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QUAKER STATE OIL REFINING v. COMMONWEALTH PENNSYLVANIA (08/24/87)

decided: August 24, 1987.

QUAKER STATE OIL REFINING, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



Appeal from the Order of the Environmental Hearing Board, in case of Quaker State Oil Refining Corporation v. Commonwealth of Pennsylvania, Department of Environmental Resources, No. 85-520-G.

COUNSEL

Dean A. Calland, with him, Joseph M. Karas, Babst, Calland, Clements & Zomnir, for petitioner.

Gary A. Peters, Assistant Counsel, for respondent.

Judges Barry and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 108 Pa. Commw. Page 612]

Quaker State Oil Refining Corporation (Quaker State) appeals from a decision of the Environmental Hearing Board (EHB) which dismissed Quaker State's appeal as having been untimely filed and, further, denied its request for an appeal nunc pro tunc. We affirm.

In June, 1985, the Department of Environmental Resources (DER) issued Quaker State a draft National Pollutant Discharge Elimination System (NPDES) permit # PA0002372.*fn1 A cover letter accompanying the draft permit outlined the notice and comment procedures applicable to draft permits pursuant to 25 Pa. Code § 92.61(d).*fn2 Quaker State submitted written comments concerning the heat rejection rate provided for in the draft permit.

On September 30, 1985, DER issued Industrial Permit No. PA0002372 to Quaker State which was sent under a cover letter to its corporate headquarters in Oil City, Pennsylvania to the attention of its Vice President-Refining Division where it was received on October 4, 1985. Quaker State then sent the permit and cover letter to its McKean Refinery, the facility for which the permit was issued, where it was received on October 7, 1985.

[ 108 Pa. Commw. Page 613]

No action with respect to the permit was taken by Quaker State until November 22, 1985, at which time counsel requested and received a "fact sheet" on the permit prepared by DER as part of its determination process. Quaker State then, on November 29, 1985, filed its notice of appeal with EHB challenging certain discharge heat rejection requirements, limitations and parameters as provided in the permit.

EHB dismissed Quaker State's appeal as having been untimely filed pursuant to 25 Pa. Code § 21.52(a)*fn3 which requires that appeals be filed with the EHB within thirty days of receipt of notice of the action of DER. Further, EHB denied Quaker State's request for an appeal nunc pro tunc under 25 Pa. Code § 21.53*fn4 inasmuch as it found no breakdown of its own operations to warrant Quaker State's late filing. This appeal followed.

Our scope of review of EHB decisions is limited to a determination of whether constitutional rights were violated, an error of law was committed or necessary findings of fact were not supported by substantial evidence. Marcon, Inc. v. Department of ...


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