RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL HEARING BOARD
[25 PA. CODE CH. 1021]
Practice and Procedure
[26 Pa.B. 4222] The Environmental Hearing Board (Board) by this order amends Chapter 1021 (relating to practice and procedure) to read as set forth at Annex A. The amendments modify the rules of practice and procedure before the Board by adding or correcting terminology relating to the Board and implementing improvements in practice and procedure.
The Board approved the final-form regulations at its April 10, 1996, meeting.
Effective Date
The amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
Contact Person
For further information, contact M. Diane Smith, 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, Ms. Smith may be contacted at the above number. TDD users may telephone the Board through the AT&T Pennsylvania relay center at (800) 654-5984.
Statutory Authority
The amendments 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); Brendan Collins, Esq. of Ballard Spahr Andrews & Ingersoll; John N. Cox, of Verona, PA; and the Office of Chief Counsel of the Department of Environmental Protection (DEP). The commentators had specific comments which will be addressed on a section-by-section basis. IRRC incorporated some of these comments into its review document, as well as making comments and recommendations of its own. Thus, IRRC's comments and recommendations will be separately addressed only where they raise issues not otherwise raised by the individual commentators.
§ 1021.53 (relating to amendments to appeal; nunc pro tunc appeals)
These amendments provide for an appeal as well as nunc pro tunc appeal. The existing section deals only with a nunc pro tunc appeal.
One commentator noted extensive comments to § 1021.53. The commentator noted that amending a notice of appeal inserts new issues into the appeal, expands the scope of discovery and increases the amount of preparation for any party responding to the appeal. It was suggested that if the Board elects to allow the appellant 20 days to amend the appeal as a matter of right, the time allowed for discovery and dispositive motions under § 1021.81 (relating to prehearing procedure) also should be expanded.
The Board believes that such an automatic extension of time is unnecessary because in any given appeal an amendment may not be sought. If an amendment is filed, the Board member assigned to deal with these appeal matters on a case-by-case basis will work with the parties to make necessary adjustments in the discovery schedule. In its response, the Rules Committee noted that subsection (e) and § 1021.17 (relating to extensions of time; continuance of hearings) and § 1021.81(a)(3) and (b) provide various mechanisms for the parties jointly and individually, to request additional time for discovery. Consequently, the Rules Committee does not believe that any party's rights will be prejudiced by proceeding under § 1021.53. IRRC concurred with the Board and the Rules Committee. The Board's intended approach and the rules provisions previously cited will adequately address this commentator's concern. Accordingly, this section of the final rule has not been modified.
This commentator expressed concern that subsection (b) allowing new issues to be raised beyond the 20-day amendment of right period will complicate and prolong litigation. The Board believes that the concern is unwarranted as any prolonged litigation will be prevented by the assigned Board member's case management strategy. However, while it is possible that the amendments may lengthen the process somewhat in certain cases, it is important to protect the right of appeal by giving the appellant adequate time to develop its claims that the action appealed from was improper. IRRC concurs with the Board's position. Therefore, the final version of subsection (b) has not been modified.
The same commentator suggested that allowing amendments beyond the 20-day period should be limited to those arising from the discovery of new facts. Neither IRRC nor the Board concur with this suggestion as this is already provided for in subsection (b)(1) and (2). The Board will not modify the proposal for this reason.
Another commentator suggested that the notice of appeal need not set forth any grounds for the appeal until after discovery is complete. The Board rejects this suggestion as it fails to recognize that the notice of appeal before the Board is analogous to a complaint in civil practice. The notice of appeal in civil practice comes not only after all discovery has taken place but after there has been a hearing or a decision on dispositive motions in which the issues of the case have been thoroughly developed and dealt with.
IRRC recommended minor changes in the wording of subsection (b) to improve construction and clarity and the Board concurs with this recommendation. The final rule has been modified to reflect this recommendation.
Regarding subsection (c), a commentator stated that an amendment of a notice of appeal shortly before the filing of prehearing memoranda comes too late in the process and undermines the newly established prehearing procedures of § 1021.81. The commentator recommends that the period for requesting amendments should end 30 days before the final date for dispositive motions.
In considering this comment, the Board concluded that there is merit in the view that an amendment permitted just before the filing of prehearing memoranda may come too late. On the other hand, the Board believes that a bar on amendments before dispositive motions are filed may be too early because a party may not fully appreciate the strengths or weaknesses of its position until after discovery is complete and dispositive motions are fully responded to. Accordingly, the Board will modify the section so as to bar amendments which are sought after the case is scheduled for a hearing or after the Board rules on dispositive motions, whichever is later. This will conform with the practice in Pennsylvania courts where amendments to complaints are freely allowed at least before the filing of prehearing memoranda.
The Rules Committee did not believe that any party's rights would be prejudiced by proceeding under § 1021.53 as proposed because subsection (e) and §§ 1021.17 and 1021.81(a)(3) and (b) provide various mechanisms for the parties, jointly or individually, to request additional time for discovery under this section. IRRC concurred with the Rules Committee but requested the Board review § 1021.53 with other provisions of this rulemaking and with all other Board prehearing procedure rules to be sure they are all internally consistent. The Board has reviewed the rules for internal consistency. The final rule has not been modified except as previously noted.
Regarding subsection (d), the commentator noted that §§ 1021.73 and 1021.74 (relating to dispositive motions; and miscellaneous motions) provide two very different procedures for filing motions and suggested that only one procedure should be specified to avoid confusion. The Board and the Rules Committee concurred with this suggestion. The Board decided to strike the reference to § 1021.73 and include ''except that the motion shall be verified and supported by affidavits.'' The final rule has been modified to incorporate these changes.
IRRC recommended that the Board substitute ''deemed'' for ''felt to be necessary therefor'' in subsection (e) to improve structure and clarity. The Board concurs with the suggestion and has modified the final rule to reflect this suggestion.
IRRC also recommended that the Board delete some of the language contained in subsection (f) or make other corrective amendments in order for the rule to concur with the Board's limits of jurisdictional authority. The Board considered the recommendation and deleted subsection (f) of the proposal in the final version.
In reviewing the proposed section, the Board noted that the proposal inadvertently deleted an existing subsection specifying the procedure for filing nunc pro tunc appeals. The final rule has been modified to contain this provision as subsection (f).
In addition, § 1021.51(e) (relating to commencement, form and content) has been modified to make it clear that a failure to raise a ground for appeal in the initial notice of appeal will not result in a waiver if the appeal is amended to state that ground under § 1021.53.
§ 1021.62 (relating to intervention)
IRRC recommended that this section be reorganized to improve its construction and clarity. The second sentence in subsection (c) should be the only sentence in that subsection, the current proposed first sentence in subsection (c) should become subsection (e), and the current proposed subsections (e) and (f) should be relabeled as (f) and (g), respectively. The Board concurs with this recommendation. The final rule has been modified to reflect this recommendation.
§ 1021.122 (relating to reopening of record prior to an adjudication)
One commentator stated that subsection (b)(3) appeared to sanction the reopening of the record merely on the recent discovery of noncumulative evidence. He suggested that the noncumulative criteria should be a threshold requirement for all other circumstances in which the record may be reopened, but should not be a stand-alone reason for reopening the record. The Rules Committee noted in its response that some language which appeared in prior drafts of the rule did not appear in the published version and some words were added for style conformity. The Rules Committee recommended that the Board make changes to the rule to reflect the prior drafts. IRRC and the Board concur. Subsection (b) has been modified to reflect this recommendation.
The Board also received a suggestion that it adopt a rule similar to an existing Pennsylvania Rule of Appellate Procedure which would preclude communications with the Board after the case has been submitted other than a letter bringing new case law to the attention of the Board. IRRC noted that this is a worthwhile suggestion and asked the Board to consider it. The Board believes that such a rule is unnecessary. Counsel freely brings new case law to the attention of the Board even in the absence of a rule, and, since the Board is more analogous to a trial than an appellate court, it is important that free communication be permitted even after the submission of final briefs. The Board now accepts submissions with respect to new case law in either letter or motion form. Furthermore, it has been longstanding policy at the Board for its members and staff to routinely remain abreast of the current environmental law in this Commonwealth.
One commentator suggested that subsection (d) should apply only to petitions filed under subsection (b) as it would be inappropriate to require a petitioner who is filing for reopening due to a change of law to demonstrate when evidence was discovered. The Board considered the suggestion and amended subsection (c). The final rule has been modified by adding the following sentence at the end of the subsection: ''Such a petition need not meet the requirements of subsection (d)(2) and (3).''
§ 1021.124 (relating to reconsideration of final orders)
One commentator stated that subsection (b) does not provide sufficient time for the party to respond when service is by mail. It recommended that the section be revised to require the petitioner to serve all parties simultaneous with, and in the same manner as, the filing with the Board. IRRC concurred with the recommendation. In addition, IRRC recommended that the section also include a statement that the running of the Board's reconsideration period occurs contemporaneously with the running of the 30-day right of appeal to Commonwealth Court. The Board noted that the recommendations have merit and has modified the final rule to reflect these recommendations.
§ 1021.132 (relating to application for fees and expenses)
IRRC recommended amendments to subsection (a) for improved clarity and structure so it would read as follows:
''An application for fees and expenses shall be verified and shall set forth sufficient grounds to justify the award. It shall also include the following:''The Board concurs with IRRC's recommendation. The final rule has been modified to include these amendments.
§ 1021.151 (relating to application for counsel fees under more than one statute)
IRRC suggested that the Board should further amend this section to furnish additional instructional information regarding the application of this section or incorporate a reference to other rules for how determinations will be made under this section. The Board believes this is unnecessary because it is obvious from the structure of the rule that the procedures set forth in the previous sections are to be followed except when those procedures may be inconsistent with the specific statute under which the application is being made. To provide any further instruction would require a survey of procedures applicable under a great number of environmental statutes when the Board rarely receives applications for counsel fees under statutes other than the Costs Act or the Surface Mining Law. The Board has asked the Rules Committee for a recommendation on a rule specific to fee applications under the Surface Mining Law and intends to propose such a specific rule in the near future.
Sunset Date
A sunset date has not been established for these regulations. The effectiveness of the amendments will be evaluated on an ongoing basis by the Board and the Rules Committee.
Regulatory Review
On December 8, 1996, as required by section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Board submitted copies of the proposed revisions, which were published at 25 Pa.B. 5981 (December 23, 1995), to IRRC the Senate and House Environmental Resources and Energy Committees for review and comment. The Board, in accordance with section 5(b.1) of the Regulatory Review Act, 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 the comments received.
In preparing the final-form regulations, the Board has considered all comments received from the public and IRRC. No comments on the proposed amendments were received from either of the legislative committees.
These final-form regulations were approved by the House Environmental Resources and Energy Committee, and were approved by the Senate Environmental Resources and Energy Committee on July 18, 1996. IRRC met on July 18, 1996, 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 final-form regulations thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) These regulations are necessary and appropriate for administration of the act.
Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Board, 25 Pa. Code Chapter 1021, are amended by amending §§ 1021.2, 1021.32, 1021.51, 1021.53, 1021.57, 1021.62, 1021.120, 1021.122 and 1021.124; and by adding §§ 1021.123, 1021.125, 1021.131--1021.134 and 1021.141--1021.144 and 1021.151 to read as set forth in Annex A. (Editor's Note: § 1021.51 was not included in the notice of proposed rulemaking at 25 Pa.B. 5981.)
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of Attorney General and Office of General Counsel for review as to legality and form as required by law.
(c) The Chairperson of the Board shall submit this order and Annex A to the House Environmental Resources and Energy Committee, the Senate Environmental Resources and Energy Committee and IRRC as required by law.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect upon publication in the Pennsylvania Bulletin.
GEORGE J. MILLER,
ChairpersonFiscal Note: Fiscal Note 106-2 remains valid for the final adoption of the subject regulations.
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 26 Pa.B. 3776 (August 3, 1996).)
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART IX. ENVIRONMENTAL HEARING BOARD
CHAPTER 1021. PRACTICE AND PROCEDURES
Subchapter A. PRELIMINARY PROVISIONS
GENERAL § 1021.2. Definitions.
(a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act--The Environmental Hearing Board Act (35 P. S. §§ 7511--7516).
Action--An order, decree, decision, determination or ruling by the Department affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of a person, including, but not limited to, denials, modifications, suspensions and revocations of permits, licenses and registrations; orders to cease the operation of an establishment or facility; orders to correct conditions endangering waters of this Commonwealth; orders to construct sewers or treatment facilities; orders to abate air pollution; and appeals from complaints for the assessment of civil penalties.
Board--The Environmental Hearing Board, consisting of its chairperson and four members, all of whom are administrative law judges appointed by the Governor to hear appeals from actions of the Department.
Costs Act--The act of December 13, 1982 (P. L. 1127, No. 257) (71 P. S. §§ 2031--2035), known as the Commonwealth Agency Adjudicatory Expenses Award Law.
Department--The Department of Environmental Resources or its successor agencies.
Dispositive motion--A motion that seeks to resolve the issues in an appeal without the need for hearing or further hearing. The term includes a motion to quash appeal, a motion to dismiss, a motion for summary judgment, and a motion for partial summary judgment, but not a motion in limine.
Hearing examiner--A person other than a Board member designated by the Board to preside at hearings or conferences.
Intervenor--A person intervening or petitioning to intervene as provided by § 1021.62 (relating to intervention) when admitted as a party to a proceeding.
Party--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.
Permittee--The recipient of the permit, license, approval or certification in a third-party appeal.
Person--An individual, partnership, association, corporation, political subdivision, municipal authority or other entity.
Supersedeas--A suspension of the effect of an action of the Department pending proceedings before the Board.
Third-party appeal--The appeal of an action by a person who is not the recipient of a permit, license, approval or certification.
(b) Subsection (a) supplements 1 Pa. Code § 31.3 (relating to definitions).
Subchapter B. DOCUMENTARY FILING
SERVICE OF DOCUMENTS § 1021.32. Service by a party.
(a) Pleadings, submittals, briefs and other documents filed in proceedings pending before the Board, when filed or tendered to the Board, shall be served upon participants in the proceeding. The service shall be made by delivering in person, or by mailing, properly addressed with postage prepaid.
(b) Complaints for civil penalties when served, shall be enclosed with the following:
(1) A statement certifying that it is a true and complete copy of the complaint filed with the Board.
(2) A notice to plead.
(c) Appeals from actions of the Department shall be served upon the following:
(1) The officer of the Department taking this action.
(2) The Office of Chief Counsel of the Department or agency taking the action appealed.
(d) If service of an appeal upon the recipient of a permit, license, approval or certification is required, 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. Reference should be made to § 1021.51(f) (relating to commencement, form and content).
(e) 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.
(f) Subsections (a)--(e) supplement 1 Pa. Code § 31.32 (relating to service by a participant).
Subchapter C. 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 shall be in the following form:
ENVIRONMENTAL HEARING BOARD
2nd Floor, Rachel Carson State Office Building
400 Market Street, Post Office Box 8457
Harrisburg, Pennsylvania 17105-8457JOHN 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 shall set forth name, address and telephone number of the appellant.
(d) If the appellant has received written notification of an action of the Department, the notification shall be attached to the appeal.
(e) The appeal shall set forth in separate numbered paragraphs the specific objections to the action of the Department. The objections may be factual or legal. An objection not raised by the appeal or an amendment thereto under § 1021.53 (relating to amendments to appeal; nunc pro tunc appeals) shall be deemed waived, provided that, upon good cause shown, the Board may agree to hear the objection. For the purpose of this subsection, good cause shall include the necessity for determining through discovery the basis of the action from which the appeal is taken.
(f) Within 10 days after 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) Where the appeal is from the granting of a permit, license, approval or certification, the recipient thereof.
(g) The service upon the recipient of a permit, license, approval or certification as required by this section, shall subject the recipient to the jurisdiction of the Board as a party appellee.
(h) Upon order of the Board, the appellant shall provide satisfactory proof that service has been made as required by this section.
(i) Subsections (a)--(h) supersede 1 Pa. Code §§ 35.5--35.7 and §§ 35.9--35.11 (relating to informal complaints; and formal complaints).
§ 1021.53. Amendments to appeal; nunc pro tunc appeals.
(a) An appeal may be amended as of right within 20 days after the filing thereof.
(b) After the 20-day period for amendment as of right, the Board, upon motion by the appellant, may grant leave for further amendment of the appeal. This leave may be granted if appellant establishes that the requested amendment satisfies one of the following conditions:
(1) It is based upon specific facts, identified in the motion, that were discovered during discovery of hostile witnesses or Departmental employes.
(2) It is based upon facts, identified in the motion, that were discovered during preparation of appellant's case, that the appellant, exercising due diligence, could not have previously discovered.
(3) It includes alternate or supplemental legal issues, identified in the motion, the addition of which will cause no prejudice to any other party or intervenor.
(c) An appellant may not request leave to amend a notice of appeal after the Board has decided any dispositive motions or the case has been assigned for hearing, whichever is later.
(d) These motions shall be governed by the procedures in §§ 1021.70 and 1021.74 (relating to general; and miscellaneous motions) except that the motion shall be verified and supported by affidavits.
(e) If motion to amend is granted, a party may request, in writing, a period of time to conduct additional discovery limited to the issues raised by the amendment. These requests shall specify a period deemed necessary therefor. The Board will act on any such request as its discretion requires.
(f) The Board upon written request and for good cause shown may grant leave for the filing of an appeal nunc pro tunc, the standards applicable to what constitutes good cause shall be the common law standards applicable in analogous cases in courts of common pleas in this Commonwealth.
(g) Subsections (a)--(f) supersede 1 Pa. Code §§ 35.5--35.7 and 35.9--35.11 (relating to informal complaints; and formal complaints).
COMPLAINTS FOR CIVIL PENALTIES § 1021.57. Form and content.
(a) The caption of a complaint for civil penalties shall be in the following form:
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF ______v. Docket No. ______
Joe Doe
234 Main Street
Smithtown, Jones County, Pennsylvania(b) The complaint for civil penalties shall set forth the statutory authority under which the Board is authorized to assess the penalties.
(c) The complaint for civil penalties shall set forth in separate numbered paragraphs the specific facts and circumstances upon which the request for civil penalties is based.
(d) Subsections (a)--(c) supersede 1 Pa. Code §§ 35.5--35.7 and 35.9--35.11 (relating to informal complaints; and formal complaints).
INTERVENTION § 1021.62. Intervention.
(a) A person may petition the Board to intervene in any pending matter prior to the initial presentation of evidence.
(b) A petition to intervene shall be verified, and shall contain sufficient factual averments and legal assertions to establish the following:
(1) The reasons the petitioner seeks to intervene.
(2) The basis for asserting that the identified interest is greater than that of the general public.
(3) The manner in which that interest will be affected by the Board's adjudication.
(4) The specific issues upon which the petitioner will offer evidence or legal argument.
(c) A copy of the petition shall be served upon the parties to the proceedings.
(d) A party may file an answer to the petition. An answer shall be verified and filed within 15 days after service of the petition, unless a shorter time is ordered by the Board.
(e) The Board will deny the petition if it fails to include sufficient legal grounds or verified factual averments to establish the right to intervene.
(f) If the Board grants the petition, the order may specify the issues as to which intervention is allowed. An order granting intervention allows the intervening party to participate in the proceedings remaining at the time of the order granting intervention.
(g) Subsections (a)--(d) supersede 1 Pa. Code §§ 35.27--35.32 and 35.36 (relating to intervention; and answers to petitions to intervene).
TERMINATION OF PROCEEDINGS § 1021.120. Termination of proceedings.
(a) In cases where a proceeding is sought to be terminated by the parties as a result of a settlement agreement, the terms of the settlement shall be submitted to the Board for approval and the major substantive provision thereof shall simultaneously be published in the Pennsylvania Bulletin. The settlement, unless the terms of the settlement itself provide otherwise, is effective immediately upon approval by the Board subject to reopening if an objection is filed as set forth in subsection (b), and upheld by the Board. An aggrieved party objecting to the proposed settlement may, within 20 days after publication, appeal to the Board under this section and request a hearing on its objections.
(b) The notice shall be in substantially the following form:
RE: (Case and Docket Number)
The Commonwealth of Pennsylvania (Department of _____ ) and (party or parties) have agreed to a settlement of the above matter. The Commonwealth had ordered under date of _____ , the (party or parties) to:
(Summarize order or appeal describing other action of the Commonwealth from which appeal was taken.)
The parties have agreed to a settlement, the major provisions of which include:
(Summarize major substantive provisions of settlement agreement.)
Copies of the full agreement are in the hands of:
(Names, addresses of counsel and telephone numbers) and at the office of the Environmental Hearing Board, and may be reviewed by an interested party on request during normal business hours.
A person believing himself aggrieved by the above settlement has a right to appeal to the Environmental Hearing Board, 2nd Floor, Rachel Carson State Office Building, 400 Market Street, P. O. Box 8457, Harrisburg, Pennsylvania 17105-8457.
Appeals shall be filed within 20 days of this publication.
The Environmental Hearing Board is empowered to approve this settlement which becomes final if no objection is timely made.
(c) The parties shall be responsible for the contents and publication of the notice.
(d) The cost of publication shall be borne by the party appealing the Department action, unless otherwise ordered by the Board.
(e) When a proceeding is withdrawn from the Board by a party prior to adjudication, withdrawal shall be with prejudice as to all matters which have preceded the action unless otherwise indicated by the Board.
REHEARING OR RECONSIDERATION § 1021.122. Reopening of record prior to adjudication.
(a) After the conclusion of the hearing on the merits of the matter pending before the Board and before the Board issues an adjudication, the Board, upon its own motion or upon a petition filed by a party, may reopen the record as provided in this section.
(b) The record may be reopened upon the basis of recently discovered evidence when all of the following circumstances are present:
(1) Evidence has been discovered which would conclusively establish a material fact of the case or would contradict a material fact which had been assumed or stipulated by the parties to be true.
(2) The evidence is discovered after the close of the record and could not have been discovered earlier with the exercise of due diligence.
(3) The evidence is not cumulative.
(c) The record may also be reopened to consider evidence which has become material as a result of a change in legal authority occurring after the close of the record. A petition to reopen the record on this basis shall specify the change in legal authority and demonstrate that it applies to the matter pending before the Board. Such a petition need not meet the requirements of subsection (d)(2) and (3).
(d) A petition seeking to reopen the record shall:
(1) Identify the evidence which the petitioner seeks to add to the record.
(2) Describe the efforts which the petitioner had made to discover the evidence prior to the close of the record.
(3) Explain how the evidence was discovered after the close of the record. A petition filed under subsection (b) shall be verified and all petitions shall contain a certification by counsel that the petition is being filed in good faith and not for the purpose of delay.
(e) The petition shall be served upon the parties to the proceedings. A petition will be treated as a miscellaneous motion under § 1021.74 (relating to miscellaneous motions) except that the motion would have to be verified or supported by affidavits. The answer shall be verified if it includes factual assertions which are not of record.
(f) Subsections (a)--(e) supersede 1 Pa. Code §§ 35.232 and 35.233 (relating to reopening of record; and reopening by agency action).
Comment: This sets a standard which is more stringent than the materiality test of Spang & Company v. DER, 592 A.2d 815 (Pa. Cmwlth. 1991), but broader than the grounds justifying reconsideration. The procedure differs from the standard motions practice under §§ 1021.70--1021.74.
§ 1021.123. Reconsideration of interlocutory orders.
(a) A petition for reconsideration of an interlocutory order or ruling shall be filed within 10 days of the order or ruling. The petition must demonstrate that extraordinary circumstances justify consideration of the matter by the Board.
(b) A copy of the petition shall be served upon the parties. A party wishing to file an answer may do so within 10 days of service or as ordered by the Board.
(c) The failure of a party to file a petition under this section will not result in a waiver of any issue.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 35.241 (relating to rehearing or reconsideration).
Comment: There is no need to file a petition for reconsideration of an interlocutory order in order to preserve an issue for later argument. Reconsideration is an extraordinary remedy and is inappropriate for the vast majority of the rulings issued by the Board.
§ 1021.124. Reconsideration of final orders.
(a) A petition for reconsideration of a final order shall be filed within 10 days of the date of the final order. Reconsideration is within the discretion of the Board and will be granted only for compelling and persuasive reasons. These reasons may include the following:
(1) The final order rests on a legal ground or a factual finding which has not been proposed by any party.
(2) The crucial facts set forth in the petition:
(i) Are inconsistent with the findings of the Board.
(ii) Are such as would justify a reversal of the Board's decision.
(iii) Could not have been presented earlier to the Board with the exercise of due diligence.
(b) A copy of the petition shall be served upon all parties simultaneously with and in the same manner as the filing of an appeal with the Board. A party wishing to file an answer may do so within 10 days of service or as ordered by the Board.
Comment: This provides a shorter time than the standard motions practice, since reconsideration must be granted within 30 days under Pa.R.A.P. 1701. The Board's period for reconsideration of final orders will run contemporaneously with the 30-day right of appeal to Commonwealth Court.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.241 (relating to rehearing or reconsideration).
Comment: This subsection is derived from the prior § 21.122.
SANCTIONS § 1021.125. Sanctions.
The Board may impose sanctions upon a party for failure to abide by a Board order or Board rule of practice and procedure. The sanctions may include the dismissal of an appeal or an adjudication against the offending party, orders precluding introduction of evidence or documents not disclosed in compliance with an order, barring the use of witnesses not disclosed in compliance with an order, barring an attorney from practice before the Board for repeated or flagrant violation of orders, or other sanctions as are permitted in similar situations by Pa.R.C.P. for practice before the court of common pleas.
ATTORNEY FEES AND COSTS AUTHORIZED BY THE COSTS ACT § 1021.131. Scope.
This section and §§ 1021.132--1021.134 applies to applications for an award of fees and expenses under the Costs Act.
§ 1021.132. Application for fees and expenses.
(a) An application for fees and expenses shall be verified and shall set forth sufficient grounds to justify the award. It shall also include the following:
(1) Identification of the final order under which the applicant claims to be a prevailing party.
(2) A statement of the basis upon which the applicant claims to be a prevailing party under the Costs Act.
(3) Specific information which is sufficient to demonstrate that the applicant meets the definition of ''party'' under the Costs Act.
(4) An itemized list of recoverable fees and expenses including hours worked, the rate charged, a reasonable description of the work performed during those hours, and the nature and reasonableness of the expenses.
(5) The basis for the allegation that the position of the Department was not substantially justified.
(b) An applicant shall file an application with the Board within 30 days of the date of the final order under which the applicant claims to have prevailed, and shall be docketed at the same number as that order. An applicant shall simultaneously serve upon counsel of record for the Department a copy of the application in the same manner that it is filed with the Board. Service by telefax shall satisfy the requirements of this rule, if an additional copy is mailed on the same day.
(c) An application may be denied sua sponte if it fails to provide all the information required by this section in sufficient detail to enable the Board to grant the relief requested.
Comment: In preparing the petition to submit to the Board, an applicant should consider the material contained in 4 Pa. Code Chapter 2, Subchapter A (relating to submission and consideration of applications for awards of fees and expenses) and the Board's prior decisions.
§ 1021.133. Response to application.
(a) The Department or other interested party shall file its response within 15 days of the filing of an application. The response shall include the following:
(1) Raise any challenge to the sufficiency of the application.
(2) Demonstrate, if applicable, that the Department's action was substantially justified.
(3) Identify special circumstances which would make the award unjust.
(b) If the response asserts that the action of the Department was substantially justified, it shall include the following:
(1) A statement of the Department's basis for its action.
(2) A summary of the testimony and exhibits either in evidence or offered into evidence in support of that basis.
(3) The legal justification for the action taken.
(c) When an applicant prevails and no record has been made before the Board, the Department may justify its action with affidavits.
§ 1021.134. Disposition of application.
(a) Each party shall file a brief simultaneously with the filing of its application or response.
(b) The Board will award fees and expenses based upon the application and response if it finds the following:
(1) The applicant is a prevailing party as defined in the Costs Act.
(2) The application presents sufficient justification for the award of fees and expenses.
(3) The action of the Department was not substantially justified, in that it had no reasonable basis in law or in fact.
(4) There are no special circumstances which would make the award unjust or unreasonable.
(c) The Board will not find the Department's action to be substantially justified, if the response fails to present a prima facie case in support of the Department's legal position.
(d) The Board may reduce the amount of an award of fees and expenses, or deny the award, to the extent that the applicant engaged in conduct during the course of the proceedings which unduly and unreasonably protracted the final resolution of the matter in controversy.
ATTORNEY FEES AND COSTS AUTHORIZED BY STATUTE OTHER THAN THE COSTS ACT § 1021.141. Scope.
This subchapter applies to requests for costs and attorney fees when authorized by statute other than the Costs Act. When a statute provides procedures inconsistent with these procedures, the statutory procedures will be followed.
§ 1021.142. Application for costs and fees.
(a) A request for costs and fees shall be by verified application, setting forth sufficient grounds to justify the award, including the following:
(1) A copy of the order of the Board in the proceedings in which the applicant seeks costs and attorney fees.
(2) A statement of the basis upon which the applicant claims to be entitled to costs and attorney fees.
(3) A detailed listing of the costs and attorney fees incurred in the proceedings.
(b) An applicant shall file an application with the Board within 30 days of the date of a final order of the Board. An applicant shall serve a copy of the application upon the other parties to the proceeding.
(c) The Board may deny an application sua sponte if it fails to provide all the information required by this section in sufficient detail to enable the Board to grant the relief requested.
§ 1021.143. Response to application.
A response to an application shall be filed within 15 days of service. A factual basis for the response shall be verified by affidavit.
§ 1021.144. Disposition of application.
(a) Each party may file a brief in accordance with a schedule established by the Board.
(b) The Board may allow discovery and the taking of testimony in order to resolve any factual issues raised by the application and response.
ATTORNEY FEES AND COSTS UNDER MORE THAN ONE STATUTE § 1021.151. Application for counsel fees under more than one statute.
An applicant seeking to recover fees and costs under more than one statute shall file a single application which sets forth, in separate counts, the basis upon which fees and costs are claimed under each statute.
[Pa.B. Doc. No. 96-1431. Filed for public inspection August 30, 1996, 9:00 a.m.]
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