Appeal from the Order of the Environmental Hearing Board in case of In the Matter of: Wheeling-Pittsburgh Steel Corporation v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 74-279-C.
John McN. Cramer, with him Kerry Aline Kearney, and Reed, Smith, Shaw & McClay, for appellant.
Ward T. Kelsey, Assistant Attorney General, for appellee.
Judges Wilkinson, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.
[ 27 Pa. Commw. Page 357]
In this appeal by Wheeling-Pittsburgh Steel Corporation (Wheeling), the sole question presented is whether the Environmental Hearing Board (Board) properly quashed Wheeling's appeal from the issuance of a so-called certification letter by the Department of Environmental Resources (DER).*fn1 Wheeling concedes that the filing of its appeal with the Board was not timely. It asserts, however, that the Board erred in not granting leave to appeal nunc pro tunc, asserting that DER afforded it no notice of its right to appeal. We believe that the Board's action was not improper and will affirm.
Under Section 402 of the Federal Water Pollution Control Act, 33 U.S.C. § 1342 (FWPCA), Wheeling was required to obtain a National Pollutant Discharge Elimination System (NPDES) permit from the Environmental Protection Agency (EPA) in order to discharge waste water from its works at Monessen into the Monongahela River. Section 401 of the FWPCA, 33 U.S.C. § 1341, requires that an application for a NPDES permit must be accompanied by a certification from the state in which the discharge will occur, that the discharge will comply with certain requirements of the FWPCA, and also any additional state requirements found necessary or desirable. On October 21, 1974, DER issued its certification for Wheeling's NPDES permit to the EPA, which specified certain effluent limitations for the Wheeling facility.
On November 15, 1974, DER sent a copy of the certification to Wheeling, which received it on November 20, 1974. The certification was accompanied by a cover letter which stated that:
[ 27 Pa. Commw. Page 358]
Attached is the Commonwealth's response to a request from the Environmental Protection Agency for certification of your proposed NPDES permit.
If you have any questions, feel free to contact this office.
On or about December 3, 1974, Wheeling received its NPDES permit from the EPA. Pursuant to the applicable EPA regulations, Wheeling filed a timely appeal with the EPA, challenging, inter alia, certain of the effluent limitations submitted by DER and incorporated into the permit. On December 26, 1974, thirty-six days after receiving notification of DER's certification, appellant filed its appeal with the Environmental Hearing Board, seeking review of some of the conditions contained in the certification. The Board quashed the appeal because it was filed after expiration of the thirty-day period for appeal imposed by Section 21(a) of Chapter 21 of the Rules of Practice and Procedure of the Department of Environmental Resources, 25 Pa. Code § 21.21(a). This appeal followed.
Appellant argues that the Board acted improperly in failing to grant its request for leave to appeal nunc pro tunc because the DER gave it inadequate notice that the certification was an appealable order. Section 21.21(e) of the Board's Rules states that requests for leave to appeal nunc pro tunc shall be decided in accordance with "the common ...