Petition — Bradford Coal Co. v. Baughman
Supreme Court brief1979
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Text
October Term, 1978
No @8-1488
BRADFORD COAL COMPANY, INC.
Petitioner,
VS.
LAVERE C. and DORIS J. BAUGHMAN, ERNEST and
JESSIE BILLOTTE, MABEL E. BOCK, VIOLET DIXON,
ROBERT R. and DONNA ELLINGER, GEORGE and
RUTH ELINSKY, HOLLIS N. and DOROTHY JEAN
KNEPP, HAROLD O. and LORRAINE LANSBERRY,
JAMES and CATHERINE LOMBARDO, DELBERT and
JANET H. MARSH, LYLE A. and RUTH S. MILLER,
HOWARD C. and LORAINE G. SCHAFFER, RICHARD
EDMUND and EMMABELL SWANSON, EDWARD L.
and M. JOANNE WELSH, ABRAM B. and MABEL L.
WISOR, ABE B. and LEDA JANE WISOR, and THOMAS
IRVIN and CAROL SHELIA WISOR, and CARL and
JEANNETTE LEIDHOLM,
Respondents.
PETITION FOR A Writ OF CERTIORARI TO THE
UnNitep STaTes Court OF APPEALS FOR THE THIRD CIRCUIT
Of Counsel: CHARLES WEISS
WILLIAM C. KRINER Davip S. WATSON
NEVLING, DAVIS, KRINER RicHarp M. ZoMNIR
& YEAGER Louise W. YopER
110 N. Second St. THORP, REED & ARMSTRONG
Clearfield, PA 16830 2900 Grant Building
Pittsburgh, PA 15219
March 28, 1975 Attorneys for Petitioner
FILED
| MAR 28 1979
In the eae a ta RODAK, JR, CLERK
Supreme Court of the Wnited States
Table of Contents i
TABLE OF CONTENTS
Page
PETITION FOR A WRIT OF CERTIORARI TO
THE THIRD CIRCUIT COURT OF APPEALS ... 1
Se 2
LO 2
QUESTIONS PRESENTED ...................00005 2
occ. ices ceecessess 4
STATEMENT OF THE CASE..................00. 4
REASONS FOR GRANTING THE WRIT ........... ll
The court below has decided important federal
questions of first impression with respect to the
administration and enforcement of the Clean Air
Act and the jurisdiction of the federal district
courts over citizen suits filed under the Clean Air
Act to require compliance and recover private
damages. These questions have not been but
should be settled by the Court.
ee ei 21
pa ae oe de la
ii Table of Contents
APPENDIX
Page
1. Opinion and Judgment of the United States
Court of Appeals for the Third Circuit,
ee ceases la
&. Order of Court, April 4, 1078 ........cccccccess lla
3. Order of Court, March 2, 1978 ................ 12a
4. Opinion and Order of District Court of the
United States for the Western District
i I ir SUE ike bo bic cad Wenscevccves 13a
5. Notice Granting Permission to Appeal,
Pe Ga dee ee havelis nebe biccecewn ce 18a
6. Complaint for Civil Penalties.................. 20a
7. Affidavit of Larry W. Wonders ................ 24a
8. Consent Order and Agreement ................ 25a
ee Cy ko ae didn ob cet sucked 4606ki 37a
ee Pe ah as ha iW bo uke aks Kobus 40a
SE he CAC Nip eake dba hencikan tenn 43a
Sy Sia oe sk esaes eben paweas cs Sawedm ban 47a
Ba, PR IIL, . bir deka bnvvcdadiciSccodewee 50a
14. Environmental Hearing Board Adjudication..... 52a
15. Notice Letter from Marvin Fein, Esq. .......... 87a
DR IR Sac chawecmhanccekcsenseess cate 89a
Oe. RS LOC de oak Gul dienbeveebns se eenaunes 90a
18. Motion to Add Party Plaintiffs................. 96a
19. Order of Court, January 28, 1977 .............. 98a
, | A ee ne 99a
21. Affidavit in Support of Motion to Dismiss ...... 10la
ee eS POT Pe Ret TE ee eT ETRE Eee 102a
23. Suggestion of Lack of Jurisdiction of the
ge ee 106a
24. Section 304 of the Clean Air Act, 42 U.S.C.
DE GaN Shdas US EeTESS COMMU EN ONS REARS CHESS 109a
<1
Table of Contents iii
Senate Public Works, Committee Comments,
A Legislative History of The Clean Air
Amendments of 1970, p. 730-1............05: ll3a ~
Senate Debates, A Legislative History of
The Clean Air Amendments of 1970, p. 353 ...118a
. Senate Debates, A Legislative History of
The Clean Air Amendments of 1970, p. 355 ...12la
Senate Debates, A Legislative History of The
Clean Air Amendments of 1970, p. 280 ....... 123a
Pennsylvania Air Pollution Control Act
ee Be eee 125a
DER Rules and Regulations, §§123.1,
Ris, Sees MUU, MULE Seccecccccccceces 15la
. Section 121.7 of Chapter 121 of The
DER’s Rules and Regulations ................ 157a
. Section 131.2 of Chapter 131 of
The DER’s Rules and Regulations............ 157a
Section 127.11 of Chapter 127 of
The DER’s Rules and Regulations............ 158a
Sections 52.2020 and 52.2023 of 40 C.F.R........ 159a
Rules and Regulations of Environmental
Hearing Board, §§21.14, 21.15, 21.33.......... 162a
Memorandum of Marvin Durning, Assistant
Administrator of Enforcement, U.S. EPA,
SE PACA a Vina Vadw es deueet oes vineec 166a
iv Table of Citations
TABLE OF CITATIONS
CASES
Page
California v. Department of Navy, 431 F.Supp.
eg B i Silke Go: eee fe eRe Cre Pee 14
City of Highland Park v. Train, 519 F.2d 681
CHEE. QE oni Sechaba aacee brews dieeces 14
City of Johnstown v. DER,
EHB Docket No. '77-O60-W .... ccc ccccccc cc cccnes 15
DER v. Pennsylvania Power Co., 34 Pa. Cmwlth. 546,
one ADE Tee CROOe. Kncncetacuvensansecdesns 16, 18
Joseph B. Gable Estate v. DER, EHB Docket No.
CORED oi. cannnebucksbentebs meade takeasmeect 15
Lawner v. Englebach, 422 Pa. 311, 249 A.2d 295
(JEEP. 2 i's c cninvevencnuegenuemeesta deen 16
United Mine Workers v. Gibbs, 383 U.S. 715
(MRED. o 06 4050006) eure aa 19, 20
United States v. Pennsylvania Environmental
Hearing Board, 377 F.Supp. 545
(M.D.Pa. IGG. 0<csnnvnvensNeuaieeeereee 14
United States v. Ruzicka, 329 U.S. 287 (1946) ......... 12
United States v. Utah Construction & Mining Co.,
384 U.S. WS CIOOR. oo. io Ves ens 16, 20
Volkswagen de Puerto Rico v. Puerto Rico Labor
Relations Board, 454 F.2d 38 (1st Cir. 1972) ....... 14
STATUTES
Administrative Agency Law:
Th PS. GETIOOG qo. onc0n 60ucenehaead eee 16
Clean Air Act:
Section 110 (428 U.S.C. @74R@) . oi. ccs sseeas eee 7
Section 304 (42 U.S.C. §7604)........ 2, 3, 4, 7, 9, 10,
11, 12, 13, 14, 16, 17, 18, 19, 20
Table of Citations Vv
Judiciary and Judicial Procedure: Page,
TT ELT POLE TEETER ETT 2
ey Cae a Wieiwe wevses ded be ovis 9
noe. bau ket ses soe ebb el edb theses 18
Pa. Air Pollution Control Act:
Section 35 (25 F.G. S400BS) ...ccccccccccccvnce 6,7
SOC OF Cae Fs GED onc eae cei eseees 6, 7
Bection GS (ae Fie. SGN) Peis ce se ec ewedvecescs 6, 7
Section 9.1 (35 P.S. §4009.1) .......... 3, 5, 14, 15, 17
REGULATIONS
Rules and Regulations, Department of
Environmental Resources:
REE SP, MEME? eccnccisccscseaes 6, 7
Section Eis.) (ie F.C. GIZE.T) ncn cccccccccccs 6, 7
OEE BAM is BEMENE) cvcndisstcccessensves 7
Og ES. > | ra 6, 7
eG BD DS Ome S|) ot | 6, 7
ee ec ees ki o.6 b annaie secs 6x 6
ae RE, 8 Ome || | 6
Rules and Regulations, Environmental Hearing Board:
Section 21.14(b) (25 P.C. §121.14(b))............. 15
Section 21.15(a) (25 P.C. §121.15(a)) ............. 15
Section 21.33(a) (25 P.C. §121.33(a)) ............. 15
Rules and Regulations, Environmental Protection
Agency—National Primary and Secondary
Ambient Air Quality Standards:
rads we bd ob 4 ke ot onde es s'e' ve 6
a ee ee ee ene 6
Approval and Promulgation of Implementation Plans:
ee yf 6 | er peeeeteiey 7
ea Gah ees KK kde bas 0 7
vi Table of Citations
OrHeR AUTHORITIES Page
A Legislative History of the Clean Air Amendments
of 1970:
Senate Debates ........eeceeeeeeeeeeeeeeees = :
Senate Public Works......---++eeeeeeeeeeeee ’
Memorandum from EPA Assistant Administrator
of Enforcement, Marvin Durning, to
Regional Administrators, April 11, 1978....... 17, 18
Stern and Gressman, Supreme Court Practice
(Sth ed. 1978) ......ceeceeceeceeceeeeeeeersecees
In the
Supreme Court of the United States
October Term, 1978
No.
BRADFORD COAL COMPANY, INC.
Petitioner,
vs.
LAVERE C. and DORIS J. BAUGHMAN, ERNEST and
JESSIE BILLOTTE, MABEL E. BOCK, VIOLET DIXON,
ROBERT R. and DONNA ELLINGER, GEORGE and
RUTH ELINSKY, HOLLIS N. and DOROTHY JEAN
KNEPP, HAROLD O. and LORRAINE LANSBERRY,
JAMES and CATHERINE LOMBARDO, DELBERT and
JANET H. MARSH, LYLE A. and RUTH S. MILLER,
HOWARD C. and LORAINE G. SCHAFFER, RICHARD
EDMUND and EMMABELL SWANSON, EDWARD L.
and M. JOANNE WELSH, ABRAM B. and MABEL L.
WISOR, ABE B. and LEDA JANE WISOR, and THOMAS
IRVIN and CAROL SHELIA WISOR, and CARL and
JEANNETTE LEIDHOLM,
Respondents.
PETITION FOR A Writ OF CERTIORARI TO THE
UnNiTep States Court OF APPEALS FOR THE THIRD CIRCUIT
The petitioner, Bradford Coal Company, Inc., respect-
fully prays that a writ of certiorari issue to review the judg-
ment and opinion of the United States Court of Appeals for
the Third Circuit entered in this proceeding on February 5,
1979.
2 Opinions Below, Jurisdiction and
Questions Presented ~\
OPINIONS BELOW
The opinion of the Court of Appeals which was filed on
February 5, 1979 but which is not yet reported appears on
p. la of the Appendix hereto. The opinion of the United
States District Court for the Western District of Pennsylva-
nia filed on May 25, 1977, is not reported. It appears in the
Appendix at p. 13a.
JURISDICTION
The judgment of the Court of Appeals for the Third
Circuit was entered on February 5, 1979. The judgment
affirmed the Order of the United States District Court for
the Western District of Pennsylvania, filed March 2, 1978,
and amended April 4, 1978. The Supreme Court of the
United States has jurisdiction pursuant to 28 U.S.C.
§1254(1).
QUESTIONS PRESENTED
I. With respect to any source, whether Section 304(b) of
the Clean Air Act, as amended, 42 U.S.C. §7604(b)!
(hereafter “Clean Air Act”), precludes the commence-
ment and maintenance of a citizen suit in a fedeyal dis-
trict court to require compliance by the source with
the standards and limitations contained in a state
implementation plan when an agency of the state
charged with responsibility for enforcing compliance
with the plan has already initiated and is diligently
prosecuting an enforcement action against the source
before a state administrative body vested with juris-
diction over such enforcement actions?
'Section 304 of the Clean Air Act (42 U.S.C. $7604) is reproduced
beginning at p. 109a of the Appendix.
Il.
III.
IV.
Questions Presented 3
(a) Whether the Pennsylvania Environmental
Hearing Board is a “court of...a State” within the
intendment of Section 304(b)(1)(B) of the Clean Air
Act?
(b) Whether the Pennsylvania Department of
Environmental Resources is a “state” within the
intendment of Section 304(b)(1)(B) of the Clean Air
ActP
(c) Whether an action for civil penalties under
Section 9.1 of the Pennsylvania Air Pollution Control
Act,? 35 P.S. §4009.1, is a “civil action to require com-
pliance” within the intendment of the Clean Air Act?
Whether the Clean Air Act as amended creates a pri-
vate cause of action for damages for injuries to persons
or property resulting from a violation of a state imple-
mentation plan?
If federal subject matter jurisdiction is lacking,
whether a federal district court has or may retain juris-
diction over alleged common law damage claims
based upon nuisance?
Whether the issues with respect to petitioner’s com-
pliance with the Pennsylvania Implementation Plan
should be disposed of on grounds of administrative res
judicata since the same issues have been litigated by
most of the respondents before the Pennsylvania
Environmental Hearing Board?
?The Pennsylvania Air Pollution Control Act (35 P.S. §§4001, et seq.) is
reproduced in its entirety beginning at p. 125a of the Appendix.
4 ' Statutes Involved &
Statement of the Case’
STATUTES INVOLVED
Section 304(b) of the Clean Air Act, 42 U.S.C. §7604(b),
which provides in relevant part:
(b) No action may be commenced—
(1) under subsection (a)(1) of this section—
(B) if the Administrator or state has com-
menced and is diligently prosecuting a civil
action in a court of the United States or a State
to require compliance with the standard, lim-
itation, or order, but in any such action in a
court of the United States any person may
intervene as a matter of right.
STATEMENT OF THE CASE
This citizen suit was commenced on December 27, 1976
by 34 individuals who own jointly or individually 18 parcels
of real property situated in the town of Bigler, Clearfield
County, Pennsylvania. (A. 91a, 98a). They alleged that peti-
tioner Bradford Coal Company, Inc. (herein “petitioner”)
had violated fugitive emissions limitations and other require-
ments of the Pennsylvania Implementation Plan by opera-
tions of its coal cleaning and storage facility in Bigler. (A.
93a). The respondents sought injunctive relief, compensa-
tory damages for alleged injuries to their persons and prop-
erty, punitive damages, costs of litigation and reasonable
attorney’s fees. (A. 94-5a). Preliminary injunctive relief was
not sought. Petitioner denied and continues to deny that it
violated any standard or requirement of the Pennsylvania
Implementation Plan and denies that the district court has
jurisdiction of the subject matter of respondents’ claims.
(A. 103a).
Statement of the Case 5
Although respondents sought compensatory damages
for alleged injuries to their property and persons resulting
from coal dirt allegedly emanating from petitioner's opera-
tions (A. 94a), none of the respondents was able to give the
total amount of or a breakdown of his or her damage claim
when depositions were taken in August, 1977.* Amost all of
the respondents testified at deposition that the principal
objective in bringing this suit was to eliminate alleged fugi-
tive emission problems associated with the operation of peti-
tioner’s existing facility.4 Respondents do not purport to
represent other persons who live or own real property in
Bigler. Those persons have not joined in this action and have
not filed any action for damages or enforcement against
petitioner.
When respondents filed their Complaint on December
27, 1976, there was already pending before the Environmen-
tal Hearing Board an action against petitioner for alleged
violation of fugitive emissions standards. On August 2, 1976,
pursuant to Section 9.1 of the Pennsylvania Air Pollution
Control Act (A. 140a), the Department of Environmental
3Deposition References: Ri .ard E. Swanson, pp. 27, 32-33; Emma-
bell Swanson, p. 31; Doris J. Baughman, pp. 47-50; Violet Dixon, pp. 48-49,
60-61; Dorothy J. Knepp, pp. 24, 31-32; Hollis Knepp, p. 34; Robert R.
Ellinger, pp. 14, 21, 25, 26-28, 40-41; Donna M. Ellinger, pp. 40, 48; Harold
Lansberry, p. 40; Lorraine Lansberry, pp. 42-43; George Elinsky, pp. 52,
57; Carl A. Leidholm, pp. 43-45; Katherine Lombardo, pp. 32-33, 35; Del-
bert Marsh, pp. 97-98; Howard C. Shaffer, pp. 64-65; Lorraine B. Shaffer,
pp. 7-9; Abe B. Wisor, pp. 22-23; Carol S. Wisor, p. 54; Thomas I. Wisor,
p. 35.
‘Deposition References: Richard E. Swanson, pp. 35; Emmabell
Swanson, p. 46; Violet Dixon, pp. 71; Dorothy J. Knepp, p. 62; Hollis
Knepp, p. 44; Lorraine Lansberry, pp. 64-66; George Elinsky, pp. 89-90;
Carl A. Leidholm, p. 74; Katherine Lombardo, p. 44; Delbert Marsh, p. 69;
Howard C. Shaffer, p. 95; Lorraine G. Shaffer, p. 21; Lyle A. Miller, p. 25;
Abe B. Wisor, p. 47; Thomas I. Wisor, p. 34; Leda J. Wisor, pp. 62-63.
6 Statement of the Case
Resources (herein “DER”) filed its action for civil penalties
against petitioner before the Environmental Hearing Board
at Docket No. 76-096-CP-W. (A. 20a). In that Complaint the
DER alleged that:
1) Petitioner has caused since October 26, 1972 the
emission of fugitive contaminants, mainly in the
form of coal dust into the outdoor atmosphere in
violation of Chapter 123, Section 123.1 of the
DER’s Rules and Regulations® (A. 21a);
2) Petioner has caused air pollution as defined in Sec-
tion 3(5) of the Pennsylvania Air Pollution Control
Act in violation of Section 8 of that Act (A. 2la) and
Section 121.7 of the DER’s Rules and Regulations®
(A. 2la);
3) Alleged emissions from petitioner's facility have
caused violations of the National Primary and
Secondary Ambient Air Quality Standards for sus-
pended particulate matter, as set forth in 40 C.F.R.
Section 50.7 and 50.8 incorporated into Chapter
131, Section 131.2 of the DER’s Rules and Regula-
tions’ (A. 22a); and
4) Since October 26, 1972, petitioner had expanded its
facility in a manner to cause greater amounts of
fugitive emissions without first obtaining a permit
from the DER in violation of Section 6.1 of the
Pennsylvania Air Pollution Control Act and Chap-
ter 127, Section 127.11 of the DER’s Rules and Reg-
ulations® (A. 22a).
‘The relevant portions of Chapter 123 of the DER’s Rules and Regula-
tions is reproduced beginning at p. 15la of the Appendix.
Section 121.7 of Chapter 121 of the DER’s Rules and Regulations is
reproduced at p. 157a of the Appendix.
"Section 131.2 of Chapter 13] of the DER’s Rules and Regulations is
reproduced at p. 157a of the Appendix.
‘Section 127.11 of Chapter 127 of the DER’s Rules and Regulations is
reproduced at p. 158a of the Appendix.
Statement of the Case 7
Based on these allegations, the DER prayed for the imposi-
tion of a civil penalty in an amount “...sufficient to deter
such unlawful conduct in the future... .” (A. 23a). (Empha-
sis supplied).
The standards and requirements of the Pennsylvania Air
Pollution Control Act and DER’s Rules and Regulations
thereunder which are cited in DER’s Complaint against peti-
tioner, are also federal standards and requirements under the
Clean Air Act, by reason of their inclusion as part of the
Pennsylvania Implementation Plan approved by the United
States Environmental Protection Agency pursuant to Section
110 of the Clean Air Act 42 U.S.C. §7410. See: 40 C.F.R.
52.2020, 52.2023.° Thus, in this citizen suit, respondents pur-
port to require compliance with the same standards and
requirements as did DER by its prior Complaint for civil
penalties before the Environmental Hearing Board. Specifi-
cally, respondents alleged in their Complaint:
1) That emissions of coal dust from petitioner's plant
are in violation of the emissions limitations con-
tained in Sections 123.1 and 123.2 of the DER’s
Rules and Regulations (A. 93a);
2) That alleged emissions of coal dust from petition-
er’s plant are in violation of Sections 3(5) and 8 of
the Pennsylvania Air Pollution Control Act and of
Section 121.7 of the DER’s Rules and Regulations
thereunder (A. 94a); and
3) That alleged emissions of coal dust from petition-
er’s plant are from sources for which respondents
allege petitioner never applied for or received a
permit from the DER and thus, are in violation of
Section 6.1 of the Pennsylvania Air Pollution Con-
trol Act and Section 127.11 of the DER’s Rules and
Regulations thereunder (A. 94a).
Sections 52.2020 and 52.2023 of 40 C.F.R. are reproduced beginning
at p. 159a of the Appendix.
8 Statement of the Case
Section 304(b) of the Clean Air Act provides in material
part as follows:
No action may be commenced—
(1) under subsection (a)(1) of this Section—
(B) if the Administrator or state has commenced and is
diligently prosecuting a civil action in a court of the
United States or a State to require compliance with the
standard, limitation, or order, but in any such action in a
court of the United States any person may intervene as a
matter of right.
If the prior DER enforcement action is the type of
enforcement that Congress sought to encourage by the
§304(b)(1)(B) prohibition against citizen suits in the federal
courts, then such action precluded the district court from
exercising subject matter jurisdiction.
On the basis of the prohibition contained in Section
304(b)(1)(B), petitioner initially moved for dismissal of
respondents’ Complaint for lack of subject matter jurisdic-
tion. (A. 99a). By Opinion and Order filed on May 25, 1977,
the district court denied petitioner’s Motion to Dismiss on
the ground that the DER enforcement action commenced
before the Environmental Hearing Board is not an action to
“require compliance” within the meaning of the prohibition
of Section 304(b) against citizen suits. (A. 13-17a).
Subsequent to the district court's denial of petitioner's
Motion to Dismiss for lack of subject matter jurisdiction, a
Consent Order and Agreement was entered into on October
13, 1977, between DER and petitioner settling DER’s
enforcement action before the Environmental Hearing
Board. Under the terms of the Consent Order and Agree-
ment, petitioner is required to comply with applicable
standards and limitations of the Pennsylvania Implementa-
tion Plan by undertaking certain modifications and proce-
Statement of the Case fe)
dures to control fugitive emissions from its existing oper-
ations until July 1, 1979. (A. 27-30a). As of July 1, 1979,
Petitioner is required to cease operations in accordance with
the Consent Order and Agreement and to relocate its opera-
tions to a new plant being constructed by petitioner on a site
beyond the town limits of Bigler at an estimated cost of $12
million. (A. 26a). The Consent Order and Agreement was
executed by the Environmental Hearing Board on Novem-
ber 14, 1977. (A. 36a).
Since the Consent Order and Agreement more clearly
demonstrated that the prior Environmental Hearing Board
proceeding was one to “require compliance” within the
meaning of the Section 304(b) prohibition against citizen
suits, petitioner filed its Suggestion of Lack of Jurisdiction of
the Subject Matter pursuant to Fed.R.Civ.P. 12(h)(3) so that
the district court would have the opportunity to reconsider
its prior determination of subject matter jurisdiction and to
review its prior assessment of the scope and effect of the
DER’s enforcement action. (A. 106a).
By Order dated March 2, 1978, the district court denied
petitioner's renewed request for dismissal, on the ground
that “the complaint before the Environmental Hearing
Board did not constitute ‘a civil action in a court of the state
to require compliance,’ as required by the jurisdictional
exception contained in Section 304(b)(1)(B) of the Clean Air
Act, as amended.” (A. 12a). Pursuant to petitioner’s Motion,
the district court certified its Order of March 2, 1978 for
appeal pursuant to 28 U.S.C. §1292(b), stating:
It is the opinion of this court that this order involves a
controlling question of law as to which there is substan-
tial ground for difference of opinion and that an imme-
diate appeal from this order may materially advance the
ultimate termination of this litigation. (A. lla).
10 Statement of the Case
Petitioner thereupon filed with the United States Court
of Appeals for the Third Circuit,its Petition for Permission to
Appeal an Order Denying Its Suggestion of Lack of Jurisdic-
tion of the Subject Matter, which Petition was granted by the
Court of Appeals by Order entered May 4, 1978 (A.19a).
On February 5, 1979, the Court of Appeals entered
judgment in this suit, affirming the district court. The court
found that the Environmental Hearing Board was not a
“court of ... a State” and thus the pending DER enforce-
ment action against petitioner did not invoke the prohibition
of Section 304(b) and deprive the district court of subject
matter jurisdiction over respondents’ citizen suit.
Many (26) of the respondents herein filed appeals with
the Environmental Hearing Board challenging DER’s action
in entering into the Consent Order and Agreement with peti-
tioner and challenging DER’s action in issuing to petitioner
certain plan approvals necessary in order for construction to
begin on petitioner's new coal cleaning plant, (A. 50a). The
Environmental Hearing Board conducted four days of héar-
ings in which many of the respondents participated with
legal counsel. On January 26, 1979, the Environmental Hear-
ing Board entered its Adjudication and Order affirming the
Consent Order and Agreement as a lawful and reasonable
means by which DER could conclude its action for civil
penalties and require petitioner’s compliance with the Penn-
sylvania Implementation Plan through closure and reloca-
tion of petitioner’s coal cleaning plant. The Environmental
Hearing Board made numerous findings of fact and conclu-
sions of law which are included in its Adjudication. Thus,
many of the respondents have assumed an active role in the
final resolution of the enforcement proceedings originated
by DER on August 2, 1976. Petitioner was unable to provide
the Court of Appeals with a copy of the Environmental
Hearing Board’s Adjudication and Order prior to the filing
of its judgment on February 5, 1979.
Reasons for Granting the Writ ll
REASONS FOR GRANTING THE WRIT
The court below ‘has decided important federal ques-
tions of first impression with respect to the administra-
tion and enforcement of the Clean Air Act and the
jurisdiction of the federal district courts over citizen
suits filed under the Clean Air Act to require com-
pliance and recover private damages. These questions
have not been but should be settled by the Court.
It has been stated that the prime responsibility for the
proper functioning of the federal judiciary rests upon the
Supreme Court.!° Questions of federal jurisdiction impact
directly upon how the federal judicial system works. This
case presents important questions of federal law which have
not been, but should be, settled by this Court. The district
court in this case is presented with 34 personal injury claims
and 18 property damage claims, each of which presents its
own particular set of facts and circumstances. Whether Sec-
tion 304 of the Clean Air Act, in the absence of any other pos-
sible jurisdictional basis, opens the doors of the federal
district courts to such claims in any event, or when there is
already pending prior state enforcement action before an
administrative agency established to hear and decide such
cases, are questions of substantial import to the federal judi-
ciary. The answer to these questions may have a significant
impact on the caseload of the federal district courts. This
case will supply a clear-cut rule for the judiciary to follow in
determining whether or not jurisdiction exists to hear Sec-
tion 304 cases where state agencies have begun internal
enforcement proceedings.'! The question of jurisdiction
involved herein is substantially the same as that presented in
OR. Stern and E. Gressman, Supreme Court Practice, 296 (5th ed.
1978).
''Similar guidance will also be provided with respect to citizen suits
filed under the Federal Water Pollution Control Act Amendments of 1972,
33 U.S.C. §1365(b)(1)(B), because federal jurisdiction of such suits is sub-
ject to identical limitations.
12 Reasons for Granting the Writ
United States v. Ruzicka, 329 U.S. 287 (1946), which
involved the distribution of enforcement authority between
the courts and the Secretary of Agriculture under the Agri-
cultural Marketing Agreement Act of 1937. It was necessary
for the Court to look at the statute, its purposes and the
scheme of administration which Congress had designed. It is
precisely these factors which the Court is being asked to
consider with reference to the Clean Air Act’s citizen suit
provision.
A determination of the jurisdictional questions pres-
ented will also have a direct effect on several states. A
number of the industrial states, including New Jersey, Dela-
ware, Michigan, Illinois, New York, California, and West
Virginia, have state administrative proceedings which are
functional equivalents of Pennsylvania’s Environmental
Hearing Board.'? This decision would put all states on notice
as to what status state administrative enforcement proceed-
ings hold with respect to §304. It could also have an effect
upon the ability of state agencies to bring about compliance
by means of settlement agreements of the type obtained by
DER in this case. A source may be less inclined to settle state
enforcement proceedings if there remains exposure to sub-
sequent enforcement proceedings in the federal district
courts with respect to the same activities.
The outcome of this suit will also affect the many busi-
ness enterprises which are subject to the requirements of the
Clean Air Act. A decision by the Supreme Court will lay to
rest any doubts as to whether sources can be caught between
"See, N.J. Stat. Ann. §§13:1D-9(e), 26: 2C-14.1, 26:2C-16, 26:2C-17
(West 1964); Del. Code tit. 7, §§6005-8 (Supp. 1978); Michigan Comp.
Laws Ann. §$§336.18-336.21 (1975); Ill. Ann. Stat. ch. 1114s, $1005 (Smith-
Hurd 1977); N.Y. Envir. Conserv. Law §§ 19-0301(1)(d), 19-0505, 19-0507
(McKinney 1973); Cal. Health & Safety Code §§40800, 40830, 40840,
40860-65 (West 1979); W. VA. Code §§16-20-5(6), 16-20-6, 16-20-7 (1972).
Reasons for Granting the Writ 13
inconsistent rulings because of concurrent state and federal
enforcement proceedings containing identical issue.
I. With respect to any source, whether Section 304(b) of
the Clean Air Act, precludes the commencement and
maintenance of a citizen suit in a federal district court to
require compliance by the source with the standards
and limitations contained in a state implementation plan
when an agency of the state charged with responsibility
for enforcing compliance with the plan has already
initiated and is diligently prosecuting an enforcement
action against the source before a state administrative
body vested with jurisdiction over such enforcement
actions.
Section 304(b)(1)(B) prohibits the commencement of
citizen suits “if the Administrator or State has commenced
and is diligently prosecuting a civil action in a court of the
United States or a State to require compliance with the
standard, limitation, or order [which the citizen suit contem-
plates enforcing].” The legislative history of this provision
indicates that enforcement is to be achieved primarily
through administrative action. The citizen suit was envi-
sioned as an option of last resort when citizens are faced with
inadequafé government action. Senate Debates, A Legisla-
tive History of the Clean Air Amendments of 1970, p. 280
(A. 123a). The notice requirement gives the government a
chance to act and supply the relief which the citizen seeks
without the need for burdening the already over-burdened
federal courts. See Senate Debates, A Legislative History of
the Clean Air Amendment of 1970, p. 355 (A. 121a). The case
law reiterates the view that the citizen suit mechanism was
intended to be subordinate to effective administrative
enforcement.
The legistative history of Section 304 shows Congress’
determination that citizen participation in the enforce-
ment of standards and regulations under the Clean Air
14 Reasons for Granting the Writ
Act of 1970 be established. It also shows, however, that
Congress intended to provide for citizen suits in a
manner that would be least likely to clog already bur-
dened federal courts and most likely to trigger govern-
mental action which would alleviate any need for
judicial relief. It was in response to these concerns that
the statutory notice provisions were included in Section
304. Congress’ intention would be frustrated if the statu-
tory mandate of Section 304(b) were ignored.
City of Highland Park v. Train, 519 F.2d 681, 690-91 (7th Cir.
1975). See also, California v. Dept. of Navy, 431 F. Supp.
1271, 1278 (N.D.Cal. 1977).
The DER enforcement action before the Environmen-
tal Hearing Board meets all three (3) requirements expressed
in Section 304(b)(1)(B). The Environmental Hearing Board
is a “court of ... a State” within the intendment of Section
304(b)(1)(B). The DER, which was diligently prosecuting
petitioner, fulfills the role of the state in the Environmental
Hearing Board proceeding. And finally, the civil penalties
action brought by DER under Section 9.1 of the Pennsylva-
nia Air Pollution Control Act, 35 P.S. §4009.1, which culmi-
nated in the Consent Order and Agreement, is a civil action
to require compliance.
(a) Whether the Pennsylvania Environmental Hearing
Board is a “court of a state” within the intendment
of Section 304(b)(1)(B) of the Clean Air Act?
In United States v. Pennsylvania Environmental Hear-
ing Board, 377 F. Supp. 545 (M.D.Pa. 1974), it was held that
the Environmental Hearing Board was a “state court” for
purposes of the federal removal statute. The court in Volks-
wa,ren de Puerto Rico, Inc. v. Puerto Rico Labor Relations
Board, 454 F.2d 38, 43 (1st Cir. 1972), held that mere nomen-
clature was not determinative. Instead, the court focused on
how the Board functioned: its procedures and enforcement
Reasons for Granting the Writ 15
powers. Clearly, the Environmental Hearing Board acts like
“a court of ... a State” in adjudicating enforcement pro-
ceedings and in reviewing the DER’s compliance orders.
Further, the Environmental Hearing Board has the power to
assess substantial civil penalties to effect compliance.'® The
threat of substantial fines for noncompliance provides the
Environmental Hearing Board with the means to achieve
meaningful and effective enforcement of the Pennsylvania , |
Implementation Plan. Therefore, the Environmental Hear-
ing Board’s inability to grant an injunction does not by any
means inhibit its capability to require compliance by sources
with the Implementation Plan. The Board hearings are
equivalent to a full trial on the merits. The parties have the
right to present evidence, cross examine, object, move and
argue and all witnesses are sworn or affirm. Rules of Practice
and Procedure for the Environmental Hearing Board, 25
P.C. §21.33(a). (A. 164a). The Board makes findings of fact
and conclusions of law. (A. 53a). The Board can issue sub-
poenas and has the ability to grant intervention. 25 P.C.
$§21.15(a), 21.14(b). (A. 162-5a). In that regard, the
respondents undoubtedly would have been permitted to
intervene initially in the DER’s enforcement action against
petitioner had they requested to do so as permission is read-
ily obtainable and frequently granted. Joseph B. Gable Es-
tate v. DER, EHB Docket No. 77-085-D; City of Johnstown
v. DER, EHB Docket No. 77-050-W. Many (26) respondents
have effectively intervened in the DER’s enforcement action
against petitioner by appealing to the Environmental Hear-
ing Board the DER’s action in entering into the Consent
Order and Agreement and issuing the construction permits.
(A. 50a). The scope of judicial review for the Environmental
'SPursuant to 35 P.S. §4009.1 (Civil Penalties), the Environmental
Hearing Board has the power to assess $2,500/day fines for each day of
continued violation and a civil penalty of $10,000. Over an entire year a
source could be fined by the Board up to $922,500.
16 Reasons for Granting the Writ
Hearing Board adjudications is fundamentally the same as
that generally,afforded courts by the Pennsylvania appellate
courts. 71 P.S. §1710.44; Lawner v. Englebach, 422 Pa. 311,
315, 240 A.2d 295, 297 (1969). And finally, res judicata app-
lies to the findings of the Environmental Hearing Board.
United States v. Utah Construction & Mining Co., 384 U.S.
394, 422 (1966). In view of its extensive judicial characteris-
tics, the Environmental Hearing Board functions as “a court
of ... a State” within the intendment of Section 304(b).
(b) Whether the Pennsylvania Department of Envi-
ronmental Resources is a “state” within the intend-
ment of Section 304(b)(1)(B) of the Clean Air Act?
The DER acted on behalf of the state in commencing
and diligently prosecuting the petitioner. The Common-
wealth acts through the DER which has been conferred with
the “responsibility for enforcement of the Commonwealth's
air pollution laws.” DER v. Pennsylvania Power Co., 34
Pa.Cmwilth. 546, 550 n.3, 384 A.2d 273, 276 n.3 (1978).
Pertinent legislative history indicates that a “state”,
within the scope and meaning of Section 304(b)(1)(B),
should be interpreted as any state governmental unit which
initiates an enforcement action to require compliance with
an implementation plan.
If there is any justification for citizen suits it is in those
circumstances involving complete government inac-
tion. The government is the proper source for the selec-
tion of enforcement tools, and its discretion in this
regard should not be disrupted by private litigation.
Where the government, federal or state, initiates
enforcement procedures prior to, within or beyond a
reasonable notice period, there is no rational justifica-
tion for private suits.
Senate Public Works, Committee Comments, A Legislative
History of the Clean Air Amendments of 1970, p. 731. (A.
Reasons for Granting the Writ 17
113a). There can be no doubt that the enforcement action
brought by the DER against petitioner is an action com-
menced as “a state”.
(c) Whether an action for civil penalties under Section
9.1 of the Pennsylvania Air Pollution Control Act,
35 P.S. §4009.1, is a “civil action to require com-
pliance” within the intendment of the Clean Air
Act.
The third prong of the §304(b) requirements which prohibit
commencement of a citizen suit is whether the Environmen-
tal Hearing Board proceeding seeking imposition of civil
penalties constitutes “a civil action to require compliance.”
Clearly the DER viewed its enforcement action as one to
require compliance. Its Complaint stated:
[T]he Department hereby requests that the Board assess
a civil penalty...in an amount based upon...(c) the
expenses incurred by the Department in its effort to
secure Bradford Coal’s compliance with the duties
imposed on it by law and the cessation of the unlawful
conduct alleged herein; and (d) the degree of culpabil-
ity associated with Bradford Coal’s unlawful conduct
and which is sufficient to deter such unlawful conduct in
the future. (A. 22-3a).
(Emphasis supplied). Marvin Durning, the EPA’s Assistant
Administrator of Enforcement, also views an action for civil
penalties as a method of attaining compliance. In his memo-
randum of April 11, 1978 to Regional Administrators he said,
“The objective of this civil penalty policy is to assist in
accomplishing the goals of environmental laws by deterring
violations and encouraging voluntary compliance.” (A.
166a). Mr. Durning further stated that the penalties are struc-
tured to provide an incentive for rapid compliance because
they are assessed in accordance with the length of time of
non-compliance. The sooner a facility complies, the less its
18 Reasons for Granting the Writ
penalties will be. (A. 168a). The Pennsylvania Common-
wealth Court also views civil penalties in this light. DER v.
Pennsylvania Power Co., supra, at 285. The Consent Agree-
ment which petitioner entered into as a result of the DER |
enforcement action clearly demonstrates how that action
requires compliance.
As the above discussion indicates, all of the require-
ments set forth in §304(b) were met. This citizen suit should
be deemed to be precluded by DER’s prior enforcement
action before the Environmental Hearing Board. To con-
clude otherwise would frustrate Congress’ intent to encour-
age effective governmental enforcement rather than private
citizen suits in the federal district courts. Such citizen suits
were viewed by Congress as appropriate and necessary
only in the event of “. .. complete government inaction.” (A.
116a).
Il. WHETHER THE CLEAN AIR ACT AS AMENDED
CREATES A PRIVATE CAUSE OF ACTION FOR
DAMAGES FOR INJURIES TO PERSONS OR
PROPERTY RESULTING FROM A VIOLATION
OF A STATE IMPLEMENTATION PLAN?
By including claims for compensatory damages in their
Complaint, respondents do not establish federal subject
matter jurisdiction where it is otherwise lacking because the
Clean Air Act does not create a private cause of action for
damages allegedly sustained as a result of violations of the
Clean Air Act. Senators Hart and Muskie unequivocally
stated that the Act made no provision for damages to the
individual. Senate Debates, Legislative History, supra at 280,
353, 355. (A. 123-4a, 118a, 122a). Thus, there is no basis for
federal question jurisdiction under 28 U.S.C. §1331.
Reasons for Granting the Writ 19
Ill. IF FEDERAL SUBJECT MATTER JURISDIC-
TION IS LACKING, WHETHER A FEDERAL
DISTRICT COURT HAS OR MAY RETAIN JURIS-
DICTION OVER ALLEGED COMMON LAW
DAMAGE CLAIMS BASED UPON NUISANCE?
There can be no pendent jurisdiction of the respond-
ents’ common law damage claims because there is no basis
for federal jurisdiction in the first place. The dismissal of this
citizen suit under §304(b) of the Clean Air Act and the Con-
gressional denial of the existence of a private cause of action
for damages under the Clean Air Act, leave only common
lew nuisance claims to litigate. In United Mine Workers v.
Gibbs, 383 U.S. 715, 726 (1965), the Court deemed it approp-
riate to leave decisions under state law to state tribunals:
Certainly if the federal claims are dismissed before trial,
even though not insubstantial in a jurisdictional sense,
the State claims should be dismissed as well.
IV. WHETHER THE ISSUES WITH RESPECT TO
PETITIONER’S COMPLIANCE WITH THE
PENNSYLVANIA IMPLEMENTATION PLAN
SHOULD BE DISPOSED OF ON GROUNDS OF
ADMINISTRATIVE RES JUDICATA SINCE THE
SAME ISSUES HAVE BEEN LITIGATED BY
MOST OF THE RESPONDENTS BEFORE THE
ENVIRONMENTAL HEARING BOARD?
Assuming, arguendo, that there is jurisdiction in the dis-
trict court of this citizen suit, the compliance portion of
respondents’ claims should be dismissed as res judicata, at
least with respect to the 26 respondents who challenged
unsuccessfully the validity of the Consent Order and Agree-
ment before the Environmental Hearing Board. The Envir-
onmental Hearing Board adjudication decided the com-
pliance issues raised by respondents herein. No appeal was
-
20 Reasons for Granting the Writ
taken therefrom. Thus, a final determination was made , ith
respect to the compliance issues. According to United States
v. Utah Construction & Mining Co., 384 U.S. 394 (1966), res
judicata applies to administrative proceedings in appropri-
ate circumstances.
When an administrative agency is acting in a judicial
capacity and resolves disputed issues of fact properly
before it which the parties have had an adequate oppor-
tunity to litigate, the courts have not hesitated to apply
res judicata to enforce repose.
Id. at 422. As mentioned above, the Environmental Hearing
Board Adjudication is for practical purposes a full trial. The
parties had the opportunity to litigate the issues fully through
counsel. To permit respondents to relitigate the same issues
in the federal district court will encourage vexatious litiga-
tion and will add further to the already overburdened fed-
eral courts.
Admittedly, respondents have not litigated their indi-
vidual damage claims at the state level. However, since the
Environmental Hearing Board's adjudication is res judicata
with respect to the compliance issues raised by respondents
in their citizen suit, the district court should refrain from
entertaining pendent common law damage claims in light of
the principles enunciated by the Court in United Mine
Workers v. Gibbs, 385 U.S. 715 (1965).
In summary, the petitioners contend that the respon-
derts’ action raises for the first time significant issues con-
cerning when federal jurisdiction exists in environmental en-
forcement actions. Such issues should be decided before the
federal district court in this case and possibly other federal
district courts are required to entertain numerous and varied
claims for private damages on the basis of the jurisdiction
provided by §304 of the Clean Air Act and principles of
pendent jurisdiction.
Conclusion 91
CONCLUSION
For the above reasons, it is respectfully requested that
this Honorable Court issue a writ of certiorari to review the
judgment and opinion of the United States Court of Appeals
for the Third Circuit.
Respectfully submitted,
Of Counsel: CHARLES WEISS
WILLIAM C. KRINER Davin S. WATSON
NEVLING, DAVIS, KRINER RicHarp M. ZoMNiR
& YEAGER Louise W. YopER
101 N. Second St. THORP, REED & ARMSTRONG
Clearfield, PA 16830 2900 Grant Building
Pittsburgh, PA 15219
March 28, 1979 Attorneys for Petitioner
APPENDIX
Appendix la
IN THE
United States Court of Appeal
For THE Tuirp Circuit
No. 78-1764
LAVERE C. and DORIS J. BAUGHMAN, ERNEST and JESSIE BIL-
LOTTE, MABLE E. BOCK, VIOLET DIXON, ROBERT R. and
DONNA ELLINGER, GEORGE and RUTH ELINSKY, HOLLIS N.
and DOROTHY JEAN KNEPP, HAROLD O. and LORRAINE LANS-
BERRY, JAMES and CATHERINE LOMBARDO, DELBERT and
JANET H. MARSH, LYLE A. and RUTH S. MILLER, HOWARD C.
and LORAINE G. SHAFFER, RICHARD, EDMUND and EMMA-
BELL SWANSON, EDWARD L. and M. JOANNE WELSH, ABRAM
B. and MABEL L. WISOR, ABE B. and LEDA JANE WISOR, and
THOMAS IRVIN and CAROL SHELIA WISOR, and CARL and
JEANNETTE LEIDHOLM,
Plaintiffs-Appellees,
VS.
BRADFORD COAL CO., INC.,
Defendant-Appellant.
On APPEAL FROM THE UNITED States Districr Court FOR THE
WEsTERN District OF PENNSYLVANIA (Civit No. 76-1609)
Submitted Under Third Circuit Rule 12(6)
December 14, 1978
Before ALDISERT, and ADAMS, Circuit Judges,
and COOLAHAN, District Judge.°®
(Filed Feb. 5, 1979)
Davin S. WaTSON Marvin A. FEIN
Ricvarp M. ZoMnik Pittsburgh, Pa. 15219
THORP, REED & ARMSTRONG Attorneys for Plaintiffs-Appellees
Pittsburgh, Pa. 15219
and
WiiuiaM C. KRINER
NEVLING, DAVIS, KRINER & YEAGER
Clearfield, Pa. 16830
Attorneys for Appellant
* Honorable James A. Coolahan, United States District Judge for the
District of New Jersey, sitting by designation.
2a Appendix
COOLAHAN, U.S. Senior District Judge
Several residents of Bigler, Pennsylvania filed this
action under the Clean Air Act, 42 U.S.C. §7401 et seq.,
against the Bradford Coal Company (“Bradford”) alleging
that the Bradford coal processing plant located in Bigler
violated the Pennsylvania Implementation Plan.' Bradford
brought an interlocutory appeal, duly autorized under 28
U.S.C. §1292(b), from the denial of its motion to dismiss the
action for lack of subject matter jurisdiction. We affirm.
The complaint in the District Court was filed on
December 27, 1976. Well before that date the Pennsylvania
Department of Environmental Resources (“DER”) began an
action before the Pennsylvania Environmental Hearing
Board (“Hearing Board”) for civil penalties against Brad-
ford, pursuant to 35 P.S. §4009.1. This action alleged the
same violations of the Plan which the Bigler Residents would
later aver in their suit. While the DER did not request a direct
prohibition of further plan violations by Bradford, it did
pray that the assessed penalty be “sufficient to deter such
unlawful conduct in the future.”?
Pursuant to 42 U.S.C. $7604(a)(1), formerly 42 U.S.C.
§1857h-2(a)(1), federal district courts have jurisdiction
over suits by private citizens to enforce Clean Air Act
implementation plans against violators. However, 42
U.S.C. §7604(b)(1)(B) provides that no such action may be
commenced
‘Under the Clean Air Act, each State is required to promulgate a
scheme to control the level of air pollution which complies with certain
minimum national standards. Such schemes are called “implementation
plans,” and are subject to the approval of the Environmental Protection
Agency (“EPA”). Once approved, a plan is enforcible by either the State
or the EPA. Friends of the Earth v. Carey, 535 F.2d 165 (2nd Cir. 1976),
cert. den., 434 U.S. 902 (1977).
2On October 15, 1977, after commencement of this action, the DER
and Bradford entered into a Consent Order of Settlement for the civil
(continued)
a
Appendix 3a
Pursuant to 42 U.S.C. §7604(a)(1), formerly 42 U.S.C.
§1857h-2(a)(1), federal district courts have jurisdiction
over suits by private citizens to enforce Clean Air Act
implementation plans against violators. However, 42
U.S.C. §$7604(b)(1)(B) provides that no such action may be
commenced
if the Administrator or State has commenced and is
diligently prosecuting a civil action in a court of the
United States or a State to require compliance with the
standard....
Bradford argues that the DER civil penalty action
before the Hearing Board was prior to “civil action in a court
of ... a State to require compliance” with the Plan. Accord-
ingly, Bradford asserts, there is no subject matter jurisdiction
under §7604 to entertain this suit. Finding that the Hearing
Board is not a “court of ... a State,” we disagree.®
penalties action. Bradford agreed to pay the State $10,000 for past viola-
tions and to construct a new plant by December 31, 1979 which would
comply with the Plan. The DER agreed to allow Bradford to continue to
operate its old Bigler plant until July 1, 1979, provided that Bradford “take
all reasonable interim measures at the existing site to keep fugitive emis-
sions to a minimum” (albeit, apparently, in excess of Plan levels). The
DER also agreed not to institute any further enforcement actions against
Bradford so long as Bradford complied with the agreement. The Order
was not submitted to the EPA for approval. Variances from an implemen-
tation plan granted by a State are not effective until approved by the EPA.
Friends of the Earth v. Carey, supra.
‘’sThus we need not, and do not, decide whether an action for civil
penalties against a violator is an “action . . . torequire compliance” with an
implementation plan. We note that Congress recently enacted 42 U.S.C.
§7420(a) which empowers both the States and the EPA to administratively
assess and collect civil penalties from violators. The purpose of the provi-
sion was, inter alia, “to encourage compliance as effectively as possible
.” H.R.Rep. No. 294 (Interstate and Foreign Commerce Committee),
95th Cong., Ist Sess. 5 (1977). Nevertheless, Congress was careful to add
subsection (f) which provides:
Any orders, payments, sanctions, or other requirements under
this section shall be in addition to any other permits, orders, pay-
ments, sanctions, or other requirements established under this chap-
ter, and shall in no way affect any civil or criminal enforcement
proceedings brought under any provision of this chapter or State or
local law. (emphasis added).
4a Appendix
This is an issue of first impression; we can find no cases
construing §7604(b)(1)(B) or its equivalent in the Federal
Water Pollution Control Act, 33 U.S.C. §1365(b) (1)(B). Gen-
erally, the word “court” in a statute is held to refer only to the
tribunals of the judiciary and not to those of an executive
agency with quasi-judicial powers. United States v. Franz,
220 F.2d 123, 125 (3rd Cir.), cert. den., 349 U.S. 954 (1955);
Nelson v. Real Estate Comm’n, 35 Md. App. 334, 370 A.2d
608, 614 (1977); Department of State v. Spane, 1 Pa. Comm.
240, 274 A.2d 564 (1971). Nevertheless, an administrative
board may be a “court” if its powers and characteristics
make such a classification necessary to achieve statutory
goals. Volkswagen de Puerto Rico, Inc. v. Puerto Rico Labor
Relations Board, 454 F.2d 38 (lst Cir. 1972). Indeed, the
Pennsylvania Environmental Hearing Board has been held
to be a “State Court” for purposes of the Federal Removal
Statute, 28 U.S.C. §1442. United States v. Pennsylvania
Environmental Hearing Board, 377 F.Supp. 545, 553 (M.D.
Pa. 1974).
There is little legislative history on the subsection at
issue: 7604(b)(1)(B). That subsection, which did not eppear
in either the House or the Senate bills,‘ was added by the
Committee on Conference. The Committee tersely stated of
§7604(b)(1)(B):
‘It may be argued that the Senate bill contained in its notice require-
ment an implied preclusion of private suits in the event of prior agency
action. Section 304(a)(3) provided:
No such suit shall be filed unless such person or persons shall
have afforded the Secretary, his representative, or such agency, at
least thirty days from the receipt of such notice to institute enforce-
ment proceedings under this title to abate such alleged violation;
(emphasis added). S.Rep. No. 1196 (Senate Comm. on Public Works) 91st
Cong., 2nd Sess. 122 (1970). However, in its Statement of Intent, the
Senate Committee on Public Works said:
It should be emphasized that if the agency had not initiated
abatement proceedings following notice or if the citizen believed
(continued)
Appendix 5a
If an abatement action is pending and is being dili-
gently pursued in a United States or State court, such
action cannot be commenced but any party in interest
may intervene as a matter of right.
H.R.Rep. 1783, 91st Cong., 2d Sess. (1970) at p. 55.
There is however an extensive legislative history to
establish that Congress intended citizen suits to both goad
the responsible agencies to more vigorous enforcement of
the anti-pollution standards and, if the agencies remained
inert, to provide an alternate enforcement mechanism. See,
S:Rep. No. 1196, 91st Cong., 2d Sess. 2, 35-36 (1970) and the
comments of Senator Muskie and Senator Boggs in 116
Cong. Rec. (1970) at pp. 32902, 32918, respectively. Accord:
Friends of the Earth v. Carey, supra 535 F.2d at 172; and Nat-
ural Resources Defense Council, Inc. v. Train, 510 F.2d 692,
700 (1975). The same legislative history also indicates
that Congress intended to provide for citizen suits in a
manner that would be least likely to clog already bur-
dened federal courts and most likely to trigger govern-
mental action which would alleviate any need for
judicial relief.
City of Highland Park v. Trin, 519 F.2d 681, 690-91 (7th Cir.
1975). See, Remarks of Senator Muskie at 116 Cong.Rec.
* 32926 and 33102 (1970) and those of Senator Hart, Id. at
33183.
efforts initiated by the agency to be inadequate, the citizen might
choose to file the action. In such case, the courts would be expected to
consider the petition against the background of the agency action and
could determine that such action would be adequate to justify sus-
pension, dismissal, or consolidation of the citizen petition. On the
other hand, if the court viewed the agéncy action as inadequate, it
would have jurisdiction to consider the citizen action notwithstand-
ing any pending agency action.
Id. p. 37
6a Appendix
The preclusion of §7604(b)(1)(B), and the constituent
phrase “court of ... a State”, must be construed in light of
those policies. Accordingly, for a State administrative board
to be a “court” under that sub-section, that tribunal must be
empowered to grant relief which will provide meaning-
ful and effective enforcement of an implementation plan.
Unless this were true, any action by a State before the board
would neither alleviate the need for judicial relief nor sup-
plant the enforcement function of citizen suits.
The Clean Air Act does provide a benchmark for eval-
uating the sufficiency of State administrative remedies. Sec-
tion 7604(b)(1)(B) also precludes citizen suits where the EPA
has commenced a “civil action in a court of the United
States.” Thus, Congress believed that such proceedings
would provide effective enforcement and obviate the need
for citizen actions. Under 42 U.S.C. §7413, the EPA may sue
for a permanent or temporary injunction, or to assess
and recover a civil penalty of not more than $25,000 per
day of violation, or both ....
Congress thus perceived that effective enforcement
required, in addition to the sanction of penalties, the option
of au injunction to mandate compliance. Some large dis-
charges of pollutants might believe it more economical to
pay a fine than to incur the costs of compliance. Without
injunctions, enforcers would be compelled. in effect, to sell
a variance from an implementation plan to any wealthy
pollutor.
It follows that to constitute a “court” in which proceed-
ings by the State will preclude private enforcement actions
under $7604, a tribunal must have the power to accord relief
which is the substantial equivalent to that available to the.
EPA in federal courts under the Clean Air Act. The Pennsyl-
vania Environmental Hearing Board lacks this capacity. Pur-
suant to 35 P.S. §4009.1, the Hearing Board is empowered
sts
Appendix 7a
only to assess a penalty which cannot exceed $10,000 plus
$2,500 for each day of continuing violation of the Implemen-
tation Plan. Thus, the maximum potential financial deterrent
available to the Hearing Board is merely one-tenth that
wielded by federal courts. More significantly, the Hearing
Board lacks the power to enjoin violations of the Plan. Cf. 71
P.S. §510-21 and 35 P.S. §4006. Compare, 35 P.S. §4010.
The procedures of the Hearing Board are also deficient.
Section 7604(b)(1)(B) provides that where an agency com-
mences an action in federal court, citizens may intervene in
those proceedings “as a matter of right.” (emphasis added).
Apparently Congress intended that, even where private
enforcement actions were precluded, the salutary effects of
citizen gadflies should be preserved by allowing their partic-
ipation as intervenors in the government-initiated suit. The
right of intervention is, of course, not applicable to proceed-
ings “in a court of ... aState”. Nevertheless, we believe that
the existence of such a right may be properly considered as
one factor® in determining whether a particular state tribunal
is a “court” for purposes of preclusion of citizen actions.
Under the Hearing Board’s Rules of Practice and Pro-
ceedure, citizen intervention is not of right, but rather is dis-
cretionary with the Board. 25 P.C. §21.14(b). Thus, were the
Board held to be a “court”, citizens could be effectively fro-
zen out of the enforcement process. Such a result would con-
travene the general Congressional intent of the Clean Air
Act.
Accordingly, we find that the Pennsylvania Environ-
mental Hearing Board not to be a “court” under
5Accordingly, we do not decide whether the lack of citizen interven-
tion of right, alone, is a sufficient basis to find an otherwise competent tri-
bunal not be a “court” under §7604(b)(1)(B).
8a Appendix
§7604(b)(1)(B). The District Court’s Order that it has juris-
diction under the Clean Air Act will be affirmed.®
DATE: /s/ James A. COOLAHAN
James A. Coolahan
U.S. Senior District Judge
*Because of this conclusion, we do not address the alternative jurisdic-
tional bases argued by the parties.
Appendix 9a
- In THE
United States Court of Appeals
For THE Tuirp Circuit
No. 78-1764
LAVERE C. and DORIS J. BAUGHMAN, ERNEST and
JESSIE BILLOTTE, MABEL E. BOCK, VIOLET DIXON,
ROBERT R. and DONNA ELLINGER, GEORGE and
RUTH ELINSKY, HOLLIS N. and DOROTHY JEAN
KNEPP, HAROLD O. and LORRAINE LANSBERRY,
JAMES and CATHERINE LOMARDO, DELBERT and
JANET H. MARSH, LYLE A. and RUTH S. MILLER,
HOWARD C. and LORAINE G. SHAFFER, RICHARD
EDMUND and EMMABELL SWANSON, EDWARD L.
and M. JOANNE WELSH, ABRAM B. and MABEL L.
WISOR, ABE B. and LEDA JANE WISOR, and THOMAS
IRVIN and CAROL SHELIA WISOR, CARL and
JEANNETTE LEIDHOLM
VS.
BRADFORD COAL COMPANY, INCORPORATED,
Appellant
(D. C. Civil No. 76-1609)
On APPEAL FrRoM THE UNirtep States District Court
For THE WESTERN District Or PENNSYLVANIA
Present! ALDISERT and ADAMS, Circuit Judges and
COOLAHAN, District Judge®
* Honorable James A. Coolahan, United States District Judge for the
District of New Jersey, sitting by designation
10a Appendix
JUDGMENT
This cause came on to be heard on the record from the
United States District Court for the Western District of
Pennsylvania and was submitted under Third Circuit Rule
12(6) December 14, 1978.
On consideration whereof, it is now here ordered and
adjudged by this Court that the order of the said District
Court, filed March 2, 1978, as amended by the order of the
said District Court filed April 4, 1978, be, and the same is
hereby atfirmed, with costs taxed against appellant.
ATTEST:
/s/ Tuomas F. Quinn
February 5, 1979 Clerk
- — newee
Appendix ' lla
IN THE
DISTRICT COURT OF THE UNITED STATES
For THE WeEsTERN Districr Or PENNSYLVANIA
LAVERE C. and DORIS J. |
BAUGHMAN, et al,
Plaintiffs, Civil Action
vs. ) No. 76-1609
BRADFORD COAL
COMPANY, INC.,
Defendant.
ORDER OF COURT
AND NOW, this 4th day of April, 1978, after due con-
sideration of “Defendant's Motion to Certify Order of Court
for Appeal” and of plaintiff's response thereto, it appearing
that the Order of March 2, 1978, denying defendant's
renewed challenge to the jurisdiction of this court under the
Clean Air Act involves a controlling question of law as to
which there is ground for difference of opinion, and it
further appearing that an appeal from that order prior to the
trial on the claims of the numerous plaintiffs may materially
advance the ultimate termination of this litigation,
IT IS ORDERED that the Order dated March 2, 1978,
(and designated as docket entry 91) be and the same hereby
is amended to include the following paragraph:
“It is the opinion of this court that this order involves a
controlling question of law as to which there is substan-
tial ground for difference of opinion and that an imme-
diate appeal from this order may materially advance the
ultimate termination of the litigation.”
ce: Marvin A. Fein, Esq.
1602 Law & Finance Bldg.
Pittsburgh, Pa. 15219 /s/ Robert F. Marsh
United States District Judge
James K. Nevling, Esq. David S. Watson, Esq.
110 N. Second Street 2900 Grant Building
Clearfield, Pa. 16830 Pittsburgh, Pa. 15219
12a Appendix
IN THE
DISTRICT COURT OF THE UNITED STATES
For THE WESTERN District Or PENNSYLVANIA
LAVERE C. and DORIS J.
BAUGHMAN, et al,
Plaintiffs, Civil Action
VS. No. 76-1609
BRADFORD COAL
COMPANY, INC.,
Defendant. J
ORDER OF COURT
AND NOW, this 2nd day of March, 1978, the defendant
having filed a “Suggestion of Lack of Jurisdiction of the Sub-
ject Matter” advising the court that a Consent Order and
Agreement has been entered into by the defendant and the
Pennsylvania Department of Environmental Resources as a
result of a complaint filed by the Department before the
Environmental Hearing Board in August, 1976, and after due
consideration of the oral and written arguments of counsel, it
appearing that the complaint before the Environmental
Hearing Board did not constitute “a civil action in a court of
the United States or a State to require compliance...” as
required by the specific language of the jurisdictional excep-
tion in the Clean Air Act, 42 U.S.C. § 1857h-2(b)(1)(B), IT IS
ORDERED that defendant’s renewed request for dismissal
be and the same hereby is denied.
ce: Marvin A. Fein, Esquire
1602 Law & Finance Building
Pittsburgh, Pa. 15219
/s/ Robert F. Marsh
United States District Judge
James K. Nevling, Esq. David S. Watson, Esq.
110 N. Second Street 2900 Grant Building
Clearfield, Pa. 16830 Pittsburgh, Pa. 15219
Appendix 13a
IN THE
DISTRICT COURT OF THE UNITED STATES
For THe Western District Or PENNSYLVANIA
LAVERE C. and DORIS J.
BAUGHMAN, et al,
Plaintiffs, Civil Action
Vs. , No. 76-1609
BRADFORD COAL
COMPANY, INCORPORATED,
Defendant. y
OPINION
Marsh, District Judge
The plaintiffs reside in Bigler, Pennsylvania in close
proximity to the defendant's coal processing plant. In this
action, plaintiffs allege that voluminous amounts of coal dust
escape from the defendant's facilities and cause damage and
deterioration to plaintiffs’ health and property. Plaintiffs are
seeking to enjoin the defendant from operating the process-
ing plant (1) until defendant receives a permit from the
Pennsylvania Department of Environmental Resources, and
(2) unless the plant is operated in compliance with the ap-
plicable emission limitations promulgated under the Penn-
sylvania Air Pollution Control Act. Plaintiffs also seek com-
pensatory and punitive damages.
Defendant has filed a motion to dismiss alleging: that
Section 304 of the Clean Air Act (42 U.S.C. § 1857h-2) does
not grant a private cause of action to recover damages; that
the plaintiffs lack standing and this court lacks jurisd’ . ..on
because the Commonwealth of Pennsylvania has com-
menced and is prosecuting a civil enforcement action against
the defendant before the Pennsylvania Environmental Hear-
ing Board (76-096-CP-W); and, that several plaintiffs failed
to give notice as required by Section 304(b)(1)(A) of the
l4a Appendix
Clean Air Act. After due consideration of the written and
oral arguments of counsel,' defendant's motion will be
denied.
Section 304(a) of the Clean Air Act (42 U.S.C. § 1857h-
2(a) ) provides that any person may bring an action in a fed-
eral district court to enforce an emission standard or
limitation in’ an implementation plan. The Pennsylvania Air
Pollution Control Act is part of the approved Pennsylvania
Implementation Plan enforceable under the Clean Air Act.
An exception in the Clean Air Act prohibits the bringing of
such an enforcement action
“if the Administrator or State has commenced and is
diligently prosecuting a civil action in a Court of the
United States or a state to require compliance with the
standard, limitation or order, ....”
42 U.S.C. § 1857h-2(b)(1)(B).
Defendant has alleged that the action now before the
Pennsylvania Environmental Hearing Board satisfies this
exception and thus bars the plaintiffs’ action. However,
according to the affidavit of Larry W. Wonders, regional air
pollution control engineer for the Pennsylvania Department
of Environmenta! Resources and the state official with
enforcement responsibility for the Bigler area, the Common-
wealth
“has not prosecuted a civil action in a court of the United
States or in the courts of Pennsylvania to require com-
pliance with the Pennsylvania state implementation
plan or any portion thereof, ....”
‘Oral argument on defendant's motion was held on April 12, 1977.
Counsel for the defendant did not present an argument at that time, but
instead requested leave to submit a reply brief. The reply brief was
received May 10, 1977.
Appendix 15a
Documents accompanying this affidavit demenstrate that
the complaint filed before the Pennsylvania Environmental
Hearing Board seeks the assessment of civil penalties for past
damages to the Commonwealth’s air resources, but that the
complaint does not seek to require compliance with air qual-
ity standards. Defendant has submitted no affidavit to the
contrary. We cannot conclude that the complaint before the
state board bars the plaintiffs’ action in this court.
With respect to the issue of notice, plaintiffs contend
that the statutory requirements were satisfied by a letter
dated October 26, 1976, from plaintiffs’ counsel to the
Administrator of the Environmental Protection Agency. A
copy of this letter attached to plaintiffs’ brief indicates that
copies were sent to Alan Walker, president of the defendant
corporation, and to various state and federal officials. The
letter stated that 16 named families in Bigler? and various
other citizens of Bigler intended to file an action in federal
court against Bradford Coal Company pursuant to the Clean
Air Act. Plaintiffs’ complaint was filed December 27, 1976.
Defendant responded to the complaint by filing the motion
to dismiss on February 28, 1977. Thus, even if the October
26th letter is not considered satisfactory notice, the defend-
ant had the benefit of more than 60 days notice before
responding to the complaint. The purposes of the notice pro-
vision have been fulfilled, Metropolitan Washington Coali-
The letter listed the following names:
Mr. and Mrs. Fred Albert; Mrs. Mabel Bock; Mr. Wallace Dixon; Mr.
George Elinsky; Mr. and Mrs. Robert Ellinger; Mr. and Mrs. Hollis Knepp;
Mr. and Mrs. Harold Lansberry; Mr. and Mrs. Carl Leidholm; Mr. James
Lombardo; Mr. Delbert Marsh; Mr. and Mrs. Lyle Milier; Mr. and Mrs.
Richard Swanson; Mr. Howard C. Shaffer; Mr. and Mrs. Edward Welch;
Mr. Abe Wisor, Jr.; Mr. and Mrs. Thomas Wisor.
Those plaintiffs not specifically named in the letter were: Laverne C.
and Doris J. Baughman; Ernest and Jessie Billotte; Violet Dixon; Ruth
Elinsky; Catherine Lombardo; Janet H. Marsh; Loraine G. Shaffer; Abram
and Mabel L. Wisor; Leda Jane Wisor.
16a Appendix
tion for Clean Air v. District of Columbia, 511 F.2d 809, 814
(D.C.Cir. 1975), and the action will not be dismissed for lack
of notice.
The section of the Clean Air Act authorizing citizen suits
§1857h-2(e) entitled “Non-restriction of other rights” pro-
vides:
“Nothing in this section shall restrict any right which any
person (or class of persons) may have under any statute
or common law to seek enforcement of any emission
standard or limitation or seek any other relief....”
Thus, with respect to the issue of damages although
there is no provision in the Act itself specifically authorizing
a district court to award damages for injuries to person or
property in citizen suits, it may be that a citizen has a right to
sue a statutory violator at common law for damages for such
injuries. Therefore, it may be that a district court could in its
discretion take jurisdiction of a pendant action for such dam-
ages. See dicta in Delaware Citizens For Clean Air, Inc. v.
Stauffer Chemical Co., 367 F.Supp. 1040, 1047 (D.Del.) aff'd
510 F.2d 969 (3rd Cir. 1975).
An appropriate order will be entered.
May 25, 1977 /s/ Robert F. Marsh
Date United State District Judge
ce: Marvin A. Fein, Esquire
1603 Law & Finance Building
Pittsburgh, Pa. 15219
James K. Nevling, Esquire
110 N. Second Street
Clearfield, Pa. 16830
David S. Watson, Esquire
2900 Grant Building
Pittsburgh, Pa. 15219
Appendix 17a
IN THE
DISTRICT COURT OF THE UNITED STATES
For THE WESTERN DistrRICT OF PENNSYLVANIA
LAVERE C. and DORIS J.)
BAUGHMAN, et al,
Plaintiffs,
a Civil Action
BRADFORD COAL No. 76-1609
COMPANY,
INCORPORATED,
Defendant. i
ORDER OF COURT
AND NOW, to-wit, this 25th day of May, 1977, the
defendant having filed a “Motion to Dismiss” and after due
consideration of the oral and written arguments of counsel
and the affidavit submitted by plaintiffs, IT IS ORDERED,
ADJUDGED AND DECREED that the defendant’s motion
to dismiss be and the same hereby is denied.
IT IS FURTHER ORDERED that the defendant shall
file an answer on or before Friday, June 3, 1977.
/s/ RoBERT MarRSsH
United States District Judge
cc: Marvin A. Fein, Esquire
1603 Law & Finance Building
Pittsburgh, Pa. 15219
James K. Nevling, Esquire
110 N. Second Street
Clearfield, Pa. 16830
David S. Watson, Esquire
2900 Grant Building
Pittsburgh, Pa. 15219
18a Appendix
THOMAS F. QUINN
CLERK
TELEPHONE
215-597-2995
OFFICE OF THE CLERK
UNiTED States Court OF APPEALS
For THE TuHirp Circuit
21400 Unrrep States CourTHOUSE
INDEPENDENCE MALiL West
601 MARKET STREET
PHILADELPHIA 19106
May 4, 1978
Re: Lavere C. and Doris J. Baughman, et al. vs. Bradford
Coal Co., Inc., Petitioner
C. A. Misc. Rec. No. 78-8074
Gentlemen:
Enclosed herewith is conformed copy of order entered
by the Court today in the above-entitled case.
Very truly yours,
/s/ T. F. Quinn
T. F. Quinn, Clerk
MEF:dn
Enclosure
Copies to all parties
Appendix 19a
IN THE
United States Court of Appeals
For THE Tuirp Circuit
April 28, 1978
C. A. Miscellaneous Record No. 78-8074
LAVERE C. and DORIS J. BAUGHMAN, et al.
VS.
BRADFORD COAL COMPANY, INC.,
Petitioner
(W.D. Pa. Civil No. 76-1609)
Present: SEITZ, Chief Judge, and VAN DUSEN and
ROSENN, Circuit Judges.
1. Petition for permission to appeal, pursuant to 28
U.S.C. §1292(b)
2. Answer by respondents to petition for permission
to appeal
in the above-entitled case.
Respectfully,
_ /8/, 1. F; Quinn, ,
Clerk
nj
enc. ’
The foregoing Motion is granted. Chief Judge Seitz
would deny permission to appeal.
By the Court,
/s/ Max RosSENN
etCeseeeecuvreecgcevwess oo
Dated: May 4, 1978
20a Appendix
COMMONWEALTH OF PENNSYLVANIA
Before the
ENVIRONMENTAL HEARING BOARD
COMMONWEALTH OF ,
PENNSYLVANIA,
DEPARTMENT OF
ENVIRONMENTAL
RESOURCES,
Plaintiff Docket No.
Vv 76-096-CPR
BRADFORD COAL
COMPANY, INC.
Bigler, Clearfield County,
Pennsylvania,
Defendant
COMPLAINT FOR CIVIL PENALTIES
1. The Plaintiff is the Commonwealth of Pennsylvania,
Department of Environmental Resources (hereinafter “De-
partment”), which brings this action pursuant to §9.1 of the
Pennsylvania Air Pollution Control Act (hereinafter “Air Pol-
lution Act”), the Act of January 8, 1960, P.L. 2119, as
amended, 35 P.S. $4001 et seq., and the Rules and Regula-
tions promulgated thereunder.
2. The Defendant is Bradford Coal Company, Inc.
(hereinafter “Bradford Coal”), a corporation duly incorpo-
rated under the laws of Pennsylvania, which has its business
address at Bigler, Pennsylvania.
3. At all times material herein, Bradford Coal has owned
and operated a coal processing and cleaning facility in
Bigler, Clearfield County.
4. This facility is located in a neighborhood of residen-
tial houses in Bigler.
Appendix 2la
5. Bradford Coal has not, at any time, applied to the
Department for a temporary variance from the legal stan-
dards or requirements set forth in this complaint pursuant to
Chapter 141 of the Department’s Rules and Regulations.
6. Since October 26, 1972, as the proximate result of vio-
lations of law, Bradford Coal has added to its net earnings
sums which otherwise would have been expended to reduce
air pollution.
Count I
7. The allegations of paragraphs one (1) through six (6)
are incorporated herein by reference.
8. Since October 26, 1972, in the course of operation of
this facility, Bradford Coal has caused, suffered and permit-
ted the emission of fugitive contaminants, mainly in the form
of coal dust, into the outdoor atmosphere, in violation of
Chapter 123, §123.1 of the Department’s Rules and Regula-
tions.
9. Bradford Coal has not taken effective measures to
prevent the emission of fugitive contaminants into the out-
door atmosphere.
Count II
10. The allegations of paragraphs one (1) through nine
(9) are incorporated herein by reference.
11. Since October 26, 1972, brdford Coal, in violation of
§8 of the Air Pollution Act, 35 P.S. §4008, and Chapter 121,
§121.7, of the Department’s Rules and Regulations, has
caused air pollution as defined in §3(5) of the Air Pollution
Act, 35 P.S. §4003(5) in that emissions from its facility are:
(a) inimical to the public health, safety and welfare of
residents of Bigler;
(b) injurious to human, plant and animal life, and to
property in the vicinity of the facility; and
22a Appendix
(c) unreasonably interferes with the comfortable enjoy-
ment of life and property by residents of Bigler.
12. The emissions from the facility have caused the
national primary and secondary ambient air quality stand-
ards for suspended particulate matter (maximum 24-hour
concentration) as set forth in 40 CFR §§50.7, 50.8 and incor-
porated into Chapter 131, §131.2 of the Department's Rules
and Regulations, to be exceeded, which has prevented the
attainment and maintenance of national ambient air quality
standards in that area.
Count III
13. The allegations of paragraphs one (1) through
twelve (12) are incorporated herein by reference.
14. Since October 26, 1972, Bradford Coal has expanded
its facility at the Bigler site in a manner to cause greater
amounts of fugitive emissions, without first obtaining a per-
mit from the Department, in violation of §6.1 of the Air Pol-
lution Act, 35 P.S. §4006.1, and Chapter 127, §127.11 of the
Department's Rules and Regulations.
WHEREFORE, the Department hereby requests that
the Board assess a civil penalty for said continuous, wilful
violations upon Bradford Coal in an amount based upon:
(a) the damage or injury to the outdoor atmosphere of
the Commonwealth or its uses resulting from Bradford
Coal’s unlawful conduct alleged herein; and
(b) the economic benefit gained by Bradford Coal as a
result of the unlawful conduct alleged herein; and
(c) the expenses incurred by the Department in its effort
to secure Bradford Coal’s compliance with the duties
imposed on it by law and the cessation of the unlawful
conduct alleged herein; and
Appendix 23a
(d) the degree of culpability associated with Bradford
Coal’s unlawful conduct and which is sufficient to deter
such unlawful conduct in the future; and
(e) other relevant factors.
Respectfully submitted,
/s/ Tuomas Y. Au
Thomas Y. Au
Assistant Attorney General
2Aa Appendix
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CRAWFORD
AFFIDAVIT
Larry W. Wonders, being duly sworn, deposes and says
that he is the Regional Air Pollution Control Engineer,
Region VI, Bureau of Air Quality and Noise Control of the
Department of Environmental Resources; that he makes this
affidavit on behalf of the complainant, being authorized to
do so; and that the facts set forth in the foregoing Complaint
for Civil Penalties are true upon his information and belief.
/s/ Larry W. WonDERS
Larry W. Wonders
Sworn to and subscribed before
me this 23rd day of July, 1976.
/s/ Viota M. Hopces
Notary Public
Viola M. Hodges
NOTARY PUBLIC
My commission expires Feb. 14, 1977
Appendix 25a
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF
ENVIRONMENTAL RESOURCES
CONSENT ORDER AND AGREEMENT
This Consent Order and Agreement is made between
the Commonwealth of Pennsylvania, Department of Envi-
ronmental Resources (hereinafter “Department”) and Brad-
ford Coal Company, Inc. (hereinafter “Bradford Coal’), a
Pennsylvania corporation, with its principal place of busi-
ness in Bigler, Pennsylvania, and Bradford Coal’s successors
in interest, assigns, and agents.
WHEREAS, the Commonwealth of Pennsylvania, De-
partment of Environmental Resources, has found and deter-
mined the following:
A. Bradford Coal owns and operates a coal cleaning and
storage facility in Bigler, Pennsylvania, which facility in-
cludes coal crushing operations, screens, conveyors, stacker,
loading and unloading facilities, and storage areas;
B. Bradford Coal has emitted fugitive emissions from
time to time from its various coal cleaning and storage
operations;
C. Emissions from Bradford Coal’s various coal clean-
ing and storage operations have at various times caused
ambient air quality standards for suspended particulate mat-
ter and settleable particulate matter to be exceeded;
D. Bradford Coal has modified its operations and facili-
ties without permission from the Department;
E. The Department's findings and determinations of
violations of the Air Pollution Control Act, the Act of January
8, 1960, P.L. 2119, as amended, 35 P.S. §4001 et seq. (here-
inafter the “Act”), are actionable under said Act, which Act
provides for civil and criminal penalties;
26a Appendix
WHEREAS, Bradford Coal admits to none of the afore-
said violations of the Air Pollution Control Act and further-
more, Bradford Coal specifically denies all of the aforesaid
violations;
WHEREAS, the Department filed a complaint for civil
penalties before the Envirunmental Hearing Board on
August 2, 1976, EHB Docket No.’76-096-CP-W, which is cur-
rently in litigation, for past violations of the Air Pollution
Control Act;
WHEREAS, Bradford Coal has notified the Depart-
ment that it intends to resolve the air pollution controversy
between the Department and Bradford Coal by the cessa-
tion of operations at the existing coal cleaning and storage
facility and the construction of a new coal cleaning and stor-
age facility at another site on a schedule as expeditiously as
possible, without prejudice, or benefit, thereby in any other
legal action which is not the subject of this Consent Order
and Agreement.
NOW, THEREFORE, the parties hereto, intending to
be mutually bound by the covenants set forth in this Consent
Order and Agreement, agree to the following:
ORDER
1. Paragraphs one (1) through twelve (12) of this Con-
sent Order and Agreement shall constitute a final order of
the Department, which is enforceable in any manner pro-
vided by law.
2. Bradford Coal shall submit to the Department's
Bureau of Air Quality and Noise Control, Region VI, Mead-
ville Office, plan approval applications for the construction
of a new coal cleaning and storage facility, which applica-
tions meet the requirements of 25 Pa. Code $127.12. Section
127.12, inter alia, requires emissions which will be the
Appendix 27a
minimum attainable through the use of best available
technology.
3. Should the Department determine, after it has re-
ceived any application, that additional information is nec-
essary, the Department shall notify Bradford Coal in writ-
ing and Bradford Coal shall submit such additional infor-
mation within fifteen (15) days of receipt of notification.
4. Within sixty (60) days of receipt of all necessary infor-
mation, but no later than October 15, 1977, the Department
shall determine whether such plan approval application is
approvable. Only after receipt of written plan approval
from the Department shall Bradford Coal implement the
provisions of the approved plan.
5.(a) Bradford Coal shall complete construction of the
new facility in accordance with the approved plans and the
new facility shall be completed by no later than December
31, 1979.
(b) Bradford Coal shall be permitted to operate the
presently existing facility until July 1, 1979.
(c) After the presently existing facility is closed, no coal
shall be stored at the closed site.
6. Upon notification of completion of the new coal
cleaning and storage facility, the Department shall issue a
temporary operating permit, pursuant to 25 Pa. Code
$127.23.
7. Within thirty (30) days of issuance of a temporary
operating permit, Bradford Coal shall submit an application
for a determination of fugitive emissions of minor signifi-
cance pursuant to 25 Pa. Code $123.1(a)(9) and a program
for testing emissions. Bradford Coal will conduct such tests,
as necessary to obtain an operating permit, to wit, (1) stack
tests for particulate and sulfur dioxide at the boiler and ther-
28a Appendix
mal dryer, (2) at the request of the Department, stack tests
for particulate and sulfur dioxide on the control equipment
at coal crusher screens, truck loading station, and conveyor
belt transfer point to the cleaning plant and (3) ambient air
sampling by hi-volume samplers and dustfall collectors for
particuiate.
8. During the implementation of the construction sche-
dule under this Consent Order and Agreement, Bradford
Coal shall take all reasonable interim measures at the existing
site to keep fugitive emissions to a minimum, including full
utilization of current equipment and operating practices,
including the following:
(a) Stockpiles of coal shall be limited to the existing area
and in no event shall coal be stored at a level higher than the
nearest fence, including existing fences and new fences to be
constructed, in accordance with “Exhibit A” attached
hereto. All dikes and fences around the stockpiles shall be
maintained in good repair. (The Department does not here-
by condone expansion of storage areas since 1971.) No coal
shall be stored in any area other than the existing area,
marked in “Exhibit A,” unless Bradford Coal obtains a tem-
porary operating permit for storage of coal at the new site.
(b) All entry and exit routes for trucks carrying coal to
and from the existing facility or new facility shall be cleaned
and maintained by oiling, dust suppressing chemicals, water
spray or vacuum cleaner, as road conditions and weather
conditions necessitate.
(c) Any spillage of coal from trucks shall be removed
promptly from roads adjacent to the existing facility.
(d) All loaded trucks carrying coal entering or existing
from the existing facility shall be tarped, except for truck
picking up house coal.
(e) All existing equipment and structures shall be main-
tained in proper working condition. Bradford Coal shall
Appendix 29a
only use the existing conveyor transport facilities to load rail-
road cars until Bradford Coal obtains a temporary operating
permit to load railroad cars at the new facility.
(f) Any spillage of coal on property owned by Bradford
Coal outside existing plant buildings, storage area, or con-
veyors shall be removed promptly.
(g) Front end loaders utilized at the existing facility shall
be operated at all times so as to minimize emissions during
the loading and moving of coal in the coal handling areas.
(h) By July 1, 1978, evergreen trees shall be planted
along Bradford Coal’s common property line with lands
owned by Helen Peters and located between State Route 970
and the Conrail Railroad tracks to form a tree barrier
between Bigler and the proposed new facility.
9. Plans and schedules for construction of the new facil-
ity, as,approved by the Department, shall be incorporated
into this Court Order and Agreement.
10. During the implementation of any of the measures
outlined in Paragraphs one (1) through twelve (12), and until
a final permit is issued, Bradford Coal shall submit to the
Department, through the Regional Air Pollution Control
Engineer, Bureau of Air Quality and Noise Control, Mead-
ville, quarterly reports signed by a responsible official of the
company detailing the work accomplished.
11. After such commencement of operations of the new
facility, should Bradford Coal have to cease operation of the
new facility due to breakdown of equipment, Bradford Coal
shall be permitted to operate the presently existing facility
for such period as the new facility is not operational, but only
if such operations at the existing facility do not extend
beyond a six month period from the issuance of a temporary
operating permit for the new facility, or beyond the date
Bradford Coal receives a final operating pérmit for the new
30a Appendix
facility, whichever ‘first occurs. Any operating of the pre-
sently exisiting facility beyond July 1, 1979 shall be subject to
noncompliance penalties of Section 120 of the Clean Air Act.
12. Within one year of the initial date of issuance of a
temporary operating permit, Bradford Coal shall pave all
access roads and loading and unloading areas to the new
facility.
AGREEMENT
13. In settlement of the alleged violations of the Pennsy]-
vania Air Pollution Control Act specified in the complaint
for Civil Penalties, EHB Docket No. 76-096-CP-W, for a
period from October 23, 1972 until the date of execution of
this Consent Order and Agreement, Bradford Coal shall pay
to the Pennsylvania Clean Air Fund the sum of ten thousand
dollars ($10,000.00). Bradford Coal shall pay three thousand
three hundred thirty four dollars ($3,334.00) within thirty
(30) days of the execution of this Agreement, the Bradford
Coal shall pay two additional payments of three thousand
three hundred thirty three dollars ($3,333.00), one on each of
the next two anniversary dates of this Agreement. Payment
required herein shall be made payable to the Pennsylvania
Clean Air Fund, and should be forwarded to Mr. M. F.
Robinson, Administrative Officer, Bureau of Air Quality and
Noise Control, P.O. Box 2063, Fulton National Bank Build-
ing, Harrisburg, Pennsylvania 17120. Bradford Coal does not
admit by such payment that such violations have occurred.
14. Within ten (10) days of the date when plan approval
is granted, Bradford Coal shall submit to the Department's
Bureau of Air Quality and Noise Control, Region VI Office,
Meadville, two collateral bonds, in the amount of fifty thou-
sand dollars ($50,000.00) each, to guarantee faithful com-
pliance with Paragraphs 5(a) and 5(b) of this Consent Order
and Agreement.
Appendix 3la
15. Prior to the transfer by Bradford Coal of any legal or
equitable interest in the presently existing facility, Bradford
Coal shall present a copy of this Consent Order and Agree-
ment on the prospective successor in interest. The provisions
of this Consent Order and Agreement shall remain in full
force and effect between the Department and any successor
in interest of Bradford Coal.
16. This Consent Order and Agreement shall remain in
full force and effect until a final operating permit pursuant to
25 Pa. Code $127.21 is issued for the new facility.
17. As long as Bradford Coal fully complies with all the
provisions and requirements set forth in this Consent Order
and Agreement within the time specified for such perfor-
mance, the Department will not institute any enforcement
action for the violations of the Act which are the subjects of
the Complaint for Civil Penalties, but if Bradford Coal fails
to comply with any of the provisions and requirements in
this Consent Order and Agreement in a timely manner, the
Department may institute any enforcement action and exer-
cise available remedies, including administrative, civil or
criminal actions and actions for civil penalties for noncom-
pliance with this Consent Order and Agreement and for vio-
lations of the Act and the rules and regulations promulgated
thereunder, except that the Department shall not revoke
plan approval to construct the new facility, as a remedy for
violation of this Consent Order and Agreement. Bradford
Coal shalLhave no immunity from activities causing any vio-
lations of the Act or regulations at the site of the new facility
during the period between the date of execution of this Con-
sent Order and Agreement and the date of completion of
construction.
18. Bradford Coal shall obtain extensions of temporary
operating permits as necessary to demonstrate compliance
at the new facility for a period of one year of the initial date
32a Appendix
of issuance of the temporary operating permit. During this
one (1) year period, the Department agrees not to institute
enforcement action for violations of the Act, and the rules
and regulations promulgated thereunder at the existing facil-
ity or at the new facility as long as (1) Bradford Coal is only
operating one facility, (2) Bradford Coal is taking all
appropriate steps to achieve compliance at the new facility,
and (3) Bradford Coal is complying with all other provisions
of this Consent Order and Agreement.
19. If the Department denies a final operating permit,
Bradford Coal shall have the right to appeal such decision to
the Environmental Hearing Board and appellate court in
accordance with the provisions of applicable law.
20. Nothing contained in this Consent Order and Agree-
ment shall be construed to imply that the Department
waives its right to institute enforcement action for any viola-
tions of the statutes, rules and regulations of the Department
that may result from Bradford Coal’s operations, except for
those violations described in the Whereas clauses above.
Bradford Coal does not admit that such violations have
occurred. However, should any other violations of law oc-
cur not covered by this Consent Order and Agreement, it
shall not constitute a breach of this Consent Order and
Agreement.
21. Paragraphs 5(a), 6, 7, 8(h), 11 and 12 of this Consent
Order and Agreement shall be subject to the following force
majeure clause: If Bradford Coal is obstructed or delayed in
the commencement, prosecution, completion or implemen-
tation of its obligations by (1) act of God, fire, flood, light-
ning, cyclone or other unavoidable casualty; or (2) strikes,
work stoppage or slow-downs which are not attributable to
acts of Bradford Coal; but in no event shall any general
strike, work stoppage or slowdown involving the mining
industry as a whole or in Clearfield County and contiguous
ve
Appendix 33a
counties be attributable to Bradford Coal; or (3) delays by
vendors, contractors, or supplies due to (i) shortages of
material, energy or equipment or (ii) delays in delivering of
materials, energy or equipment for which Bradford Coal
cannot substitute; or (4) unavoidable start-up or break in
equipment problems at the new facility, and which prob-
lems cannot be solved by the installation of substitute equip-
ment at reasonable cost, (5) an order of a court of competent
jurisdiction, then Bradford Coal shall be excused from fulfil-
ling such obligations affected by the delay for a period of
time equal to the period of time caused by delay, provided,
however, that the following requirements are met: (i) By let-
ter postmarked on or before the last day of each month,
Bradford Coal shall report any delay incurred due to a force
majeure event; (ii) Bradford Coal shall submit copies of any
records, papers or correspondence, in its possession or avail-
able to it, substantiating the cause of delay; (iii) Bradford
Coal shall formally request an extension in writing (specify-
ing which obligation the request is sought) at any time prior
to a performance date, but only for causes of delay which
were timely reported to the Department pursuant to this
paragraph. Upon cause having been shown and docu-
mented, the Department shall extend the date or dates for
performance equal to the period of time of the delay. The
Department's action on such request may be appealed by
Bradford Coal to the Environmental Hearing Board under
applicable law.
22. In the event that Bradford Coal fails to complete
construction of the new facility by December 31, 1979,
unless the failure is excused by an extension of time obtained
pursuant to Paragraph 21 of this Consent Order and Agree-
ment, Bradford Coal shall forfeit to the Clean Air Fund its
collateral bond in the sum of fifty thousand dollars
($50,000.00). In the event that Bradford Coal fails to termi-
nate the operation of the presently existing facility by July 1,
34a Appendix
1979, Bradford Coal shall immediately forfeit to the Clean
Air Fund its collateral bond in the sum of fifty thousand dol-
lars ($50,000.00).
23. It is the intent of the parties hereto that the clauses
hereof are severable, and should any part of this Consent
Order and Ageement be declared by a court of law to be
invalid and unenforceable, the other clauses shall remain in
full force and effect. It is the intent that this Consent Order
and Agreement be construed so as to effectuate the purposes
and limitations of the Pennsylvania Air Pollution Control
Act, as amended, and the Clean Air Act, 42 U.S.C. §1857, et
seq., as amended, and that the provisions of this Consent
Order and Agreement, if inconsistent, be amended so as to
be consistent with applicable law.
24. The execution of this Consent Order and Agreement
shall operate to terminate all prior agreements, consent
decrees, stipulations and actions between the Department
and Bradford Coal for violations of the Air Pollution Control
Act and for maintenance of a common law public nuisance.
Nothing herein shall be construed to mean that the Depart-
ment condones any past violations of the Air Pollution Con-
trol Act, or condones action by Bradford Coal under color of
any prior agreement, consent decree, stipulation or action.
Nothing herein shall be construed to mean that Bradford
Coal admits to any violation of law.
Appendix 35a
Entered into and agreed to by the Commcnwealth of
Pennsylvania, Department of Environmental Resources and
Bradford Coal Company, Inc., this 13th day of October,
1977.
FOR THE COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF |
ENVIRONMENTAL RESOURCES
/s/ Tuomas Y. Au
Thomas Y. Au
Assistant Attorney General
/s/ Morris MALIN
Morris Malin
Chief, Division of
Abatement and Compliance
Bureau of Air Quality & Noise Control
/s/ Larry W. WonpeERS
Larry W. Wonders
Regional Air Pollution Control Engineer
Bureau of Air Quality & Noise Control
36a Appendix
FOR BRADFORD COAL COMPANY, INC.
/s/ C. ALAN WALKER
eevee eevreeeeeeeeeeeee O08 6606660000666 0060866
President
/s/ WictiaAM C. KRINER
Attorney
ENVIRONMENTAL HEARING BOARD
/s/ Paut E. Waters
Paul E. Waters
Chairman
“ee eee eeneeene eee ee eee eee eeeeeeeeeneneeereneenee
Joanne R. Denworth
Member
DATED: November 14, 1977
Appendix 37a
EXHIBIT “C”
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF ENVIRONMENTAL RESOURCES
Bureau of Air Quality and Noise Control
PLAN APPROVAL
Bradford Coal Company Approval No.:
Bigler, PA 16825 17-305-00011
Source:
Bearce Coal Dryer
Attention:
Mr. C. Alan Walker
President Mfr. of Source:
Indiana Steel &
Fabricating
Mfr. of Air Cleaning
Device:
Environeering, Inc.
A-33-026
Location:
Bradford Township
Clearfield County
In accordance with provisions of the Air Pollution Control
Act, the Act of January 8, 1960, P. L. 2119, as amended, and
with Chapter 127 of the Rules and Regulations of the Depart-
ment of Environmental Resources, the Department on
October 14, 1977 approved plans for construction of the
above indicated air contamination source.
The plan approved is subject to the following conditions:
A. General
(1) The source is to be constructed in accordance
with the plans submitted with the application.
38a Appendix
B. Special
(1) This PLAN APPROVAL expires (See At-
tached).
Notify the person noted below when the installation is com-
pleted so that the source can be inspected for issuance of an
OPERATING PERMIT.
NOTE:
ppm
/s/ Larry H. Kenous
Regional Air Pollution Control Engineer
This plan approval expires December 31, 1979.
2. Onor before December 31, 1979 a temporary operating
permit shall be obtained from the Department, at the
name and address given below, so that this source can
be stack tested, as required by condition No. 4 of this
plan approval.
3. On or before October 31, 1979 a test procedure and a
sketch with dimensions indicating the location of sam-
pling ports and other data to ensure the collection of
representative samples shall be submitted to the
Department, at the name and address given below.
4. Onor before March 1, 1980 or within 60 days of the start
up of the unit, whichever occurs earlier, a stack test(s)
shall be performed in accordance with the provisions of
Chapter 139 to show compliance with Section 123.11
and 123.22 of Chapter 123 of the Rules and Regulations
of the Department of Environmental Resources. The
stack test shall be performed while the aforementioned
source is operating at the maximum rated capacity as
stated on the application.
10.
11.
Appendix 39a
At least two weeks prior to the test, the Department
shall be informed of the date and time of the test.
On or before April 1, 1980 or within 30 days after com-
pletion of the test, whichever occurs earlier, two copies
of the complete test report, including all operating con-
ditions, shall be submitted to the Department, at the
name and address given below, for approval.
Equipment shall be provided so that at the request of
the Department the following can be measured:
(a) pressure drop across the venturi throat, utiliz-
ing a differential manometer, or equivalent.
(b) water flow rate to the scrubber, utilizing a
rotameter, or equivalent.
An operating pressurer drop of at least 20 inches w.g.
shall be maintained across the throat of the venturi
scrubber and a water flow rate of 180 g.p.m. to the
scrubber shall be maintained.
The stack height for the exhaust of the products of com-
bustion from this unit shall be at least 100 feet above
ground level.
Issuance of an operating permit is contingent upon satis-
factory compliance with condition nos. 2 through 9
above, upon the source being constructed and operated
as stated on the application, and upon satisfactory dem-
onstration that the emissions from the source will not be
in violation of applicable Rules and Regulations of the
Department of Environmental Resources.
Any information required to be submitted as part of the
above conditions should be submitted to:
Mr. William J. Charlton, Chief
Engineering Services Section
Bureau of Air Quality
and Noise Control
Meadville Regional Office
1012 Water Street
Meadville, PA 16335
40a Appendix
EXHIBIT “D”
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF ENVIRONMENTAL RESOURCES
Bureau of Air Quality and Noise Control
PLAN APPROVAL
Bradford Coal Company, Approval No.
Incorporated 17-305-00012
Bigler, Pennsylvania 16825 Source:
Coal Crushing and
Screening Station
Attention: Mfr. of Source:
Mr. C. Alan Walker Indiana Steel and
President Fabricating Co., Inc.
Mfr. of Air Cleaning
Device:
Riley Environeering, Inc.
Model A-33-14000
Location:
Bradford Township
Clearfield County
In accordance with provisions of the Air Pollution Control
Act, the Act of January 8, 1960, P. L. 2119, as amended, and
with Chapter 127 of the Rules and Regulations of the Depart-
ment of Environmental Resources, the Department on
October 14, 1977 approved plans for construction the above
indicated air contamination source.
The plan approved is subject to the following conditions:
A. General
(1) The source is to be constructed in accordance
with the plans submitted with the application.
Appendix 4la
B. Special
(1) This PLAN APPROVAL expires (see attach-
ment).
Notify the person noted below when the installation is
completed so that the source can be inspected for issuance of
an OPERATING PERMIT.
NOTE:
/s/ Larry H. Kenpus
Regional Air Pollution Control Engineer
This plan approval expires December 31, 1979.
2. On or before December 31, 1979 a temporary operating
permit shall be obtained from the Department so that
this source can be stack tested, as required by condition
No. 4 of this Plan Approval.
3. On or before October 31, 1979 a test procedure and a
sketch with dimensions indicating the location of sam-
pling ports and other data to ensure the collection of
representative samples shall be submitted to the
Department.
4. On or before March 1, 1980 or within sixty (60) days of
the construction of the unit, whichever occurs earlier, a
stack test shall be performed in accordance with the
provisions of Chapter 139 to show compliance with Sec-
tion 123.13 of Chapter 123 of the Rules and Regulations
of the Department of Environmental Resources. The
stack test shall be performed while the aforementioned
source is operating at the maximum rated capacity as
stated on the application.
5. At least two weeks prior to the test, the Department
shall be informed of the date and time of the test.
42a Appendix
6. On or before April 11, 1980 or within thirty (30) days
after completion of the test, whichever occurs earlier,
two copies of the complete test report, including all
operating conditions, shall be submitted to the Depart-
ment for approval.
7. If visual inspection by Department personnel indicates
that the emissions from the source are in compliance
with applicable Rules and Regulations of the Depart-
ment of Environmental Resources, then the Company
need not perform a stack test as required by Condition
No. 4 above.
8. Issuance of an operating permit is contingent upon satis-
factory compliance with Condition Nos. 2 through 7
above, upon satisfactory demonstration that the emis-
sions from the source will not be in violation of applica-
ble Rules and Regulations of the Department of Envi-
ronmental Resources.
9. Any information required to be submitted as part of the
above conditions should be submitted to Mr. William J.
Charlton, Chief, Engineering Services Section Bureau
of Air Quality and Noise Control, 1012 Water Street,
Meadville, Pennsylvania, 16335.
LWW/bg
Appendix 43a
EXHIBIT “E”
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF ENVIRONMENTAL RESOURCES
Bureau of Air Quality and Noise Control
PLAN APPROVAL
Bradford Coal Company Approval No.:
Bigler, Pennsylvania 16825 17-305-00013
Source:
Attention: See Attachment
Mr. C. Alan Walker Mfr. of
President Air Cleaning Device:
See Attachment
Location:
Bradford Township
Clearfield County
In accordance with provisions of the Air Pollution Control
Act, the Act of January 8, 1960, P. L. 2119, as amended, and
with Chapter 127 of the Rules and Regulations of the Depart-
ment of Environmental Resources, the Department on
October 14, 1977 approved plans for construction of the
above indicated air contamination source.
The plan approved is subject to the following conditions:
A. General
(1) The source is to be constructed in accordance
with the plans submitted with the application.
B. Special
(1) This PLAN APPROVAL expires (see attach-
ment).
44a Appendix
Notify the person noted below when the installation is com-
pleted so chat the source can be inspected for issuance of an
OPERATING PERMIT.
NOTE:
eds /s/ Larry H. Kendus | |
Regional Air Pollution Control Engineer
Sources Control Equipment
Railroad Loadout
Coal Stockpiles
Roadways
Truck Dump Area Riley Environeering, Inc.
Model A-33-46000
Truck Loading Area Riley Environeering, Inc.
Model A-33-10000
Preparation Plant Conveyor Riley Environeering, Inc.
Transfer Point Model A-33-4000
B. Special Continued:
1. This Plan Approval expires December 31, 1979.
2. The access road from LR 17121 (Pa. Route 970) is to be
used for coal trucks only to avoid transporting coal
through Bigler or Woodland.
3. All roadways and traffic areas at the plant shall be
paved within one year of the start of operations and
such paved roads and traffic areas shall be maintained
in such a manner as to prevent fugitive emissions from
their use.
6.
Appendix 45a
Until paved, all roads and traffic areas at the plant shall
be treated with dust suppressants to prevent fugitive
emissions from their use.
Equipment in the stockpile areas shall only be used for
pushing coal in dead storage areas of the stockpiles into
the hoppers feeding the reclaim tunnels.
A water line shall be installed and equipment available
in the raw coal storage area to wet the storage piles as
needed to prevent fugitive emissions.
At least 90 days prior to commencement of operation,
Bradford Coal shall submit to the Department for
approval a comprehensive plan for sampling of am-
bient air in the vicinity of the new plant. This plan shall
provide for the collection of sufficient data in a reliable
manner as to enable the Department of Envir nmental
Resources to determine if Bradford’s operation will
result in the creation of ambient levels of air contami-
nants in excess of those levels set forth in 25 Pa. Code
131.2 and 131.3. This sampling program must be of suf-
ficient scope and duration as to be representative of
year round operation. In addition, this plan shall specifi-
cally disclose the following:
a. The types and numbers of sampling devices to be
utilized.
b. The location of each device in relation to storage
piles, cleaning plant, loading area, property lines,
etc.
c. The duration and frequency of sampling.
d. The procedures for collection and laboratory anal-
ysis of the samples.
e. Other relevant information, data, or discussion.
Within 30 days of completion of the sampling program,
a report shall be submitted to the Department summa-
46a Appendix
rizing the results. This report shall specifically disclose
the following:
a. Meteorological records and/or observations taken
at appropriate intervals.
b. Operational status of the plant during sampling
periods.
c. Interpretation of results through comparison with
the applicable regulations referenced in Condition
No. 7 above.
d. Estimates with supporting calculations of sampling
errors.
e. Any other relevant information, data, or discussion.
9. On or before December 31, 1979, a temporary operat-
ing permit shall be obtained from the Department so
that the plant may be operated during implementation
of the sampling program required by Condition No. 7.
10. Issuance of an operating permit is contingent upon satis-
factory compliance with Conditions 2 through 9 above,
upon the plant being constructed and operated as stated
in the application and the additional information sub-
mitted, and upon satisfactory demonstration that the
emissions from the plant will not be in violation of ap-
plicable Rules and Regulations of the Department of
Environmental Resources.
11. Any information required to be submitted as part of the
above conditions should be submitted to Mr. William J.
Charlton, Chief, Engineering Services Section, Bureau
of Air Quality and Noise Control, 1012 Water Street,
Meadville, Pennsylvania, 16335.
LWW/bg
Appendix 47a
EXHIBIT “F”
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF ENVIRONMENTAL RESOURCES
Bureau of Air Quality and Noise Control
PLAN APPROVAL
Bradford Coal Company Approval No.
Bigler, Pa. 16825 17-302-0008
Source:
Attention: Boiler (coal/oil fired)
Mr. C. Alan Walker Mfr. of Source:
President Burnham
Mfr. of Air
Cleaning Device:
See Attachment
Location:
Bradford Township
Clearfield County
In accordance with provisions of the Air Pollution Control
Act, the Act of January 8, 1960, P. L. 2119, as amended, and
with Chapter 127 of the Rules and Regulations of the Depart-
ment of Environmental Resources, the Department on
October 14, 1977 approved plans for construction of the
above indicated air contamination source.
The plan approved is subject to the following conditions:
A. General
(1) The source is to be constructed in accordance
with the plans submitted with the application.
B. Special
(1) This PLAN APPROVAL expires (See At-
tached).
48a
Appendix
Notify the person noted below when the installation is com-
pleted so that the source can be inspected for issuance of an
OPERATING PERMIT.
NOTE:
Regional Air Pollution Control Engineer
This plan approval expires December 31, 1979.
On or before December 31, 1979 a temporary operating
permit shall be obtained from the Department, at the
name and address given below, so that this source can
be stack tested, as required by condition No. 4 of this
plan approval.
On or before October 31, 1979 a test procedure and a
sketch with dimensions indicating the location of sam-
pling port and other data to ensure the collection of
representative samples shall be submitted to the
Department, at the name and address given below.
On or before March 1, 1980 or within 60 days of the start
up of the unit, whichever occurs earlier, a stack test(s)
shall be performed in accordance with the provisions of
Chapter 139 to show compliance with Section 123.11
and 123.22 of Chapter 123 of the Rules and Regulations
of the Department of Environmental Resources. The
stack test shall be performed while the aforementioned
source is operating at the maximum rated capacity as
stated on the application.
At least two weeks prior to the test, the Department
shall be informed of the date and time of the test.
On or before April 1, 1980 or within 30 days after com-
pletion of the test, whichever occurs earlier, two copies
Appendix 49a
of the complete test report, including all operating con-
ditions, shall be submitted to the Department, at the
name and address given below, for approval.
The boiler is to be constructed with all the facilities
necessary to fire oil.
Issuance of an operating permit is contingent upon satis-
factory compliance with condition nos. 2 through 7
above, upon the source being constructed and operated
as stated on the application, and upon satisfactory dem-
onstration that the emissions from the source will not be
in violation of applicable Rules and Regulations of the
Department of Environmental Resources.
Any information required to be submitted as part of the
above conditions should be submitted to:
Mr. William J. Charlton, Chief
Engineering Services Section
Bureau of Air Quality and Noise Control
Meadville Regional Office
1012 Water Street
Meadville, Pennsylvania 16335
50a Appendix
Before the Environmental Hearing Board of Pennsylvania
IN THE MATTER OF:
Bradford Coal )
Company, Inc. No. 77-180-B
Appeal From Permit
And Consent Order
NOTICE OF APPEAL
1. The appellants herein are Doris J. Baughman, Mabel
E. Bock, Violet Dixon, Robert R. and Donna Ellinger,
George and Ruth Elinsky, Hollis N. and Dorothy Jean
Knepp, Harold O. and Lorraine Lansberry, James and Cath-
erine Lombardo, Howard C. and Loraine G. Shaffer,
Richard Edmund and Emmabell Swanson, Lyle A. and Ruth
S. Miller, Abram B. And Mabel L. Wisor, Abe B. and Leda
Jane Wisor and Thomas Irvin and Carol Shelia Wisor. All of
the above appellants own property in and/or reside in
Bigler, Pennsylvania in close proximity to the present and
proposed coal processing plant of Bradford Coal Company,
Inc.
2. This appeal is from the Consent Order and Agree-
ment between the Department of Environmental Resources
and Bradford Coal Company, Inc. dated October 13, 1977
(Exhibit A hereto) and the Plan Aprovals 17-302-00008, 17-
305,00011, 17-305-00012 and 17-305-00013 which were issued
to Bradford Coal Company, Inc. on October 13, 1977
(Exhibit B hereto).
3. Appellants object to the Consent Order and Plan
Approvals for the following reasons:
a. The Consent Order and Plan Approvals are all in vio-
lation of Sections 3(5) and 8 of the Pennsylvania Air Pollution
Control Act, 35 P.S. 4003(5) and 4008 and Sections 121.7,
123.1, 123.2,123.11, 123.13, 123.22, 131.2 and 131.3 of the
Appendix 5la
Rules and Regulations thereunder inasmuch as those provi-
sions of the aforecited Act and Regulations «vill not be com-
plied with under the terms and conditions of the Consent
Order and Plan Approvals.
b. The Consent Order and Plan Approvals do not meet
the requirements of Section 6.1 of the Air Pollution Control
Act, 35 P.S. 4006.1 and Sections 127.1, 127.11, 127.12, 127.21
and 127.32 of the Rules and Regulations thereunder.
c. The Consent Order and Plan Approvals have been
entered into and issued by the Department of Environmen-
tal Resources in violation of Article 1, Section 27 of the Penn-
sylvania Constitution.
d. The Consent Order and Plan Approvals have been
entered into and issued by the Department of Environmen-
tal Resources in violation of the Pennsylvania Implementa-
tion Plan filed pursuant to the Clean Air Act Amendments of
1970 and Part C of the Clean Air Act Amendments of 1977.
WHEREFORE, it is respectfully requested that this
Board:
1. Revoke the Plan Approvals prior to hearing to pre-
serve the status quo;
2. After hearing, revoke the plan approvals;
3. After hearing, order that the Consent Order is null and
void; and
4. Grant such other relief as this Board decides is neces-
sary to effect the purposes of this appeal.
/s/ Marvin A. FEIN
Marvin A. Fein
313 City-County Building
Pittsburgh, Pennsylvania 15219
(412) 255-2019
Attorney for the appellants
52a Appendix
COMMONWEALTH OF PENNSYLVANIA
ENVIRONMENTAL HEARING BOARD
Blackstone Building
First Floor Annex
Harrisburg, Pennsylvania 17101
(717) 787-3483
DORIS J. BAUGHMAN, 7
L
sss Vv. Docket No.
COMMONWEALTH Rapist
OF PENNSYLVANIA Air Po sere
DEPARTMENT OF ghee ”
ENVIRONMENTAL Article I,
RESOURCES & BRADFORD Section 27
COAL COMPANY ;
ADJUDICATION
By Thomas M. Burke, Member, January 26, 1979:
Bradford Coal Company Inc., (Bradford) intervenor in
this matter, owns and operates a coal cleaning and storage
plant in the village of Bigler, Bradford Township, Clearfield
County. Coal dust emissions from the plant have caused,
since at least 1963, a general condition of air pollution to exist
in the village of Bigler. After a period of negotiations the
Department of Environmental Resources (DER) and Brad-
ford, on October 13, 1977, entered into a consent order and
agreement (consent order) which requires Bradford to cease
the operation of its coal cleaning plant by July 1, 1979, and
provides for the construction of a new coal cleaning plant,
approximately 3,000 feet northwest of the existing plant in
Bradford Township. The DER on October 14, 1977, issued
plan approvals under Section 6.1 of the Air Pollution Control
Act, Act of January 8, 1960, P.L. 2119, as amended, 35 P.S.
Appendix 53a
§4001, et seq., (APCA), to construct the new coal cleaning
plant.
Twenty-three separate appeals were filed by Bigler re-
sidents including one filed by counsel on behalf of twenty-
five individuals. Nineteen of the appeals were dismissed
prior to hearing for failure to comply with the rules of the
board. The appeal of Edward A. And Dolores Antonuk was
withdrawn by letter dated April 8, 1978, and the appeal of
Clifford Welker is dismissed at this time for failure of Mr.
Welker to appear at hearings. The remaining appeals are
those of the twenty-five residents of Bradford represented
by counsel and that of Mr. and Mrs. Donald C. Homman
(jointly referred to herein as appellants).
Appellants aver that the DER abused its discretion by
entering into an agreement with Bradford which permits the
continued operation of the coal cleaning plant in noncom-
pliance with the law and that the DER abused its discretion
and violated its statutory and regulatory authority when it
issued the plan approvals to Bradford to construct the new
coal cleaning plant.
Four days of hearings were held in Pittsburgh. Apel-
lants, the DER and intervenor, have filed proposed findings
of fact and conclusions of law and briefs in support thereof.
We now hereby enter the following:
FINDINGS OF FACT
1. Appellants are persons who own property and reside
in the village of Bigler, Bradford Township, Clearfield
County, Pennsylvania.
2. Appellee is the Department of Environmental
Resources, the agency authorized to administer the provi-
sions of the Air Pollution Control Act, Act of January 8, 1960,
P.L. 2119, as amended, 35 P.S. §4001 et seq.
54a Appendix
3. Intervenor is Bradford Coal Company, Inc., a Penn-
sylvania corporation with its principal place of business in
the village of Bigler, Bradford Township, Clearfield
County.
4. Bradford Coal Company Inc. (Bradford) owns and
operates a coal cleaning and storage facility in the village of
Bigler, Bradford Township, Clearfield County (existing
plant).
5. The existing plant was constructed in 1954. Since that
time its operation has continually grown and over the years
the coal storage area has continually expanded. In 1962,
266,000 tons of coal were processed at the plant; in 1976,
428,000 tons of coal were processed.
6. Bradford increased the coal stockpile area at the exist-
ing plant without a permit from the DER required by Sec-
tion 6.1 of the APCA.
7. The existing plant includes coal crushing operations,
screens, conveyors, stacker, raw and finished coal stock-
piles, coal loading and unloading facilities, a wet cleaning
plant and a coal fired boiler for heating the plant during the
winter season.
8. Coal dust emissions from the existing plant cause a
general condition of air pollution, as that term is defined by
Section 3(5) of the APCA, to exist in the village of Bigler.
9. Residents of the village of Bigler in the vicinity of the
existing plant have been inundated with coal dust from the
existing plant. The coal dust covers and soils the outsides of
their houses and properties, prevents the opening of win-
dows in the summertime, is tracked inside the houses and
generally interferes with the comfortable enjoyment of life
and property.
10. Coal dust emissions from the existing plant are
caused by:
Appendix 55a
(a) dust arising from roadways because of the continu-
ous pulverizing of coal by the movement of traffic;
(b) the loading of trucks and railroad cars by front-end
loaders and high-lifts;
(c) the shaking and breaking of coal in the crushing and
screening operation;
(d) the unloading of coal from trucks;
(e) the malfunctioning of the coal storage pile stacker
causing coal to drop from top of stacker;
(f) transfer points on conveyors, i.e. where coal drops
off one conveyor onto another.
(g) wind blowing dust from coal storage piles.
11. The coal dust emissions from the existing plant are
fugitive emissions, that is, emissions emitted into the outdoor
2umosphere in a manner other than by a flue.
12. State Route 970 runs between the stockpile area and
the cleaning facility area of the existing plant.
13. Ambient air quality standards for suspended and set-
tleable particulate matter set to protect the public health
have been exceeded in the area surrounding the existing
plant.
14. Tests by the DER from May 8, 1975, to June 1, 1975,
of the air quality in the vicinity of the existing plant resulted
in the following readings of suspended solids in micro-
3
grams/m’. High Low Average
(a) Marsh property (approx. 50 feet 497 34 195
north of plant)
(b) Wisor property (approx. 50 feet 490 45 199
east of plant)
(c) Lansberry property (approx. 1,000 feet 122 33 75
north of plant)
(d) Dixon property (approx. 50 feet 381 46 200
south of plant)
(e) Shaffer property (approx. 1/3 mile 163 66 115
east of plant)
56a Appendix
15. The National Ambient Air Quality Standards for sus-
pended solids promulgated by the administrator of the
Environmental Protection Agency as necessary for the pro-
‘tection of the public health and incorporated as part of the
standards of the DER at 25 Pa. Code $131.3 are: (a) 24 hour—
260 micrograms/meter*; (b) yearly average—75 micro-
grams/meter’®.
16. Tests by the DER for settleable particulate in the vi-
cinity of the existing plant resulted in the following readings
in tons per square mile.
August 17— September—
September 15, 1976 October, 1976
Marsh property 56 41
Wisor property 95 71
Lansberry property 17 40
Dixon property void 143
Shaffer property 19 16
17. DER ambient air quality standards for settled solids
are 42 tons/mile*/month.
18. There are houses situated within 50-60 feet of the
existing plant.
19. Because of its proximity to residents of the village of
Bigler there is no reasonable way to repair the existing plant
to prevent it from causing air pollution.
20. The only effective means of abatement of the nui-
sance caused by the existing plant is its closure.
21. The DER and Bradford entered into a consent order
and agreement (consent order) on October 13, 1977, which
provides for the closure of the existing plant and the con-
struction of a new plant off Route 322 in Bradford Township
approximately, 3,000 feet northwest of the existing plant.
22. The consent order provides that the new plant is to
be constructed by December 31, 1979, and that Bradford
Appendix 57a
may operate the existing plant until July 1, 1979; however,
Bradford may resume operation of the existing plant due to
malfunctions which prevent operations of the new plant, but
only during a period of six months from the issuance of a
temporary operating permit. Both plants cannot be operated
at the same time.
23. If Bradford operates the existing plant for any reason
after July 1, 1979, it will forfeit a fifty thousand dollar
($50,000) bond and be subject to noncompliance penalties, if
any, of §120 of the Federal Clean Air Act Amendments of
1977.
24. Bradford is required by the consent order to imple-
ment “interim” coal dust control measures at the existing
plant such as limiting the size of stockpiles, cleaning roads
and controlling coal spillage. However, these measures are
not expected to significantly improve the conditions in
Bigler.
25. The new plant will be a coal cleaning and storage
operation.
26. The new plant is proposed to be constructed on a 230
acre site. The operation of the new plant will use only about
25 of the 230 acres.
27. There is no zoning ordinance in Bradford Township.
. 28. The nearest house is 1200 feet from the closest coal
processing area proposed for the new plant.
29. The potential emission sources at the new plant will
be controlled.
30. The DER did not attempt to determine the level of
noise which will exist at the proposed site and whether the
noise therefrom will be inimical to the public well-being.
31. Bradford submitted applications to the DER for
plan approvals for the new plant.
58a Appendix
32. On October 14, 1977, the DER issued to Bradford
Plan Aporoval No. 17-302-00008 for a coal/oil fired boiler at
the new plant, Plan Approval No. 17-305-00011 for a coal
dryer, Plan Approval No. 17-305-00012 for a coal crushing
and screening station and Plan Approval No. 17-305-00013
for various fugitive emission sources such as railroad
loadout, coal stockpiles, roadways, truck dump area, truck
loading area and conveyor transfer point.
33. The DER did not do any air sampling to determine
the ambient air quality in the vicinity of the site of the pro-
posed plant.
34. Best available control technology is a concept which
can include a number of equivalent technologies for emis-
sion control.
35. The conveyors to transport coal from one area to
another at the new plant will be enclosed on three sides; they
will not be enclosed at the bottom. The use of tube convey-
ors which would provide complete enclosure would result in
additional control of emissions.
36. The emissions from the coal/oil fired boiler at the
new plant will comply with applicable emission limitation
standards.
37. The crushing and screening operations which reduce
in size and separate ‘‘e coal will be hooded and ducted to a
scrubber.
38. Within one year of the start up of the new plant,
Bradford must pave all roads at the site including all access
roads and all loading and unloading areas. Until the roads are
paved, they must be maintained with dust suppressants.
39. The paving of roads constitutes best available tech-
nology for controlling emissions from roads.
Appendix 59a
40. DER did not require Bradford to pave the roads on
the site of the new plant prior to the commencement of its
operation in order to allow time to determine where the traf-
fic areas would be located.
41. The location of at least some of the roads at the new
plant site, including the access roads, were known at the time
of issuance of plan approval.
42. The truck unloading area at the new plant will be
enclosed on three sides and hooded and ducted to a
scrubber.
*
43. At the new plant coal is to be transported from the
truck unloading area and the raw coal stockpile by an nder-
ground conveyor system. The underground conveyor sys-
tem eliminates the use of high-lifts to move the coal and thus
the excessive agitation of dust producing coal.
44. At the new plant the raw coal stockpile will be built
with a radial stacker which eliminates the free fall of coal
onto the stockpile.
45. At the new plant there will be no truck traffic flow
through the plant or around the coal storage area.
46. The point where coal drops from the conveyor belt
into the preparation plant is covered with a hood ducted toa
small scrubber.
47. There will be coal stockpiled at the new facility on
an area the approximate size of one-half of a football field.
48. A 65-foot high dike will be constructed between the
village of Bigler and the proposed operation. The dike will
extend from the railroad on the east to a 170-foot high wall on
the west of the property, a distance of approximately 300
feet.
49. Trees will be planted on top of the dike. A water line
with outlets at every 100 feet will be run across the top of the
dike to water down the raw coal stockpile.
60a Appendix
50. Trees will be planted along the boundary line
between Helen Peter's property and the new plant. Trees
exist on all other sides of the property.
51. The proposed control devices for the coal stockpiles
at the proposed plant, i.e. the radial stacker, underground
conveyor system, earthern dan to inhibit the wind, tree line
and water line to wet down the pile, if necessary, are as
effective at controlling emissions as are silos.
52. The DER made no study of the possible adverse
environmental effects which could result from allowing a
coal cleaning and storage plant to locate at the proposed site.
53. The DER made no study of the social and economic
benefits of the proposed plant.
54. On-site roadways produce most emissions from a
coal cleaning plant.
55. The coal/oil fired space heater boiler proposed for
the new coal cleaning plant by Bradford is a minor source of
emissions.
56. The type of coal/oil fired boiler proposed by Brad-
ford as a space heater constitutes best available technology
for the contro! of emissions.
57. Appellants are disturbed, particularly at night, by
unreasonable noise levcls at the Bigler coal cleaning plant.
DISCUSSION
The purpose of Bradford's coal cleaning plant at Bigler
is the cleaning or removal of sulfur and ash from coal. The
operation basically involves the crushing of the coal into
fines, and the transporting of the fines to a liquid media
where the waste is separated from the coal because of the
difference in their specific gravity. The plant's operation,
although simple, involves a constant movement of coal; it is
Appendix 6la
unloaded from trucks, moved by front end loaders and con-
veyor belts, and loaded onto trucks and railroad cars. This
movement inevitably raises coal dust particles into the
atmosphere. In particular, emissions of coal dust into the air
from the Bigler coal cleaning plant are caused by: (a) dust
arising from roadways because of the continuous pulveriz-
ing of coal by the movement of traffic; (b) loading of trucks
and railroad cars by the front-end loaders and highlifts; (c)
the shaking and breaking of coal in the crushing and screen-
ing operation; (d) the unloading of coal from trucks; (e) the
dropping of coal onto the storage pile; (f) the transfer points
on conveyors, i.e. the place where coal dgops off one con-
veyor onto another; and (g) wind blowing chal dust from the
storage piles.
The coal cleaning plant in Bigler was constructed by
Bradford in 1954;' since that time, its operation has continu-
ally grown and its coal storage area has continually ex-
panded. (The expansion has taken place, in part, without
authorization from the DER.®) In 1962 Bradford processed
266,000 tons of coal at the plant; by 1976, it was processing
428,000 tons of coal per year. Residents of the village of
Bigler have absorbed the brunt of the plant's growth as they
have become inundated with coal dust from the coal clean-
ing plant. Houses and other properties have become soiled
and covered with coal dust. The coal dust in the air discour-
ages the opening of windows in the summertime and the use
of yards for cook-outs and other recreations. It gets tracked
into homes and generally interferes with the enjoyment of
'The present plant was erected in 1954; however, Bradford has oper-
ated a coal loading operation at the site since 1935.
2295 Pa. Code 127.11 prohibits the modification of an air contamina-
tion source without prior authorization by the DER. 25 Pa. Code 121.1
defines modification as a physical change which increases the amount of
air contaminants emitted.
62a Appendix
life and property in the vicinity of the plant. The testimony
of Mrs. Donna Ellinger, who lives approximately 250 to 300
feet from the plant, is representative of the testimony of the
15 residents of Bigler who testified in this case. She described
the coal dust emissions from the plant as follows:
“I get coal dirt from the plant. I don’t necessarily
get dust. Sometimes it is more like ala chunky style. It is
particles. I have heard it hit on the windows when the
wind has blown it down, so it is big enough that I can
hear it on the windows. It is in the house. You can go
most anyplace in my house, even as soon as a half an
hour after I have dusted, go like that (indicating), and
you have coal dirt.
“In the summertime, when we have the door open,
our house is small and we can’t afford air conditioning,
so it is hot, and I open the doors, and before I prepare a
meal, I must wash off the top of the stove, the sink and
wipe off the table, and sometimes you have to dust the
chairs, if you don’t waat your seat dirty. “NOTES OF
TESTIMONY” p. 294
Also, tests by the DER of the quality of the air in the vicinity
of the plant show that the ambient air quality standards for
suspended particulate matter and settleable particulate set
to protect the public health have been exceeded.
Appellants’ problems are caused by two factors; first,
the unconscionable failure of Bradford to install air pollution
controls and to implement pollution control practices at the
plant and second, and of overriding importance, the location
of this twenty-three acre operation directly contiguous to a
residential area. On three sides of the plant, there are homes
within fifty feet of the operation.
The DER has been aware of the problems that Brad-
ford’s coal cleaning plant cause the residents of Bigler. In
fact, the DER has received more complaints over a longer
Appendix 63a
period of time about Bradford’s plant than any other source
of air pollution in the region.* It has in the past taken some
enforcement actions, none of which were effective in abat-
ing or alleviating the problem.‘ Finally, on October 13, 1977,
after a period of negotiations and apparently in settlement of
a civil penalty action the DER had filed against Bradford
fourteen months earlier, the DER entered into a consent
order and agreement (consent order) which provides for the
shutdown of the Bigler coal cleaning plant and the construc-
tion of a new coal cleaning and storage plant approximately
3,000 feet northwest of the present plant. Specifically, the
consent order provides that the new plant is to be con-
structed by December 31, 1979, and that Bradford may con-
tinue to operate the present plant until July 1, 1979. It also
provides that Bradford may resume operations at the exist-
_ing plant after July 1, 1979, if malfunctions occur at the pro-
posed plant which prevent its operation, but only during a
period of six months from the date of issuance of a tempor-
ary operating permit. Both plants cannot be operated at the
same time.
Appellants, because they do not wish to continue to be
subjected to the coal dust from the existing plant, because
they believe the new plant will also cause a nuisance to their
community and because of an understandable lack of trust in
the good faith of Bradford and the DER, have appealed
3DER Region 6 is a 14-county area in the northwestern corner of the
state.
‘The DER brought one criminal complaint before a magistrate which
resulted in a $100.00 fine. On July 17, 1968, it issued an administrative
order to Bradford requiring the abatement of emissions from the plant. On
December 14, 1970, it filed a Complaint in Equity in the Court of Com-
mon Pleas of Clearfield County requesting the Court to enjoin the opera-
tion of the plant until it complied with the APCA. The complaint resulted
in a consent decree before the Court of Common Pleas of Clearfield
County dated May 14, 1971, requiring Bradford to perform certain acts to
abate emissions from the plant.
S-
,
64a Appendix
from the October 13, 1977, consent order and the plan
approvals issued by the DER to Bradford to construct the
proposed coal cleaning plant. —
Our review of the DER action is to determine whether
the DER committed an abuse of discretion or an arbitrary
exercise of its duties or functions. Warren Sand and Gravel
Co. Inc. v. Comm. of Pa., DER, 341 A.2d 556, 20 Pa. Com-
monwealth Court Ct. 186 (1975); Pennsbury Village Con-
dominium v. Com. of Pa., DER, EHB Docket No. 76-057
(issued July 22, 1977).
CONSENT ORDER
Appellants object to the consent order for reason that
the DER lacks the authority to agree to allow Bradford to
operate the present coal cleaning plant in violation of the
APCA.
Initially, it is true that conditions will not improve for
the residents of Bigler under the consent order during the
lifetime of the existing plant. Although paragraph 8 of the
consent order requires Bradford to “take all reasonable inte-
rim measures at the existing site to keep fugitive emissions to
a minimum” and lists specific operating practices which
Bradford is required to perform such as limiting the size and
height of stockpiles, cleaning and maintaining. roadways
with dust suppressant chemicals and tarping loaded trucks,
the measures will not significantly alleviate appellants’ coal
dust problems.
It is clear that the DER has the authority to enter into a
consent order. Section 4(4.1) of the APCA authorizes the
DER to issue orders relating to air pollution. The fact that the
terms of the order have, after negotiations, been agreed
upon by the recipient prior to the order’s issuance, dogs not
alter the authority conferred by Section 4(4.1) supra. Also,
the DER in its discretion has the authority to allow the opera-
Appendix 65a
tion of an air contamination source for a period of time while
it achieves compliance. Section 4(4.1), supra, states in part
that:
a
“Such orders may specify a time for compliance,
require submission of a proposed plan for compliance,
and require submission of periodic reports concerning
compliance.”
Certainly it is within the DER’s discretion to employ reme-
dies for abating air pollution other than requiring the air pol-
lution source to immediately shut down.
We find that appellants have not shown that DER has
abused its discretion by allowing Bradford to operate the
plant until July 1, 1979. Bradford during this period will be
proceeding to construct a new plant further removed from
Bigler and equipped with coal dust emission control equip-
ment. Bradford has posted a $50,000 bond which it will for-
feit if the plant is operated after July 1, 1979.5
PLAN APPROVALS FOR NEW PLANT
To install and operate an air contamination source in
Pennsylvania, it is necessary to procure two permits from the
DER; a plan approval permit prior to construction of the
source and an operating permit after construction has been
completed but prior to its operation. See Section 6.1 of the
APCA.
Bradford applied for and received from the DER four
plan approvals to construct the new plant. Plan Approval
No. 17-302-00008 was issued for a coal/oil fired boiler,
No. 17-305-00011 for a coal dryer, No. 17-305-00012 for the
crushing and screening station and No. 17-305-00013 was
‘See also 25 Pa. Code §141.4 wherein the DER is authorized to grant a
_ variance from its air contaminant emission limitation regulations for a
period of up to three years.
66a Appendix
issued for various fugitive emission sources such as the stock-
piles, roadways, loading and unloading areas. Appellants
contend that the DER issued these plan approvals to Brad-
ford even though the control devices or methods proposed
by Bradford for controlling some of the emission points do
not constitute the best available technology for minimizing
emissions as required by 25 Pa. Code 127.12(a)(5). Section
127.12(a) states:
“Applications for approval shall:
(5) Show that the emissions from a new source will be
the minimum attainable through the use of best avail-
able technology.”
Larry Wonders, the regional air pollution control engi-
neer, and Francis Higgins, a field inspector of air pollution
sources for the DER, both testified that the primary source
of coal dust emissions from a coal cleaning plant is the on-site
roadways. These emissions are generated by continuous
truck traffic that pulverizes the coal spillage into coal fines
which are picked up by the wind. Bradford’s Plan Approval
Permit No. 17-305-00013 requires the prevention of roadway
coal dust emissions by the paving of the roads within one
year of the start-up of the plant. During the initial year of
operation, the emissions are to be prevented by treating the
roads with dust suppressants.
Appellants argue that since dust from roadways is a
primary source of fugitive emissions from the coal cleaning
plant and inasmuch as the DER has determined that paved
roads maintained to prevent the accumulation of dust consti-
tute the best available technology for the control of the dust
from roadways, the DER acted arbitrarily and contrary to
law when it issued the plan approval permit to Bradford
allowing Bradford to commence the operation of the plant
and operate it for a year without the installation of best avail-
Appendix 67a
able technology, i.e. paved roads. The DER agrees that
paved roads do constitute best available technology; how-
ever, it contends that it is justified in permitting Bradford to
delay a year before paving the roads because until the plant
is operating, the traffic flow, and thus the location of the
roads will be unknown, as it takes a period of time to develop
a traffic pattern at a coal cleaning plant. DER also points out
that during the initial year the roadways will be maintained
by dust suppressant chemicals. We find the DER’s conten-
tion to be reasonable insofar as the road plan is unknown.
However, testimony showed that the locations of some of
the roadways such as access roads to the site are now known,
and were known, at the time of the issuance of plan appro-
val. In those cases we find that the roads must be paved prior
to start-up of the plant. The requirement of 25 Pa. Code
127.12 that an applicant must show that the emissions will be
the minimumcattainable through the use of best available
technology, presupposes that the source will not be operated
until and -unless it is equipped with the best available tech-
nology. Plan Approval No. 17-305-00013, because it does not
require Bradford to install the best available technology for
controlling emissions from the roadways, the location of
which are known, prior to the commencement of the plant’s
operation, does not comply with 25 Pa. Code 127.12(a)(5).
We therefore remand Plan Approval Perinit No. 17-305-
00013 to the DER to require the paving of all roads at the pro-
posed site the location of which are known prior to the
commencement of operation of the plant.
Appellants also contend that the DER has not required
Bradford to use the best available technology to prevent the
emissions of coal dust from the stockpiles. Appellants assert
that the stockpiles must be enclosed to prevent windblown
emissions therefrom. Their objection is based on their obser-
vations of coal dust being blown from the piles at the existing
68a Appendix
plant and a letter addressing the stockpile emission problem
from William Charlton, the DER engineer responsible for
réviewing plan approval applications, toC. Alan Walker, the
President of Bradford, dated August 5, 1977. The letter
stated that:
e
“...It is the Department's position that windblown fu-
gitive emissions from stockpiled materials are best con-
trolled through the use of some type of enclosure which
positively prevents contact between ambient winds and
the stockpiled material. This represents the best avail-
able control technology. We appreciate the difficulty
that would be encountered in applying this technology
in conjunction with a radial stacker, however we are
also bound by 25 PA Code 127.1(5), that new air con-
tamination sources must ‘control the emission of air pol-
lutants to the maximum extent, consistent with the best
available technology’. Bradford may elect to propose
some other control strategy, however it must be affir-
matively demonstrated in the application that the alter-
native technology is equivalent to enclosing the piles in
terms of fugitive dust prevention.”
The DER and Bradford contend that the Bradford plan
is equivalent to an enclosure for preventing fugitive emis-
sions and thus constitutes best available technology.
The primary cause of fugitive emissions from stockpiles
is agitation of the stockpile either through dumping coal onto
the stockpile or removing coal from the pile. Bradford's plan
is designed to prevent the generation of dust during loading
and unloading. The coal will be placed on the pile by a radial
stacker which will be automatically lowered to the actual
height of the coal pile, thereby preventing the free fall of
coal and resulting fugitive emissions. (The radial stacker is
also an improvement over the tube stacker which is inclined
to clog up during the winter from the freezing of coal.) High-
lifts and front-end loaders will not be used for removing coal
Appendix . 69a
from the stockpile; rather, the coal will be removed by a ser-
ies of hoppers in the ground beneath the stockpiles which
feed into an underground conveyor system, thus the agita-
tion of the dust-producing coal will be eliminated.
To shield the stockpile from wind, Bradford is con-
structing a dike approximately 65 feet high and 300 feet long
between Bigler and the stockpile. The dike will extend from
the railroad on the east to a 170-foot highwall on the west of
the property. Evergreen trees will be planted on top of the
dike and a two-inch water line with outlets at every 100 feet
will be run across the top of the dike to water down the
stockpile, if needed. The stockpile, which is limited to a 55-
foot height by the height of the radial stacker, will also be
shielded from wind by a 170-foot highwall to the west and
by the plant itself which is housed in a 73-foot building to the
north.
The testimony presented on the issue of the effective-
ness of this plan for preventing emissions from stockpiles as
compared with an enclosure was from either DER or Brad-
ford officials.* They testified that in their opinion Bradford's
plan is as effective. Since we were unable to find that their
opinions are in error, we find that in this case, the plan pro-
posed by Bradford Coal constitutes best available technol- |
ogy for preventing emissions from the stockpiles.
Appellants also contend that the DER did not require
the best available technology for control of emissions from
the coal/oil fired space heating boiler. The boiler is a rela-
tively minor source of emissions; the maximum particulate
matter it is allowed to emit by DER regulation is 3.2
Ibs/hour. The type of boiler proposed by Bradford has been
recently developed for use without air pollution control
equipment. The emissions are controlled by the adjustment
*The appellants called the DER officials as their witnesses.
70a Appendix
of the combustion process to a level in compliance with the
DER’s regulations. Appellants argue that since the emissions
can be reduced even further by the addition of air pollution
control equipment, Bradford has not proposed best avail-
able technology.
The best available technology requirement does not
require the addition of control devices in series, ad infinitum.
The coal/oil boiler proposed by Bradford achieves emission
control as well as a traditional boiler fitted with a control
device. Thus, we believe that the DER did not abuse its dis-
cretion by denominating the boiler “best available technol-
ogy’, especially when the level of emissions will be less than
3.2 Ib/hour.
Appellants also object to the use of a scrubber to control
emissions from the crushing and screening station. Mr.
Wonders testified that in his opinion a scrubber is less effec-
tive in reducing emissions than a bag house at the pressure
drop proposed by Bradford, but that the scrubber can be
made as efficient as a bag house if the pressure drop is
increased, and that a bag house that is operated outdoors in
the winter can have more maintenance problems than a
scrubber. Based on Mr. Wonders’ testimony, we find that the
best available technology for control of emissions from the
crusher and screening station is either a bag house or a
scrubber with sufficient pressure drop to equal the bag
house in removal efficiency. We, therefore, remand Plan
Approval Permit No. 17-305-00012 to the DER to require
either a bag house or a scrubber with a sufficient pressure
drop to be as effective in the reduction of particulate matter
emissions as a bag house.
Emissions from a conveyor belt are caused by wind
blowing across the conveyor. Bradford proposes to prevent
these emissions by installing a cover on the top side of the
conveyor. Appellants contend that the best available tech-
Appendix Tla
nology for prevention of emissions from a conveyor consti-
tutes total enclosure of the conveyor belts. The only
testimony relevant to the issue is by Mr. Charlton, who testi-
fied that to his knowledge, one other coal cleaning plant uses
a totally enclosed conveyor system and that, in his opinion,
the fully enclosed system is more effective “toa very limited
extent”. Unfortunately, we do not know what Mr. Charlton
means by “toa very limited extent” or how he applied it in his
review of the application. Nor do we know whether such an
enclosure “is available or can be made available” for this
plant. Therefore, we remand Plan Approval Permit
No. 17-305-00013 to the DER to determine the best available
technology for control of emissions from the conveyor sys-
tem taking into consideration Mr. Charlton’s opinion that the
enclosure is more effective. We also require the DER to
explain the basis of its determination.
The DER, before it issues a plan approval for a new
source, must determine that the new source will not prevent
or adversely affect the attainment or maintenance of am-
bient air quality standards. See 25 Pa. Code §127.1 which
states in part:
“It is intended that by the application of the provi-
sions of this Article, air quality shall be maintained at
existing levels in those areas where the existing ambient
air quality is better than the applicable ambient air qual-
ity standards, and that air quality shall be improved to
achieve the applicable ambient air quality standards in
those areas where the existing air quality is worse than
the applicable ambient air quality standards. In accor-
dance with this intent it is the purpose of this Chapter to
insure that all new sources shall conform to the applica- —
ble standards of this Article and that they shall not result
in producing ambient air contaminant concentrations in
excess of those specified in Chapter 131 of this Title
(relating to ambient air quality standards)...”
72a ' Appendix
25 Pa. Code §127.12 lists the contents of an application for
plan approval. It states that: “When requested by the
Department [an applicant must] show that the source will
not prevent or adversely affect the attainment or mainte-
nance of ambient air quality standards”. See also Section 110
of the Federal Clean Air Act, 42 U.S.C.A. 7401 et seq.
Appellants contend that the DER could not have ascer-
tained whether or not the proposed coal cleaning plant will
adversely affect the attainment or maintenance of air quality
standards because the DER did not conduct, or require
Bradford to conduct, tests of the present quality of the air in
the vicinity of the plant and without knowing the present air
quality, it could not have determined what the quality of the
air will be after installation and operation of the cleaning
plant. The DER answers that it does not have to determine
the affect of a new source of air quality at the plan approval
stage but can wait until the review of the operating permit
application. Here, DER has required Bradford to sample for
air quality in the vicinity of the plant after it commences
operations. A temporary operating permit will be issued to
Bradford for the testing period. If the sampling shows that
the emissions from the plant do not adversely affect the
attainment or maintenance of air quality, Bradford will be
issued an operating permit.’ This air quality sampling pro-
gram comports with the requirements of Section 6.1(b) of
the APCA and 25 Pa. Code §127.22(a)(7) which requires an
applicant for the operating permit to show that the source is
capable of being operated in a manner as not to cause a viola-
tion of the air quality standards. However, it ignores the
requirements for plan approval and defeats the purpose of
the permitting process. The raison d'etre of the permitting
process is the avoidance of risk; the avoidance of risk to the
7Assuming that Bradford has complied with all other provisions of the
APCA and the applicable DER regulations.
Appendix 73a
community of air pollution as well as the avoidance of risk to
the applicant of refusal of permission to operate after the
construction of a source. The system may not be perfect, asa
source for which a plan approval is granted may, neverthe-
less, cause air pollution and, thus, be denied an operating
permit, however, pre-construction review is necessary to
minimize the risk of such occurrences.
25 Pa. Code §127.12(a)(7) requires an applicant for a
plan approval to show that the emissions from its source will
not affect the attainment or maintenance of air quality when
requested by the DER. We believe that the DER abuses its
discretion when it has no way of knowing whether or not a
source will affect the attainment or maintenance of air qual-
ity yet does not request the source to make a showing of
same.
We do not know whether a determination of the affect
of the emissions from the proposed plant on air quality can
be made without sampling existing air quality, and thus, we
do not hold that such a sampling program is necessary. We
only hold that the DER did not attempt to determine the
effect of the emissions from the Bradford's proposed plant
on the attainment or maintenance of ambient air quality
prior to issuing to Bradford the plan approval to construct
the plant and that the DER must make such a determination,
upon a reasonable basis, prior to issuing a plan approval.* We
remand all four plan approvals to the DER in order that the
DER can require Bradford to show that the emissions from
the source will not prevent or adversely affect the attainment
or maintenance of ambient air quality standards.
‘The fact that the existing coal cleaning plant causes ambient air qual-
ity violations in the immediate vicinity of the plant shows that such-a con-
dition can result from emissions from a coal cleaning plant.
74a Appendix
ARTICLE I, SECTION 27
Appellants contend that the DER acted contrary to Arti-
cle I, Section 27 of the Pennsylvania Constitution because it
entered into the consent order and issued the plan approvals
without considering the adverse environmental effects of
those actions. Article I, Section 27 of the Pennsylvania Con-
stitution states:
“The people have a right to clean air, pure water,
and to the preservation of the natural, scenic, historic
and esthetic values of the environment. Pennsylvania's
public natural resources are the common property of all
the people, including generations yet to come. As trust-
ee of these resources, the Commonwealth shall con-
serve and maintain them for the benefit of all the
people.”
The courts have held that Article I, Section 27 is self-
executing’ and that its provisions require the DER, as trustee
of the Commonwealth’s public natural resources, to address
the environmental impact of its actions by balancing their
social and economic benefit with the environmental harm
they cause. Concerned Citizens for Orderly Progress, et al v.
Comm. of PA, DER and Emerald Enterprises Limited, ——
Pa. Commonwealth Court ___, 387 A.2d 989 (1978). The
Commonwealth Court in Payne v. Kassab, 11 Pa. Common-
wealth Court 14, 312 A.2d 86 (1973) aff'd by the Pa. Supreme
Court at 468 Pa. 226, 351 A.2d 263 (1976), set forth a three-
standard test to be applied in the review of an administrative
decision to determine if the agency properly addressed the
environmental impact of its act.
The first standard requires compliance with all applica-
ble statutes and regulations relevant to the protection of the
%Comm. of PA, DER v. Gettysburg Battlefield Tower Inc., 8 Pa.
Commonwealth Court 231, 302 A.2d 886 (1973), aff'd Pa. , 3ll
A.2d 588 (1973).
Appendix 75a
Commonwealth's public natural resources. The record
shows, as we have stated herein, that the DER did not
comply with 25 Pa. Code §127.12, relating to plan approval
requirements. There has not been any showing by appellants
that any other pertinent statute or regulation has not been
complied with by the DER. We note that these plan approv-
als have been reviewed by the Bureau of Water Quality Man-
agement and Solid Waste Management for compliance with
the statutes and regulations they enforce. (The Clean
Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35
P.S. $691.1, et seq. and the Pennsylvania Solid Waste Man-
agement Act, Act of July 31, 1968, P.L. 788, as amended, 35
P.S. §6001, et seq.)
The second standard of the Payne test asks whether the
record demonstrates a reasonable effort to reduce the envi-
ronmental incursion to a minimum. The record shows that
the DER action of entering into the consent order constitutes
a reasonable effort to abate the air pollution from Bradford’s
Bigler coal cleaning plant. DER’s primary thrust in this mat-
ter, at least since the day it filed the civil penalty action, has
been to cause Bradford to cease operating the coal cleaning
plant in Bigler. The DER adamantly refused to agree to any
resolution of this matter which did not entail Bradford’s shut-
down of the Bigler coal cleaning plant.'® DER’s insistance
upon the relocation of the coal cleaning plant, as required by
the consent order represents a reasonable effort at the abate-
ment of the air pollution problem.
Charles Allen Walker, President of Bradford Coal Co. testified that:
“Their [DER] objective was to get us to build a new plant. They
didn’t particularly care where it was, so they knew the problem and I
don’t think they particularly cared whether we stayed in business or
went out of business, either, because at one time, they gave us the
alternative, ‘You are either going to build a new plant, or go out of
business, because we are not going to let you operate the old plant.’”
Notes of testimony, pages 699, 700
76a Appendix
DER’s action in issuing the plan approvals does not
demonstrate a reasonable effort to reduce the environmental
incursion to a minimum because of the previously discussed
failure of the DER and Bradford to comply with 25 Pa. Code
§127.12(a)(5) and (6). However, if the DER and Bradford,
after remand, comply with the requirements of 25 Pa. Code
$127.12, it would appear that the likelihood of the residents
of Bigler being affected by emissions of coal dust from the
proposed plant is minimal, as $127.12 requires that Bradford
must demonstrate to the DER that the emissions from the
new plant will: (a) comply with all DER regulations govern-
ing emission limitations. (We note that the DER regulation
governing fugitive emissions, prohibits emissions past appel-
lants’ property line); (b) not cause air pollution; (c) not pre- —
vent or adversely affect the prevention or maintenance of
ambient air quality standards; and (d) be controlled through
the use of best available technology.
Appellants contend that the DER violated its duty as the
trustee of Pennsylvania’s public natural resources because it
issued the plan approvals to Bradford without determining
the effect of noise from the proposed plant on the surround-
ing community. Appellants tes
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