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decided: March 2, 1982.


Appeal from the Order of the Environmental Hearing Board in the case of In the Matter of: United States Steel Corporation v. Commonwealth of Pennsylvania, Department of Environmental Resources, EHB Docket No. 79-154-B.


John McN. Cramer, with him Robert W. Thomson and Stephen K. Todd, Reed, Smith, Shaw & McClay, for petitioner.

Maxine Woelfling, Assistant Attorney General, for respondent.

President Judge Crumlish, Jr. and Judges Blatt, Williams, Jr., Craig and MacPhail. Opinion by Judge MacPhail. Judge Palladino did not participate in the decision in this case.

Author: Macphail

[ 65 Pa. Commw. Page 104]

United States Steel Corporation (Petitioner) appeals from an adjudication and order of the Environmental Hearing Board (EHB) dismissing Petitioner's appeal from an order of the Environmental Quality Board (EQB) adopting amendments to regulations establishing water quality standards for Commonwealth waters. We affirm.

By order dated August 21, 1979, the EQB adopted amendments*fn1 to 25 Pa. Code Chapters 93, 95 and 97 relating to water quality standards, wastewater treatment requirements and industrial wastes, respectively. The order provided an effective date of October 8, 1979. 9 Pa. B. 3051 (1979). On October 9, 1979 Petitioner filed an appeal with the EHB challenging the amendments as being arbitrary, capricious and unreasonable for eight stated reasons.*fn2 The Department of Environmental Resources (DER) subsequently filed a motion to quash on the ground that the EHB lacked jurisdiction to hear the appeal. The EHB granted the motion, concluding that it has no jurisdiction to review an action of the EQB and that the promulgation of regulations by an administrative agency is not an appealable event.

Petitioner presents three arguments in its appeal to the Court: 1) that an order issued by the EQB is an order of DER subject to the EHB's jurisdiction; 2) that an order adopting regulations by the EQB is a reviewable

[ 65 Pa. Commw. Page 105]

    event; and 3) that the refusal of the EHB to review the EQB action deprives Petitioner of an adequate remedy at law. Section 1921-A(a) of The Administrative Code of 1929 (Code), Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 510-21(a) provides that:

The Environmental Hearing Board shall have the power and its duties shall be to hold hearings and issue adjudications under the provisions of . . . the 'Administrative Agency Law,' on any order, permit, license or decision of the Department of Environmental Resources. (Emphasis added.)

Thus, for the EHB to have jurisdiction over a direct appeal from the order of the EQB adopting amendments to DER regulations, that order must constitute an order of DER. If the EQB's order is not an order of DER, then the EHB would lack the power to issue an adjudication thereon.

This Court has previously noted that environmental laws in Pennsylvania are now administratively regulated by three separate and distinct regulatory bodies. East Pennsboro Township Authority v. Department of Environmental Resources, 18 Pa. Commonwealth Ct. 58, 334 A.2d 798 (1975). The EQB was established as a departmental administrative board*fn3 and has as its primary power and duty the formulation, adoption and promulgation of rules and regulations which, when made, become the rules and regulations of DER. Section 1920-A of the Code, 71 P.S. § 510-20. Once the EQB establishes the regulations, DER, as the second regulatory body, has the duty of administering and enforcing the regulations. East Pennsboro Township Authority. Finally, as we

[ 65 Pa. Commw. Page 106]

    have stated previously, the EHB has the power to review orders, permits, licenses and decisions of DER.*fn4

While as a matter of departmental organization the EHB and the EQB are administrative boards within DER, Section 503 of the Code, 71 P.S. § 183 provides:

[D]epartmental administrative bodies, boards, and commissions, within the several administrative departments, shall exercise their powers and perform their duties independently of the heads or any other officers of the respective administrative departments with which they are connected, but, in all matters involving the expenditure of money, all such departmental administrative boards and commissions shall be subject and responsible to the departments with which they are respectively connected. (Emphasis added.)

This provision demonstrates, in our opinion, the General Assembly's intent that when the EQB acts pursuant to its powers and duties, it acts as an independent body separate from DER. When the EQB adopted the regulations challenged by Petitioner, it did so as an administrative board with powers uniquely its own. It cannot be doubted, for instance, that the Secretary of DER would be powerless to adopt, as an act of DER, the regulations here at issue. Keeping in

[ 65 Pa. Commw. Page 107]

    mind, then, the regulatory design by which the rulemaking, enforcement and adjudicatory functions within DER are performed by separate bodies, we conclude that the order of the EQB here at issue does not constitute an order of DER subject to the jurisdiction of the EHB. Accordingly, we hold that the EHB lacks jurisdiction over the Petitioner's direct appeal from the EQB's order adopting amendments to DER regulations.*fn5

Since we conclude that the EHB lacks jurisdiction over Petitioner's appeal we need not address the other arguments presented.

Order affirmed.


And Now, this 2nd day of March, 1982 the order of the Environmental Hearing Board, dated May 23, 1980, Docket No. 79-154-B, is hereby affirmed.

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



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