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RULES AND REGULATIONS

Title 25—ENVIRONMENTAL PROTECTION

ENVIRONMENTAL HEARING BOARD

[ 25 PA. CODE CH. 1021 ]

Practice and Procedure

[39 Pa.B. 6035]
[Saturday, October 17, 2009]

 The Environmental Hearing Board (Board) amends Chapter 1021 (relating to practice and procedures) as set forth in Annex A. The amendments modify the rules of practice and procedure before the Board by implementing improvements in practice and procedure.

 The Board approved the final-form regulations at its March 30, 2009, meeting.

Effective Date

 The amendments will go into effect upon publication in the Pennsylvania Bulletin as final-form rulemaking.

Contact Person

 For further information, contact either Maryanne Wesdock, Senior Assistant Counsel, 1507 State Office Building, 300 Liberty Avenue, Pittsburgh, PA 15222, (412) 565-3511, or William T. Phillipy, IV, Secretary to the Board, 2nd Floor, Rachel Carson State Office Building, P. O. Box 8457, Harrisburg, PA 17105-8457, (717) 787-3483. If information concerning this notice is required in an alternative form, William T. Phillipy, IV may be contacted at the previous number. TDD users may telephone the Board through the Pennsylvania AT&T Relay Center at (800) 654-5984.

Statutory Authority

 The regulations are promulgated under the authority of section 5 of the Environmental Hearing Board Act (Act) (35 P. S. § 7515) which empowers the Board to adopt regulations pertaining to practice and procedure before the Board.

Comments and Revisions to Proposed Rulemaking

 The Board received comments on the proposed revisions from the Independent Regulatory Review Commission (IRRC). The comments were discussed by the Board and by its Procedural Rules Committee (Rules Committee). Responses to the comments are addressed as follows.

Automatic Party Status (§ 1021.51(h)(1))

 IRRC expressed a concern that by amending the language ''recipient of a permit, license, certification or approval'' to ''person to whom the action of the Department is directed or issued'' in subsection (h)(1), the Board may be extending its jurisdiction beyond its statutory authority. Entities covered by subsection (h)(1) are automatic parties to an action, and IRRC was concerned that individuals merely impacted by a Department action, but not necessarily recipients of the action, could be added as parties to an appeal, thereby requiring them to expend legal fees to participate in the proceeding. IRRC recommended that the Board narrow the language of this section to ensure that the regulation does not impermissibly expand the scope of the Board's jurisdiction in violation of any statute. The Board agreed to delete the proposed revision. The Board has left the current language of the regulation intact and added ''recipient of an order'' to the list of entities covered by subsection (h)(1), to clarify that subsection (h)(1) applies only to third party appeals of permits, licenses, certifications, approvals or orders directed at or held by a regulated entity.

 IRRC also expressed a concern regarding the proposed revision to subsection (j), stating that as to any entities covered by subsection (h)(2)—(4) who chose not to enter a proceeding after being given notice of it, their ''right to appeal from the Board's adjudication in the matter may be adversely affected.'' Because IRRC felt this language did not establish a binding norm, it should be omitted from the body of the regulation. IRRC agreed with the Board's proposal to move the language to the comment to the rule.

Prepayment of Penalties (§ 1021.54a)

 IRRC asked for clarification on what would constitute a ''verified statement'' and accepted the Board's explanation that it would follow the definition of ''verified statement'' set forth in Title 231 (relating to Rules of Civil Procedure). IRRC also questioned why the language ''[i]f a civil penalty is assessed under more than one statute, an appellant shall follow the procedures set forth in each statute'' was set forth in a comment to the rule, rather than in the rule itself, since the statement established a binding norm. The Board agreed to move the language to the body of the rule in subsection (c).

Default Judgment (§ 1021.76a)

 IRRC asked for more specificity regarding when a hearing may be conducted under subsection (d) of this rule. The Board revised the rule to clarify that the hearing would be an evidentiary hearing as directed by the Board. The Board also clarified that this subsection pertained to a situation when default judgment had been entered, not sought.

Expedited Proceedings (§ 1021.96a)

 IRRC objected to the language in subsection (d) stating that ''[t]he Board will grant a motion for expedited hearing only in rare circumstances.'' Because this is unenforceable, nonregulatory language, IRRC felt it did not establish a binding norm and recommended omitting it from the final-form regulation. The Board agreed with IRRC's recommendation and omitted the language from the final-form regulation.

Withdrawal without Prejudice (§ 1021.141b)

 IRRC questioned whether the language of subsection (a) allowed withdrawal of an appeal without prejudice only if all parties agreed, and recommended that the final-form regulation should explain whether the Board may approve a withdrawal without prejudice over the objection of a nonmoving party. Because it was not the intention of the Board to allow withdrawals of appeals without prejudice only if all parties agree, the Board determined that the regulation was not appropriately drafted to express the intent of the Board. Therefore, this regulation has not been included in this package as a final-form regulation. Rather, it will be considered by the Board and Rules Committee over the next year to determine whether the rule is necessary.

Sunset Date

 A sunset date has not been established for these regulations. The effectiveness of the regulations will be evaluated on an ongoing basis by the Board and the Rules Committee.

Regulatory Review

 As required under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Board submitted copies of the proposed rulemaking, which was published at 38 Pa.B. 6154 (November 8, 2008), to IRRC and the Senate and House Environmental Resources and Energy Committees (Committees) for review and comment. The Board, in accordance with section 5.1(j.1) of the Regulatory Review Act (71 P. S. § 745.5a(j.1)), also provided IRRC and the Committees with the Regulatory Analysis Form prepared in compliance with Executive Order 1982-2 (relating to improving government regulations) and copies of comments received.

 In preparing the final-form regulations, the Board has considered all comments received. No comments on the proposed regulations were received from either of the Committees.

 These final-form regulations were submitted to the Committees on June 30, 2009. Because no action was taken by the Committees within 20 days after submission of the final-form regulations, they are deemed approved. IRRC met on August 6, 2009, and approved the regulations under section 5(c) of the Regulatory Review Act.

Findings

 The Board finds that:

 (1) Public notice of the proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder in 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).

 (2) These regulations are necessary and appropriate for administration of the Act.

Order

 (1) The regulations of the Board, 25 Pa. Code Chapter 1021, are amended by amending §§ 1021.34, 1021.55, 1021.74, 1021.93, 1021.94a; and by adding §§ 1021.96b and 1021.96c to read as set forth at 38 Pa.B. 6154; and by amending §§ 1021.32 and 1021.51; and by adding §§ 1021.54a, 1021.76a, 1021.96a and 1021.96d to read as set forth in Annex A.

 (2) The Chief Judge and Chairperson of the Board shall submit this order, 38 Pa.B. 6154 and Annex A to the Office of Attorney General and Office of General Counsel as to legality and form as required by law.

 (3) The Chief Judge and Chairperson of the Board shall submit this order, 38 Pa.B. 6154 and Annex A to the Committees and IRRC, as required by law.

 (4) The Chief Judge and Chairperson of the Board shall certify this order, 38 Pa.B. 6154 and Annex A and deposit them with the Legislative Reference Bureau as required by law.

 (5) This order shall take effect upon publication in the Pennsylvania Bulletin.

THOMAS W. RENWAND, 
Acting Chairperson

 (Editor's Note: The proposal to add § 1021.141b, included in the proposed rulemaking at 38 Pa.B. 6154, has been withdrawn by the Board.)

Fiscal Note: Fiscal Note 106-9(F) remains valid for the final adoption of the subject regulations.

Annex A

TITLE 25. ENVIRONMENTAL PROTECTION

PART IX. ENVIRONMENTAL HEARING BOARD

CHAPTER 1021. PRACTICE AND PROCEDURES

DOCUMENTARY FILINGS

FILING AND SERVICE OF DOCUMENTS

§ 1021.32. Filing.

 (a) Documents filed with the Board shall be filed at its headquarters—2nd Floor, Rachel Carson State Office Building, 400 Market Street, Post Office Box 8457, Harrisburg, Pennsylvania 17105-8457.

 (b) The date of filing shall be the date the document is received by the Board.

 (c) Documents may be filed by personal delivery, by mail or by facsimile. Legal documents, as defined in § 1021.2 (related to definitions), may be filed electronically in accordance with this chapter. When a document is filed by facsimile, the original shall be deposited in the mail on the same day. If a document exceeds ten pages, the facsimile shall consist of the first five pages and last five pages of the document and the certificate of service.

 (d) Legal documents may be filed with the Board electronically through the Board's website by a filing attorney unless provided otherwise by Board order. A legal document filed electronically shall be deemed the equivalent of the original document subject to the following conditions:

 (l) The electronic filing of a legal document constitutes a certification by the filing attorney that the original hard copy was properly signed and, where applicable, verified.

 (2) An executed hard copy of the legal document, with any required verifications, shall be maintained by the filing attorney and produced at the request of the Board or any other party within 14 days of the request.

 (e) In filing legal documents electronically, a filing attorney shall be responsible for the following:

 (1) An objective description of the legal document consistent with the title placed on the legal document as required by the Board's website.

 (2) Any delay, disruption, interruption of the electronic signals and readability of the legal document.

 (3) Any risk that a legal document may not be properly or timely filed with the Board.

 (f) Hard copy of any electronically filed legal document which exceeds 50 pages in length shall also be filed with the Board in accordance with subsections (a) and (c) and § 1021.37 (relating to the number of copies). Exhibits to legal documents may be filed and served either electronically or by hard copy in accordance with the sections in this chapter relating to filing and service. If these requirements are met by hard copy of exhibits, they must be sent to the Board by mail or express delivery and, in the case of requests for expedited disposition, service shall mean actual receipt by the opposing party as required by § 1021.34(c) (relating to service by a party).

 (g) Documents filed by United States mail, hand or other delivery services after the close of the business day at 4:30 p.m. Eastern Time shall be deemed to be filed on the following business day. Documents filed electronically, including by facsimile, shall be deemed filed on the day received by the Board.

 (h) Documents filed with the Board, other than exhibits, must be typewritten on letter size paper (approximately 8 to 8 1/2 inches by 10 1/2 to 11 inches) and pages after the first must be numbered. Legal documents, as defined in § 1021.2, must be double spaced, except that footnotes must be single spaced and quotations in excess of a few lines must be single spaced and indented. Photocopied documents will be accepted as typewritten, provided that all copies are legible. Failure to comply with this subsection will not result in dismissal of a filing, but the Board may request the party to resubmit the document in proper form.

FORMAL PROCEEDINGS

APPEALS

§ 1021.51. Commencement, form and content.

 (a) An appeal from an action of the Department shall commence with the filing of a written notice of appeal with the Board.

 (b) The caption of an appeal must be in the following form:

ENVIRONMENTAL HEARING BOARD
2nd Floor, Rachel Carson State Office Building
400 Market Street, Post Office Box 8457
Harrisburg, Pennsylvania 17105-8457

 JOHN DOE, Appellant
234 Main Street, Smithtown,
Jones County, Pennsylvania 15555
(Telephone (123) 456-7890)
 ______ v. Docket No. ______

 Commonwealth of Pennsylvania
Department of ______ , Appellee

 (c) The appeal must set forth the name, address and telephone number of the appellant.

 (d) If the appellant has received written notification of an action of the Department, a copy of the action shall be attached to the appeal.

 (e) The appeal must set forth in separate numbered paragraphs the specific objections to the action of the Department. The objections may be factual or legal.

 (f) When the appeal is from an assessment of a civil penalty for which the statute requires an appellant to prepay the penalty or post a bond, the appellant shall follow the procedures in § 1021.54a (relating to prepayment of penalties).

 (g) Concurrent with or prior to the filing of a notice of appeal, the appellant shall serve a copy thereof on each of the following:

 (1) The office of the Department issuing the notice of Departmental action.

 (2) The Office of Chief Counsel of the Department or agency taking the action appealed.

 (3) In a third party appeal, the recipient of the action. The service shall be made at the address set forth in the document evidencing the action by the Department or at the chief place of business in this Commonwealth of the recipient.

 (h) For purposes of this section, the term ''recipient of the action'' includes the following:

 (1) The recipient of a permit, license, approval, certification or order.

 (2) Any affected municipality, its municipal authority, and the proponent of the decision, where applicable, in appeals involving a decision under sections 5 or 7 of the Sewage Facilities Act (35 P. S. §§ 750.5 and 750.7).

 (3) A mining company, well operator or owner or operator of a storage tank in appeals involving a claim of subsidence damage, water loss or contamination.

 (4) Other interested parties as ordered by the Board.

 (i) The service upon the recipient of a permit, license, approval, certification or order, as required under subsection (h)(1), shall subject the recipient to the jurisdiction of the Board, and the recipient shall be added as a party to the third-party appeal without the necessity of filing a petition for leave to intervene under § 1021.81 (relating to intervention). The recipient of a permit, license, approval or certification who is added to an appeal under this section shall still comply with §§ 1021.21 and 1021.22 (relating to representation; and notice of appearance.)

 (j) Other recipients of an action under subsection (h)(2), (3) or (4), may intervene as of course in the appeal by filing an entry of appearance within 30 days of service of the notice of appeal in accordance with §§ 1021.21 and 1021.22, without the necessity of filing a petition for leave to intervene under § 1021.81.

 (k) The appellant shall provide satisfactory proof that service has been made as required by this section.

 (l) Subsections (a)—(k) supersede 1 Pa. Code §§ 35.5—35.7 and 35.9—35.11 (relating to informal complaints; and formal complaints).

Comment

 If a recipient of an action under subsection (h)(2), (3) or (4) elects not to intervene following service of notice of an appeal or notice by the Board that the recipient's rights may be affected by an appeal, the recipient's right to appeal from the Board's adjudication in the matter may be adversely affected. This comment is added in response to the Commonwealth Court's ruling in Schneiderwind v. DEP, 867 A.2d 724 (Pa. Cmwlth. 2005).

§ 1021.54a. Prepayment of penalties.

 (a) When an appeal is from the assessment of a civil penalty for which the statute requires an appellant to prepay the penalty or post a bond with the Department, the appellant shall submit to the Office of Chief Counsel of the Department a check in the amount of the penalty or an appropriate bond securing payment of the penalty or a verified statement that the appellant is unable to pay.

 (b) When an appeal is from the assessment of a civil penalty for which the statute requires an appellant to prepay the penalty or post a bond with the Board, the appellant shall submit to the Board a check in the amount of the penalty or an appropriate bond securing payment of the penalty or a verified statement that the appellant is unable to pay.

 (c) If a civil penalty is assessed under more than one statute, an appellant shall follow the procedures set forth in each statute.

 (d) When an appellant submits a verified statement of inability to prepay, under subsection (a) or (b), a copy of the verified statement shall be included with the notice of appeal.

Comment

 Practitioners should note that the Air Pollution Control Act (35 P. S. §§ 4001—4015), requires that prepayment of a civil penalty be made to the Board and not to the Department.

SPECIAL ACTIONS

§ 1021.76a. Entry of default judgment.

 (a) The Board, on motion of the plaintiff, may enter default judgment against the defendant for failure to file within the required time an answer to a complaint that contains a notice to defend.

 (b) The motion for default judgment must contain a certification that the plaintiff served on the defendant a notice of intention to seek default judgment after the date on which the answer to the complaint was due and at least 10 days prior to filing the motion.

 (c) The filing of an answer to the complaint by the defendant prior to the filing of a motion for default judgment by the plaintiff shall correct the default.

 (d) When default judgment is entered in a matter involving a complaint for civil penalties, the Board may assess civil penalties in the amount of the plaintiff's claim or may assess the amount of the penalty following an evidentiary hearing, as directed by the Board, at which the issues shall be limited to the amount of the civil penalties.

Comment

 This rule is modeled after Pa.R.C.P. 237.1 and 1037.

MOTIONS

§ 1021.96a. Motions for expedited hearing.

 (a) A motion for an expedited hearing may be filed at any time in either an appeal or special action, or the Board may order an expedited hearing on its own motion.

 (b) The Board may issue an order for an expedited hearing notwithstanding the time requirements contained in a previous order of the Board, the Board's Rules of Practice and Procedure in § 1021.101 (relating to prehearing procedure), or Title 231 (relating to rules of civil procedure) relating to discovery.

 (c) In issuing such an order, the Board will be guided by relevant judicial and Board precedent. Among other factors to be considered:

 (1) Whether pollution or injury to the public health, safety or welfare exists or is threatened during the period ordinarily required to complete the proceedings.

 (2) Severity of prejudice to any party during the time period ordinarily required to complete the proceedings.

 (3) The status of discovery and the realistic need of the parties for extended discovery and for time to prepare for a hearing.

 (4) Whether the issuance of such an order would promote judicial economy or would otherwise be in the public interest.

 (5) The effect of expedited proceedings on the nonrequesting party.

 (d) The Board may direct that a prehearing conference be held to determine an appropriate schedule for the completion of prehearing proceedings as well as the time and place of the hearing.

§ 1021.96d. Conduct of expedited hearing.

 (a) Nothing contained in this rule shall limit the rights of the parties to a full hearing before the Board under the applicable rules of evidence with full rights of cross-examination of witnesses. The Board may limit the number of witnesses or the subjects of examination in order to avoid duplication of evidence as provided in § 1021.126 (relating to limiting number of witnesses and additional evidence).

 (b) Testimony may be submitted by prepared written testimony as provided for under § 1021.124 (relating to written testimony).

 (c) After the conclusion of the hearing, the Board will direct the prompt filing of posthearing briefs.

Comment

 The Board will grant a motion for expedited hearing only in rare circumstances.

[Pa.B. Doc. No. 09-1924. Filed for public inspection October 16, 2009, 9:00 a.m.]



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