28 Pa. Commw. 302 | Pa. Commw. Ct. | 1977
Opinion by
Silver Spring Township, Cumberland County, has appealed from an order of the Environmental Hearing Board (EHR) dismissing as moot the.township’s appeal from two separate actions taken by the Department of Environmental Resources (DER). The appellant claims that EHB’s action dismissing its appeal without a hearing violates its constitutional, as well as statutory, right to a hearing. We disagree, and affirm EHB’s order.
Our review is limited to determining whether constitutional rights were violated, an error of law was committed, or necessary findings of fact were unsupported by substantial evidence. Department of Environmental Resources v. Trautner, 19 Pa. Commonwealth Ct. 116, 338 A.2d 718 (1975). In this case the Commonwealth filed a petition to dismiss with the EHB, which the township failed to answer. We must accept, therefore, the truth of the facts pleaded in the petition.
The second DER action appealed from was the issuance of plan approvals under Chapter 127 of the Department’s Rules and Regulations, 25 Pa. Code
Although persons aggrieved by orders of the DEE are entitled to notice of a hearing and an opportunity to be heard under Sections 4.1 and 5 of the Air Pollution Control Act, 35 P.S. §4004(4.1), 4006 and Section 31 of the Administrative Agency Law, 71 P.S. §1710.-31, a hearing is not required where events occur which render it impossible for a reviewing body to. grant any relief. See O’Donnell v. Pennsylvania Liquor Control Board, 158 Pa. Super. 533, 45 A.2d 369 (1946). It is clear that in the present case it would have been futile for the EHB to conduct a hearing. By 1976, when.the Board dismissed the appeal, the temporary variance, having expired, was no longer of any effect and could not be retroactively altered or abolished by the EHB. Nor could the EHB grant any relief with regard to the appeal from the approvals under Chapter 127, because the authorized equipment had long since been removed and replaced by other equipment installed pursuant to another unappealed permit. Assuming, arguendo, that DEE erred in either or both actions complained of, nothing disclosed at a hearing could affect the rights and duties of any of the parties. If Pennsy is presently violating any of the conditions of its permits or any provision of a statute or regulation, it is answerable to the DEE and others, including the appellant.
Order'
And Now, this 21st day. of January, 1977, it is ordered that the March 10, 1976 order of the Environment Hearing Board dismissing the appeal of Silver Spring Township bé and it is hereby affirmed.
Chapter 21 of the Rules and Regulations of the Department of Environmental Resources, 25 Pa. Code, §21.18.