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 ...