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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 955

## Text

} 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1287%3A1. Public record. Not legal advice.