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decided: June 23, 1987.


Appeal from the Order of the Environmental Hearing Board in case of Alternate Energy Store, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources, No. 85-188-M.


Marc D. Jonas, Silverman, Jonas & Lawrence, for petitioner.

John Wilmer, Assistant Counsel, for respondent.

Judges Craig and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 107 Pa. Commw. Page 67]

The Alternate Energy Store, Inc. (petitioner) petitions for review of the order of the Environmental Hearing Board (Board) which dismissed the petitioner's appeal from a letter (the letter) which the Department of Environmental Resources (DER) mailed to the petitioner's counsel on April 5, 1985.*fn1

This controversy has its genesis in DER's May 20, 1981 grant of a noncoal surface mine operating permit (the permit) to the petitioner for a site in Lower Providence

[ 107 Pa. Commw. Page 68]

Township (Township), Montgomery County. The permit carried a standard condition requiring compliance with local zoning ordinances*fn2 and a special condition establishing a two-year life span for the permit.*fn3

The Township appealed the permit grant to the Board (Township appeal), which then conducted proceedings separate and apart from the instant proceedings. And, in order to satisfy the permit's zoning compliance condition, the petitioner filed a validity challenge and a request for a special exception with the Township's zoning hearing board. Both of these administrative matters required lengthy proceedings and the zoning case is now pending before the Montgomery County Common Pleas Court a second time. Due to this litigation, the petitioner never commenced mining operations under the permit. At no time prior to the permit's expiration did the petitioner seek an extension from DER.

Following the completion of the Board's proceedings on the Township's appeal in 1984, the petitioner became aware that DER was considering the temporal expiration of the permit. The petitioner, in December 1984, requested DER to extend the permit nunc pro tunc. Inasmuch, however, as the permit had expired more than one and one-half years earlier, with no timely extension request and no commencement of mining,

[ 107 Pa. Commw. Page 69]

DER, in the letter here concerned, implicitly rejected this belated extension request.

The petitioner then filed its appeal to the Board, which, in response to DER's motion, issued the dismissal order presently under review.

On review, the petitioner presents several allegations of legal error*fn4 on the part of the Board.

The first such allegation is that the Board erred in rejecting the petitioner's contention that the letter constituted an appealable administrative order.

In Sunbeam Coal Corp. v. Department of Environmental Resources, 8 Pa. Commonwealth Ct. 622, 304 A.2d 169 (1973), we held that written notice from DER to certain coal companies advising these companies that DER considered them to be violating the Surface Mining Conservation and Reclamation Act, 52 P.S. ยงยง 1396.1-1396.31, were not "adjudications" within the meaning of the Administrative Agency Law,*fn5 nor appealable

[ 107 Pa. Commw. Page 70]

DER "actions" as defined by the Administrative Code.*fn6

We believe that Sunbeam Coal is controlling here. Just as the written notices in Sunbeam Coal were

[ 107 Pa. Commw. Page 71]

    neither adjudications nor appealable DER actions, so the presently involved letter may not be classified in either category. Clearly, DER, through its counsel, was merely advising the petitioner of the status of the permit. We must conclude, therefore, that the Board did not err in holding the letter to be unappealable.

Next, the petitioner contends that its right to due process was violated by the letter because it was afforded no advance notice by DER of the permit's expiration and because DER did not raise the expiration issue during the Board's proceedings on the Township's appeal.

Inasmuch, however, as the petitioner was notified at the time of the issuance of the permit that its rights thereunder would expire after two years unless mining was commenced or an extension was granted, the petitioner cannot now claim ignorance of the conditions under which it accepted the Commonwealth's approval to conduct mining operations. Nor, we believe, can the petitioner escape the consequences of its failure to timely request an extension based on what it asserts to be DER's failure to raise the expiration issue before the Board as that tribunal was considering the Township's appeal. This is so because the issue then before the Board, as we perceive it, was the validity of the permit, a determination which could stand as res adjudicata on the question of whether or not mining may be conducted on the involved site. Presently, the expiration of the permit by operation of regulation imposes no permanent barrier, of which we are aware, which would prevent the petitioner from reinstituting the permitting process. Accordingly, we perceive no due process violations in this case, nor do we believe that the petitioner was deceived by DER in any way as to the running of the permit's time limit.

[ 107 Pa. Commw. Page 72]

Lastly, the petitioner contends that it should be allowed to appeal the expiration of the permit to the Board, nunc pro tunc and, also, that it should be allowed a nunc pro tunc extension of the permit.

We can find no conduct on the part of the Board, however, which could constitute appropriate grounds for appealing the permit's expiration nunc pro tunc. See Rostosky v. Department of Environmental Resources, 26 Pa. Commonwealth Ct. 478, 364 A.2d 761 (1976). Nor can we, in light of our holding here that the petitioner was not relieved of its obligation to request an extension of the permit by DER's participation in the Township's appeal, hold that the petitioner was in any way misled by DER as to the need to so extend the permit during the pendency of the Township's appeal. See Tarlo v. University of Pittsburgh, 66 Pa. Commonwealth Ct. 149, 443 A.2d 879 (1982). We conclude, therefore, that the Board did not err in refusing to grant the petitioner's requests to file nunc pro tunc appeals.

Accordingly, we will affirm the Board's order.


And Now, this 23rd day of June, 1987, the order of the Environmental Hearing Board in the above-captioned matter is affirmed.



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