Appeal from the Order of the Environmental Hearing Board in case of In the Matter of: Sharon Steel Corporation, Docket No. 75-150-C.
John McN. Cramer, with him Kerry Aline Kearney, and Reed, Smith, Shaw & McClay, for appellant.
Richard S. Ehmann, Assistant Attorney General, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. Dissenting Opinion by Judge Wilkinson. Judge Kramer joins in this dissent.
[ 28 Pa. Commw. Page 609]
The Sharon Steel Corporation (Sharon) operates a basic steel producing facility located at Farrell, Pennsylvania. In order to discharge waste water into the nearby Shenango River, Sharon applied for and received a number of industrial waste permits from the Pennsylvania Department of Environmental Resources (DER), which is authorized to issue such permits under The Clean Streams Law.*fn1 Three such permits were issued in the period between March 1972 and August 1973, each containing limitations as to the amounts and types of industrial wastes that could be discharged into the river.
Under Section 402 of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1342, Sharon was subsequently required to obtain a National Pollutant Discharge Elimination System (NPDES) permit from the United States Environmental Protection Agency (EPA) in order to continue its industrial discharge into the river. Pursuant to Section 401(a)(1) of the FWPCA, and as part of the permit application process, Sharon was required to furnish EPA with a certification from the State that the discharge would comply with the requirements of the FWPCA and all relevant State requirements.
On October 29, 1974, DER issued its certification for Sharon's NPDES permit to the EPA, which incorporated the permit conditions previously placed by DER on Sharon's permits obtained pursuant to The Clean Streams Law.
On June 16, 1975, Sharon filed an appeal with the Environmental Hearing Board (Board) from the conditions contained in the certification. DER filed a motion to quash the appeal as untimely. DER also
[ 28 Pa. Commw. Page 610]
filed a petition to quash the appeal arguing that Sharon was now estopped from appealing these conditions because it had failed to appeal when they were initially imposed. The Board heard argument, considered briefs filed by the parties and subsequently issued an adjudication dealing primarily with DER's petition to quash, ordering that the portion of Sharon's appeal concerning the discharge conditions imposed in the Clean Streams permit be quashed. This appeal followed.
Our scope of review of an adjudication of the Environmental Hearing Board is limited to a determination of whether or not constitutional rights were violated, an error of law was committed, or whether findings of fact are supported by substantial evidence. See Department of Environmental Resources v. New Enterprise Stone & Lime Co., Inc., 25 Pa. Commonwealth Ct. 389, 359 A.2d 845 (1976). We believe that the Board here committed an error of law in not determining whether or not Sharon's appeal had been timely filed. We must, therefore, reverse and remand for a hearing on the matter.
Section 21.21 of the Rules of Practice and Procedure of the Department of Environmental Resources, 25 Pa. Code § ...