Petition for Writ of Certiorari — Ingram v. Pennsylvania Department of Environmental Resources

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

CLARK R. INGRAM, GEORGE M. INGRAM,

GARY C. INGRAM and GREGORY B. INGRAM,

Petitioners

V.

_ COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL RESOURCES,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

PETITION FOR WRIT OF CERTIORARI

ROGER H. TAFT (Counsel of Record)

MARK J. SHAW

CRAIG R.—F. MURPHEY

MacDONALD, ILLIG, JONES & BRITTON

100 State Street, Suite 700

Erie, Pennsylvania 16507-1498

(814) 870-7600

Attorneys for Petitioners

QUESTION PRESENTED

Whether the Fourteenth Amendment right

> process of law is violated when a

agency holds a former surface mine

operator liable for a pre-existing water

quality

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ing that the operator

problem at a mining site

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ithout

caused the

lem and where the operator had

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mining

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PARTIES TO THE PROCEEDING

In addition to petitioners Clark R.

Ingram, George M. Ingram, Gary C. Ingram

nd Gregory B. Ingram and respondent

Commonwealth of Pennsylvania, Department of

Environmental Resources, the parties to the

proceeding before the Supreme Court of

ennsylvania were Henry L. Israel and

Betty Ann Taylor, Personal Representatives

he Estate of Herman J. Israel, and

Rockwood Energy and Mineral Corporation.

TABLE OF CONTENTS

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Vo\Jevew bh om Oo We So

AND REGULATORY PROVISIONS 4

STATUTORY

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STATEMENT OF THE CASE

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TABLE OF AUTHORITIES

Page

Cases

American Mining Congress v.

United States Environmental

Protection Agency, 965 F.2d

759 (9th Cir. 1992) 27

Bowen v. Georgetown University

Hospital, 488 U.S. 204 (1988) 27

Bouie v. City of Columbia,

378 U.S. 188 (1977) 21

Cox v. Louisiana, 379 U.S.

559 (1965) 18-22, 25,

29, 30

Hazelwood Chronic & Convelescent

Hospitals, Inc. v. Weinberger,

543 F.2d 703 (9th Cir. 1976),

vacated on other grounds, 430

U.8. 352 (i377?) 28-29

Hurtado v. California, 110

U.S. 516 (1884) 32

Ingram, et al. v. Commonwealth

of Pennsylvania, Department of

Environmental Resources, No.

Pa. , 605 A.2d 257

(1992) a. ia, 19

Ingram, et al. v. Department

of Environmental Resources,

141 Pa. Commw. Ct. 324, 595

A.2d 733 (1991) : oe PR

-iv-

Ingram Coal Co., et al. v.

Commonwealth of Pennsylvania,

Department of Environmental

Resources, 1990 EHB 395 3

International Union, United

Automobile, Aerospace &

Agricultural Implement Workers

v. Brock, 783 F.2d 237

(D.C. Cir, 1986) 21

Kratz v. Kratz, 477 F. Supp.

463 (E.D. Pa. 1979) as

Marks v. United States,

430 U.S. 188 (1977) 18-22, 26,

a3, 30

Morrison v. U.S. Department

of Labor, 713 F. Supp. 664

(§.D. N.Y. i969) 41

Pension Benefit Guaranty Corp.

v. R. A. Gray & Co., 467 U.S.

717 (1984) 2i, 49

Rabe v. Washington, 405 U.S.

313 (1972) 21

Raley v. Ohio, 360 U.S.

423 (1959) 10-22, €£2,

Ralis v. RFE/RL, Inc., 770

P.20 1121 (D.C. Cake. Tees) 27

Usery v. Turner Elkhorn

Mining Co., 426 U.&. 1-(i976) 28

Welch v. Henry, 305 U.S.

134 (1938) 29

Constitution

United States Constitution:

Amendment XIV, Section 1 a. 34239.

State Statutes

Pennsylvania Clean Streams Law:

35 P.S. § 691.315 (a) &, ai, a2

35 ?.S. § 691.602 (¢c) 21

35 P.S. § 631.605 (a) 21

State Regulations

Regulations of the Pennsylvania

Environmental Quality Board:

25 Pa. Code § 77.92(26) a, B. Bes. oe

25 Pa. Code § 77.92(d) (8) 4, 5, 9, 22-23

25 Pa. Code § 87.102 (a) (1) o>, ae

“ 25 Pa. Code § 87.102(a) (2) ws

25 Pa. Code § 87.012 (a) (5) 5, a2

Other Authorities

Hochman, The Supreme Court and

the Constitutionality of

Retroactive Legislation,

73 Harv. L.R. 692 (1960) 29

W. P. KEETON, PROSSER AND KEETON

ON TORTS § 75 (5th Ed. 1984)

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4

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-vi-

E SUPREME COURT OF THE UNITED STATES

AVL

OCTOBER TERM, 1992

R INGRAM, GEORGE M. INGRAM,

CLARK R. #

sARY C. INGRAM and GREGORY B. INGRAM,

Petitioners

H OF PENNSYLVANIA

ARARMAAARTIOAT Mm r

we Se MM JNW BALI A wo,

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mi nbe bt. ee ob Biee. f\T™ TlOK 7 = T KA\TTD ODO

DEPARTMENT OF ENVIRONMENTAL RESOURCES,

Respondent

MmmMTmMmTAKRT anAT —

‘al << WR

gh ot GF SP oe a iV/s N + wee av

ners CLARK R. INGRAM, GEORGE M.

INGRAM and GREGORY B.

MacDonald,

respectfully

request that a writ of certiorari issue to

review the Order of the Supreme Court of

Pennsylvania, entered May 19, 1992, denying

the Petition for Allowance of Appeal on

Behalf of Clark R. Ingram, George M.

Ingram, Gary C. Ingram and Gregory B.

Ingram.

OPINIONS BELOW

There is no Opinion below of the

Supreme Court of Pennsylvania in Clark R.

- Ingram, et. al. ov. Commonwealth of

Pennsylvania, Department of Environmental

Resources, No. 441 W.D. Allocatur Docket,

1991, with respect to the Order entered

May 19, 1992, denying the Petition for

Allowance of Appeal on Behalf of Clark R.

Ingram, George M. Ingram, Gary C. Ingram

and Gregory B. Ingram. Entry of this Order

is reported at 605 A.2d 257 (1992).

1e Opinion below of the C¢ ommonwealth

urt of Pennsylvania in Clark Rk. Ingram,

al. v. Department of Environmental

Resources, No. 1075 C.D. 1990, is reported

141 Pa. Commw. Ct. 324, 595 A.2d a2

The Opinion below of the Pennsylvania

vironmental Hearing Board in Ingram Coal

“ et. al. Vv. Commonweal th of

Pennsylvania, Department of Environmental

Resources, EHB Docket No. 88-291-F

onsolidated Cases), 1S reported at .1990

"HB aqQc

BASIS FOR _JURISDICTION

The Order of the Supreme Court of

- , P ae *

Pennsylvania, denying the Petition tor

swance of Appeal on Behalf of Clark R

gram, George M Ingram, Gary © Ingram

aT

The jurisdiction of this Court is

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

CONSTITUTIONAL, STATUTORY

AND REGULATORY PROVISIONS

The federal constitutional provision

involved is the United States Constitution,

Amendment XIV, Section 1 which is set forth

in Appendix D at page A-66.

The state statutory provision involved

is Section 315(a) of the Pennsylvania Clean

Streams Law, 35 P.S. § 691.315(a), which is

set forth in Appendix E at pages A-67 to

A-68.

The state regulatory provisions

involved are Section 77.92(26) of the

Regulations of the Pennsylvania

Environmental Quality Board, 25 Pa. Code

§ 77.92(26), later renumbered and codified

as Section 77.92(d)(8) of the Regulations

of the Pennsylvania Environmental Quality

@)

ro =

Dart

is umma. 2 ae) aa a tS. a “s

a Compliance Order issued by respondent

“ommonwealth of Pennsylvania, Department of

Environmental Resources (hereinafter "DER" )

against petitioners Clark R. Ingram,

seorge M. Ingram, Gary C Ingram and

Gregory B. Ingram hereinafter "Ingrams"

snd others! on August 30, 1988, directing

The othe

Order w

Minerals

Company,

ties against which the Compliance

as issued were Rockwood Energy and

Corporation, d/b/a Ingram Coal

(hereinafter "Remcorp") and Herman J.

r par

—

that certain remedial action be taken for

alleged violations of water quality

standards at a coal surface mining site in

Clarion County, Pennsylvania. DER issued

the Compliance Order without any

determination that Ingrams caused the water

quality problems at the mining site and

despite the fact that while Ingrams

operated the site, the Pennsylvania

Environmental Quality Board Regulations

provided that a surface coal mine operator

would not be held responsible for pre-

existing water quality problems at a site.

Ingrams formed a_- surface mining

business, known as "Ingram Coal Company,"

which was a partnership consisting of

Clark R. Ingram and his sons, George M.

Israel, a/k/a H. J. Israel (hereinafter

"Israel"). Israel died during the course of

proceedings before the Pennsylvania

Environmental Hearing Board (hereinafter

"EHB"), and Henry L. Israel and Betty Ann

Taylor, Personal Representatives of the Estate

of Herman J. Israel (hereinafter "Estate of

Israel"), were substituted as parties.

-6-

Ingram, Gary C. ~Ingram and Gregory B.

Ingram. In 1976, Ingrams applied to DER

for a Mine Drainage Permit and a Mining

Permit in order to surface mine a certain

job at the Frenchville Site. Prior to the

time that Ingrams commenced sirip mining of

coal at the Frenchville Site in late 1976,

there were pre-existing springs or

discharges in the area of the "southern toe

of spoil." There also was evidence of

earlier mining activity near the "southern

toe of spoil."

During the course of the application

procedure, DER and the Pennsylvania Fish

Commission investigated the Frenchville

Site and the surrounding area. This

investigation and the pre-mining reports

revealed that the water quality at the

Site, including the area known as the

"Southern toe of spoil," did not meet DER

Standards prior to any mining by Ingrams.

The investigation and pre-mining reports

ho

further revealed that Deer Creek, into

which drainage from the Site flowed, was an

acid stream with no aquatic life present

prior to any mining by Ingrams and was not

used for water supplies, bathing, fishing,

recreation or industrial uses. With this

actual knowledge that the pre-existing

water quality at the Frenchville Site did

not meet DER standards, DER issued the

Permits to Ingrams in accordance with

existing state regulations.

During the period from 1976 to

July 31, 1982, DER operated under

Regulations of the Pennsylvania

Environmental Quality Board, pursuant to

which a surface coal mine operator such as

Ingrams would not be held responsible for

pre-existing water quality problems at a

site unless his own mining operations made

the discharge worse, either in quality or

quantity. These Regulations were codified

at 25 Pa. Code § 77.92(26) as of 1972 and

-8-

at 25 Pa. Code § 77.92(d) (8) as of 1982 and

were communicated to Ingrams and other

surface coal mine operators who relied upon

the Regulations in applying for mining

permits and in conducting their mining

operations, including mining at the

Frenchville Site.

After surface mining began at the

Frenchville Site in late 1976, DER

conducted numerous inspections of the

mining activities, including several

examinations of the water quality at the

Site. At no time during the period from

1976 until the issuance of the DER

Compliance Order in 1988, did DER issue any

citation or other notice of violation to

Ingrams, or to any other party, regarding

the water quality at the Frenchville Site.

To the contrary, DER recognized on several

occasions that the water quality at the

Site was not in violation because of its

pre-existing condition before any mining

-9-

activity by Ingrams. For example, in

Inspection Reports dated April 1, 1982,

May 11, 1982, and May 18, 20, 1982, a DER

Inspector made express reference to

"southern toe of spoil" seeps which were

"pre-existing."

As of May 28, 1982, there was no

active mining on the Frenchville Site.

Ingrams had filed a Completion Report and

Amended Completion Report with DER in 1981,

and reclamation of the Site was underway,

including backfilling and replanting. On

May 28, 1982, Ingrams sold their entire

Surface mining business -- Ingram Coal

Company -- to Israel and Remcorp and ceased

all involvement in the strip mining of

coal. - At that time, there were no

outstanding DER violations with respect to

the water quality at the Frenchville Site.

All reclamation or other DER-related

activities at the Frenchville Site ‘from

May 28, 1982, to the present were performed

“th~

by Israel and/or Remcorp, and not by

Ingrams.

According to engineering testimony,

surface mining activity by Ingrams prior to

May 28, 1982, did not make the pre-existing

water quality at the Frenchville Site

worse, either in quality or quantity. DER

admitted that the sole basis for issuance

of the DER Compliance Order in 1988 was the

then current Regulation of the Pennsylvania

Environmental Quality Board at 25 Pa. Code

§ 87.102 which did not require a finding of

Causation and that DER did not give any

consideration to pre-existing water quality

at the Frenchville Site.

If DER had advised Ingrams at the time

that Ingrams applied for the Mine Drainage

Permit or the Mining Permit that DER would

hold Ingrams responsible to correct the

pre-existing water quality problems at the

Site, regardless of any effect that their

own mining had at the Site, Ingrams would

-ll1-

not have conducted any mining operations at

the Site.

The Proceedings Below. The

proceedings against Ingrams commenced on

August 30, 1988 with the reissuance by DER

of Compliance Order No. 88H057, as amended

and restated, against Remcorp, Israel and

Ingrams, alleging that certain discharges

violated water quality standards set forth

at 25 Pa. Code § 87.102(a) (1), (2) and (5)

and directing that adequate treatment be

implemented.’

Ingrams, along with Remcorp-= and

Israel, filed appeals to the EHB,

challenging the validity of the Compliance

Order. As part of those appeal

proceedings, Ingrams and DER each filed

motions for summary judgment, supported by

» DER initially issued Compliance Order No.

88HO57 on June 29, 1988 against only Remcorp.

Remcorp was the owner of Ingram Coal Company

when the Compliance Order issued.

«2.

the record of a supersedeas hearing as well

as by other supplemental filings. On April

17, 1990, prior to any final hearing on the

merits, the EHB entered an Opinion and

Order Sur Motion for Partial Summary

Judgment, Cross-Motions for Summary

Judgment and Motion to Dismiss which, in

part, granted summary judgment in favor of

DER against Ingrams and dismissed the

appeal filed by Ingrams.’ On April 27,

1990, the EHB amended the April 17, 1990

Order to correct typographical errors.

On May 17, 1990, Ingrams filed a

Petition for Review with the Commonwealth

Court of Pennsylvania, seeking a review of

the EHB Order entered April 17, 1990.* By

The Order entered April 17, 1990 by the EHB

also granted summary judgment in favor of DER

against the Estate of Israel and dismissed the

appeal filed by Israel.

Estate of Israel also filed a Petition for

Review with the Commonwealth Court of

Pennsylvania which was consolidated with that

of Ingrams. Remcorp intervened as a party to

both appeals.

-13-

Opinion and Order entered July 19, 1991,

the Commonwealth Court affirmed the EHB

Order.

On August 19, 1991, Ingrams filed a

Petition for Allowance of Appeal with the

Supreme Court of Pennsylvania, seeking

discretionary review of the Order of the

Commonwealth Court of Pennsylvania entered

on July 19, 1991.° By Order entered

May 19, 1992, the Supreme Court of

Pennsylvania denied Ingrams’ Petition for

Allowance of Appeal.

Raising of the Federal Question. In

the proceedings before the EHB, Ingrams

raised a federal constitutional question,

based upon the United States Constitution,

Amendment XIV, Section a in their

Estate of Israel filed a Cross-Petition for

Allowance of Appeal to the Supreme Court of

Pennsylvania. This Cross-Petition also was

Genied by Order of the Supreme Court of

Pennsylvania entered May 19, 1992.

-14-

Objections to DER Motion for Partial

Summary Judgment or in the Alternative to

Limit Issues and Cross-Motion for Summary

Judgment on Behalf of Appellants Clark R.

Ingram, Gary C. Ingram, George M. Ingram

and Gregory B. Ingram and in their Brief in

Support of Opposition to the DER Motion for

Partial Summary Judgment or in the

Alternative to Limit Issues and Cross

Motion for Summary Judgment on Behalf of

Appellants Clark R. Ingram, Gary C. Ingram,

George M. Ingram, excerpts of which are set

forth in Appendix I at pages A-i23 Oo

A-135. The EHB considered, discussed and

rejected Ingrams’ constitutional argument

in its Opinion and Order Sur Motion for

Partial Summary Judgment, Cross-Motions for

Summary Judgment and Motion to Dismiss

entered April 17, 1990, which is set forth

in Appendix C at pages A-29 to A-65.

In the proceedings before the

Commonwealth Court of Pennsylvania, Ingrams

-15-

raised the federal constitutional question

in their Brief for Petitioners Clark R.

Ingram, George M. Ingram, Gary C. Ingram

and Gregory B. Ingram at No. 1075 and in

their Reply Brief for Petitioners Clark R.

Ingram, George M. Ingram, Gary C. Ingram

and Gregory B.. Ingram at No. 1075 C.D.

1990, excerpts of which are set forth in

Appendix H at pages A-94 to A-122. The

Commonwealth Court of Pennsylvania

considered, discussed and rejected Ingrams’

constitutional argument in its Opinion and

Order entered July 19, 1991, which is set

forth in Appendix B at pages A-2 to A-28.

In the proceedings before the Supreme

Court of Pennsylvania, Ingrams .aised the

federal constitutional question in their

Petition for Allowance of Appeal on Behalf

of Clark R. Ingram, George M. Ingram,

Gary C. Ingram and Gregory B. Ingram,

excerpts of which are set forth in Appendix

G at pages A-77 to A-93. The Supreme Court

-16~-

of Pennsylvania considered the Petition for

Allowance of Appeal, but declined to

consider Ingrams’ constitutional argument

on the merits by its Order entered May 19,

1992, denying the Petition seeking

discretionary review which is set forth in

Appendix A at page A-1l.

REASONS FOR GRANTING THE WRIT

This case presents important

constitutional questions regarding a

State’s right to hold a person liable for

conduct which was entirely legal and proper

at the time it was performed, but became

illegal only after the conduct had ceased.

The Commonwealth Court of Pennsylvania held

that Ingrams’ constitutional right to due

process of law was not violated when state

officials affirmatively advised Ingrams

that their conduct was legal, changed the

law after the Ingrams’ conduct had ceased,

a iy

and subsequently. held Ingrams’_ liable

because their past conduct now was deemed

illegal. The Supreme Court of Pennsylvania

then refused to exercise its discretion to

review the Commonwealth Court decision.

These Pennsylvania court decisions conflict

with several decisions of this Court and

seriously misconstrue the protections of

Gue process of law under Amendment XIV,

Section 1 of the United States

Constitution.

The Commonwealth Court of

Pennsylvania's decision

upholding the constitu-

tionality of the DER's

application of new

regulations to prior conduct

conflicts with this Court’s

decisions in Raley v. Ohio,

360 U.S. 423 (1959), Cox v.

Louisiana, 379 U.S. 559

(1965), and Marks v. United

States, 430 U.S. 188 (1977).

The Commonwealth Court of

Pennsylvania, in concluding that DER’s

application of new state regulations to

«30.

prior conduct was not a violation of

Ingrams right to due process of law, failed

to follow this Court’s decisions i. Raley,

Cox and Marks. In all three of these

, the Court held that the Due Process

Clause of the Fifth or Fourteenth

Amendments provides protection to

defendants who act in accord with state law

or regulations, and who then are prosecuted

for those actions at a later time under

Pennsylvania, thus allowing the

Commonwealth of Pennsylvania to deprive

Ingrams of their constitutional right to

In both Raley and Cox, a government

official had assured a defendant that

certain conduct was legal, and the

defendant reasonably relied upon that

advice and continued or initiated the

conduct. Subsequently, the defendant was

convicted for doing the very act which he

had been advised was legal. This Court

held that such a conviction is not

permitted by the Due Process Clause,

reasoning that to uphold the convictions:

. . .« would be to sanction an

indefensible sort of entrapment

by the State - convicting a

citizen for exercising a

privilege which the State had

Clearly told him was available to

him."

Raley, 360 U.S. at 426; Cox, 379 U.S. at

aehe

In Marks, this Court held that the Due

Process Clause precluded application of a

newer, stricter obscenity standard, which

had been announced by the Court after the

defendants had performed the conduct with

which they were charged, to the defendants

because they did not have "fair warning"

that their conduct was illegal. Marks, 430

hs

U.S. at 195-196. See also Bouie v. City of

Columbia, 378 U.S. 347 (1964); Rabe v.

Washington, 405 U.S. 313 (1972). The Marks

line of cases recognizes another element of

a defendant’s right to due process, similar

to, but slightly broader than the

"entrapment" principle of Raley and Cox,

i.e. a defendant cannot be held liable for

violation of a law when he had no fair

warning or notice that his conduct was illegal.°

Raley, Cox and Marks were all criminal cases,

but the due process principles enunciated

therein have been applied in civil suits by

the lower federal courts. See, e.¢.,

International Union, United Automobile,

Aerospace & Agricultural Implement Workers v.

rock, 783 F.2d 237, 248 (D.C. Cir. 1986);

Morrison v. U.S. Dept. of Labor, 713 F. Supp.

664, 675 (S.D. N.Y. 1989); Kratz v. Kratz, 477

F. Supp. 463, 483 (E.D. Pa. 1979). In

extending application of the Raley, Cox and

Marks decisions to a civil case, the Kratz

court. relied in part on the fact that the

statute which the Kratz defendants were

accused of violating contained criminal as

well as Civil penalties. Kratz, 477 F. Supp.

at 483. In the present case, the statute

under which Pennsylvania seeks to punish

Ingrams. Section 315(a) of the Clean Streams

Law, 35 P.S. § 691.315(a), is in large part a

criminal statute, subjecting violators to

imprisonment for up to two years and fines of

up to $50,000.00. 35 P.S. § 691.602(c); 35

P.S. § 691.605(a).

The present case presents a compelling

circumstance in which to apply the rules of

Raley, Cox and Marks. Ingrams are accused

of violating Section 315 (a) of

Pennsylvania’s Clean Streams Law, 35 P.S.

§ 691.315(a), which provides, in relevant

part:

No person shall operate a mine or

allow a discharge from a mine

into the waters of the

Commonwealth unless such

operatio or discharge is

authorized by the rules and

regulations of the department or

such person or municipality has

first obtained a permit from the

department . . .. [Emphasis

added].

During the entire time the Ingrams mined

the Frenchville Site, DER operated under

the following state regulation:

"The operator shall take the

necessary steps to eliminate, if

possible, any gravity drains from

previous mining. Any drainage so

encountered shall be treated to

neutrality during the period of

corrective action and during the

life of the operation. The

operator shall be responsible for

any additional pollution load."

(Emphasis added].

-22-

ee

25 Pa. Code § 77.92(26) (1972), later

codified at 25 Pa. Code § 77.92(d) (8)

(1982).

This state regulation notified surface

mine operators, such as Ingrams, that they

would not be liable for discharges at a

mining site unless their own mining

operations added to the pollution load.

The state regulation, moreover, was

interpreted and applied in just this

fashion by the Pennsylvania «officials

charged with overseeing the operation of

surface mines, as established by the

Affidavit of J. Anthony Ercole, the

Director of DER’s Bureau of Surface Mining

reclamation from 1977 to 1983, who

testified:

This Regulation of 25 Pa. Code

Section 77.32 embodied the

official policy and practice of

the Department of Environmental

Resources not to hold surface

coal mine operators responsible

for mine discharges existing from

prior mining,-after the life of

the operator’s mining, whether

~2%-

——————————

the discharges were on or off the

operator’s permit area, unless

the operator made the discharge

worse either in quality or

quantity as a result of his own

mining.

The record also is replete with affirmative

actions taken by DER officials which

confirmed the existing rule that Ingrams

would be held liable only if their own

surface mining activity increased any

pollution emanating from a mining site and

not for pre-existing discharges.

Finally, it is undisputed that Ingrams

relied upon the state regulations and the

representations and actions of DER

officials in applying for mining permits

and conducting mining operations, including

mining at the Frenchville Site. If DER had

advised Ingrams at the time that Ingrams

applied for its mining permits that Ingrams

would be held responsible to correct the

pre-existing water quality problems at the

Site, regardless of any effect that their

-24-

—— t—“‘“‘CO™CC

own mining had at the Site, Ingrams would

not have conducted any such-= mining

operations. ;

These facts reveal that DER violated

the due process rights of ingrams when DER

issued its Compliance Order requiring the

Ingrams to remediate a problem which

existed before Ingrams possessed the site,

* which the Ingrams did not cause and which

DER had affirmatively represented to

Imgrams would not be a basis for liablity.

Here the Ingrams were specifically advised

by the responsible government authority,

through statute, regulation, affirmation

and action, that their conduct was entirely

legal and consistent with then-dpplicable

law. Thus, Ingrams had every reason to

believe their actions were permissible. To

now hold Ingrams liable for prior surface

mining operations is precisely the kind of

"entrapment" which the Court found

unconstitutional in Raley and Cox, as well

ae

Ve

as the sort of conviction without fair

warning deemed impermissible in Marks.

- The Commonwealth Court of

Pennsylvania’s decision that

DER’S application of new,

stricter regulations to

conduct performed prior to

enactment of the new

regulations conflicts with

this Court’s decisions

regarding the constitu-

tionality of retroactive

laws.

During the entire time that Ingrams

operated the Frenchville Site and until the

sale of their business in May of 1982, the

discharges emanating from the Frenchville

Site were in total compliance with

applicable state regulations. These

regulations, however, were rescinded on

July 31, 1982 and replaced with new, more

Stringent regulations. In 1988, DER issued

its Compliance Order, attempting to hold

Ingrams liable based upon the newer state

~26.-

en

regulations and with no consideration as to

whether Ingrams caused the discharges.

DER’s action clearly is a retroactive

application of the law because Ingrams have

been called to account for their previously

lawful conduct.’ Retroactive legislation

has not been favored by this Court:

" . . [R]etroactive legislation

does have to meet a burden not

faced by legislation that has

only future effects. ‘It does

not {oil0w . ' . that what

Congress can legislate

prospectively it can legislate

The Commonwealth Court of Pennsylvania wrongly

determined that the application of new state

regulations-to Ingrams past conduct was not a

retroactive application of the regulations.

"DQ rule has retroactive effect if

‘an act lawful at the time it was

done’ is ‘rendered unlawful and

the actor called to account for a

completed, now condemned deed in

the halls of justice.’ Ralis v.

RFE/RL, Inc., 770 F.2d 1121, Liz?

io.c. Gir. tes. In other

words, a retroactive rule is one

that alters the past legal

consequences of past actions.

Bowen [v. Georgetown University

Hospital, 488 U.S. 204, 219

(1988) (Scalia, J., concurring) ].

American Mining Congress v. United States

Environmental Protection Agency, 965 F.2d 759,

769 (9th Cir. 1992).

ks

retrospectively. The retroactive

aspects of legislation, as well

as the prospective aspects, must

meet the test of due process, and

the justifications for the latter

may not suffice for the former.’"

Pension Benefit Guaranty Corp. v. R. A.

Gray & Co., 467 U.&8. ‘Fit; (736423

Citing Usery v. Turner Elkhorn Mining Co.,

428 U.S. 1, 16-17 (1976).

The due process test which this Court

has applied to retroactive legislation is

that the retroactive effect of the rule

must be justified by a rational legislative

purpose and not be particularly arbitrary,

harsh or oppressive. Pension Benefit

Guaranty Corp., 467 U.S. at 730, 733. The

limits of due process are exceeded when the

retroactive effects of the law are "So

wholly unexpected and disruptive that harsh

and oppressive consequences follow... .."

Hazelwood Chronic & Convalescent Hospitals,

Inc. v. Weinberger, 543 F.2d 703, 708 (9th

-28-

Cir. 1976), vacated on other grounds, 430

U.S. 952 (1977).

In determining if the retroactivity is

unreasonable, arbitrary, harsh or

oppressive, the defendant’s reliance on the

pre-existing state of the law must be

considered. Marks v. United States, 430

U.S. 188, 195-196 (1977); Cox v. Louisiana,

379 U.S. 559, 571 (1965); Raley v. Ohio,

360 U.S. 423, 426 (1959). See also

Hochman, The Supreme Court and the

Constitutionality of Retroactive

Legislation, 73 Harv. L.R. 692, 727 (1960).

The justification for retroactive

legislation must also take into account the

possibility that the defendant acted in

~eliance on the law in place at the time of

the subject conduct and that the defendant

may have altered his conduct to reduce

liability if he had reason to anticipate

the future imposition of liability. See

Welch v. Henry, 305 U.S. 134, 147 (1938).

-29-

Applying this constitutional test to

the state regulations in this case leaves

little doubt that Ingrams’ right to due

process has been violated. First, as noted

above, it is undisputed that Ingrams relied

to their detriment on the state statute and

regulations extant at the time of their

mining operations. Clark Ingram testified,

without contradiction, that Ingrams relied

upon the statute and regulations, as well

as the representations and actions of DER

officials, in applying for mining permits

and conducting mining operations at the

Frenchville Site. He also affirmed that if

DER had advised Ingrams that they would be

held responsible for the pre-existing water

quality problems at the Site, regardless of

any effect their own mining had on the

water quality, Ingrams would not have

conducted mining operations at the Site.

Under Raley, Cox and Marks, this fact

weighs heavily against the

-30-

constitutionality of retroactive

application of the Clean Streams Law and

its Regulations.

DER’s attempt to retroactively apply

the law and their regulations. DER’S

attempt to apply new standards to Ingrams’

past conduct seeks to hold Ingrams

absolutely liable for conditions on the

prior mining site despite the absence of

evidence that Ingrams caused any of the

pollution. Imposition of strict liability

without causation is a departure from

traditional concepts of ldability under

tort law. W. P. KEETON, PROSSER AND KEETON ON

ToRTS § 75 (5th Ed. 1984).- Not only does

the Commonwealth Court of Pennsylvania

impose liability upon MIngrams_ without

fault, as in a typical "Strict liability"

case, but also the Commonwealth Court goes

one step further and imposes” strict

liability without causation. W. P. KEETON,

PROSSER AND KEETON ON ToRTS § 75 (Sth Edad.

-3]-

1984). The harsh effects of strict

liability without causation are clear

enough, but to impose such liability

retroactively with no fair warning of such

a departure from traditional legal concepts

is so harsh and oppressive as to offend due

process.

This Court has long recognized that

the Due Process Clause was intended to

protect the individual from the arbitrary

exercise of the powers of government.

Hurtado v. California, 110 U.S. 516 (1884).

By permitting DER to retroactively apply

Pennsylvania law and regulations, the

Commonwealth Court of Pennsylvania has

misinterpreted, misapplied and ignored

precedents of this Court regarding Ingrams'’

right to due process of law under Amendment

XIV, Section 1 of the United States

Constitution, and the Supreme Court of

Pennsylvania has failed to protect Ingrams’

constitutional rights by denying their

«$2.

Petition for Allowance of Appeal. Thus,

this Court should grant certiorari to

correct this manifest injustice.

CONCLUSION

For the reasons set forth above,

petitioners Clark R. Ingram, George M.

Ingram, Gary C. Ingram and Gregory B.

Ingram respectfully request that this

Petition for Writ of Certiorari be granted.

Respectfully submitted,

ROGER H. TAFT (Counsel of Record)

MARK J. SHAW

CRAIG R. F. MURPHEY

MacDONALD, ILLIG, JONES & BRITTON

100 State Street, Suite 700

Erie, Pennsylvania 16507-1498

(814) 870-7600

Attorneys for Petitioners

Dated: August 17, 1992

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