# Petition — Bradford Coal Co. v. Baughman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2734%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 441 U.S. 961 ## 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 | 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 qual [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2734%3A1. Public record. Not legal advice.