.41 until January 18, 1974 for Boilers

Nos, 1, 2 and 3, and until November 1, 1973 for Boiler

No. 33. The petition also seeks a variance from the sulfur

compound emissions limitations of Section 123.22 until

January 18, 1974 for Boilers Nos. 1, 2 and 3, and until

June 30, 1985 for Boiler No. 33. Boilers Nos. 1, 2 and 3

are to be converted to oil firing by January 18, 1974. Two

alternate plans have been proposed for control of sulfur

dioxide emissions from Boiler No. 33. Alternate I pro-

vides for the installation of a stack which the company

believes would achieve compliance with the ambient air

quality standards only, by April 1, 1977 but would not

achieve compliance with the emission standards until June

30, 1985. Alternate II provides for the installation of

sulfur dioxide control equipment with compliance being

obtained by April 1, 1978 or an extended period there-

after.

Upon a review of the petition (a copy of said petition

is attached hereto and marked Exhibit A”), and accom-

panying materials, testimony (if any) received at public

hearing, and upon other information available to the De-

partment dealing with the availability of technology to

control sulfur dioxide emissions, the Department finds

that:

Appendix 19

1, The granting of such a variance may pre-

vent or interfere with attainment or maintenance of

ambient air standards within the time prescribed by

the Federal Clean Air Act and Rules and Regulations

promulgated thereunder.

2. Alternate I does not provide for compliance

with Section 123.22 in a reasonable time period and

is therefore not acceptable to the Department.

3. The granting of the variance, as requested,

for implementation of Alternate II is not reasonable

inasmuch as the intermediate dates, and the com-

pletion date set forth in the petition do not indicate

that the company intends to effect the control of the

source as quickly as is reasonably practicable.

Now Therefore, this 19th day of September, 1973,

the Department hereby grants a variance and further or-

ders that the West Penn Power Company, its successors

and assigns, shall:

(a) on or before June 30, 1976 complete the

implementation of Alternate II of the control plan

set forth in the aforementioned amended petition for

a variance, which plan is hereby incorporated herein

and made a part hereof;

(b) complete implementation of the control

plan with respect to the control of particulate matter

and sulfur compound emissions from Boilers Nos. 1,

2 and 3 and particulate matter emissions from

Boiler No. 33 on or before the dates specified in the

amended petition which are respectively January 18,

1974 and November 1, 1973;

20

Appendix

(c) on and after January 18, 1974 operate its

Boilers Nos. 1, 2 and 3 located ai its Mitchell Power

Station in Courtney, Union Township, Washington

County, Pennsylvania, in such a manner as to main-

tain the emissions of air contaminants to within all

applicable limits specified in Chapter 123 of the Rules

and Regulations of the Department of Environmental

Resources;

(d) on and after November 1, 1973 operate its

Boiler No. 33 located at its Mitchell Power Station

in Courtney, Union Township, Washington County,

Pennsylvania, in such a manner as to maintain the

emissions of particulate matter and visible emissions

to within all applicable limits specified in Chapter

123 of the Rules and Regulations of the Department

of Environmental Resources;

(e) on and after June 30, 1976 operate its

aforementioned Boiler No, 33 in such a manner as to

maintain the emissions of sulfur compounds to with-

in the limits specified in Chapter 123 of the Rules

and Regulations of the Department of Environmental

Resources; and

(f) submit quarterly progress reports to the

Department of Environmental Resources, commenc-

ing on October 1, 1973 and continuing thereafter

until compliance with paragraph (a) of this order is

achieved:

The foregoing variance is granted on condition that

Appendix 21

(1) On or before April 1, 1974, details of the

company’s plans shall be submitted to the Depart-

ment, setting forth a detailed description of the

methods or devices to be used to control the sulfur

dioxide emissions from Boiler No. 33 and a schedule

indicating the dates upon which each intermediate

step of the plan is to be completed;

(2) Purchase orders for equipment necessary

for compliance with paragraph (a) of this order shall

be placed no later than July 1, 1974, and proof there-

of shall be submitted to the Department within five

(5) days after such orders are placed;

(3) On-site construction or installation of

emission control equipment shall be initiated on or

before December 1, 1974.

(4) On-site construction or installation of

emission control equipment shall be completed on or

before June 1, 1976.

(5) Specifications for a continuous sulfur

dioxide and percent opacity stack monitoring and re-

cording system shall be submitted to the Department

for approval on or before December 1, 1974.

(6) Commencing July 31, 1975, quarterly

monitoring reports containing sulfur dioxide concen-

trations and percent opacity readings shall be sub-

mitted to the Department in accordance with guide-

lines provided by the Department.

Compliance with the foregoing order shall be obtained

in a manner that will not violate the Environmental Pro-

tection Statutes and Rules and Regulations promulgated

paragraphs (a), (b), (c), (d), (e) and (f) of the fore-

going order are complied with within the time specified

for compliance and on the following further conditions:

thereunder.

Nothing contained in this order shall be construed to

prevent or limit the application of the provisions of Chap-

22 Appendix

ter 137 of the Rules and Regulations of the Department of

Environmental Resources which relates to air pollution

episodes,

Chapter 127 of the Rules and Regulations of the De-

partment of Environmental Resources requires plan ap-

proval prior to the construction or modification of an

emission source. Applications for such plan approval are

enclosed. Please complete these forms and return them,

in duplicate, with the plan details required in special con-

dition (1) of this order to Mr. Nicholas Pazuchanics,

Regional Air Pollution Control Engineer, Room 850,

Kossman Building, 100 Forbes Avenue, Pittsburgh, Penn-

sylvania 15222.

Any questions in connection with this action of the

Department of Environmental Resources, as well as all

progress reports, should be directed to the Bureau of Air

Quality and Noise Control, Department of Environmental

Resources, Fulton National Building, 200 North Third

Street, Post Office Box 2063, Harrisburg, Pennsylvania

17120.

Very Truly yours,

JAMES K. HAMBRIGHT, Chief

Division of Abatement & Compli-

ance Bureau of Air Quality & Noise

Control

Attachments

Notice of Appeal

Rules of Practice and Procedure

Rules & Regulations of the Department of

Environmental Resources

Applications for Chapter 127

Exhibit “‘A’’—Petition for Variance

. +

Appendix 23

CERTIFICATE OF SERVICE

The undersigned counsel hereby certifies that copies

* of this document have been served upon:

Solicitor General of the U.S., Robert Bork,

Department of Justice

Washington, D.C. 20530

Attention: John E. Varnum, Esq.

Appellate Section

Department of Justice

and

Lawrence A. Demase, Esq.

Rose, Schmidt and Dixon

919 Oliver Building

Pittsburgh, Pa. 15222

by depositing same in the United States mail.

DENNIS J. HARNISH, Esa.

For Respondent Respondents DER

and Maurice K. Goddard