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

Supreme Court y a

FILED

MAR 16 1977

}

a ee DAK, JR., CLERK

In the Supreme Court of the

Unjted States

October Term, 1976

No. 76-1042

BETHLEHEM STEEL CORPORATION,

Petitioner

v.

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL

RESOURCES,

Respondent

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE SUPREME

COURT OF PENNSYLVANIA

ROBERT E. YUHNKE

Counsel for Respondent,

Commonwealth of Penn-

sylvania Department of

Environmental Resources

505 Executive House

101 South Second Street

P.O. Box 2357

Harrisburg, Pennsylvania 17120

SS a eS ES

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

TABLE OF CONTENTS

Counter-Statement of the Case ............56+- 1

Reasons for Denying the Writ:

I. Petitioner failed to explicitly set up or claim

any title, right, privilege, or immunity under

the constitution, treaties or statutes of the

United States at any time during the pro-

ceedings in the state courts of Pennsylvania

thereby precluding the invocation of this

Court’s jurisdiction pursuant to 28 U.S.C.

DEERE. cuveovvscadsesedousscasens 10

II. Petitioner has failed to assert any claim

which is within the scope of any right, priv-

ilege or immunity established by the Four-

teenth Amendment of the United States Con-

Per eres ee eee 14

NTT TC TSC eT eer T CCST ETS Te 19

Appendix A—Bethlehem’s Preliminary Objections 20

TABLE OF CITATIONS

CASES:

Armstrong v. Treasurer of Athens County, 41 U.S.

281, 10 L.Ed. 965 (1842) .......... ,, $0, a2

Bolln v. Nebraska, 20 S.Ct. 287, 176 U.S. 83, 44

SOS S Seer Serre Tee erry ere 11,13

Chicago, Indiana and Louisville Ry Co. v. McGuire,

2 i i. & . sae 17

Hiawassee River Power Co. v. Carolina-Tennessee

Power Co., 40 S.Ct. 330, 252 U.S. 341, 64

L.Ed. GOL (1920) ...ncccccccccccees 11,12, 13

Howard v. Fleming, 24 S.Ct. 49, 191 U.S. 126, 48

Sh ee GD ceveweeesctceeseseeeae 11

In Re Brown, 439 F.2d 47 (3rd Cir. 1971) ...... 17

Monks v. New Jersey, 90 S.Ct. 1563, 398 U.S. 71,

rr ee ee ee ieee be weer ws 13

Pickering v. Board of Education of Township High

School District 205, Will County, Ill., 88 S.Ct.

1731, 391 U.S. 563, 20 L.Ed. 2d 811 (1968) 13

Robinson v. Beto, 426 F.2d 797 (5th Cir., 1970) 17

Street v. New York, 89 S.Ct. 1354, 394 U.S. 576,

, Se Sf Fe ree 13

Train v. Natural Resources Defense Counsel, Inc.,

95 S.Ct. 1470, 421 U.S. 60, 43 L.Ed. 2d 731

St: cceccuceteawalu ed dudeon che Gees « 16

Whitney v. California, 47 S.Ct. 641, 274 U.S. 357,.

BF i SR Esa a 11

Winona Land v. Minnesota, 16 S.Ct. 88, 159 U.S.

ww FS § £: errr ree. 11,13

STATUTES:

Act of March 5, 1925, P.L. 23, §1, 12 P.S. §672 .. 1

Pennsylvania Air Pollution Control Act, Act of Jan-

uary 8, 1960, P.L. (1959) 2119, as amended,

ee I a dee a) at 3,8, 11

Sn ED, ek cu cieeebenesened dens 10, 13

ii

Counter-Statement of the Case 1

COUNTER-STATEMENT OF THE CASE

This matter comes before this Court following an ap-

peal by Bethlehem Steel Corporation (“Bethlehem”) to

the Pennsylvania Supreme Court from the dismissal of

preliminary objections filed by Bethlehem to a petition

for enforcement of administrative order filed by the Com-

monwealth of Pennsylvania, Department of Environmen-

tal Resources (“DER”) in the original jurisdiction of the

Pennsylvania Commonwealth Court. DER petitioned for

enforcement of Air Pollution Abatement Order No. 72-

533 (“order”) which imposes certain duties and sched-

ules upon Bethlehem with respect to the control of emis-

sions from by-product coke oven batteries at its Bethle-

hem (PA) and Johnstown plants. In its preliminary ob-

jections, Bethlehem challenged the jurisdiction of the

Commonwealth Court under state law. The Common-

wealth Court dismissed its objections, and Bethlehem ap-

pealed to the Pennsylvania Supreme Court pursuant to

the Act of March 5, 1925, P.L. 23, §1, 12 P.S. §672,

which creates a statutory exception to the rule prohibiting

appeals from interlocutory orders by authorizing appeals

from preliminary determinations of jurisdiction by a court

of first instance. The Pennsylvania Suprevs “~~ ~

firmed the Commonwealth Court and remanded for

ceedings on the merits.

The entire litigation to date has been based on two

pleadings: DER’s petition and Bethlehem’s preliminary

objections. A true and correct copy of Bethlehem’s pre-

liminary objections is attached hereto and marked Arner

2 Counter-Statement of the Case

dix A. Nowhere in Bethlehem’s objections was any fed-

eral constitutional provision cited, asserted as a ground

for objection, or in any manner alluded to. Nor did

Bethlehem ever cite, or allude to any federal constitu-

tional provision as support for its objections in its briefs

or during argument to either the Commonwealth Court

or the Pennsylvania Supreme Court.

DER replied noting that each of Bethlehem’s prelim-

inary objections rely upon the pendency before the En-

vironmental Hearing Board of appeals filed from DER’s

denial of Bethlehem’s respective applications to modify

the air pollution abatement plans previously approved by

DER pursuant to Order No. 72-533. In response, DER

asserted as a matter of law that:

1. The mere filing of a petition to amend a final

order of DER, to wit, an order from which no timely ap-

peal has been taken or which has been sustained on ap-

peal, does not constitute an amendment of any such final

order; and

2. Taking an appeal from DER’s denial of a peti-

tion to amend a final agency order does not constitute an

amendment of such an order, nor does it constitute a su-

persedeas from such an order; and

3. The pendeacy of Bethlehem’s appeals does not

relieve Bethlehem of the obligation to comply with the

duties presently imposed by Order No. 72-533 until such

time as the obligations incorporated in said order are

amended pursuant to such remedies as may be available

to Bethlehem according to law; and

4. The pendency of said appeals does not in any

manner act to modify, suspend or supersede Order No.

Counter-Statement of the Case 3

72-533, and does not deprive the Commonwealth Court

of jurisdiction under Section 10(a) of the Air Pollution

Control Act to enforce the present obligations of Order

No. 72-533 as an “order issued pursuant to this Act by

the department from which no timely appeal has been

taken or which has been sustained on appeal” (Section

10(a), A.P.C. Act).

DER does not believe that Bethlehem’s recitation of

the factual history of the case in its petition for writ of

certiorari is accurate or complete. Therefore, a counter-

statement of the history of the negotiation between DER

and Bethlehem regarding control of coke oven battery

emissions at the Bethlehem (PA) and Johnstown plants

is presented for the convenience of the Court.

A. Order No. 72-533 was executed by mutual agree-

ment by Governor Shapp, DER Secretary Goddard and

officers of Bethlehem on February 25, 1972, after five

months of discussions. The order first states a finding by

DER

“| that emissions of air contaminants from

the charging, coking and pushing operations of the

by-product coke ovens at your coke works located

in Bethlehem and Johnstown, Pennsylvania, are

causing air pollution, as defined in the Air Pollution

Control Act, the Act of January 8, 1960, P.L. 2119,

as amended, 35 P.S. §4001, et seq., in that the emis-

sions are in violation of the standards established

under Chapter 123 of the Rules and Regulations of

the Department of Environmental Resources and be-

cause these emissions are inimical to public health,

safety and welfare, and unreasonably interfere with

the comfortable enjoyment of life and property.”

+ Counter-Statement of the Case

The order then establishes a schedule for compliance

and a final standard by which compliance will be meas-

ured. The schedule gave Bethlehem sixteen (16) months

to develop a plan for the reduction of emissions from

charging, coking and pushing operations which would be

designed to achieve compliance with the final standard.

The schedule further allowed Bethlehem four years for

the implementation of the various phases of its control

plan. Compliance with the final standard at each battery

was not required until four years following the date the

Department determined Bethlehem’s plan was likely to

achieve compliance and granted its official approval. The

timetables were generous because it was understood that

Bethlehem would have to search Europe and Japan for

control technologies and might have to develop new tech-

nology.

B. Abatement plans providing for the contfol.of

emissions during charging, coking and pushing operations

and schedules for the installation of control devices at

each battery were timely submitted on June 29, 1973.

DER approved the plans and installation schedules for

the Johnstown plant on July 23, and for the Bethlehem

plant on July 24, 1973. Upon approval, the plans and

schedules became incorporated into, and enforceable pur-

suant to the terms of the order.

C. The approved plan for the Bethlehem (PA) bat-

teries provides that pushing emissions would first be con-

trolled on Battery No. 5 by installation of a coke-side shed

or a moveable hood. The schedule provides for the sub-

mission of an application for approval to construct a push-

ing emission control device by March 1, 1975. On Feb-

ruary 28, 1975, Bethlehem requested in writing an exten-

Counter-Statement of the Case 5

sion of time to allow Bethlehem to consider a device to

control pushing emissions different than that already ap-

proved for Battery No. 5. The extension was denied by

DER because the alternate device suggested by Bethle-

hem, a “fog-spray hood’’, was not demonstrated technol-

ogy and was not based on sound principles of air pollu-

tion control engineering. Despite DER’s denial of Beth-

lehem’s last-minute request for extension, no application

for the previously approved devices was submitted, nor

has it been received to date.

D. The approved plan for the Franklin batteries

(three of the five batteries at the Johnstown plant) pro-

vided that the batteries would be removed from opera-

tion entirely, according to a phased schedule. Operation

of Battery No. 17 was to have been stopped first, on May

31, 1975. The approved phase-out schedule was appar-

ently submitted at a time when Bethlehem was planning

to reduce total iron production at Johnstown. On May

6, 1974, Bethlehem announced to the Governor that it

no longer intended to reduce production at Johnstown.

However, at no time between May, 1974, and May 15,

1975, did Bethlehem either submit an application to mod-

ify its abatement plan for the Franklin batteries, or make

any proposal to control pushing emissions at Franklin.

E. In March, 1975, the Department denied Beth-

lehem’s requested extension on the pushing schedule for

Battery No. 5 at Bethlehem (PA) and advised that imme-

diate commitments would have to be made to control

emissions at the Franklin batteries in order to avoid en-

forcement of the approved shut-down plan. Bethlehem

made no response to DER, but rather arranged a meeting

with the Governor on April 17, 1975, at which proposals

6 Counter-Statement of the Case

were made to install a “fog-spray” device for the control

of pushing emissions at two Bethlehem (PA) batteries

(Nos. 2 and 5) and the three Franklin batteries (Nos. 17,

18, 19).

F. The Governor agreed to give Bethlehem until

May 15, 1975, to submit detailed engineering proposals

and an application to modify the approved plans, but stat-

ed that the consent order remained in effect. The appli-

cations were received and reviewed by DER in detail.

The proposed modifications were rejected on many

grounds by DER on June 16, 1975. The reasons for de-

nial include, inter alia, Bethlehem’s (1) failure to show

that any circumstances had occurred which would jusiify

modification of the abatement plans in accordance with

the terms of paragraph 9 of the order, (2) the substitu-

tion of an untested experimental control device which

Bethlehem could not demonstrate would achieve compli-

ance with emission limitations in place of the previously

approved control device which had been proven else-

where, (3) failure to design the device to comply with

DER regulations requiring the ability to measure emis-

sions once the device is installed, and (4) failure to dem-

onstrate that the device would not interfere with attain-

ment of the national ambient air standards.

G. Concurrent with its denial of Bethlehem’s ap-

plications to modify the abatement plans, DER by letter

from Secretary Goddard to Bethlehem’s Chairman Foy,

requested Bethlehem to comply with its existing obliga-

tions:

“As I indicated in my letter of May 27, the

Commonwealth expected Bethlehem to comply in

good faith with your existing legal duties which in-

Counter-Statement of the Case 7

cluded the May 31, 1975 compliance deadline at

Franklin battery No. 17. The Company’s failure to

comply casts some doubt upon its intentions. In

view of the Department’s rejection of your petitions

to amend the air pollution abatement plan for the

Bethlehem and Franklin batteries, you are requested

to comply immediately with the obligations incorpo-

rated in the approved abatement plan. The Depart-

ment will expect receipt of an application for plan

approval which conforms to the approved plan for

controlling pushing emissions at the Bethlehem bat-

tery No. 5 and compliance with the phase-out sched-

ule at Franklin, or in the alternative acceptance of

my offer in my letter of March 27, 1975, within ten

days. Failure to comply with the Company’s exist-

ing legal obligations will compel the Commonwealth

to seek enforcement in the courts. (Letter, June 16,

1975, p. 2.)

Bethlehem replied by filing its appeal with the En-

vironmental Hearing Board. Thereafter DER filed the pe-

tition seeking enforcement of those portions of the order

with which Bethlehem has failed to comply. Bethlehem

continues to this day to operate Battery No. 17 in Johns-

town, and has made no effort to install any pushing con-

trol device at either Battery No. 5 or Battery No. 2 in

Bethlehem.

H. Commonwealth Court denied Bethlehem’s ob-

jections to jurisdiction on February 18 and Bethlehem

filed an interlocutory appeal to the Pennsylvania Supreme

Court on March 5, 1976.

I. During the course of the proceedings below,

DER conducted ambient air sampling in the vicinity of

8 Counter-Statement of the Case

the Johnstown plant. As a result, it was found that the

ambient air in areas down in from the plant contains high-

ly elevated ot MF of known carcinogens. Based

on this data, DER filed in the Commonwealth Court a

motion for immediate temporary relief pursuant to Section

10(a) of the Air Pollution Control Act. In support there-

of, DER alleged, inter alia, that the analysis of newly-

gathered data with respect to concentrations of the carci-

nogen benzo (a) pyrene (“BaP”) led to the conclusion that

emissions from the Franklin coke oven batteries are caus-

ing a serious threat to the public health. This conclusion

is supported by the sworn affidavit of a medical special-

ist in environmental health, Dr. Bertram W. Carnow,

M.D. Commonwealth Court did not act on DER’s mo-

tion, but rather issued a stay of all proceedings pending

final disposition of Bethlehem’s appeal.

J. DER moved the Pennsylvania Supreme Court for

expedited handling of Bethlehem’s appeal. The motion

was granted. The Supreme Court issued its opinion and

order within 63 days following argument. The Court af-

firmed the Commonwealth Court’s dismissal of Bethle-

hem’s preliminary objections holding that the Common-

wealth Court had jurisdiction under the Pennsylvania Air

Pollution Control Act to proceed to the merits on DER’s

petition for enforcement. The order of the Pennsylvania

Supreme Court remanded the case to the Commonwealth

Court for further proceedings.

K. Now, the stay in the Commonwealth Court has

been continued pending this Court’s disposition of Bethle-

hem’s petition for certiorari. The national ambient air

quality standards adopted pursuant to the Clean Air Act

continue to be exceeded. The people of Johnstown re-

Counter-Statement of the Case 9

main without relief from a serious public health threat.

DER believes that the situation is of considerable urgency

and continues to deserve expedited handling by the Courts.

Therefore, together with this reply to Bethlehem’s peti-

tion, DER has also filed a motion for expedited disposi-

tion of Bethlehem’s petition for writ of certiorari.

10 Reasons for Denying Writ

REASONS FOR DENYING THE WRIT

I. Petitioner failed to explicitly set up or claim any

title, right, privilege, or immunity under the constitution,

treaties or statutes of the United States at any time dur-

ing the proceedings in the state courts of Pennsylvania

thereby precluding the invocation of this Court's juris-

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

This case presents no federal question. The entire

proceeding to date arises out of Bethlehem’s objections

to jurisdiction by the Pennsylvania Commonwealth Court

over DER’s petition for enforcement of the duties con-

tained in an administrative agency order consented to by

Bethlehem. A true and correct copy of Bethlehem’s pre-

liminary objections is attached hereto as Appendix A. The

only issues litigated to date have been limited to the the-

ories asserted by Bethlehem as grounds for depriving the

Commonwealth Court of jurisdiction over the proceed-

ing. No federal constitutional question has ever been

raised by Bethlehem at any point in the proceedings to

date.

In its statement of the case at pp. 2-3 of its petition,

Bethlehem admits that its objections in the state proceed-

ing were limited to jurisdictional questions. Now, for

the first time, Bethlehem claims that

“Inherent and implicit in Bethlehem’s prelim-

inary objections is Bethlehem’s contention that fail-

ure to dismiss the petition would violate Bethlehem’s

Reasons for Denying Writ 11

constitutional rights to due process of law.” (Em-

phasis added.) Petition, at 3.

Examination of the opinion of the Supreme Court

of Pennsylvania presented for review herein clearly re-

veals the non-federal character of the Petitioner’s juris-

dictional objections to the enforcement action presently

pending on remand before the Commonwealth Court of

Pennsylvania. These preliminary objections were found-

ed solely on state theories of election of remedies, pri-

mary jurisdiction, and inapplicability of Section 10 (a)

of Pennsylvania’s Air Pollution Control Act.’ Nowhere

in the record nor in Bethlehem’s application for reargu-

ment to the Pennsylvania Supreme Court does the belat-

edly asserted constitutional claim appear. Since no fed-

eral constitutional question was presented to any Pennsyl-

vania Court at any time, this Court acquires no jurisdic-

tion to review any alleged federal questions asserted now

for the first time. Whitney v. California, 47 S.Ct. 641,

274 USS. 357, 71 L.Ed. 1095 (1927); Bolln v. Nebraska,

20 S.Ct. 287, 176 U.S. 83, 44 L.Ed. 377 (1900); Arm-

strong v. Treasurer of Athens County, 41 U.S. 281, 10

L.Ed. 965 (1842); Howard v. Fleming, 24 S.Ct. 49, 191

U.S. 126, 48 L.Ed. 121 (1903); Winona Land v. Minne-

sota, 16 S.Ct. 88, 159 U.S. 540, 40 L.Ed. 252 (1895);

Hiawassee River Power Co. v. Carolina-Tennessee Power

Co., 40 S.Ct. 330, 252 U.S. 341, 64 L.Ed. 601 (1920).

In Bolln v. Nebraska, supra, an objection that the

defendant was denied due process of law in being refused

a jury trial upon a plea in abatement was not raised un-

1 Act of January 8, 1960, P.L. (1959) 2119, as amended, 35

P.S. §4010(a).

12 Reasons for Denying Writ

til after the cause had been decided by the Supreme Court

of Nebraska. Accordingly, this Court refused to consider

the constitutional immunities not properly set up below

nor appearing in the opinion presented for review by writ

of error. The controlling principle was unequivocally

articulated by the Bolln Court, supra, at 91:

“We have repeatedly decided that an appeal to

the jurisdiction of this Court must not be a mere af-

terthought, and that if any right, privilege, or im-

munity is asserted under the Constitution or laws of

the United States it must be specifically set up and

claimed before the final adjudication of the case in

the court from which the appeal is sought to be main-

tained.”’

Similarly in Hiawassee River Power Co. v. Carolina-

Tennessee Power Co., 252 U.S. 341 (1920), a claim of

invalidity under the state constitution was specifically

urged and passed upon adversely to the petitioner in the

state Supreme Court, but no reference was made in that

connection to the Fourteenth Amendment to the Federal

Constitution. Justice Brandeis aptly noted:

“If a general statement that the ruling of the

state court was against the Fourteenth Amendment

were a sufficient claim of right under the Constitu-

tion to give this court jurisdiction [citation omitted],

still the basis for a review by this court is wholly

lacking here. For the Fourteenth Amendment was

mentioned only in the trial court. In the Supreme

Court of the state no mention was made of it in the

assignment of errors; nor was it, so far as appears

by the record, otherwise presented to or passed upon

by that court. The denial of the claim was specif-

Reasons for Denying Writ 13

ically set forth in the petition for the writ of error

to this court and in the assignment of errors filed

here, but obviously that was too late. Chicago, Indi-

ana and Louisville Ry. Co. v. McGuire, 196 U.S.

128, 132.’ Hiawassee River, supra, at 344.

In view of this critical flaw in the alleged jurisdic-

tion of the U.S. Supreme Court therein, the Hiawassee

Court refused to make any further inquiry to the substance

of the claim that petitioner had been deprived of due pro-

cess.

This rule continues to be universally and strictly ap-

plied by the Court. Cf. Monks v. New Jersey, 90 S.Ct.

1563, 398 U.S. 71, 26 L.Ed. 2d 54 (1970) ; Street v. New

York, 89 S.Ct. 1354, 394 U.S. 576, 22 L.Ed. 2d 572

(1969); Pickering v. Board of Education of Township

High School District 205, Will County, IIl., 88 S.Ct. 1731,

391 U.S. 563, 20 L.Ed. 2d 811 (1968).

Consistency with the prior constructions of the re-

quirements of 12 U.S.C. §1257 (3) mandates dismissal

of the present writ for want of jurisdiction. Moreover,

Petitioner’s admission in its statement of the case (Peti-

tion, p. 3) that its constitutional contention was merely

“inherent and implicit in Bethlehem’s preliminary objec-

tions” would permit no other result under the sound prin-

ciples of such precedents. The assertion of a federal claim

before the highest court of the state must be made unmis-

takenly and cannot be left to mere inference. See Winona

Land Co. v. Minnesota, supra (1895); Bolln v. Nebraska,

supra (1900); and Street v. New York, supra (1969).

Having failed to assert any federal claim below, Bethle-

hem has waived any opportunity it might otherwise have

had to raise such a claim here.

14 Reasons for Denying Writ

Il. Petitioner has failed to assert any claim which

is within the scope of any right, privilege or immunity es-

tablished by the Fourteenth Amendment of the United

States Constitution.

Bethlehem contends that it has been denied due pro-

cess protected by the Fourteenth Amendment on two

grounds: (1) the procedure employed by the state shocks

the sense of fair play, and (2) the procedure employed by

the state impeded Bethlehem’s open and equal access to

the appellate courts. The record in this proceeding does

not support either claim.

With respect to the first ground, Bethlehem claims

that a sense of fair play must be shocked because DER

subjected petitioner to an enforcement action which might

be moot upon resolution of the pending proceedings to

modify the order before the Pennsylvania Environmental

Hearing Board. This contention suggests a very perverse

sense of fair play, however, since it would require the

public exposed to Bethlehem’s carcinogens to suffer qui-

etly while Bethlehem drags out endless litigation as a de-

vice by which it could avoid clean-up. The Pennsylvania

Supreme Court was shocked by Bethlehem’s sense of fair

play, or the lack of any sense of fair play, and acted to

protect the public health consistent with the mandates of

the Legislature and Congress.

If the procedure employed by the Commonwealth

in this case shocks the Court’s sense of fair play, then nu-

merous other analogous procedures should also shock the

Court. For example, this case is no different than that of

a party who is obliged to comply with a lower court’s or-

der while an appeal is pursued. Here the court of first

Reasons for Denying Writ 15

instance is DER.* Bethlehem presented an application to

modify the order to DER. The application was carefully

evaluated and rejected as being scientifically unsound and

unlawful. Thereafter, Bethlehem appealed as was its right.

In the meantime, however, it is being held to its earlier

obligations. If such a procedure is shocking, then it

should be equally shocking to require a party to comply

with an injunction or decree of a court while an appeal

is pending since the appeal might render the lower court

decision moot. Clearly such procedures have never been

considered shocking because as a rule it is assumed that

courts, and agencies, act properly and within the law.

Their judgments are commonly subject to enforcement

unless stayed or overruled.

This case is no different. The decision of DER has

been given deference by the Pennsylvania Supreme Court

because the agency has the legal authority and the special

experience necessary to act in the circumstances. The

agency has exercised its authority responsibly and reason-

ably. Unless its decision is overturned in due course, it is

not shocking for the courts to enforce the order which re-

mains unchanged after DER’s exercise of administrative

discretion. °

To hold otherwise would be to hold that it is shock-

ing whenever a court relies on the judgment of lawfully

appointed agencies charged with special jurisdiction be-

cause of their expertise, and instead would require courts

to defer enforcement of any duty so long as a polluter

*See the Pennsylvania Supreme Court’s discussion of pri-

mary jurisdiction at pp. 14a-15a of Bethlehem’s petition.

5 See Pennsylvania Supreme Court opinion, note 23, at p. lla

of Bethlehem’s petition.

16 Reasons for Denying Writ

continued to have a claim pending which has not finally

been disposed of in the appellate process. The latter rule

would be truly shocking to those concerned about the

public health impacts of dangerous uncontrolled air con-

taminants, such as the carcinogens emitted from coke

ovens.

Certainly this Court cannot find the procedure in

this case shocking since it follows closely the procedure

contemplated by this Court in its discussion of variances

in Train v. Natural Resources Defense Counsel, Inc., 95

S.Ct. 1470, 421 U.S. 60, 43 L.Ed. 2d 731 (1975). There

this Court clearly held that the standards in a State Im-

plementation Plan (SIP) would remain enforceable dur-

ing the pendency of any litigation by which a polluter pur-

sued a variance under state law. This case is closely anal-

ogous in that a polluter is being required to comply with

duties initially imposed as necessary for the attainment. ci

national ambient air quality standards, while the polluter

pursues appeals from the denial of plans which were re-

jected, in part, because they would interfere with the at-

tainment of the national ambient air standards.

The Pennsylvania Supreme Court relied on the prin-

ciple set out in Train, supra, and did not find it shocking

to its sense of fair play.* Only someone shocked by the

Congress’ policy of swift attainment of ambient air quality

standards would be shocked by the procedure followed in

this case. We suggest that this Court should be shocked

by Bethlehem’s expectation that the Court might be

shocked by the procedure employed in this case. We also

*See Pennsylvania Supreme Court opinion, text and note 24,

p. lla of Bethlehem’s petition.

-

. a

Reasons for Denying Writ 17

suggest that the Court should be shocked at Bethlehem’s

grotesque and perverse sense of fair play which gives no

consideration to the rights of the public who are exposed

to a significantly increased risk of premature death by

cancer.

With res oct to its second ground, Beil:lehem claims

that the procedure employed in this case has impeded

Bethlehem’s open and equal access to the appellate pro-

cess. Such an argument is truly a fabrication which we

cannot believe is made in good faith.

In both of the cases cited by Bethlehem in support

of its contention, certain classes of persons were clearly

discriminated against by statute with respect to their pur-

suit of appeals. In Re Brown, 439 F.2d 47 (3d Cir.,

1971), involved discrimination against juveniles as com-

pared to adults because juveniles could appeal only with

leave of court whereas adults could appeal as of right.

Such discrimination was held unconstitutional. In Rob-

inson v. Beto, 426 F.2d 797 (5th Cir., 1970), convicted

defendants could be incarcerated during the pendency of

appeals without credit toward the sentence imposed. This

rule was held to impede the open and equal access to ap-

pellate review because prisoners who appealed ran the

risk of much longer imprisonments.

Here, Bethlehem is not discriminated against in any

way. It is not part of a class deprived by siatute from

the same access to the courts enjoyed by others. Nor does

the exercise of its right to appeal cause Bethlehem to incur

any greater penalty. Bethlehem was assured the right to

appeal from any adverse action by DER on its application

for a modification to the order. Bethlehem has filed that

appeal and has not been impeded in any respect in its pur-

18 Reasons for Denying Writ

suit. It might have been different if DER has refused to

act on Bethlehem’s application, but that is not the case

here.

It should be noted in this regard that Bethlehem has

twice requested continuances on its appeal to the Envi-

ronmental Hearing Board, once in January, 1976 when the

matter was scheduled for hearing, and again in August,

1976, when the continued hearing began. At no time

since August has Bethlehem moved that the hearing be

resumed. Bethlehem has been completely free and unfet-

tered in pursuing its litigation strategy. No action of the

state, and certainly not the Supreme Court opinion and

order here at issue, has in any way impeded Bethlehem’s

pursuit of whatever relief may be available through the

appeal route it has chosen.

With respect to both grounds for its claim, Bethle-

hem has not, nor can it on the fave of this record, show

that it has in any way suffered an infringement of the

rights or immunities protected through the Fourteenth

Amendment. Bethlehem cannot honestly contend that it

falls within either rule cited in its petition. Certainly

Bethlehem is not in a posture in any way similar to the

claimants in the cases cited in its peititon. DER, there-

fore, contends that, since Bethlehem has failed to show

any circumstances in this case whereby the procedures em-

ployed offend protected rights or immunities, then Beth-

lehem’s petition should be dismissed for want of a sub-

stantial federal question.

Reasons for Denying Writ 19

CONCLUSION

Respondent, DER, contends that Bethlehem’s peti-

tion for writ of certiorari should be denied because (1)

no federal question was raised by Bethlehem at any time

during the proceedings before the Pennsylvania Supreme

Court or the Pennsylvania Commonwealth Court, and (2)

Bethlehem raises no substantial federal question within

the scope of the rights and immunities protected by the

Fourteenth Amendment of the United States Constitution.

Respectfully submitted,

ROBERT E. YUHNKE

Counsel for Respondent,

Commonwealth of Penn-

sylvania Department of

Environmental Resources

505 Executive House

101 South Second Street

P.O. Box 2357

Harrisburg, Pennsylvania 17120

20 Preliminary Objections

APPENDIX A

COMMONWEALTH COURT OF PENNSYLVANIA

No. 1054 C.D. 1975

Commonwealth of Pennsylvania, Department of Environ-

mental Resources,

Petitioner

Vv.

Bethlehem Steel Corporation, et al.,

Respondents

RESPONDENTS’ PRELIMINARY OBJECTIONS TO

THE DER’S PETITION FOR ENFORCEMENT OF AN

ADMINISTRATIVE ORDER

Respondents Bethlehem Steel Corporation, Lewis W.

Foy, its Chairman, and Thomas N. Crowley and Harold

F. Miller, General Managers of its Johnstown and Beth-

lehem, Pennsylvania Plants, respectively,* file the follow-

ing preliminary objections to the petition of the Common-

wealth of Pennsylvania, Department of Environmental Re-

sources (hereinafter the “DER”’) :

. *The named respondents are referred to collectively here-

inafter as “Bethlehem”.

Preliminary Objections 21

A. A motion to strike the individual respon-

dents from this action because the DER’s attempt to

include them herein is not in conformity to law and

constitutes scandalous and impertinent matter;

B. A petition raising a question of jurisdic-

tion;

C. A demurrer;

D. Pendency of this very matter before the

Environmental Hearing Board (“EHB’’)—‘lis pen-

dens”’;

E. That primary jurisdiction of this matter

is in the EHB;

F. That the DER has failed to exhaust the ad-

ministrative proceedings pending before the EHB;

G. That the DER’s petition is not ripe for re-

view in this Court because of the pendency of the

matters involved herein before the EHB.

In support of these preliminary objections, Bethle-

hem represents as follows:

1. At the threshold, Bethlehem moves to strike the

individual respondents, its Chairman and the General

Managers of its Johnstown and Bethlehem Plants, from

this action because the DER’s attempt to include them

herein is not in conformity to law and constitutes scanda-

lous and impertinent matter. There is no authority what-

soever under the Air Pollution Control Act of this Com-

monwealth, under which the DER has filed this peti-

tion, which would justify the DER’s attempt thus to harass

and intimidate these persons. Accordingly, Bethlehem re-

22 Preliminary Objections

spectfully submits that that portion of the DER’s petition

purporting to include them herein must be stricken under

Rule 1017 (b) (2) of the Pennsylvania Rules of Civil Pro-

cedure.

2. With respect to the substantive allegations of the

petition, the DER’s original February 25, 1972 Air Pollu-

tion Abatement Order No. 72-533 which is the subject

of this proceeding (Exhibit 1 to the DER’s petition), as

implemented by Bethlehem’s DER-approved Air Pollu-

tion Abatement Plans of June 29, 1973 (Exhibits 2A and

2B to the Petition) contemplated, among other things,

that Franklin Coke Uven Battery No. 17 at the Johns-

town Plant would be taken out of operation by May 31,

1975 and that Bethlehem would submit 2% application for

a permit to construct equipment to contro) pushing emis-

sions at Coke Oven Battery No. 5 at the Bethlehem Plant

by March 1, 1975. Order No. 72-553 expressly granted

Bethlehem the right to apply io the DER for modification

of the order and of the plans and schedules submitted and

approved thereunder, in accordance with paragraph 9

thereof which provides as follows:

“9. Upon application of Bethlehem Steel Cor-

poration 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 de-

layed by events not in the control of Bethlehem Steel

Corporation;

B. revision of the plans and schedules submit-

ted or approved is necessary to incorporate changes

in technology or corporate planning to achieve with-

Preliminary Objections 23

in the time specified in paragraph 5 hereof, signifi-

cant 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 De-

partment upon such application may be appealed to

the Environmental Hearing Board and the courts of

the Commonwealth as provided by law.” (Empha-

sis supplied.)

3. Acting pursuant to paragraph 9 of Order No.

72-533, on September 17, 1973 Bethlehem submitted an

application for amendment to the Air Pollution Abate-

ment Plan applicable to Franklin Coke Oven Battery No.

17 at the Johnstown Plant. In that proposed amendment

Bethlehem requested an enlargement of the time within

which it would be required to terminate operation of that

Battery. The DER did not take action on this request un-

til February 18, 1975 when it denied the request by letter.

Pursuant to the terms of paragraph 9 of Order No. 72-

533, Bethlehem filed a timely appeal frorn that denial to

the EHB at EHB Docket No. 75-070-D. The Franklin

Coke Oven Battery aspect of that appeal has since been

dismissed on stipulation of the parties, as more fully de-

scribed in paragraph 6 hereof, but other aspects of that

appeal are still pending before the EHB and the parties

have been engaged in extensive discovery in that proceed-

ing.

4. Bethlehem’s original Air Pollution Abatement

Plan of June 29, 1973 had contemplated the termination

of integrated steelmaking operations at the Johnstown

Plant and the consequent termination of the operation of

the Franklin Coke Oven Batteries at that Plant. There-

24 Preliminary Objections

after, however, Bethlehem pursued ongoing extensive cor-

porate planning studies of its various production facili-

ties, including those at its Johnstown Plant. As a result

of such studies, Bethlehem adopted a change in corporate

planning to replace the existing steelmaking facilities at

its Johnstown Plant with a modern Basic Oxygen Fur-

nace which necessitated the continued operation of the

Franklin Coke Oven Batteries. Bethlehem announced that

decision on May 6, 1974; shortly thereafter Bethlehem

and the DER entered into negotiations contemplating the

resolution of all outstanding air pollution control mat-

ters pending between them.

5. With respect to the Coke Oven Batteries at its

plant in Bethlehem, Pennsylvania, Bethlehem’s original

Air Pollution Abatement Plan of June 29, 1973 provided,

in part, that an application for a permit to construct equip-

ment to control pushing emissions at Coke Oven Battery

No. 5 would be submitted to the DER by March 1, 1975.

In the light of the extensive and protracted negotiations

referred to in paragraph 4 hereof, however, Bethlehem

requested.an enlargement of the time within which to sub-

mit that application. Although that request was ultimate-

ly denied in late February or early March 1975, the par-

ties continued their efforts amicably to resolve all out-

standing air pollution control matters.

6. After further negotiations in March and April

1975, by letter dated May 13, 1975 which was delivered

to the DER on May 15, 1975, Bethlehem submitted to the

DER proposed modifications of its original Air Pollu-

tion Abatement Plan for the Coke Oven Batteries at the

Johnstown (Franklin) and Bethlehem Plants. In essence,

these proposed modifications contemplated continued op-

Preliminary Objections 25

eration of the Coke Oven Batteries at both plants with

proposed pollution control systems. Inasmuch as this pro-

posed amendment superseded Bethlehem’s September 17,

1973 request for enlargement of the time for continuing

the operation of Franklin Coke Oven Battery No. 17,

which had been denied by the DER, the parties stipulated

to a dismissal of Bethlehem’s appeal from that denial at

EHB Docket No. 75-070-D insofar as that appeal affected

the Abatement Plan for the Franklin Coke Oven Bat-

teries. Significantly, the final paragraph of that Stipula-

tion (paragraph 3) provides that:

“3. The parties understand that the filing of

this Stipulation and the entry of the Order requested

herein shall not adversely affect the rights of the par-

ties to make such decisions, take such actions or ap-

peals, or file such motions as are authorized by law

with respect to the proposed control plan amend-

ments submitted to the Department on May 15,

1975.”

On June 3, 1975 the EHB issued an order confirming the

dismissal of that part of the appeal.

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

Bethlehem’s requests for modification of the Abatement

Plan for the Franklin and Bethlehem Coke Oven Batter-

ies. On June 27, 1975, pursuant to paragraph 9 of Or-

der No. 72-533, Bethlehem 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 Johnstown Plant is pend-

ing at EHB Docket No. 75-155-D.

26 Preliminary Objections

8. Notwithstanding the pendency of these proceed-

ings before the EHB, and in defiance thereof and of the

terms of its own order providing for initial review of any

proposed modification of the Abatement Plan by appeal

to the EHB, on or about July 25, 1975 the DER attempted

to bypass administrative review by the EHB completely

by filing the instant petition in this Court.

9. In the light of the foregoing undisputed history

of these proceedings, Bethlehem respectfully submits that

the DER is precluded from thus attempting to invoke the

jurisdiction of this Court at this juncture of these proceed-

ings. By the very terms of its own Order No. 72-533, the

DER has acknowledged expressly Bethlehem’s right to re-

quest modification of the original Abatement Plan and, up-

on the denial of that request by the DER, to appeal that

denial “to the Environmental Hearing Board and the

court of the Commonwealth” (paragraph 9 of Order No.

72-533). Pursuant to that unequivocal stipulation of the

parties, Bethlehem has appealed the DER’s denial of its

May 15, 1975 requests to the EHB. Moreover, since the

filing of these appeals the DER itself has initiated and is

pursuing extensive discovery before the EHB in those pro-

ceedings. Thus, the DER is wholly foreclosed from invok-

ing the jurisdiction of this Court by the very statute un-

der which it purports to have filed this petition, which

authorizes only the filing of a petition to enforce an or-

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

has been sustained on appeal’’ (emphasis supplied). Sec-

tion 10(a) of the Air Pollution Control Act, 35 PS.

§4010 (a).

10. In these circumstances, the DER’s petition must

be dismissed under Rule 1017 (b) (1) of the Pennsylvania

Rules of Civil Procedure on jurisdictional grounds, under

Preliminary Objections 27

Rule 1017 (b) (4) because it is subject to demurrer, and

under Rule 1017 (b) (5) because of the pendency of these

proceedings before the EHB. Further, whether the doc-

trines of primary jurisdiction, exhaustion of administra-

tive proceedings and ripeness for review are considered

to be preliminary objections raising questions of jurisdic-

tion, pendency of a prior action, or both, it is obvious that

they too compel the dismissal of the DER’s petition—as

a matter of law, this Court must first have the benefit of

the EHB’s decision in those proceedings before being re-

quested to pass judgment thereon. Further, the issues

which the DER attempts to raise in its petition to this

Court may well be mooted by those proceedings. These

considerations thus further compel the dismissal of the

instant petition.

WHEREFORE, Bethlehem requests the Court to

strike the individual respondents from this proceeding and

to disimiss the DER’s petition for enforcement without

prejudice to the right of either the DER or Bethlehem to

appeal from the EHB’s adjudication in the proceedings

pending at its Docket Nos. 75-154-D and 75-155-D.

BLAIR S. MCMILLIN

PAUL A. MANION

ROBERT M. WALTER

REED SMITH SHAW & McCLAy

(s) PAUL A. MANION

Counsel for Respondents

REED SMITH SHAW & McCLay

P. O. Box 2009

747 Union Trust Building

Pittsburgh, Pa. 15219

(A.C. 412—288-3236)

Date: September 19, 1975

28 Affidavit

AFFIDAVIT

Commonwealth of Pennsylvania,

County of Lehigh, ss:

David M. Anderson, being duly sworn according to

law, deposes and says that he is Manager, Environmental

Quality Control Division, Industrial Relations Depart-

ment of Bethlehem Steel Corporation; that he is autho-

rized to execute this affidavit on behalf of the respon-

dents in the foregoing action; and that the averments of

fact set forth in the foregoing preliminary objections are

true and correct, in part upon the basis of his personal

knowledge, in part upon the basis of facts alleged in the

DER’s own Petition for Enforcement of Administrative

Order and the exhibits attached thereto, in part upon the

basis of the business records of Bethlehem Steel Corpo-

ration, and in part upon the basis of information which

he believes to be true.

(s) David M. Anderson

SWORN TO AND SUBSCRIBED before me this

17th day of September, 1975.

(s) [Illegible]

Notary Public

My Commisison Expires: July 17, 1978

City of Bethlehem

Lehigh County