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COMMONWEALTH PENNSYLVANIA v. NEW ENTERPRISE STONE & LIME CO. (07/02/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 2, 1976.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES
v.
NEW ENTERPRISE STONE & LIME CO., INC., APPELLANT

Appeal from the Order of the Environmental Hearing Board in case of In the Matter of New Enterprise Stone & Lime Company, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources, No. 75-069-D.

COUNSEL

John J. Dirienzo, Jr., with him Joseph N. Cascio, and Fike, Cascio & Boose, P.A., for appellant.

Dennis J. Harnish, Special Assistant Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. Judge Kramer did not participate in the decision in this case.

Author: Blatt

[ 25 Pa. Commw. Page 391]

This is an appeal by the New Enterprise Stone & Lime Company, Inc. (New Enterprise) from an adjudication of the Environmental Hearing Board (EHB), dated June 18, 1975.

On August 25, 1971, the Department of Environmental Resources (DER) ordered New Enterprise to install air pollution control devices by April 1, 1974 on its equipment located at a certain limestone quarry in Jefferson Township, Somerset County, Pennsylvania. On April 15, 1974, however, New Enterprise and the DER entered into an agreement which extended the time for compliance with the DER order and further provided for a penalty of five hundred dollars for each week of operation after March 1, 1975 without compliance. Prior to March 1, 1975, New Enterprise requested the DER to modify the time for compliance contained in the agreement by granting another extension, which the DER refused to do,*fn1 and New Enterprise filed an appeal with the EHB on March 20, 1975. The issues were narrowed to whether or not the EHB had jurisdiction to review a refusal by the DER to modify its agreement with New Enterprise, and the EHB ruled that it did not have jurisdiction to review a dispute arising out of a DER "contract" (i.e., the agreement here concerned). We affirm the EHB adjudication insofar as it denied the appeal; we do so, however, on the basis that the DER's refusal to modify the agreement was not appealable.

We review EHB adjudications to determine whether or not constitutional rights were violated or an error of law committed and "[t]he [EHB] must

[ 25 Pa. Commw. Page 392]

    provide all of the procedural due process rights as set forth in the Administrative Agency Law." East Pennsboro Township Authority v. Department of Environmental Resources, 18 Pa. Commonwealth Ct. 58, 67, 334 A.2d 798, 803 (1975).

Section 1921-A of the Administrative Code (Code),*fn2 71 P.S. § 510-21, entitled "Environmental Hearing Board", provides inter alia, as follows:

"(a) The Environmental Hearing Board shall have the power and its duties shall be to hold hearings and issue adjudications under the provisions of the act of June 4, 1945 (P.L. 1388), known as the 'Administrative Agency Law' on any order, permit, license or decision of the Department of Environmental Resources.

"(c) Anything in any law to the contrary notwithstanding, any action of the Department of Environmental Resources may be taken initially without regard to the Administrative Agency Law, but no such action of the department adversely affecting any person shall be final as to such person until such person has had the opportunity to appeal such action to the Environmental Hearing Board; provided, however, that any such action shall be final as to any person who has not perfected his appeal in the manner hereinafter specified." (Emphasis added.) (Footnote omitted.)

It is clear that New Enterprise has not appealed from the order to abate air pollution, nor has it appealed any matter regarding a permit or a license. New Enterprise contends, however, that the refusal by the DER to modify the agreement constituted an appealable "decision" of the DER and that this refusal falls within the following definition of DER "action":

[ 25 Pa. Commw. Page 393]

"Any order, decree, decision, determination or ruling by the department or local agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any person, including, but not limited to, denials, modifications, suspensions and revocations of permits, licenses and registrations; orders to cease the operation of an establishment or facility; orders to correct conditions endangering waters of the Commonwealth; and orders to construct sewers and treatment facilities; and orders to abate air pollution; and appeals from the complaints for the assessment of civil penalties."*fn3

While we do not doubt that the DER can be said to have reached a decision not to modify its agreement with New Enterprise, we do not believe that such a decision, specifically one which does not result in any action being taken against a party and which does not, therefore, affect property rights, privileges, liabilities and other obligations, is an appealable "decision" within the concept of the statutory provision here involved. Cf. Standard Lime & Refractories Co. v. Department of Environmental Resources, 2 Pa. Commonwealth Ct. 434, 279 A.2d 383 (1971).*fn4 We note that, while the word "decision" is not defined in the Code, administrative agency laws generally refer to the term "decision", as including a determination which can be classified as quasi-judicial in nature and which affects rights or duties. 1 Am Jur 2d Administrative Law § 138. Here, the refusal

[ 25 Pa. Commw. Page 394]

    by the DER to modify the outstanding agreement with New Enterprise lacks the elements which would suggest that a "decision" had been made in the technical sense of the word because the rights and obligations of New Enterprise have not been altered.*fn5 We believe, therefore, that the DER's determination was not appealable and that the EHB properly dismissed the appeal, although perhaps for the wrong reason.*fn6 In view of this decision, we need not answer the questions raised by New Enterprise concerning a pre-hearing conference and access to the EHB. We, therefore, issue the following

Order

And, Now, this 2nd day of July, 1976, the adjudication of the Environmental Hearing Board, dated June 18, 1975, is affirmed insofar as it dismissed the appeal by the New Enterprise Stone & Lime Company, Inc.

Judge Kramer did not participate in the decision in this case.

Disposition

Dismissal order affirmed.


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