Petition — Bethlehem Steel Corp. v. Department of Environmental Resources

} michaet RODAK, JR., CLERK |

te,

In the

Supreme Court of the United States

Octoser TERM, 1976

No. q 6 i 1 () 4 2

BETHLEHEM STEEL CORPORATION,

Petitioner,

Vv.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL RESOURCES,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF

PENNSYLVANIA

Paut A. MANION

Rospert M. WALTER

JoserpH F. McDonoucH

REED SMITH SHAW & McCLAY

Counsel for Petitioner,

Bethlehem Steel Corporation

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

—_—_——— SS CU

Financial Press Corporation, Putsburgh

ae

TABLE OF CONTENTS

Page

OPINIONS BELOW................cc0eeeceeeeee:

EERE OR Sec ey Pec eaAD

QUESTION PRESENTED FOR REVIEW ......... 2

CONSTITUTIONAL PROVISION AND

SENT DTI osc io iisins isdssisiccecs 2

STATEMENT OF THE CASE .............000065. 2

REASONS FOR GRANTING THE WRIT.......... 6

I 5 radon ok ean scene ctdeesiaes 8

APPENDIX A

Opinion of the Supreme Court of Pennsylvania.... la

APPENDIX B

Opinion of the Commonwealth Court

NN td ee rs ie cte wea elel l7a

APPENDIX C

Order of Supreme Court of Pennsylvania

Denying Application For Reargument ............ 22a

APPENDIX D

United States Constitution, Amend. XIV,

Luc sek dedkee dl ecdueteseeeneeusns 23a

APPENDIX E

Pennsylvania Air Pollution Control Act,

OND php SRE OEE EEE EERE

Neen ee eee

ii Table of Citations an the

TABLE OF CITATIONS :

Supreme Court of the Wnited States

Page Octoser TERM, 1976

In Re Brown, 439 F.2d 47 (3rd Cir. 1971) ............. 7

Galvan v. Press, 3A7 U.S. 522, reh. denied, ! No.

ee eh a ene, chandess beece cueees 6 _

Howard v. United States, 372 F.2d 294 BETHLEHEM STEEL CORPORATION

(9th Cir. 1967), cert. denied, 388 U.S. )

SN ee as 6 ¥. Petitioner,

Robinson v. Beto, 426 F.2d 797 (5th Cir. 1970)......... 7 COMMONWEALTH OF PENNSYLVANIA

— DEPARTMENT OF ENVIRONMENTAL RESOURCES,

PENNSYLVANIA AIR PoLLUTION ContTrROL ACT, Rewponsont.

Act of January 8, 1960, P.L. (1959) PETITION FOR WRIT OF CERTIORARI

2119, as amended, 35 P.S. §4010(a) ............... 2 TO THE SUPREME COURT OF

te rs sot ccesseucacdiceh dhe seeds vaeee ns | PENNSYLVANIA

Bethlehem Steel Corporation, petitioner herein, prays

for a writ of certiorari to review the judgment of the

Supreme Court of Pennsylvania in this case.

OPINIONS BELOW

The opinion of the Supreme Court of Pennsylvania is

not yet officially reported, and is reproduced as Appendix A.

The opinion of the Commonwealth Court of Pennsylvania is

reported at 23 Pa. Cmwith. Ct. 387, 352 A.2d 563 (1976) and

is reproduced as Appendix B.

JURISDICTION

The judgment of the Supreme Court of Pennsylvania

was entered on November 24, 1976. A timely application for

reargument was filed by petitioner on December 8, 1976 and

was denied by the Supreme Court of Pennsylvania on

January 3, 1977. (Appendix C) The jurisdiction of this Court

is invoked pursuant to 28 U.S.C. §1257(3).

2 Question Presented for Review and

Statement of the Case

QUESTION PRESENTED FOR REVIEW

Whether the subjection of petitioner to simultaneous

state court proceedings to enforce an administrative order at

the very time that proceedings to modify the order are

pending in the administrative process, in accordance with

the express terms of the order, violates petitioner's

Fourteenth Amendment right to due process of law when

enforcement of the unmodified order will require petitioner

to take costly and irrevocable action which could be

rendered moot by modification of the order in the

administrative process.

CONSTITUTIONAL PROVISION AND

STATUTE INVOLVED

The relevant provision of the United States Constitution

is reproduced as Appendix D.

Section 10(a) of the Pennsylvania Air Pollution Control

Act, 35 PS. §4010(a), is reproduced as Appendix E.

STATEMENT OF THE CASE

In this action the Commonwealth of Pennsylvania,

Department of Environmental Resources (“DER”), pur-

ported to invoke the subject matter jurisdiction of the

Commonwealth Court of Pennsylvania by filing in that

Court a petition for enforcement of an administrative order

concerning the operation of petitioner's by-product coke

ovens in Bethlehem and Johnstown, Pennsylvania. In its

petition, the DER premised the jurisdiction of the Com-

monwealth Court on Section 10(a) of the PENNSYLVANIA AIR

POLLUTION Controc Act, Act of January 8, 1960, P.L. (1959)

2119, as amended, 35 P.S. §4010(a) (the “Act”).

Bethlehem filed preliminary objections to the DER’s

petition. In summary, the objections urged dismissal of the

petition on the grounds that Section 10(a) of the Act confers

Statement of the Case 3

subject matter jurisdiction on the Commonwealth Court

only over final orders of the DER from which no timely

appeal has been taken or which have been sustained on

appeal; that the administrative order in question was not a

final order of the DER subject to enforcement under Section

10(a); that extensive proceedings to modify the abatement

plans under the order, in accordance with its clear, specific

and unambiguous language, are pending before the

Pennsylvania Environmental Hearing Board (“EHB”) from

which an appeal may thereafter be taken to the Com-

monwealth Court; and that the DER’s attempt to invoke the

jurisdiction of the Commonwealth Court under Section

10(a) of the Act is not authorized by that Section and

constitutes a deliberate attempt to subject Bethlehem to

simultaneous proceedings in separate forums. Inherent and

implicit in Bethlehem’s preliminary objections is

Bethlehem’s contention that failure to dismiss the petition

would violate Bethlehem’s constitutional right to due

process of law.

The following is a detailed summary of the proceedings

which have given rise to this petition.

1. Following lengthy negotiations between the DER

and petitioner, the parties executed Air Pollution Abatement

Order No. 72-533 on February 25, 1972 concerning the

emissions at petitioner's Coke Oven Batteries in Johnstown

and Bethlehem, Pennsylvania.

2. Order No. 72-533, as implemented by petitioner's

DER-Approved Air Pollution Abatement Plans of June 29,

1973, contemplated, among other things, that Franklin Coke

Oven Battery No. 17 at the Johnstown Plant would be taken

out of operation by May 31, 1975 and that petitioner would

submit an application for a permit to construct equipment to

control pushing emissions at Coke Oven Battery No. 5at the

Bethlehem Plant by March 1, 1975.

4 Statement of the Case

3. In recognition that the order was one of the first of its

kind, that the air pollution control measures required to

attain the final standard thereunder were untried and

unproven, and that the order might require modification,

paragraph 9 thereof expressly granted to petitioner the right

to apply to the DER for modification of its provisions and of

the plans and schedules submitted and approved

thereunder. Paragraph 9 further granted petitioner the right

to appeal any order, decision or other action of the DER

thereon to the EHB and to the Courts of the Commonwealth

of Pennsylvania. !

4. Acting pursuant to paragraph 9 of Order No. 72-533,

on September 17, 1973 petitioner submitted an application

for amendment of the Air Pollution Abatement Plan

applicable to Franklin Coke Oven Battery No. 17 at the

Johnstown Plant. Petitioner's request was formally denied

by the DER on February 18, 1975 and, again acting pursuant

to the terms of paragraph 9 of Order No. 72-533, petitioner

‘te! a timely appeal from that denial.

‘Paragraph 9 of the order provides as follows:

“9. Upon application of Bethlehem Steel Corporation the

provisions of this order, and plans and schedules submitted and

approved hereunder, may be modified by the Department, when

“A. delivery or installation of equipment is delayed by

events not in the control of Bethlehem Steel Corporation:

“B. revision of the plans and schedules submitted or

approved is necessary to incorporate changes in technology or

corporate planning to achieve within the time specified in

paragraph 5 hereof, significant improvement in air pollution

control; or

“C. air pollution control standards applicable to the by-

product, slot-type coke ovens are changed.

“Any order, decision or other action taken by the Department

upon such application may be appealed to the Environmental

Hearing Board and the courts of the Commonwealth as provided by

law.”

Statement of the Case 5

5. With respect to the Coke Oven Batteries at its plant in

Bethlehem, Pennsylvania, petitioner’s original Air Pollution

Abatement Plan of June 29, 1973 provided, in part, that an

application for a permit to construct equipment to control

pushing emissions at Coke Oven Battery No. 5 would be

submitted to the DER by March 1, 1975.

6. After further negotiations, by letter dated May 13,

1975 which was delivered to the DER on May 15, 1975,

petitioner submitted to the DER proposed modifications of

its original Air Pollution Abatement Plan for the Coke Oven

Batteries at the Johnstown and Bethlehem Plants. In essence,

these proposed modifications contemplated continued

operation of the Coke Oven Batteries at both plants with

proposed pollution control systems.

7. By letters dated June 16, 1975, the DER denied

petitioner's request for modification of the Abatement Plans

for the Franklin and Bethlehem Coke Oven Batteries. On

June 27, 1975, pursuant to paragraph 9 of Order No. 72-533,

petitioner filed timely appeals from those denials to the

EHB. The appeal concerning the proposed amendment to

the Air Pollution Abatement Plan for the Bethlehem Plant is

pending at EHB Docket No. 75-154-D and the appeal

concerning the Franklin Batteries is pending at EHB Docket

No. 75-155-D.

8. Notwithstanding the pendency of those proceedings

before the EHB, on or about July 25, 1975 the DER filed a

petition to enforce Order No. 72-533 in the Commonwealth

Court. Petitioner filed preliminary objections to the DER’s

petition on jurisdictional and other grounds.

9. On February 18, 1976 the Commonwealth Court filed

an opinion and order overruling petitioner's preliminary

objections but noting that the case presented an unusual

situation of potential conflict between the Court and the

EHB (Appendix B).

6 Reasons for Granting the Writ

10. An appeal was taken to the Supreme Court of

Pennsylvania from the Commonwealth Court's February 18,

1976 order. Petitioner again argued that the Commonwealth

Court was without jurisdiction over the proceeding filed by

the DER pending resolution of appeals filed pursuant to the

very orders sought to be enforced.

11. On November 2, 1976, the Supreme Court issued an

opinion and order affirming the decision of the Com-

monwealth Court (Appendix A). On December 8, 1976,

petitioner filed an application for reargument which was

denied by the Court on January 3, 1977.

REASONS FOR GRANTING THE WRIT

The instant proceeding is an important one because it

involves the extent to which a state may subject a defendant

to the burden of an enforcement action with attendant costs

and the potential for an irrevocable loss while the very order

sought to be enforced is the subject of an appeal taKen.in

accordance with its express terms. Petitioner and the DER

agreed to the terms of the consent order which, in paragraph

9 thereof, expressly permits the appeal of a denial by the

DER of an application for modification. Having so agreed,

the State denied petitioner due process by attempting to

enforce against petitioner an order requiring substantial

irrevocable action during the pendency of proceedings in

the administrative process which the DER acknowledges

may result in the modification of that order.

Due process is denied where the procedure enforced by

a state tends to shock the sense of fair play. Galvan v. Press,

347 U.S. 522, reh. denied, 348 U.S. 852 (1954): Howard v.

United States, 372 F.2d 294 (9th Cir. 1967), cert. denied, 388

U.S. 915 (1967). This rule is uniquely applicable to this case

where, after agreeing to a procedure which expressly

granted petitioner the right to seek modification of the

Reasons for Granting the Writ 7

order, the DER unreasonably subjected petitioner to an

enforcement action which could well be moot upon

resolution of the pending modification proceedings before

the EHB.

Due process requires that a state, once it permits

appellate review, must provide open and equal access to the

appellate process. In Re Brown, 439 F.2d 47 (3rd Cir. 1971);

Robinson v. Beto, 426 F.2d 797 (5th Cir. 1970). In this case,

the state granted access to appellate review in its agreement

with petitioner, but ignored that agreement when it filed an

enforcement action during the pendency of petitioner's

appeal. Having agreed that an appeal could be taken, the

state cannot constitutionally impede petitioner's open and

equal access to the appellate courts by simultaneously

prosecuting an action to enforce the terms of the very order

which expressly permits the appeal taken.

8 Conclusion

CONCLUSION

Petitioner submits that the subjection of petitioner to

simultaneous state court proceedings to enforce an ad-

ministrative order at the very time that proceedings to

modify the order are pending in the administrative process,

in accordance with the order's express terms, violates

petitioner's Fourteenth Amendment right to due process of

law when enforcement of the unmodified order will require

petitioner to take costly and irrevocable action which could

be rendered moot by modification of the order in the

administrative process.

Respectfully submitted,

Paut A. MANION

Ropert M. WALTER

Josepu F. McDonoucH

REED SMITH SHAW & McCLAY

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

Counsel for Petitioner,

Bethlehem Steel Corporation

Appendix A la

SUPREME COURT OF PENNSYLVANIA

| Mipp.e District

COMMONWEALTH OF )

PENNSYLVANIA,

DEPARTMENT OF

ENVIRONMENTAL

eee No. 5

RESOURCES - May Term, 1977

BETHLEHEM STEEL

CORPORATION,

Appellant /

ORDER

Anp Now, this 24th day of November, 1976, it is ordered

as follows:

_».. Order Affirmed.

waiiee Order Reversed.

hee Order Vacated and lower court directed to

proceed in accordance with opinion filed

herewith.

errr Order Modified as set forth in opinion filed

herewith.

seltee Ordered as set forth in opinion filed

herewith.

BY THE COURT:

Deputy Prothonotary

NOTE: Unless another date is hereinafter set forth, the

foregoing order was entered on the docket on the

date set forth above.

ee ED on. cc dscuseenue

2a Appendix A

IN THE

SUPREME COURT OF PENNSYLVANIA

Mipp.e District

COMMONWEALTH OF )

PENNSYLVANIA,

DEPARTMENT OF No. 5

ENVIRONMENTAL May Term, 1977

RESOURCES

Appeal from an Order of the

Vv. Commonwealth Court at

BETHLEHEM STEEL | No. 1054 C.D. 1975 on

CORPORATION, original jurisdiction.

Appellant

OPINION OF THE COURT

Filed: November 24, 1976

Roserts, J.

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.' 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

‘Commonwealth. of Pennsylvania, Department of Environmental

Resources vt. Bethlehem Steel Corporation, —— Pa. Commonwealth Ct.

——. 352 A.2d 563 (1976).

Appendix A 3a

deny an application for modification.? We conclude that it

does, and affirm.

“This Court has jurisdiction pursuant to the Act of March 5, 1925, P.L.

23, §1, 12 P.S. §672 (1962), which provides for appeal from preliminary

determinations on questions of jurisdiction as if those determinations were

final judgments.

DER brought this action pursuant to section 10(a) of the Air Pollution

Control Act, Act of October 26, 1972, P.L. 989, §10, 35 P.S. §4010(a) (Supp.

1976), which confers jurisdiction on the Commonwealth Court for

enforcement of orders “from which no timely appeal has been taken or

which has been sustained on appeal.” Bethlehem contends that section

10(a) does not confer jurisdiction to enforce this order during the

pendency of its appeal of DER’s rejection of its application for

modification.

In support of its claim that the Commonwealth Court does not have

jurisdiction, Bethlehem advances arguments based on the doctrines of

primary jurisdiction, exhaustion of administrative remedies, and ripeness

for review.

These questions may not be jurisdictional in the strictest sense; they

involve issues the courts may have power to decide, but refrain from

deciding until after the agency has had an opportunity to take action on the

matter. See 3. K. Davis, Administrative Law Treatise §19.01 (1958)

(primary jurisdiction) [hereinafter cited as Davis]. “Court jurisdiction is

not thereby ousted, but only postponed.” United States v. Philadelphia

National Bank, 374 U.S. 321, 353, 83.8. Ct. 1715, 1717 (1963) (primary

jurisdiction); cf. 3 Davis, supra at 2n.7 (when the doctrine of exhaustion of

administrative remedies applies “judicial interference is withheld until the

administrative process has run its course.”).

On the other hand, these doctrines do relate to the relative

competency of the courts and administrative agencies to make an initial

determination, and relate to whether the court will reach the merits of the

case. See Studio Theaters, Inc. v. Washington, 418 Pa. 73, 209 A.2d 802

(1965).

We need not determine whether these doctrines are questions of

jurisdiction within the meaning of 12 P.S. §672 (1962). Bethlehem contends

that these doctrines apply because of the possibility that the order will be

modified as a result of the appeals pending before the EHB. As such,

Bethlehem’s arguments that jurisdiction should be withheld pending

further administrative action essentially amount to an argument that the

order should not be treated as final, ie. not one “from which no timely

appeal has been taken” within the meaning of section 10(a) of the Air

(continued )

dia Appendix A

1.

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, !975.

By the terms of the consent order, Bethlehem is entitled

to apply for modification of the order or the modification

plans in certain circumstances. Jf DER rejects the applica-

tion for modification, Bethlehem may appeal to the EHB

and the courts.’ On September 17, 1973, Bethlehem applied

for an extension of time to continue operating Franklin Coke

Pollution Control Act. Thus the doctrines of primary jurisdiction.

© \haustion and ripeness as presented in this case, cannot be separate from

the question of the applicability of section 10(a) of the Air Pollution

Control Act.

Paragraph 9 of the order reads:

“Y. Upon application of Bethlehem Steel Corporation the

provisions of this order. and plans and schedules submitted and

approved hereunder, may be moditied by the Department, when

A. delivery or installation of equipment is delay ed by events

not in the control of Bethlehem Steel Corporation:

B. revision of the plans and schedules submitted or

approved is necessary to incorporate Changes in technology or

corporate planning to achieve within the time specified in

paragraph 5 hereof. significant improvement in air pollution

control: or

©. air pollution control standards applicable to the by-

product, slot-type coke ovens are changed.

Any order, decision or other action taker by the Department

upon such application may be appealed to the Environmental

Hearing Board and the courts of the Commonwealth as provided by

law.”

Appendix A 5a

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 Bethlehein’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, raising jurisdictional questions,

which were overruled by the Commonwealth Court.

Il.

A. DER’s petition to enforce the order was brought

pursuant to section 10(a) of the Air Pollution Control Act.‘

This section authorizes petition to enforce a DER order

“from which no timely appeal has been taken or which has

"35 PLS. HO1L0Ca) (Supp. 1976).

6a Appendix A

been sustained on appeal.” 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).*

~ Section 10(a) provides:

“The Attorney General, at the request of the department, may

initiate, by petition, in the Commonwealth Court or the court of

common pleas of the county in which the defendant resides or has its

place of business, an action for the enforcement of any order issued

pursuant to this act by the department from which no timely appeal

has been taken or which has been sustained on appeal. The court, in

such proceeding, shall have the power to grant such temporary relief

as it deems just and proper and if, after hearing, the court finds that

such order has not been fully complied with, the court shall enforce

such order by requiring immediate and full compliance therewith.

The Commonwealth shall not be required to furnish bond or other

security in any proceeding instituted under this subsection.”

*The purpose of all statutory interpretation is to give effect to the

intent of the Legislature. Where the words of a statute are not free from

ambiguity they are interpreted in light of the overall purpose of the

statute. Act of November 25, 1970, P.L. 1339, §3, 1 P.S. §1921 (Supp. 1976):

see Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d

$12 (1974).

Appendix A (a

Section 10(a) of the Air Pollution Control Act must be

construed in accordance with the purposes of the Act.’ The

Act’s purposes include the “protection of public health,

safety and well-being of [the] citizens . . . ."* This declara-

tion of policy, adopted in 1968, replaced an earlier

declaration that air resources be maintained within the limits

of technological feasibility and economic reasonableness.°

This change

“... disclos[es] a market 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. Com-

monwealth Ct. 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.'°

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 action

brought by district attorneys or members of the general

public.'!' Emergency enforcement powers are also

granted.'2 Moreover, the Legislature restricted the

35 PLS. §§4001 et seq. (Supp. 1976).

“35 PS. §4002 (Supp. 1976).

‘Act of June 12, 1968, P.L. 163, No. 92, §1, amending Act of January 5,

1960. PLL. (1959) 2119, §2, 35 P.S. §4002 (Supp. 1976).

"This policy also stems from the Pennsylvania Constitution: “The

people have a right to clean air... .” Pa. Const. art 1, §27 (Supp. 1976).

"35 PLS. §4008-10 (Supp. 1976).

“Id. §4006.2 (Supp. 1976).

8a Appendix A

availability of supersedeas during administrative appeals

from DER orders.'*

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.'* These amendments require the

Environmental Protection Agency (EPA) to set national air

quality standards.'> 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.'* 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... .”! =

Act of December 3, 1970, P-L. 834, §20(d), 71 PLS. §510-21(d) (Supp.

1976), provides:

“An appeal taken to the Environmental Hearing Board from a

decision of the Department of Environmental Resources shall not act

as asupersedeas, but, upon cause shown and where the circumstances

require it, the department and/or the board shall have power to grant

a supersedeas.”

This section, by limiting the availability of supersedeas, reflects a policy in

favor of the enforceability of DER orders. Yet this section applies only to

orders which are not vet final. Although such orders are enforceable, see

35 PLS. §§4008-09, they are not subject to the provisions of section 10(a) of

the Air Pollution Control Act. Clearly, an even stronger policy in favor of

enforceability applies once an order becomes final.

"42 U.S.C.A. §§1857 et seq. (Supp. 1976).

42 U.S.C.A. §1857¢-4 (Supp. 1976).

"42 USCA. §1557¢-5 (Supp. 1976). The Pennsylvania State

huplementation Plan was approved in July, 1972. See 40 C.F.R. §§52.2020

et seq.

42 U.S.C.A. §1857¢-2(a) (Supp. 1976).

Appendix A Ya

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, __ U.S. __, ——, 96S. Ct. 2518,

2525 (1976). The importance of achieving air quality

standards is reflected by the expedited timetable set for EPA

and state compliance'* 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.”

“EPA was required to set air quality standards within 90 days. 42

U.S.C.A. §1857¢-4 (Supp. 1976). State plans for implementation of these

standards were to be submitted within nine months after the air quality

standards were set, and approved by the EPA within four months after

submission. 42 U.S.C_A. §1857c¢-5 (Supp. 1976). Among the requirements

for State implementation plans was that they meet primary air quality

standards within three vears. 42 U.S.C_A. §1857¢-5(a)(2)( A).

10a Appendix A

Id. at __.. 96 S. Ct. at 2526."

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.” Citizen suits to enforce emission limitations are also

encouraged.?!

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.?? The

health and safety of the public must take priority.

"The Supreme Court's interpretation of the Clean Air Act

Amendments of 1970 was based, in part, on a Senate Committee report

that determined that public health is more important than questions of

technological feasibility :

*Theretore. the Committee determined that existing sources of

pollutants either should meet the standard of the law or be closed

down... 2S. Rep. No. 1196, 91st Cong., 2d Sess., 2-3 (1970).”

—_ US. at. 96S. Ct. at 2526.

“42 ULS.CLA. §1857c-8 (Supp. 1976).

"42 U.S.C.A. §1857h-2 (Supp. 1976).

“In Train v. Natural Resources Defense Counsel, Inc., — U.S. —.,

95 S. Ct. 1470 (1975), the Georgia State Implementation Plan was

challenged because it included a variance procedure. It was argued that

the variance procedure would invite litigation and thereby delay

achievement of air quality standards. While the Court recognized that the

procedure would invite variance applications, and that polluters would

seck judicial review if their applications were denied, the Court noted:

“This litigation. however, is carried out on the polluter’s time, not the

public's, for during its pendency the original regulations remain in

effect, and the polluter’s failure to comply may subject him to a

variety of enforceme oc <

riety of enforcement of procedure (continued)

Appendix A - : lla

1D. We conclude, therefore, that the policies behind both

state and federal law compel the interpretation of section

10(a) of the Pennsylvania Air Pollution Control Act

suggested by a literal reading of its terms. The consent order

in this Court is one “from which no timely appeal has been

taken,” and therefore an enforcement action may be brought

in the Commonwealth Court pursuant to section 10(a).

Section 10(a) provides no exception for cases where a party

is seeking modification of an order and the policies

expressed in both state and federal law prevent us from

writing any such exception into the statute.

Bethlehem may ultimateiy prevail in its efforts to have

the order modified, and thus could be subject to unnecessary

expense if the present order is enforced. This possibility,

however, would not justify the conclusion that the courts are

without jurisdiction to enforce the order. Such a conclusion

would leave the courts powerless to enforce the order —

even where it is highly unlikely that the order will be

modified and where continued pollution in violation of the

order presents a serious danger to the public.” In effect, the

mere application for an extension would operate as a stay; an

applicant could continue to pollute for the period required

to appeal to the EHB and the courts. Such a result would be

totally at odds with the strong legislative policy expressed in

both the Air Pollution Control Act and the Clean Air Act. The

modification proceedings must be carried out on the

polluter’s time, not at the expense of the general public.*!

Id. at __, 95 S. Ct. at 1488.

Similarly. we believe that DER orders must remain enforceable

during the pendency of modification proceedings in order to comply with

the spirit of the Clean Air Act Amendments of 1970. We should not adopt a

system by which litigation could be used as a tool to delay enforcement of

air quality standards.

“Where, as here, DER has reviewed and rejected the application, it

camot be assumed that the applicant will prevail on appeal.

*'See note 22. supra.

12a Appendix A

A. In addition to its argument that section 10(a) does not

apply when modification proceedings are pending,

Bethlehem contends that the doctrine of election of

remedies foreclose DER from invoking the jurisdiction of

the Commonwealth Court. Bethlehem does not raise an

election of remedies argument in the strict sense. Rather,

Bethlehem appears to be arguing that the order, by its terms,

precludes enforcement pending the outcome of modifica-

tion proceedings.”° Bethlehem contends that by agreeing to

that portion of the consent order which allows it to apply for

modification, DER agreed not to enforce the order until its

decisions on modification has been upheld on appeal.

We do not interpret the consent order ‘to foreclose

enforcement pending the outcome of modification

proceedings. Paragraph 9 of the order only provides that the

order “may be modified” by the DER, and preserves the

right to appeal from its decision. It does not provide that

enforcement will be stayed pending any appeals from the

DER’s decision. It is apparent that the purpose of this

paragraph is to ensure that DER will consider Bethlehem ’'s

application, and to allow Bethlehem to appeal DER’s

“In Department of Environmental Resources v. Leechburg Mining

Co. 9 Pa. Commonwealth Ct. 297, 305 A.2d 764 (1973). DER brought a

claim based on a consent order along with separate claims based on the

underlying violations which led the DER to seck the original order. The

court limited DER to enforcement of the consent order. Assuming that the

Commonwealth Court's decision can be squared with the provision in the

Air Control Act that “the existence of or exercise of any remedy shall not

prevent the department from exercising any other remedy . .. .” 35 PLS.

§4010(¢) (Supp. 1976), it does not bar this action. DER here only seeks to

enforce the consent order; separate claims are not involved. See

Department of Environmental Resources v. Leechburg Mining Co..,

supra

“We have some doubt whether this argument raises a question of

jurisdiction. Since it might have some bearing on our interpretation of

section 10(a), however. we will consider Bethlehem ’s argument. See note

2. supra.

ts

Appendix A 13a

decision. The paragraph was included to escape the general

rule that an administrative agency's denial of a motion to

reopen is not subject to judicial review, see SEC v. Louisiana

Public Service Commission, 353 U.S. 368, 77 S. Ct. 855

(1957); Martin Marietta Corp. v. FTC, 376 F.2d 430 (7th Cir.

1987), not as a limitation on the DER’s enforcement power.

This Court is most hesitant to construe any agreement as a

limitation on the DER’s enforcement powers, and, in the

absence of clear and specific language to the contrary, will

not do so here.

B. Finally, Bethlehem contends the doctrine of primary

jurisdiction prevents DER from maintaining this action.*% °

> Winn-Dixie Stores, Inc... FTC, 377 F. Supp. 773 (M.D. Fla. 1974), is

in no Way inconsistent with our decision. That action was brought by

Winn-Dixie to compel the FTC to modify its order. The court enjoined

enforcement of the order only after it determined that Winn-Dixie was

entitled to modification. The court ordered the FTC to reopen its

proceedings and modify the order; thus the order could not be enforced

because it was no longer valid.

The action in Winn-Dixie would be equivalent to a motion by

Bethlehem after modification of the consent order by the ELIB, to change

the Commonwealth Court's enforcement decree in order to reflect the

modification. See note 32 infra. Thus Winn-Dixie has no bearing on the

enforceability of an order which is still valid.

“HH applicable, this doctrine could effect our interpretation of section

10(a). See note 2. supra.

Bethlehem also makes arguments based on the doctrines of ripeness

and exhaustion of administrative remedies. Neither doctrine is applicable

here.

Under the ripeness doctrine courts will not) intervene when

administrative action is abstract, hypothetical, or remote. Davis, §21.01,

supra. This is an enforcement action and, unless enforcement is granted,

Bethlehem: intends to continue operation of its Johnstown and Bethlehem

plants ina manner contrary to the terms of the order DER seeks to enforce.

Here the administrative action, and the possible harm to Bethlehem, is

immediate and concrete.

Similarly, the doctrine of exhaustion of administrative remedies has

no bearing here. When this doctrine applies, a party must pursue the

adininistrative remedies he has against an agency before challenging its

action in court. L. Jaffe, Judicial Control of Administrative Action 424

(1965). Hlere it is an administrative agency which is invoking the

jurisdiction of the court, not a party seeking review of administrative

action.

l4a Appendix A

Primary jurisdiction is a flexible doctrine, designed to

coordinate the work of agencies and courts; Davis. §19.01,

supra at 5; L. Jaffe, Judicial Control of Administration

Action 121] (1965).

“The precise function of the doctrine of primary

jurisdiction is to guide a court in determining whether

the court should refrain from exercising its jurisdiction

until after an administrative agency has determined

some question or some aspect of some question arising

in the proceeding before the court.”

Davis, supra at 3. The doctrine reflects a principle:

“... that in cases raising issues of fact not within the

conventional experience of judges or cases requiring the

exercise of administrative discretion, agencies

created .. . for regulating the subject matter should not

be passed over.”

Far East Conference v. United States, 342 U.S. 570, 574, 72

S. Ct. 492, 494 (1952). In such cases, the initial determination

is left to the administrative agency both because its decision

is necessary for the “protection of the integrity of the

regulatory scheme.” United States v. Philadelphia National

Bank, 374 U.S. 321, 353, 83.8. Ct. 1715, 1736 (1963), and may

be of “material aid” to the courts, Ricci v. Chicago

Mercantile Exchange, 409 U.S. 289, 305, 93S. Ct. 573, 582

(1973).

The doctrine of primary jurisdiction has no application

here. DER, the agency with primary responsibility for

enforcing the Air Pollution Control Act, is not being

bypassed. Indeed, DER is the party bringing the action.

Having obtained a consent order, DER has decided that

enforcement is necessary. Under section 10(a) of the Act, the

court's duty is to determine whether there has been

compliance with the order. This duty is well within the

Appendix A 15a

conventional experience of judges, and enhances, rather

than interferes with, the integrity of the regulatory scheme.*”

Bethlehem insists that the doctrine of primary juris lic-

tion prevents the Commonwealth Court from proceeding

until the EHIB has acted on its application for modification.

The consent order remains valid, however, and failure to

comply is unlawful.”? Even if the proceedings before the

EHB involved a timely appeal from the consent order itself,

rather than an appeal from an application for modification,

Bethlehem would be expected to comply with the order."

This is an enforcement proceeding, based on the

original consent order, not a proceeding to determine

Bethlehem’s right to modification. Thus, the Com-

monwealth Court is wot being called upon to make a decision

which should be decided initially by an administrative

agency. Nor will enforcement decree impair the integrity of

the regulatory process. A judicial determination that

Bethlehem: presently is not in Compliance with the consent

order in no way interferes with the power of the ENB or the

courts to modify the order at some future date. There is no

- Provisions which enable DER to obtain injunctive relief and civil

penalties without first obtaining an administrative order, and which allow

suits by district attorneys and members of the general public, make clear

the inapplicability of the doctrine of primary jurisdiction. See, 35 PLS.

§M4OL0(b). 40100), 4010042) (Supp. 1976).

"35 PLS. $4005 (Supp. 1976).

‘See note 13. supra

“The Conmnonw ealth Court believed that a possible conflict could

arise if it directed enforcement in accord with the original terms of the

order and the order was subsequently moditied by the ELIB. The court

sugested that modification of the original order could serve as a defense

in any contempt proceeding. —— Pa. Commonwealth Ct. at —. n4. 352

A.2d 565 1.4. No such conflict need arise, how ever, as the Common ealth

Court can frame its enforcement decree so as to take into account the

possibility that the consent order may be modified. Assuming the court

fails to do so, the better course w ould be to seck modification of its decree,

rather than risk a Contempt citation. See Mayer & Sons v. Department of

Environmental Resources, US Pa. Connnonwealth Ct. 85, 334 A.2d 313

(1975) (grounds which might require modification of enforcement decree

no defense to contempt proceeding).

16a Appendix A

reason to stay judicial enforcement pending the decision of

the FEHB.

In summary, the doctrine of primary jurisdiction, and

the policies underlying it, do not justify a conclusion that

section 10(a) of the Air Pollution Control Act is inapplicable

during the pendency of modification proceedings.

Based on the clear language of section 10(a) of the Air

Pollution Control Act, and the strong legislative policy in

favor of effective enforcement of air pollution control

standards. we hold that the Commonwealth Court has

jurisdiction over this action.

Order affirmed.

Mr. Justice. Nix did not participate in the consideration

or decision of this case.

Appendix B \7a

D.E.R. v. BETHLEHEM STEEL CO., et al.

(23 Commonwealth Ct. 387, (1976). ]

SYLLABUS—STATEMENT OF THE CASE.

Commonwealth of Pennsylvania, Department of En-

vironmental Resources. Petitioner v. Bethlehem Steel

Corporation & Lewis W. Foy, Chairman, Bethlehem Steel

Corporation: & Thomas N. Crowley, General Manager

Johnstown Plant. Bethlehem Steel ‘orporation: & Harold

F. Miller. General Manager. Bethlehem Plant, Bethlehem

Steel Corporation. Respondents.

Environmental law—Consent order—Air Pollution

Control Act. Act 1960, January 8, P.L. (1959) 2119—

Application to modify order—Election of remedies—

Enforcement of administrative order.

1. A petition by the Department of Environmental

Resources under the Air Pollution Control Act, Act 1960,

January 8, P.L. (1959) 2119, to enforce an order to which all

»arties had agreed but with which there was no compliance

within the time prescribed, is not premature or otherwise

improper because the party not in compliance filed an

application for modification of the order. [388-9]

2, Once the Department of Environmental Resources

exhausts administrative procedures available against a

polluter and has obtained an administrative consent order, it

may utilized the courts to enforce the order when there is no

compliance therewith. [389-90]

Submitted on briefs October 20, 1975, to President

Judge Bowman and Judges Crumusn, Jr., KRAMER,

WinkINsoN, JR., Mencer, Rocers and Biatt.

Original jurisdiction, No. 1054 C.D. 1975, in case of

Commonwealth of Pennsylvania, Department of En-

vironmental Resources, Petitioner v. Bethlehem Steel

18a Appendix B :

Corporation, Respondent. Petition for enforcement of

administrative order filed in the Commonwealth Court of

Pennsylvania. Respondent filed preliminary objections.

Held: Preliminary objections overruled.

Robert E. Yuhnke, Assistant Attorney General, for

petitioner.

Paul A Manion, with him Robert M. Walter, Robert W.

Watson, Jr., and Reed Smith Shaw & McClay, for respon-

dent.

OPINION OF THE COURT

OpInion BY JupGE MeNcER, February 15, 1976:

This case is before us on the preliminary objections of

Bethlehem Steel Corporation (Bethlehem) to the petition of

the Department of Environmental Resources (DER) seeking

enforcement of Air Pollution Abatement Order No. 72-533

(order) which resulted from a consensual agreement

executed on February 25, 1972 by Bethlehem and DER The

order provides, among other things, that Bethlehem submit

an application for a permit to construct equipment to control

emissions of air contaminants resulting from the pushing

operation at Coke Oven Battery No. 5 at its Bethlehem,

Pennsylvania, plant by March 1, 1975 and that Franklin Coke

Oven Battery No. 17 at Bethlehem’s Johnstown, Penn-

sylvania, plant cease operation by May 3i, 1975. Paragraph

9g! of that same order provides that Bethlehem may seek

1. Paragraph 9 of the order reads:

“9. Upon application of Bethlehem Steel Corporation the

provisions of this order, and plans and schedules submitted and

approved hereunder, may be modified by the Department, when

A. delivery or installation of equipment is delayed by events

not in the control of Bethlehem Steel Corporation:

B. revision of the plans and schedules submitted or

approved is necessary to incorporate changes in technology or

(continued )

Appendix B 19a

modification of the order under certain circumstances. An

application for modification of the order is now on appeal to

the Environmental Hearing Board (FEHB).

Bethlehem raises a question of the jurisdiction of this

Court, issues of primary jurisdiction, exhaustion of ad-

ministrative remedies, and ripeness for review and also

pleads a demurrer. All these preliminary objections concern

the effect of the pending action for modification before the

EHB ona petition to enforce the order of February 25, 1972.

Bethlehem urges, in effect, that by the terms of paragraph 9

an application for modification acts as a supersedeas in any

action by DER to enforce the original order. We do not

agree.

Bethlehem fails to recognize in its arguments that the

action to enforce the order to which it agreed and the

application for modification before the EHB, though based

to some extent on the same factual material, are procedurally

distinct.

Section 10(a) of the Air Pollution Control Act?

authorizes petitions to enforce orders from which no timely

appeal has been taken or which have been sustained on

appeal. Bethlehem contends that its appeal on the modifica-

tion application is in reality an appeal from the original

order. Hf this were true, an action for enforcement would be

premature. However, it is clear that Section 10(a) con-

Corporate planning to achieve within the time specified in

paragraph 5 hereof, significant improvement in air pollution

coutrok or

C. air pollution control standards applicable to the by-

prodnet. slot-ty pe coke ovens are changed.

“Aun order, decision or other action taken by the Department

upon such application may be appealed to the Environmental

Hearing Board and the courts of the Commonwealth as provided by

law

2 Act of January 5. 1960. PLL. (1959) 2119, as amended, 35 PS.

§40100a).

20a Appendix B

templates by its very nature appeals from an adversary

proceeding, not from a consensual agreement. Here the

parties agreed to be legally bound, and no appeal from the

consent order was contemplated. The order was final and

binding the moment it was executed. When the time for

performance had run, DER could properly petition for

enforcement.’

We next address Bethlehem’s contention that DER

must elect to pursue its action either in the courts or through

the administrative process. Bethlehem asserts that our

decision in Department of Environmental Resources t.

Leechburg Mining Co., 9 Pa. Commonwealth Ct. 297, 305

A.2d 764 (1973), requiring DER to proceed against alleged

polluters initially cither by injunction or alternatively

through the administrative process is applicable to oust this

Court of jurisdiction. This argument again mistakenly

assumes that the hearing on Bethlehem’s modification

petition is an administrative procedure to enforce the

original order. In the case at bar, DER had already exhausted

the administrative procedure when it obtained a consent

order. Asa final step along that same route, DER is seeking

enforcement by this Court. This is entirely proper. The fact

that the administrative process yielded a consent order

rather than an adjudication by the ENB does not affect

DER’s ability to seek enforcement.

Properly interpreted, Leechburg, in fact, supports the

position of DER. In/ wechburg, preliminary objections were

sustained by applying the doctrine of election of remedies

on all counts except one brought by DER to enforce a

consent adjudication. We hold that by consenting to be

bound by the order of February 25, 1972, Bethlehem agreed

3 See Commonwealth v. United States Steel Corp., V5 Pa.

Commonwealth Ct. 184,325 A.2d 324 (1974): Commonwealth v. Rozman,

10 Pa. Commonwealth Ct. 133, 309 A.2d 197 (1973).

Appendix B 2la

that it would take the required actions by the deadlines

imposed unless the order were modified prior to that time.

Bethlehem had, and still has, a right to appeal an adverse

ruling on its petition for modification, first to the EHB and

subsequently to this Court. During appeals from such ruling,

however. the unmodified agreement remains in force. Since

the deadlines for compliance have passed and Bethlehem

has not taken the action which it agreed to take, the inception

of an action for enforcement is timely and proper.’ We

therefore enter the following

OnvER

Now. this 18th day of February, 1976, the preliminary

objections of the Bethlehem Steel Corporation in the above

captioned matter are overruled, and Bethlehem Steel

Corporation is allowed 20 days from this date within which

to file an answer to the petition ot the Department of

Environmental Resources.

ee

4. We recognize that the terms of the order, which allow Bethlehem to

apply to DER for modification of the order with a right to appeal any

action taken on such an application to the Eny ironmental Hearing Board

(ENB), create an unusual situation. A potential conflict could arise if the

court directs enforcement in accord with the original terms of the order

but prior to compliance by Bethlehem the EHB modifies those terms. I

such a conflict would arise, we would consider the modification to be a

proper defense to a contempt proceeding brought for non-compliance

with the order entered relative to the petition for enforcement.

22: Appendix C

SUPREME COURT OF PENNSYLVANIA

Mipp.e District

SALLY MRVOS

Prothonotary

|. HANIEL HENRY P. O. Box 624

Regly Soaey Harrisburg 17108

January 6, 1976

Paul A. Manion, Esquire

P. O. Box 2009

Pittsburgh, Pa. 15230

Re: Commonwealth, Department of

Environmental

Resources v. Bethlehem Steel

Corporation, Appellant

No. 5, May Term, 1977

Dear Mr. Manion:

This is to advise that the following Order has been

endorsed on the Application for Reargument filed in the

above matter:

“January 3, 1977

Petition denied.

s/ Per Curiam”

Very truly yours,

/s/

Deputy Prothonotary

cc: Robert E. Yuhnke, Esq.

ce: West Publishing Company

September 21, 1976 - ARGUED - J.275

November 24, 1976 - DECISION

Appendix D " 93a

UNITED STATES CONSTITUTION, Amend. 14

SecTION 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.

Qa Appendix E

AIR POLLUTION CONTROL ACT

§10(a) The Attorney General, at the request of the

department, may initiate, by petition, in the € Yommonwealth

Court or the court of common pleas of the county in which

the defendant resides or has its place of business, an action

for the enforcement of any order issued pursuant to this act

by the department from which no timely appeal has been

taken or which has been sustained on appeal. The court, in

such proceeding, shall have the power to grant such

temporary relief as it deems just and proper and if, after

hearing, the court finds that such order has not been fully

complied with, the court shall enforce such order by

requiring immediate and full compliance therewith. The

Commonwealth shall not be required to furnish bond or

other security in any proceeding instituted under this

subsection.

CERTIFICATE OF SERVICE

1. Paul A. Manion, in accordance with Rule 33(1) of the

Rules of the Supreme Court of the United States, hereby

certify that I have served the foregoing Petition for Writ of

Certiorari to the Supreme Court of Pennsylvania on all

parties required to be served by mailing three copies thereof

to Robert E. Yunke, Esq., Assistant Attorney General,

Department of Environmental Resources, Room 505,

Executive House Apartments, 101 South Second Street,

Harrisburg, Pennsylvania 17120, Attorney for Respondent,

by first class mail, postage prepaid, this Wth day of January,

1977.