12 Pa. Commw. 212 | Pa. Commw. Ct. | 1974
Opinion by
This is an appeal filed by the Commonwealth of Pennsylvania, Department of Environmental Resources (DER) from an order of the Court of Common Pleas of Lawrence County (dated April 19, 1973) dismissing DER’s petition and rule to show cause why Pennsylvania Power Company (PPC) and Ray E. Semmler, President of PPC (Semmler), should not be adjudged in contempt of court. This case involves very important first impression questions of law concerning the enforceability of unappealed orders of a regulatory agency (and an order of court) where, in a contempt proceeding for noncompliance, there is a finding of impossibility of performance by a court.
After a complete study of this entire record and upon analysis of the many technical, scientific and engineering points contained therein, it was tempting to issue a per curiam opinion affirming the order of the court below based upon its excellent opinion. However, because of the additional emphasis placed by counsel in their briefs and in arguments before this Court on the legal question concerning the defense of impossibility of performance of a court order in a contempt proceeding, we believe it necessary to file a complete opinion disclosing the basis of our holding. In order to facilitate an understanding of that holding, it is necessary to set forth certain pertinent facts taken from the record and for the most part determined in the findings of fact of the court below.
PPC is a duly certified public utility rendering electric service to the public in western Pennsylvania. It owns and operates an electric generating plant in the Village of West Pittsburg in Lawrence County. The plant has a production capability of 430 megawatts utilizing five coal-fired steam boilers, which were installed between 1939 and 1964. Following the receipt of several complaints (some dating back to at
By agreement of the parties, the date for compliance was extended to September 1, 1973, and no further extensions were ever granted. Further conferences were held, with no concrete results. Thereafter, on January 12, 1972, DEE filed a complaint in equity in the Court of Common Pleas of Lawrence County praying for an order which would mandate compliance with the order of the Air Pollution Commission of January 11, 1973. Just two weeks after the filing
DER neither rejected nor accepted the application, nor did it request additional information or conferences concerning the application. Instead, on November 20, 1972, DER filed the petition for contempt which instituted the proceeding presently before this Court on appeal. In its complaint, DER set forth generally the facts noted above and prayed for “the incarceration” of Semmler “in a penal institution until such time that the Order of September 1, 1972 is complied "with by Penn Power” and the imposition of a fine of twenty-five thousand dollars per day against Penn Power and Semmler until said order was complied
In its appeal to this Court, DER challenges the power of the court below to consider the validity of its original order, when that order had never been appealed from and neither party has filed a motion to modify or dissolve the order. DER also challenges the power of the court to substitute its own judgment for that of DER in reviewing rules and regulations requiring minimum limitations on SO2 emissions. Additionally, DER contends that the evidence of record does not support the court’s conclusions that compliance with the orders of DER and the court (September 1, 1972) was impossible and that PPG had acted in good faith in filing its application.
Our scope of review is governed by the provisions of the Act of April 18, 1919, P. L. 72, §1, as amended, 12 P.S. §1165. Under these statutory provisions, we are directed to review the entire record to determine whether the court below abused its discretion or committed an error of law. In Commonwealth ex rel. McClintock v. Kelly, 307 Pa. 525, 161 A. 737 (1932), our Supreme Court discussed the similar predecessor act, Act of April 18, 1919, P. L. 72, 12 P.S. §1165, and found that it requires us in contempt cases to determine whether each finding of fact made by the court
The basic or controlling finding of the court below is that the order of court (dated September 1, 1972) ordering PPG to comply with the SO2 regulations of DEE was impossible of conformance. Although DEE presented testimony of witnesses who believed that in theory it was possible for PPG to construct equipment to meet and conform to the SO2 regulations, this testimony was weakened by vacillation during cross-examination and contradicted by the direct testimony of PPG’s witnesses, which the court below was required to evaluate. The record indicates that all of the SO2 control equipment, whether found in Japan, in other foreign countries, or in this country, was either (1) of a different size, which experience in the art proved to be significant, or (2) used a different fuel (usually low sulfur) not available to PPG, or (3) failed to produce the desired results, causing either abandonment of the project or extensive redesign and alteration, or (4) was experimental and not proven to be satisfactory at the date of the hearing. All of the technical witnesses seemed to be of the opinion that it would be necessary for a pilot project to be operated successfully for a period from six months to one year before the equipment could be said to be commercially available. The record also discloses another problem which the DEE witnesses seemed to say could be solved in theory, but which has not been solved in practice; and that is the disposition of the residue or sludge or sulfuric acids resulting from all of these SO2 removal and control devices. For example, the Japanese plant referred to in the record dumps its residues into a stream or the sea. Such disposal would
DER contends that the evidence of record does not support the conclusion of the court below that PPC acted in good faith in filing its application. According to DER, there are only two methods of complying with its SO2 regulations. They are (1) the use of low sulphur fuel or (2) the installation of a flue gas scrubbing device. The record certainly supports the conclusion of the court below that low sulphur fuel is not available to PPC. Recognizing that DER tried this case and wrote its briefs prior to the current energy crisis, it is still noteworthy that DER complained over PPC’s refusal to rely upon foreign oil supplies. Recent events certainly attest to the wisdom of PPC’s management and the court below in their concern about such foreign oil supply. Whether or not the court was correct in its observation that this case presents a classic example of the Peter Principle, the fact remains that one of the two methods suggested by DER is certainly not available to PPC. As already pointed out, the flue gas scrubbing devices suggested by DER are available in theory only, and are not available and proven from
There is another procedural aspect to this case which is puzzling to the Court. The lower court’s order in the injunction case dated September 1, 1972, refers to approval by the “Bureau” of the plan to be submitted by PPC. The record indicates that there was never any approval or disapproval communicated to PPC of the plan filed in October of 1972. The testimony of DEE in the contempt proceeding indicates that Eichard H. Zinn, who is the regional air pollution control engineer for Region 6 (which includes Lawrence County) is the employe of DEE who received the October 1972 application of PPC. There is nothing in this record
Although we conclude that PPG acted in good faith, we must at the same time mention the inappropriateness of the procedure followed by PPG in this case. A review of that procedure causes us to be very critical of the failure of PPC to contest the possibility of performance by way of an appeal from any of the DER orders. This tack created a dangerous risk; for if the court below had found that any method for reducing SO2 emissions from PPO’s smokestacks was possible to install, this Court would have had no alternative but to uphold the requested sanctions for contempt. The failure to take the administrative procedural protections available to a citizen from an order of a regulatory agency is not to be condoned. It was likewise questionable for PPG not to take an appeal from the order of court dated September 1, 1972, which ordered compliance with DER’s SO2 regulations. DER’s injunction petition requested enforcement of the particulate regu
A careful reading of the record shows that the court below was aware of the difficulties PPC faced in attempting to comply with the court order. The amended order of court of September 1, 1972, reads as follows:
“It appearing, as the result of briefs submitted and oral argument, that since the institution of this suit, the Commonwealth of Pennsylvania has enacted new regulations governing particulate matter emissions and relating to the control of sulphur dioxide, and it further appearing that the defendant, Pennsylvania Power Company, is willing to comply with the newly enacted regulations in these matters, it is now therefore Ordered, Adjudged and Decreed that:
(1) Within sixty (60) days from August 7, 1972, defendant [PPC] shall submit to the Bureau an application pursuant to the provisions of Title 25, Chapter 127, Section 11 of the Rules and Regulations for the construction or installation of air pollution abatement equipment at tis [sic] electrical generating station in Taylor Township to control particulate matter emissions and sulphur dioxide emissions to within the limits specified in Title 25, Chapter 123, Sections 11 and 22
(2) The air pollution abatement equipment in the above approved plan shall be installed and operating in compliance with a permit issued under Title 25, Chapter 127, Section 21 of the Bules and Begulations, by July 1, 1975.
It is further ordered that a Decree supplemental hereto shall be entered dealing with defendant’s responsibility to comply with the adjudication of the Air Pollution Commission dated January 11, 1971, in lieu of defendant being required to apply for a variance under Title 25, Chapter 141 of the Bules and Begulations.”
There was also a supplemental order of court, not specifically mentioned by DEB, which amended the above-quoted order. In the December 12, 1972 supplemental order, specific provisions were made restricting the type of fuel to be burned during specific periods. That order concludes with the following very interesting provision:
“5. Notwithstanding the provisions set forth in paragraph three above, if defendant’s compliance with the provisions of paragraph three above became impossible due to third-party inadequacies or third-party supplier's inability to supply materials necessary for defendant’s compliance, then during such periods, defendant may be excused from complete compliance herewith upon a proper showing to this Court.” (Emphasis added.) This supplemental order was, of course, issued subsequent to the filing of the petition for contempt, but before the first hearings on the contempt petition. The point is that in this supplemental order, the court below was conscious of the fact that it might be impossible to comply with some portions of its order.
At the argument before this Gourt, it was the position of DER that the courts should only look to determine whether there has been performance of an unappealed order of court. DER argues that if possibility of performance could have been raised at the hearing on the injunction, then this defense cannot be raised in a hearing for contempt because of failure to fully perform the order of the court. Counsel for DER quite frankly stated that the defense of impossibility of performance is not available to PPC in light of its failure to either appeal the original injunction order or to seek a modification of it. We find no merit in this argument. The purpose of sanctions in a civil contempt proceeding of this nature is “to coerce the defendant into compliance with the court’s order” and therefore in such a proceeding a court must consider “the probable effectiveness of any suggested sanction in bringing about the result desired”. Brocher v. Brocher, 429 Pa. 513, 521, 241 A. 2d 336, 339 (1968). To impose sanctions on PPG in an attempt to force it to perform an impossible act would be both meaningless and unjust.
The defense of impossibility of performance is available to a defendant in a contempt proceeding. It has
DER cites Bortz Coal Co. v. Commonwealth, 2 Pa. Commonwealth Cf. 441, 279 A. 2d 388 (1971) and Commonwealth v. Harmar Coal Co., 452 Pa. 77, 306 A. 2d 308 (1973) for the proposition that impossibility of performance is not a defense. Our review of these two cases permits us to conclude that this Court and our Supreme Court have held in those cases that the rules and regulations of DER must be reasonable. In neither of these cases did the respective companies challenge the reasonableness of the regulation as PPC has done in this case. Therefore, these cases are inapposite for DER’s purposes. DER’s reference to Borts and Harmar does raise a question in our minds, however, on where the lines must be drawn on constitutional rights and consistency. As the record specifically indicates in this case, under DER’s approach to PPC’s air pollution problems at West Pittsburg, the company was faced with only two alternatives. It either had to file an application as reasonably close to compliance as the art and technology permit or close the plant down. DER’s position in the coal mine and coke oven cases was to close them down. The practical end result of the Borts case was to put out of business all beehive coke ovens in the Commonwealth because the record showed that no such operation could comply. In this case, however, DER, for obvious reasons, does not suggest closing down an electric plant. Instead, DER seeks to place in jail the president of PPG and fine the company and its president twenty-five thousand dollars per day until such time as the engineers, technicians and other air pollution experts find a practical and operative solu
One remaining word on impossibility must be included, as it applies to the use of higher smokestacks by PPC to control SO2 emissions. PPC contends that this proposal was the only available practical solution which would meet as closely as possible the SO2 regulations of DEE. Although DEE contends that higher stacks will not meet fully the regulations of Section 22 (and the record fully supports that contention), the record supports the lower court’s findings and conclusions that under the present state of technology the higher stacks proposed by PPC in its October 1972 application are as close as PPC can come to compliance with such regulations.
In summary, because of the extraordinary importance of this case, we have expended considerable time reading and rereading this record together with the applicable law, and we can come to no other conclusion than that there is substantial evidence in the record to support all of the findings of the court below. Therefore, it did not abuse its discretion. Furthermore, the defense of impossibility was properly applied in the contempt proceeding, and therefore, the court below did not commit an error of law. We must affirm.