# Opposition Brief — Ingram v. Pennsylvania Department of Environmental Resources

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 918

## Text

QUESTION PRESENTED

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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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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

y_

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1179%3A3. Public record. Not legal advice.