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ALTERNATE ENERGY STORE v. COMMONWEALTH PENNSYLVANIA (06/23/87)

decided: June 23, 1987.

ALTERNATE ENERGY STORE, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



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.

COUNSEL

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 ...


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