dissenting.
I respectfully dissent. The majority finds that because the Department of Environmental Resources (Department) did not disapprove the Board of Supervisors of Middle Paxton’s Township’s (Township) third amended official sewage update plan within 120 days of its submission as required by 25 Pa.Code 71.16,1 it is deemed approved. I believe the Township waived the 120 day notice requirement.
The facts are undisputed. On August 26, 1988, the Township submitted its third updated official sewage plan to the Department providing that at least for the next ten years, the Township sewage disposal needs could be met by on-site disposal. The 120 days time period expired on December 27, 1988. At a December 21,1988 meeting requested by the Department with Township officials, when the Department made it clear that the third update would not be approved, the Township requested to review the Township’s sampling data. On December 80, 1988, three days after the 120 day time period, the Department stated that as a result of the request to review the samples, it was extending the 120 day period for action for an additional 60 days, so that the Township could review the data. Going back on its request, the Township, on January 9, 1989, sent a letter to the Department stating that it no longer wished to review the data and that any extension in the appeal period was untimely. On February 24, 1989, the Department formally disapproved the third update.
Reversing the Environmental Hearing Board, the majority holds that the waiver will occur only where words or conduct of the party seeking this remedy has caused or substantially contributed to the Department’s delay. It then goes on to find that the Township’s request did not cause the delay because they did nothing to impair the Department’s ability to respond within the 120 days.
My disagreement with the majority’s holding is twofold: first, by stating that the waiver only occurs when a party must take action that substantially contributes to the delay implies that if the Township formally waives the 120 day notice, that would be ineffective to extend the time, because even a formal waiver does not prevent the Department from responding within the allotted time. I would hold that a township can waive expressly or by conduct the 120 day notice requirement. While I believe the majority’s holding could be interpreted that a waiver request extends the time because it impairs the Department’s ability to respond, I don’t believe that is the majority’s intent because it does not go on to address whether the Township’s request to review sewage sampling before a decision constituted a waiver.
Its failure to address whether there was a waiver is my second reason for disagreeing ■with the majority’s opinion. There is no dispute that at December 21, 1988 meeting, the Department informed the Township that under no circumstances would it approve the plan because of the results of its samples. The Environmental Hearing Board found at that meeting, which occurred within the 120 day period, “[w]hen the Township asked to review the data, ..., it was obvious that period had to be extended. The Township’s request, therefore, effectively waived the 120 day period.” I agree the Board that the Township’s request necessarily constituted a waiver of the 120 day requirement.
Accordingly, I dissent.
. 25 Pa.Code §§ 71.16(c) and (d) read as follows:
(c) Within 120 days after submission of the official plan or revision, the Department shall either approve or disapprove the plan or revision.
(d) Upon the Department's failure to approve an official plan within 120 days of its submission, the official plan shall be deemed to have been approved, unless the Department informs the municipality that an extension of time is necessary to complete the review.