Pennsylvania Dep't of Envtl. Resources v. Pennsylvania Power Co.
ELR Citation: ELR 20433 No(s). 543 C.D. 1973 (Pa. Commw. Ct. Feb 28, 1974)
The Department of Environmental Resources (DER) unsuccessfully challenges through contempt proceedings that failure of the Pennsylvania Power Co. (PPC) to meet regulations stipulating acceptable levels of sodium dioxide (SO2) emissions. The Commonwealth Court finds that to hold PPC in contempt would be unjust because adequate performance with the regulations is impossible. Of the two possible means of complying with SO2 regulations, using low sulfur fuels is not viable given that such fuel is unavailable and has been made less available by the current oil shortage, while installing a flue gas scrubbing device is neither a proven method for decreasing SO2 emissions nor economically feasible. PPC's failure to contest the DER orders would leave it subject to a contempt citation if there was any possible way of complying with those orders, but the fact of impossibility along with PPC's demonstration of good faith constitutes a defense in a civil contempt proceeding.
Counsel for Plaintiffs-Appellants
Marvin Fein
709 Health and Welfare Bldg.
Harrisburg, PA 17120
Counsel for Defendants-Appellees
William R. Balth Jr.
620 Lawrence Savings and Trust Bldg.
New Castle, PA 16101