Opposition Brief — Ingram v. Pennsylvania Department of Environmental Resources

QUESTION PRESENTED

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TABLE OF CONTENTS

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Aa < i PAUL il

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State lent OF (he ( P

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Reasons tor D \ 4

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Cases Page(s)

American Mining Congress v. United States

Environmental Protection Agency, 965 F.2d

759 (9th Cir. 1992) 10

Bout \ City OF Ci umbia. 378 l S 347 (1964) 8

Clark v. Jeter, 486 U.S. 456 (1990 7

Commonwealth v. Barnes & Tucker Co., 455

Pa. 392, 319 A.2d 871 (1974) Q

Cox v. Louisiana, 379 U.S. 559 (1965) af, =

67. /lé ral Motors Ci rp \ Ri mei l S

112 S. Ct. 1105 (1992) | |

Hurtad \ California. 110 LS Sl¢ 1834 Y

Ingram v. Department of Environmental Resource

Pa , 607 A.2d 257 (1992) ae

Ingram v. Department of Environmental Resources

141 Pa. Commw. Ct. 324, 595 A.2d 733 (1991) >, © 7,

Marks v. United States, 430 U.S. 188 (1977) o 7,5

Pension Benefit Guar. Corp. \~ R.A. Gray & Co

467 U.S. 717 (1984) ll. 12

R & P Services, Inc. v. Department of Revenue,

116 Pa. Commw. Ct. 230. 541 A.2d 432 (1988) 6

Rabe v. Washington, 405 U.S. 313 (1972)(per curiam) s

Raley v. Ohio, 360 U.S. 423 (1959 6, 7,3

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United State North rn Pharm. & Chen

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{ nile d State . Constitution

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State Statute

Pennsylva Si |

Se ti j 4 ) Pa St ,

) 691.4 Purd )

State Regulations

25 Pa ou Q) ( )

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25 Pa. Code § 87.102(a 4

Other Authorities

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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,

COMMONWEALTH OF PENNSYLVANIA,

DEPARTMENT OF ENVIRONMENTAL RESOURCES,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

lO THE SUPREME COURT OF PENNSYLVANIA

RESPONDENT’S BRIEF IN OPPOSITION

Respondent, the Commonwealth of Pennsylvania, Department of

Environmental Resources, respecttully requests that this Court deny

the Petition for Writ otf Certiorari tiled by Petitioners Clark R

Ingram, George M. Ingram, Gary C. Ingram and Gregory B. Ingram

in this matte!

STATEMENT OF THE CASE

This case concerns three polluted discharges of acid) mine

drainage that flow into a stream trom a surtace coal mine in

Clearfield County, Pennsylvania that is Known as the “Frenchviile™

mine site.’ Two of the discharges emerge trom the ground at the

“toe of spoil,” the perimeter of the area that was excavated and later

replaced or “backtilled” during the mining operations. The third

discharge is emitted by an cutiet pipe ia sediment pond constructed

on the mine site. (Reproduced Record ("R.R.") 3764-3774, 4064,

4074-4094, 4124-4154, 4104, 4224-4258, 4264-4274, 4284)

In August, 1988.) Respondent. the Commonwealth — otf

Pennsylvania, Department of Environmental Resources

(“Department”), issued the Pediioners and two other parties an

administrative order directing them to treat the three discharges of

acid mine drainage that were emanating trom the Frenchville mine

site. The administrative order required that the treatment of the

discharges attain certain water quality standards, commonly referred

to as “effluent limits." set forth in a regulation that had been

promulgated in 1982 and coditied at 25 Pa. Code § 87.102. See 12

Pa. Bull. 2382. 2473. 2517 Guly 31, 1982). The administrative

order was purely remedial, ueposing neither criminal nor civil

sancuions against any of the recipients. No criminal or civil penalty

has been imposed against the Petitioners in the four years since the

Issuance Of the administrative ordes

Petitioners portray this case as one involving “pre-existing”

discharges of acid mine drainage upon which their mining operavions

had no impact whatsoever. The evidence presented during a five

day hearing betore the administrative tribunal below, the

Pennsylvania Environmental Hearing Board, presents quite a different

picture. Petithoner Clark Ro Ingram testitied that the partnership

formed by him and his three sons removed between 50,000 and

100,000 tons of coal trom the Frenchville surface mine. (RR. 3464)

Hos indisputable that ke the village trom which at derives ats name, the

Frenechville mine site is located im Clearfield County, not, as the Petitioners state

Clarion County (Petition, p 6)

In doing so, Petitioners disturbed an area covering 27 acres. (R.R

E106) These coal removal operations took place in the “recharge

area’ for the three discharges at issue, that is, the surface area trom

which the cited discharges obtain their flow. (RK R. 4594) The

Petitioners also physically attected all three of the cited discharges

hey built the sediment pond that emits one of the discharges, and

they attempted to seal the two “toe of spoil” discharges by burying

them under mine spoil~ and topsoil. (RR. 3474, 3784-3804, 3984

3994)

The Petitioners’ Statement of the Case does not mention that the

Petitioners continue to hold the only mining permits that) the

Department ever has issued tor the Frenchville site. When the

Petitioners applied tor those permits in 1976, a Department mine

Inspector examined the proposed mine site and its vicinity. The

Inspector reported tinding three “spring discharges” on the site, but

he did not attribute them to prior mining activity. To the contrary,

the inspector wrote on his pre-mining inspection report that “[s]trip

mining at this proposed operation will be in area where no previous

strip mining was done,” and added that he “could not find any

indication of there having been deep mining in this area.” (R-R

EIIS-EII9) Later that same year, the Department issued the

Petitioners two permits pertaining to the Frenchville mine site. The

Petitioners’ partnership is the only party that ever has been listed a

the permittee on those two permits, which remain in effect today

(RR. 2854)

The mining permits governing the Frenchville site contain a

number of “special conditions.” The only one of these conditions that

pertains to ‘pre-existing’ discharges provides that) “[y|ravity

drainages, encountered trom previous mining, shall be treated to

neutrality until eliminated.” (R-R. E21) A separate special condition

In that Same permit applies specifically to sediment ponds. It requires

that “JaJny discharve trom settling basins desiyned tor siltation below

REASONS POR DENYING THE WREI

Ihe Federal Questions Presented tb the Petition Were Nol

Raised and Passed Upon by the State Courts Below

the Fourteenth Amendment to the United States Consgitution or due

process. (Appendix, pp. A-1i through A-1T5) ;

Petitioners have abandoned the doctrines of equitable estoppel and

laches. Instead, they contend in Section | of the Petition, tor the

very first time, that requiring them to remove pollutants from the

Frenchville mine discharges contlicts with this Court’s decisions in

Marks v. United States, 430 U.S. 188 (1977), Cox v. Loutstana, 379

U.S. 559 (1965), and Raley v. Ohio, 360 U.S. 423 (1959). Without

doubt, this issue was not properly preserved tor review.

The Petitioners did not cite a ying/e decision of this Court in

either the opening briet or the reply briet that they submitted to the

Commonwealth Court of Pennsylvania. In light of this fact, the

Petitioners Show unbelievable hubris in accusing the Commonwealth

Court of having “misinterpreted, misapplied and ignored precedents

of this Court). (Petition, p. 32) The Petitioners now claim that the

Commonwealth Court’s ruling was plainly at odds with Marky, Cox,

and Raley, yet they cited none of those three decisions in the 46-page

Petition tor Allowance of Appeal that they submitted to the Supreme

Court of Pennsylvania.” Nevertheless, the Petitioners have the

audacity to accuse the Supreme Court of Pennsylvania of having

"ivnored” the three decisions that the Petitioners themselves did not

cite. (Petition, p. 19) 7

The second issue that the Petitioners raised betore the

Commonwealth Court, retroactivity, had two components. The first

component was the contention that the Department had applied the

mine discharge regulation, 25 Pa. Code § 87.102, retroactively.

Invoking the strong presumption under Pennsylvania law against

retroactive application of regulations, ¢ 2, R & P Services, Inc. v.

Department of Revenue, 116 Pa. Commw. Ct. 230, 234-35, 541 A.2d

432. 434 (1988), the Petitioners asserted that) a retroactive

4 ‘ ,

Phe only decision of this Court that the Potihnoners cited below was the

century-old case of Hartade v California, 110 US S16 (1884), which they cited

mm thea Petition tor Allowance of Appeal io the Supreme Court of Pennsylvania to

support the rudimentary proposition that “[tfhe United States Supreme Court has

lo “ recovnized thiat the chet PROCESS CHISE 4 tthe Pourtecoth Amendment of the

United States Constitution was intended to protect the individual from the arbitrary

excremse of tlie powers of voverunent ” (Appendix, pp A Bl through A 82)

t

6

not constitute retrodcu ap] il le Law d

Department of Environmental Resource l4] Pa. Commw. Ct. 324

332, 595 A.2d 733, 737 (L99T Appendix, pp. A-IS through A

Ihe Supreme Court of Pet ania declined to review that

letermination. /ngran Deparimes f | ronmental Resource

Pa 607 A.2d 25 199 Cf Clark Jeier, 486 US. 45

400 (1990)(determination of whetl Pennsylvania Statute applied

Ul iCll | Was Matter ob Stal ba Ih MUTTS DelOW HEP tS did

not reach the issue of whell retroacl ipphication of the min

hscharge regulavion satisties Ue due pl taundard of turtherimy

4 legitimate legislative purpose through rational means. Petione!

ter no compelling reason why this Court should decide a ue thal

the courts below tound no need to addi

The Decision of the Commonwealth Court of Pennsylvania

Upholding a Purely Remedial Administrative Order Does Not

Decisions in| Marks, Cox, and

Conflict With This Court's

Raley

raising due process concerns to their pinnacle.> In contrast, the

administrative order at issue in this case is purely remedial -- it

merely requires the Petitioners to remove pollutants trom the three

Frenchville mine discharges. Not only have no criminal charges been

tiled against the Petitioners, the Commonwealth of Pennsylvania has

not even sought to impose civil penalties against them. And unlike

Marks, Cox, and Raley, this case involves purely economic activity,

which evokes minimal due process scrutiny. See Usery v. Turner

Elkhorn Mining Co., 428 U.S. 1, 19 (1976)(citing Williamson v. Lee

Optical Co., 348 U.S. 483, 488 (1955)).

Petitioners’ assert that they were “entrapped” because they

believed that water quality standards found in a regulation that was

rescinded in 1982 would forever govern any discharges from the

Frenchville mine. But the permit conditions quoted in the Statement

ot the Case (pp. 3-4, above) gave Petitioners ample warning that they

could be required to treat discharges trom the Frenchville site “to

neutrality until eliminated.” Furthermore, one of the leading

decisions in Pennsylvania environmental law, Commonwealth v.

Barnes & Tucker Co., 455 Pa. 392, 319 A.2d 871 (1974), which

was Issued two years before mining began at the Frenchville site,

clearly torewarned Petitioners that even after the operations at a mine

ceased, discharges trom the mine would have to satisfy newly-enacted

water quality standards. /d., 455 Pa. at 393-403, 416-18, 319 A.2d

at 873-77, 884-85 (Fourteenth Amendment did not preclude

Commonwealth trom applying 1970 statute to discharge from

underground mine that had been closed and properly sealed in 1969).

So warned, the Petitioners could in no sense have been "entrapped"

by the Commonwealth ot Pennsylvania.

> . ‘ ‘

Two other decisions of this Court cited in Section | of the Petition

similarly involve cruminal prosecutions for conduct that implicates specific

constutuuionai rights See Rabe vo Washington, 405 US. 313 (1972)(per

curiam (prosecution under obscenity statute for exhibition of motion picture), Boute

v. Cuy of Columbia, 378 U.S 347 (1964)(prosecution for criminal trespass arising

from sit-in protest against refusal lo serve blacks in drug store restaurant)

ro,

Ili. Issuing the Current Permittee of a Surface Mine an Order

that Applies a Regulation Promulgated in 1982 to Mine

Discharges Existing in 1988 is not an Unconstitutionally

Retroactive Application of the Law.

A. The 1988 Administrative Order Did Not Apply the Law

Retroactively.

The Department’s 1988 administrative order cited the three

Frenchville site discharges tor being in violation of the effluent limits

isted in Section 87.102 of the regulations governing surface coal

mining in Pennsylvania, 25 Pa. Code § 87. 02 ° Section 87.102 was

promulgated in 1982 as part of the Department’s successtul effort to

obtain primary jurisdiction over surface mining in Pennsylvania trom

the United States Department of the Interior. By its terms, Section

87.102 applies only prospectively to discharges, like those cited in the

1988 administrative order, existing on or after its effective date of

July 31, 1982. See 12 Pa. Bull. 2382, 2473, 2517 (July 31, 1982).

It is weil settled that "Ja] statute is not rendered retroactive

merely because the facts or requisites upon which its subsequent

action depends, or some of them, are drawn trom a time antecedent

to the enactment." Reynolds v. United States, 292 U.S. 443, 449

(1934). In this case, the Department need only point to present tacts

and conditions to support its applicatiomot Section 87.102

The Department has not, as the Petitioners claim, applied 4 new

regulation to past mining operations. Rather, the Department has

required the current permit: holders, the Petitioners, to treat

discharges that current/y are emanating trom the Frenchville mine so

that those discharges comply with the current regulations governing

The CAXCCT] Stl Si ns LOL ire bol’ L pages A-74 A -7€

c Appe Wx | Py M Cer irc Irom the Versio ol He

of 8 ion tha MAS In Clicc ante the d Stralive ler was issucd 1 1988

Amen Iments to the regulation wen lect roughly one year ago upon their

approval by the United States Department of Interior See 20 Pa Bull 3383, 3413

14 (June le L99VO)(text Of amendments 2) Pa. Ball 3316, 3321 (July =e

199] iettective dale These amendments do not maternally alter the efflucnt limits

that were cited the 1988 ] % n

discharges trom surface mines. The tact that the present discharges,

and not past mining operations, are the focus of concern is

conclusively demonstrated by the fact that if the discharges either did

not exist or met the current effluent limits, the 1988 administrative

order simply would not have been issued,

The analysis of this issue by the Commonweaith Court of

Pennsylvania was right on the mark. Finding that "[t]he stream

pollution which emanates trom the Frenchville site formerly mined

by the [Petitioners] is a continuous and ongoing occurrence,” the

Commonwealth Court held that the Department's 1988 administrative

order was not an attempt to apply the law retroactively but rather an

application of “current regulations to a current violation,, ;° Ingram,

141 Pa. Commw. Ct. at 332, 595 A.2d at 737. Other courts

similarly have held that environmental laws, like the regulation at

issue here, that require correction of current, harmful conditions are

not retroactive even if the acts giving rise to the conditions took place

betore the law went into effect. See, e.g., American Mining

Congress v. United States Environmental Protection Agency, 9O5

F.2d 759, 769-70 (Sth Cir. 1992) (new regulations governing storm

water discharges trom inactive mines are not retroactive because they

do not penalize Owners of inactive mines for either past mining

activities or contaminated discharges that occurred in the past);

United States v. Northeastern Pharm. & Chem. Co., Inc., 810 F.2d

726, 741 (8th Cir. 1986)(Resource Conservation and Recovery Act

"is not retroactive because it imposes liability for the present and

future conditions resulting trom past acts")(emphasis in original),

cert. denied, 484 U.S. 848 (1987).

B. Any Retroactive Effects of the 1988 Administrative Order

Satisfy the Constitutional Standard of Furthering a

Legitimate Legislative Purpose Through Rational Means.

Even if they have retroactive etfects, laws "adjusting the burdens

and benefits of economic lite come to the Court with a presumption

- of consUtutionality” that can be overcome by one comnlairine of a

due process violation only by proving that the lawmaker cted

In. an arbitrary and irrational way.” Turner Elkhorn, 428 U.S. at 15

10 -

Such a law is not unconstitutional "solely because it upsets otherwise

settled expectations,” even it it does so by “imposfing] a new duty or

liability based on past acts." /d. 428 U.S. at 16 (citations omitted).

Although retroactive civil legislation may violate due process if it is

"harsh and oppressive,” Welch v. Henry, 305 U.S. 134, 147 (1938),

this Court has made it clear that the “harsh and oppressive" standard

“does not ditfer trom the prohibition against arbitrary and irrational

legislation that [was] clearly enunciated in Turner Elkhorn." Pension

Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 733 (1984).

Under this standard, retroactive application of a civil law satisfies

due process if “a legitimate legislative purpose [is] furthered by

rational means." General Motors Corp. v— Romein, U.S

112 S. Ct. 1105, 1112 (1992)(citing Gray, 467 U.S. at 730).

Petitioners have made no ettort to) demonstrate that any

retroactive effects of the application of the Section 87.102 effluent

limits in this case cannot be “justified by a rational legislative

purpose.” Gray, 467 U.S. at 730. One ot the statutes pursuant to

which Section 87.102) was promulgated, Pennsylvania’s Clean

Streams Law,” has as one ot its stated objectives “not only to prevent

further pollution of the waters of the Commonwealth, but also to

reclaim and restore to a clean, unpolluted condition every stream in

Pennsylvania that is presently polluted." Pa. Stat. Ann. tit. 35,

§ 691.4(3) (Purdon 1977). It cannot be gainsaid that the 1988

administrative order, which requires the removal of pollutants from

mine discharges that flow into streams in Pennsylvania, serves this

rational, laudable legislative purpose

Given that the prevention and elimination of stream pollution are

legitimate legislative objectives, the only remaining question is

whether the Department has sought to achieve those objectives in a

rational manner. Romein, 112 S. Ct. at 1112; Turner Elkhorn, 428

U.S. at 18-19. In this case, the Department has placed the

responsibility tor treating the discharges emitted by the Frenchville

mine upon a party that extracted between 50,000 and 100,000 tons of

coal trom the mine, physically attected all three discharges during its

See 12 Pa Bull 2473 Guly 31, 1982)(histing statutory autherity for

promulgation Ot surlace coal PLATE? POS ULAEONS )

mining Operations, and continues to hold the only mining permits

ever issued for the site. In so doing, the Department cannot be said

to have “acted in an arbitrary and irrational way." /d. at 15. As a

result, even if it is thought to place burdens upon the Petitioners’

mining retroactively, the Department’s 1988 administrative order

sausties the requirements of due process. See Gray, 467 U.S. at

733

CONCLUSION

For the reasons presented above, the petition tor a writ of

certiorart Should be denied

Respecttully submitted,

DIEENNIS W. STRAIN (Counsel of Record)

KURT J. WEIST

MARTIN H. SOKOLOW, JR

WILLIAM J. GERLACH

Third Floor City Towers

301 Chestnut Street

Harrisburg, PA) 17101-2702

(717) 787-8790

Counsel fol Respondent

DATED: September 1&8, 1992

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