Appeal from the Order of the Environmental Hearing Board in case of In the Matter of: United States Steel Corporation, Homestead Works, Docket No. 71-062.
David McNeil Olds, with him Harley N. Trice, II, and Reed, Smith, Shaw & McClay, for appellant.
Barbara Brandon, Assistant Attorney General, with her Louis A. Salaman, Special Assistant Attorney General, and Richard S. Ehman, Special Assistant Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.
This is an appeal from an Order dated May 31, 1972 (as amended on June 1, 1972), issued by the Environmental Hearing Board (Board) assessing a "civil penalty" in the amount of $5,000 against the United States Steel Corporation (USS), the Board having concluded that USS had discharged from one of its facilities oils constituting industrial waste in violation of Sections 307 and 401 of The Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S.
§§ 691.307 and 691.401. On a date not ascertainable from the record in this case, the Bureau of Sanitary Engineering of the Department of Environmental Resources (DER) filed a complaint with DER praying for the assessment of a civil penalty against USS under the provisions of Section 605 of The Clean Streams Law (35 P.S. § 691.605) based upon an allegation that, on December 3, 1970, USS had discharged or permitted the discharge of industrial wastes, including great quantities of oil, from a sewer pipe discharge known as "outfall 3-28" into the Monongahela River, it being a navigable stream of the Commonwealth of Pennsylvania. It was alleged that the discharge was in violation of Section 307 of The Clean Streams Law (35 P.S. § 691.307) and also contrary to Article 600, Section 10 of the Rules and Regulations of DER. The complaint was served on USS on or about May 8, 1971. USS filed an answer denying the allegations, whereupon the matter was set down for a hearing before a hearing examiner appointed by DER. The hearing, which lasted only one day, was held August 25, 1971.
By coincidence, and as a matter of interest, we note that the Act of December 3, 1970, P.L. 834, No. 275, 71 P.S. §§ 510-1 et seq., which made so many changes in The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, 71 P.S. §§ 51 et seq., became effective on the same date that the alleged violation in this case was charged, namely December 3, 1970. On that date, the Legislature provided for a separate "Environmental Hearing Board" by virtue of Section 20 of Act No. 275 (71 P.S. § 510-21), in which section a hearing procedure was established, and under which DER could bring its charges against anyone alleged to be in violation of any of the Acts within the jurisdiction of DER. The Board was given the authority to make adjudications, together with the power to appoint hearing examiners. The Board, however, did not come into existence
until February 15, 1972, following the proclamation of the Governor, which day, of course, was subsequent to the hearing in this case. USS contends that somehow its right to due process was violated by virtue of its hearing having been conducted before a hearing examiner of DER prior to the time that the Board was established. As we recently said in the case of Pennsylvania Crime Commissioner v. Nacrelli, 5 Pa. Commonwealth Ct. 551 (1972), the real meaning of due process of law is found within the term "fairness".
The Legislature anticipated the problems which might arise during the transition period when so many of the administrative agencies were being reformed and regrouped, and it provided, in Section 35 of Act No. 275 (effective January 19, 1971) at 71 P.S. § 510-108(b), that: "All powers granted by this act to the Environmental Hearing Board shall be exercised by the Department of Environmental Resources until the Governor has issued his proclamation stating that the Environmental Hearing Board is organized and ready to perform the powers, duties and responsibilities granted to it by this act." The reason for this section is obvious; the Legislature realized that it could not hold all of such environmental problems in a hiatus or an undeclared moratorium until the Environmental Hearing Board was formally organized. It authorized DER to proceed as it had, under prior statutes. In view of the fact that the Board is specifically permitted to hold hearings through appointed hearing examiners, and did so in this case, we conclude that there has been no depletion of any rights under the theory of due process of law to USS in this case.
We have reviewed very carefully the entire proceeding and find that it was accomplished in a fair manner. USS was provided with all of the notices, opportunities and rights to which it was entitled in this case. ...