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LOWER ALLEN CITIZENS ACTION GROUP v. COMMONWEALTH PENNSYLVANIA (02/25/88)

decided: February 25, 1988.

LOWER ALLEN CITIZENS ACTION GROUP, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, RESPONDENT



Appeal from the Order of the Pennsylvania Environmental Hearing Board, in the case of Lower Allen Citizens Action Group, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources and Hempt Bros., Inc., Permittee, No. EHB Docket No. 86-246-W.

COUNSEL

William H. Andring, for petitioner.

Amy L. Putnam, Assistant Counsel, for respondent.

Horace A. Johnson, with him, James A. Johnson, Myers, Johnson, Duffie & Weidner, for respondent/permittee, Hempt Bros., Inc.

Judges MacPhail and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Colins. Judge MacPhail dissents.

Author: Colins

[ 119 Pa. Commw. Page 238]

Lower Allen Citizens Action Group, Inc. (petitioner) appeals a decision of the Pennsylvania Environmental Hearing Board (Board) which granted Hempt Bros., Inc.'s (permittee's) Motion to Dismiss for untimely filing of petitioner's notice of appeal.

The relevant facts are as follows:

On December 14, 1984, permittee filed an application for amendment of its mine drainage permit. On February 10, 1985, petitioner sent to the Department of Environmental Resources (DER) objections to permittee's application. A public hearing was held on September 17, 1985 by DER. On March 18, 1986, DER approved permittee's application. On March 20, 1986, George Sterling, DER's District Mining Manager, sent a letter to petitioner's attorney stating that the permit was issued to permittee on March 18, 1986, and that any appeal of the action must be filed within thirty (30) days of the receipt of the letter. On April 5, 1986, a notice of approval appeared in the Pennsylvania Bulletin. On May 5, 1986, petitioner filed a Notice of Appeal with the Board. Permittee filed a Motion to Quash on

[ 119 Pa. Commw. Page 239]

May 27, 1986, alleging that petitioner's appeal was not timely filed. On August 22, 1986, the Board dismissed the appeal for lack of jurisdiction due to petitioner's untimely appeal. This appeal followed.

Petitioner argues that it is not a "party" under the provisions of the Environmental Hearing Board's (EHB) Practice and Procedures. Therefore, petitioner maintains, it had thirty (30) days from the date of publication of DER's notification in the Pennsylvania Bulletin to appeal, pursuant to 25 Pa. Code ยง 21.36, despite actual prior notice. Permittee, on the contrary, argues that petitioner is a "party," and, as such, had thirty (30) days from the date of receipt of ...


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