Standard Lime & Refractories Co. v. Department of Environmental Resources

• Decision Date: 08 July 1971
• Citation: 279 A.2d 383,2 Pa.Cmwlth. 434
• Parties: , 2 ERC 1752 STANDARD LIME & REFRACTORIES COMPANY, Appellant, v. DEPARTMENT OF ENVIRONMENTAL RESOURCES, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 383

279 A.2d 383

2 Pa.Cmwlth. 434, 2 ERC 1752

STANDARD LIME & REFRACTORIES COMPANY, Appellant, v. DEPARTMENT OF ENVIRONMENTAL RESOURCES, Appellee.

Commonwealth Court of Pennsylvania.

July 8, 1971.

Miles J. Gibbons, Jr., Morgan, Lewis & Bockius, Harrisburg, for appellant

Morris J. Solomon, Asst. Atty. Gen., Dept. of Environmental Resources, Harrisburg, for appellee.

Before KRAMER, WILKINSON, and MENCER, JJ.

OPINION

KRAMER, Judge.

This matter is before this Court arising out of refusal by letter of the Acting Secretary of the Department of Environmental Resources to grant an appeal (also presented by way of a letter) to the Environmental Hearing Board from another letter from the Director of the Division of Abatement and Compliance of the Bureau of Air Pollution Control, stating that a timetable (explained hereinafter) was unacceptable, and that the matter was being referred to the Office of Legal Counsel.

For purposes of this opinion, this matter commenced with an Abatement Order dated April 23, 1969, of the Department of Health (predecessor to the Department of Environmental Resources for Air Pollution Control), which was issued to Standard Lime and Refractories Company (appellant). The abatement order stated, in pertinent part:

'(1) that the Standard Lime and Refractories Company shall, on and after May 1, 1970, reduce the particulate matter emissions from operations * * * to such a rate as shall not exceed the limit set forth in section 1.3 of the Air Pollution Commission regulation IV.

(2) that the Standard Lime and Refractories Company shall, on or before June 30, 1969, submit to the Department of Health a plan setting forth the procedure to be used to comply with paragraph (1) of this Order. The plan is to contain:

(a) a detailed description of the methods or devices to be used to control the trol the air pollution.

(b) a statement indicating that bimonthly progress reports will be submitted to the Department of Health commencing on September 1, 1969.'

This order was amended on May 15, 1969, as follows: (1) the final compliance date was extended from May 1, 1970, to December 31, 1970; (2) the date for submitting compliance schedule was extended from June 30, 1969, to December 19, 1969; and (3) the date for commencement of bimonthly progress reports was extended from September 1, 1969, to February 1, 1970. No appeal was taken from the abatement order or its amending order.

By letter dated January 15, 1970, the Department of Health granted a further extension for the time to submit a compliance plan to October 1, 1970. On September 21, 1970, appellant sent to the Department of Health documents which it asserts was full compliance with the orders of the Department of Health. Divis

On December 29, 1970, the Director of the Division of Abatement and Compliance, Bureau of Air Pollution Control, Department of Health, notified the appellant that the timetable which had been submitted with the letter of September 21, 1970 (mentioned above) of the appellant was 'unacceptable', and that the matter was being forwarded to the Office of Legal Counsel for the Department of Health. By letter dated January 21, 1971, appellant appealed to the Environmental Hearing Board for a hearing on this matter, and by letter of February 4, 1971, the Acting Secretary of the Environmental Resources Department advised the appellant that the attempted appeal was not valid because it was not filed within the thirty-day appeal period following the original abatement order. This letter also advised appellant that the matter was being referred to the Office of Legal Counsel. On March 5, 1971, the appellant filed its appeal with this Court on the basis that it was denied a hearing and that the letter of the Acting Secretary dated February 4, 1971, as mentioned above, was an adjudication through which the appellant had been aggrieved.

On April 5, 1971, the Department of Environmental Resources (appellee) filed a motion to quash the appeal, which is the specific matter upon which this Court must now rule. From a practical standpoint, the appellant is requesting this Court to order the Department of Environmental Resources to grant appellant a hearing on an appeal before the Environmental Hearing Board.

We should first point out that all of the provisions of the Air Pollution Control Act, including the Air Pollution Commission in the Department of Health, were transferred to and continued by the Department of Environmental Resources under the Environmental Resources Act, Act of December 3, 1970, P.L. ---, Act. No. 275.

Since the Department of Environmental Resources is subject to the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, 71 P.S. 1710.1, et seq., we will look to that statute to determine the possible basis upon which the appellant may appeal to this Court. Section 41 of that Act (71 P.S. 1710.41) provides:

'Within thirty days after the service of an adjudication * * * any person aggrieved thereby who has a direct interest in such adjudication shall have the right to appeal therefrom. * * *'

Under 'definitions' in Section 2 of that Act (71 P.S. 1710.2) we find:

"Adjudication' means any final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities or obligations of any or all of the parties to the proceeding in which the adjudication is made, but shall not mean any final order, decree, decision, determination or ruling based upon a proceeding before a...