decided: February 25, 1988.
LOWER ALLEN CITIZENS ACTION GROUP, INC., PETITIONER
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.
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.
[ 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 § 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 written notice, or within thirty (30) days to appeal after such notice had been published in the Pennsylvania Bulletin.
For the reasons stated herein, we reverse the Board's decision.
Initially, we note that our scope of review is limited to a determination of whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial, competent evidence. Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).
We must first resolve the issue of whether petitioner is a "party." 25 Pa. Code § 21.2 defines "party" as "a person with the right to institute or defend or otherwise appear and participate in proceedings before the Board. A party shall be an appellant, appellee, plaintiff, defendant or intervenor." 25 Pa. Code § 21.2 defines a "person" as "an individual, partnership, association, corporation, political subdivision, municipal authority or other entity." Petitioner was not an intervenor, nor did petitioner file an appeal to the EHB to become a party. The filing of objections does not make the protestant a party to the proceeding. Therefore, we find appellant to be an "interested person" and not a "party."
[ 119 Pa. Commw. Page 240]
Since petitioner, in the instant matter, was not a party, it stands that 25 Pa. Code § 21.36 applies. As such, petitioner received notice of DER's action upon publication of its actions in the Pennsylvania Bulletin. Petitioner, therefore, had thirty (30) days from the date of the publication to file an appeal to the Board. Petitioner filed its appeal on May 5, 1986, thirty (30) days after the April 5, 1986 notice in the Pennsylvania Bulletin. Therefore, the appeal is timely.
Accordingly, the decision of the Environmental Hearing Board which dismissed petitioner's appeal is reversed and the case is remanded to the Board for a hearing and adjudication as provided by law.
And Now, this 25th day of February, 1988, the decision of the Environmental Hearing Board in the above-captioned matter is reversed, and the case is remanded to the Board in accordance with this decision.
Judge MacPhail dissents.
Reversed and remanded. Prior order affirmed. Decision of Board reversed. Case remanded.
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