Appeal from the United States District Court for the Western District of Pennsylvania (District Court Misc. No. 6132); On Petition for Writ of Mandamus to vacate an Order staying Grand Jury Proceedings.
Van Dusen, Adams and Hunter, Circuit Judges.
This is an appeal from a district court's order staying all further proceedings before a federal grand jury pending a final judgment in a civil contempt action brought against the United States Steel Corporation by state and county officials in a Pennsylvania state court. Because we conclude that the district court erred in granting the stay, we vacate that stay and remand for such further proceedings as may be required consistent with this opinion.
The roots of the instant controversy are, to a great extent, found in a September 25, 1972, consent decree entered in an action by the Commonwealth of Pennsylvania and Allegheny County against United States Steel Corporation (U.S. Steel) in the Court of Common Pleas of Allegheny County.*fn1 The consent decree modified earlier state and county limitations on emission of particulate matter and sulfur oxides from the coke ovens of U.S. Steel's Clairton, Pennsylvania Coke Works. While the United States was not a party to the consent decree, it subsequently approved the emission standards on March 22, 1973 as a revision of Pennsylvania's Clean Air Act Implementation Plan.*fn2 Thereafter, these standards became federally enforceable under section 113 of the Clean Air Act, 42 U.S.C. § 1857c-8.*fn3
On March 27, 1973, the Commonwealth of Pennsylvania and Allegheny County instituted a civil contempt action against U.S. Steel for failure to comply with the limitations set forth in the consent decree.*fn4 In that action, U.S. Steel asserted that the limitations were technologically impossible of achievement and asked the state court to modify the September 25, 1972, consent decree by adopting new coke oven door emission standards. The state action was still pending at the time the district court entered its stay on March 6, 1975.*fn5
Pursuant to section 113 of the Clean Air Act, 42 U.S.C. § 1857c-8, on November 8, 1973, the United States Government issued notices to U.S. Steel of violation of emission limitations and compliance schedules contained in the federally approved Pennsylvania Clean Air Act Implementation Plan, as modified by the September 25, 1972, consent decree. The federal grand jury here involved was empanelled on October 22, 1974, for an 18-month term, to investigate the possible criminal violations of the Clean Air Act, 42 U.S.C. § 1857 et seq., by U.S. Steel at its Clairton Works. On November 27, 1974, subpoenas duces tecum were served by the Government on sixteen employees and executives of U.S. Steel. The subpoenas directed the sixteen individuals to appear before the grand jury and ordered them to produce numerous documents relating primarily to the level of smoke emissions from the coke oven doors at the Clairton Works.
U.S. Steel produced the requested documents on January 7, 1975*fn6 but continued to resist those parts of the subpoenas that required the appearance of the U.S. Steel employees before the grand jury.
A hearing was set for February 3, 1975 by the district court on U.S. Steel's motion to "modify, limit or quash" the subpoenas or to stay the grand jury proceeding pending a final judgment in the state civil contempt action. The asserted bases for U.S. Steel's motions were that:
1) the prior pending state proceedings were a bar to simultaneous federal enforcement of the coke oven door emission standards;
2) the Government refused to comply with the requirements established by this Court in Schofield I*fn7 and II*fn8; and
3) prejudicial publicity allegedly initiated by the Government's actions foreclosed impartial ...