decided: January 11, 1983.
EAST LAMPETER TOWNSHIP SEWER AUTHORITY, PETITIONER
EDWARD WAYNE BUTZ AND COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENTS
Appeal from the Order of the Environmental Hearing Board in case of Edward Wayne Butz v. Commonwealth of Pennsylvania, Department of Environmental Resources, No. 80-144-H.
William E. Chillas, Blakinger, Grove & Chillas, P.C., for petitioner.
Lynn Wright, Assistant Counsel, for respondents.
Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 71 Pa. Commw. Page 106]
East Lampeter Township Sewer Authority appeals the order of the Pennsylvania Environmental hearing Board (EHB) which, upon an appeal by Edward Wayne Butz, modified a sewer construction permit issued to the authority by the Pennsylvania Department of Environmental Resources (DER).
On November 2, 1979, DER denied the authority's application for a permit to extend its sewer system to service twenty-seven existing homes. On November 30, 1979, the authority appealed DER's denial to the EHB. However, before the EHB ruled on the authority's appeal, the authority and DER entered into a settlement agreement which was submitted to the EHB for its approval pursuant to 25 Pa. Code § 21.120.*fn1 On May 27, 1980, the EHB approved the settlement agreement which provided that DER would
[ 71 Pa. Commw. Page 107]
issue a permit allowing the authority to expand its system to serve the twenty-seven homes proposed for service in the authority's original application.*fn2 DER issued the permit on June 6, 1980. On June 7, 1980, the EHB published notice of the settlement agreement in the Pennsylvania Bulletin.*fn3
In his notice of appeal to the EHB, filed September 11, 1980, Mr. Butz stated that he sought review of DER's approval of the authority's "sewer application" and that he had received notice of the approval
[ 71 Pa. Commw. Page 108]
on August 10, 1980.*fn4 As the basis for his appeal, Mr. Butz alleged that "the existing sewer system is already overloaded and spilling into the Conestoga River which is the source of drinking water for Eastern Lancaster."
DER filed a motion to dismiss Mr. Butz's appeal on the ground that the EHB lacked jurisdiction because the appeal had been filed more than twenty days after notice of the settlement agreement had been published and therefore was not timely filed under 25 Pa. Code § 21.120. The EHB denied DER's motion.
The authority filed a motion for summary judgment alleging that Mr. Butz's appeal was untimely.*fn5 The EHB denied the authority's motion.
The EHB concluded that an extension to an overloaded sewer system must be limited so that only flows resulting from the correction of existing public health hazards are added to the system. Because it found that the sewage plant and pump station, which would receive the additional flows pursuant to the settlement agreement, were hydraulically overloaded and that there was evidence to show only that six of the twenty-seven homes to be connected to the extension had malfunctioning on-lot systems, the EHB ordered the authority to limit connections to the six homes with proven malfunctioning systems.
On this appeal, the authority again asserts that the EHB lacked jurisdiction over Mr. Butz's appeal because that appeal was untimely. We agree.
[ 71 Pa. Commw. Page 109]
Because DER's decision to issue a permit for the authority's sewer extension was part of the settlement agreement, the DER action that Mr. Butz could have appealed was the settlement agreement, not the subsequent issuance of the permit. See Toro Development Co. v. Department of Environmental Resources, 56 Pa. Commonwealth Ct. 471, 425 A.2d 1163 (1981). We conclude that the thirty day filing time limit, under 25 Pa. Code § 21.52,*fn6 applied to Mr. Butz's appeal*fn7 and began to run on June 7, 1980, the date notice of the settlement agreement was published.*fn8 Thus, Mr. Butz's appeal was untimely and the EHB lacked jurisdiction over it. Rostosky v. Commonwealth of Pennsylvania, Department of Environmental Resources, 26 Pa. Commonwealth Ct. 478, 364 A.2d 761 (1976).
Accordingly, we reverse.
[ 71 Pa. Commw. Page 110]
Now, January 11, 1983, the adjudication and order of the Pennsylvania Environmental Hearing Board, No. 80-144-H, dated July 23, 1981, is hereby vacated.