PROPOSED RULEMAKING
ENVIRONMENTAL HEARING BOARD
[25 PA. CODE CH. 1021]
Practice and Procedure
[29 Pa.B. 1074] The Environmental Hearing Board (EHB) proposes to revise Chapter 1021 (relating to practice and procedures) by amending existing rules as well as adding new procedural rules to read as set forth in Annex A.
The proposed procedural rules have several objectives:
(1) To provide the regulated community and the Department of Environmental Protection (Department) and other potential litigants with more specific guidance on how to represent their interests before the EHB.
(2) To improve the rules of practice and procedure before the EHB.
I. Statutory Authority for Proposed Revisions
The EHB has the authority under section 5 of the Environmental Hearing Board Act (act) (35 P. S. § 7515) to adopt regulations pertaining to practice and procedure before the EHB.
II. Description of Proposed Revisions
The proposed revisions are modifications to provisions of the rules to improve practice and procedure before the EHB. These proposed revisions are based on the recommendations of the EHB Rules Committee, a nine member advisory committee created by section 5 of the act to make recommendations to the EHB on its rules of practice and procedure. For the recommendations to be promulgated as regulations, a majority of the EHB members must approve the recommendations.
This summary provides a description of (1) the existing rules of practice and procedure when relevant to proposed revisions; (2) the EHB's proposed revisions; and (3) how the proposal differs from the EHB Rules Committee's recommendations.
Some of the recommendations of the EHB Rules Committee were not in proper legislative style and format, so they have been modified, where necessary, to conform to those requirements. Similarly, some of the recommendations did not contain proper cross references to 1 Pa. Code Part II (relating to the General Rules of Administrative Practice and Procedure), so references to those rules have been added.
The proposed rules can be divided into four categories: 1) substantive amendments; 2) adoption of an existing rule; 3) changes limited to superseding the General Rules of Administrative Practice and Procedure; and 4) repeals. Substantive amendments or additions were made as follows: definitions (§ 1021.2), construction and application of rules (§ 1021.4), extensions of time (§ 1021.17), representation (§ 1021.22), filing (§ 1021.30), service by a party (§ 1021.32), date of service (§ 1021.33), certificate of service (§ 1021.34), number of copies (§ 1021.35), commencement, form and content (§ 1021.51), timeliness of appeal (§ 1021.52), complaints filed by the Depart- ment (§ 1021.56), answers to complaints filed by the Department (§ 1021.57), procedure after an answer is filed (§ 1021.58), motions-general (§ 1021.70), prehearing procedures (§ 1021.81), prehearing memorandum (§ 1021.82), continuance of hearings (§ 1021.87), motions in limine (§ 1021.88), presentation by the parties (§ 1021.89), limiting number of witnesses and additional evidence (§ 1021.90), oral argument after hearing (§ 1021.92), evidence (§ 1021.107), written testimony (§ 1021.108), subpoenas (§ 1021.114), briefs (§ 1021.116), amicus curiae (§ 1021.117), sanctions (§ 1021.125), prepayment of penalties (§ 1021.161) and hearing on inability to prepay penalty (§ 1021.162).
Rules which only reflect the amendment of the EHB rules superseding the General Rules of Administrative Practice and Procedure include: effective dates of EHB adjudications and preliminary orders (§ 1021.15), service by the EHB (§ 1021.31), docket (§ 1021.41), consolidation (§ 1021.80), initiation of hearings (§ 1021.85), conduct of hearings (§ 1021.86), transcript (§ 1021.104) and adjudications (§ 1021.118).
The following are rules which recently were considered by the Procedural Rules Committee but no change was recommended: amendments to rules (§ 1021.3); notice of appearance (§ 1021.23); waiver of hearings (§ 1021.94); venue of hearings (§ 1021.96); and view of premises (§ 1021.98).
Rules which the Committee recommended be repealed are: timely filing required (§ 1021.11); appearance in person (§ 1021.21); publication of notice (§ 1021.36); general (§ 1021.56); form and content (§ 1021.57); special actions (§ 1021.61); pleadings, generally (§ 1021.64); complaints (civil penalties) (§ 1021.65); and answers (§ 1021.66).
These amendments in large part reflect the evolution and refinement of practice before the EHB since the mid-1970's when the EHB's rules of practice and procedure were first adopted.
Next year, in light of the revisions to the rules the EHB will ask the Rules Committee to consider reorganizing the rules in a more orderly format as well as adding cross references to make the rules more user friendly.
1. Definitions
The EHB's existing rule on definitions is § 1021.2. The section provides definitions for the following terms: ''act,'' ''action,'' ''Board,'' ''Costs Act,'' ''Department,'' ''dispositive motion,'' ''hearing examiner,'' ''intervenor,'' ''party,'' ''permittee,'' ''person,'' ''supersedeas'' and ''third-party appeal.'' The definitions supplement the General Rules of Administrative Practice and Procedure.
The proposed amendments include a definition of ''pleading'' which excludes the notice of appeal so that pleadings are involved only in actions instituted by complaint. The Committee adopted the amendment at the EHB's recommendation. The EHB's case law on whether a notice of appeal is a pleading has been divergent. To clarify and provide uniformity for persons who appear before the EHB, the Committee recommended the following definition: ''Pleading--A complaint filed under § 1021.56 (relating to complaints filed by the Department) or answer filed under § 1021.57 (relating to answers to complaints filed by the Department). Documents filed in appeals, including the notice of appeal, are not pleadings.'' The section states that the definitions supplement the General Rules of Practice and Procedure except for the definition of pleadings which supersedes the definition in the General Rules of Practice and Procedure. This change is consistent with the newly proposed rules on pleadings in actions initiated by complaint (§§ 1021.56--1021.58) but still permits an attack on the legal sufficiency of a notice of appeal by a motion to dismiss or a motion for summary judgment.
The EHB concurs with the proposed amendments.
2. Construction and Application of Rules
The EHB's existing rules do not provide a rule for the construction and application of rules. Proposed § 1021.4 is designed to permit the EHB to act so as to secure the just, speedy and relatively inexpensive determination of proceedings before it. The proposed section is patterned after Pa.R.C.P. No. 126. The proposed section is the same as the one recommended by the EHB Rules Committee. The EHB adopted the section as received from the Committee.
3. Timely Filing Required
The EHB's existing § 1021.11 includes provisions that documents filed with the EHB shall be received within the time limits for the filing, that the date of receipt by the EHB and not the date of deposit in the mail is determinative.
The Committee believed this section's provisions were duplicative to the provisions in the new section on filing, § 1021.30. Thus, the Committee decided to delete the text in the section and mark § 1021.11 as Reserved.
The EHB concurs with this recommendation.
4. Effective Dates of EHB Adjudications and Preliminary Orders
The EHB's existing § 1021.15 provides that adjudications and orders of the EHB become effective on the date of entry.
The Committee decided to retain the section. The Committee's only recommendation is a technical change of ''supplement'' to ''supersedes'' so this section will supersede the provision of the General Rules of Administrative Practice and Procedure.
The EHB concurs with this recommendation.
5. Extensions of Time
The EHB's existing § 1021.17 provides the grounds for the extensions of time for the filing of a document and for the continuances of hearings.
The Committee recommended amendments regarding the provision for extension of time so it is clear that the time for filing an appeal cannot be extended beyond the 30-day requirement set forth in the rules. The Committee also proposed that the language ''before the expiration of the time for filing'' be deleted to allow the provision to apply to requests for extensions made both before and after the expiration of the time for filing. The provision of the existing section for continuance of hearings shall be moved to § 1021.87 relating to hearings.
The EHB concurs with these recommendations.
6. Appearance in Person and Representation
The EHB's existing §§ 1021.21 and 1021.22 have separate rules for the appearance in person and the appearance by attorney. The section on appearance in person provides that an individual may appear in his own behalf; that a partnership may be represented by its members, that an association may be represented by its officers; and that an authority or governmental agency, other than the Department, may be represented by an officer or employe. The section on appearance by attorney provides that a corporation shall be represented by an attorney admitted to practice before the Supreme Court of Pennsylvania, that a person may be represented in a proceeding by an attorney-at-law admitted to practice before the Supreme Court of Pennsylvania, that the EHB may require that a party be represented by an attorney, that a party other than the Commonwealth may not be represented by an attorney or person who is at the same time an employe of the Commonwealth.
The Committee recommended that the two sections be consolidated into one section on representation. The section includes the following new provisions: 1) parties, except individuals appearing in their own behalf, shall be represented by an attorney admitted to practice before the Supreme Court of Pennsylvania at all stages subsequent to the filing of the notice of appeal; and 2) pro hac vice representation may, upon written request, be by an attorney admitted to practice in jurisdictions other than the Commonwealth if the jurisdiction where the attorney is admitted to practice accords a like privilege to attorneys of this Commonwealth.
The EHB's existing section requires that a corporation must be represented by an attorney. The proposed section extends this requirement to unincorporated associations. This change is mandated by the statute prohibiting the unauthorized practice of law, 42 Pa.C.S. § 2524 (relating to penalty for unauthorized practice of law), and is in accordance with the General Rules of Administrative Practice and Procedure applicable to adversarial proceedings before all State agencies, 1 Pa. Code §§ 31.21-- 31.23 (relating to appearance in person; appearance by attorney; and other representation prohibited at hearings).
The EHB recognizes that citizen groups have made great contributions to the development of environmental law. However, those contributions have been made, for the most part, by groups represented by counsel dedicated to innovation in these types of proceedings and who have the capacity to select the types of expert witnesses necessary to provide the factual backdrop for these legal developments. The EHB's experience with unrepresented citizen groups as appellants has been that these groups are rarely successful with lay representation. In addition, the EHB's efforts to administer appeals by large numbers of citizens by appointing a lay spokesperson for the group invariably leads to the unauthorized practice of law by persons who are not bound by the restrictions placed on attorneys by the Rules of Professional Conduct. While associations may employ persons who are not attorneys, that person may not render legal services unless admitted to practice law. 42 Pa.C.S.A. § 2524. Representation before the EHB in discovery proceedings and in the hearing on the merits clearly is the rendering of legal services.
The Commonwealth Court recently reiterated that a party does not have a right to be represented in administrative procedures by anyone other than an attorney. Westmoreland County v. Rodgers, 693 A.2d 996, 999 (Pa. Cmwlth. 1997). The Court further stated that an administrative agency, through its rules and regulations, cannot confer the power to engage in the unauthorized practice of law.
This change was proposed only after a great deal of discussion and deliberation both by the Committee and the EHB. Citizen involvement helps ensure that the decisions of the EHB are grounded upon complete and full information. The EHB desires to comply with the law regarding the unauthorized practice of law yet still make sure that such a rule does not act to curtail citizen involvement in its adjudicatory proceedings. In this regard the EHB has worked closely with the Pennsylvania Bar Association to implement a program to provide representation by an attorney before the EHB to qualified pro se individuals. This program will begin a 1-year trial period in January, 1999.
The Committee decided to retain the existing provisions that: 1) an individual may appear on his own behalf or be represented in a proceeding by an attorney admitted to practice before the Supreme Court of Pennsylvania and in appropriate circumstances the EHB may require an individual or group of individuals to be represented by an attorney; and 2) a party, other than the Commonwealth, may not be represented by an attorney or person who is at the same time an employe of the Commonwealth.
The EHB concurs with these recommendations.
7. Filing
The EHB's existing sections do not include a section governing filing of documents. The proposed § 1021.30 is designed to provide universal guidelines for the filing of documents.
This proposed section is new and consists of three sections which require: 1) that all documents be filed at the EHB's headquarters; 2) that the date of filing is the date the EHB receives the document; and 3) that the documents may be filed by personal delivery, by mail or by facsimile. Furthermore, the section provides that the original of a faxed document shall be deposited in the mail on the same day of the faxing. In addition, if the document which is faxed exceeds ten pages then only the first five pages and the last five pages as well as the certificate of service must be faxed. Finally, the section provides that a filing received after the close of the business day at 4:30 pm Eastern Time shall be deemed to be filed on the following business day.
The EHB's concurs with these recommendations.
8. Service by the EHB
The current § 1021.31 provides that orders, notices and other documents from the EHB shall be served on the person designated in the notice of appearance by mail or in person.
The Committee recommended a technical change of ''supplement'' to ''supersedes'' in subsection (b) so that this section will supersede the provision of the General Rules of Administrative Practice and Procedure in 1 Pa. Code § 33.31 (relating to service by the agency).
The EHB concurs with this recommendation.
9. Service by a Party
The EHB's existing section on service by a party is § 1021.32. This section provides that pleadings, submittals, briefs and other documents shall be served upon participants when they are filed or tendered to the EHB; that complaints for civil penalties should include a notice to plead and a statement certifying that it is a true and complete copy of the complaint; that appeals of Department actions should be filed with the Department officer taking the action and the office of chief counsel of the Department or agency taking the action; that service of an appeal upon the recipient of a permit, license, approval or certification shall be made at the address in the document evidencing the action by the Department or at the chief place of business and that documents filed with the EHB shall be filed at its headquarters.
The proposed section, which will supersede the comparable requirements of the General Rules of Practice and Procedure, is rewritten to coincide with amendments to other rules and to streamline the requirements of service. The proposed section deletes all of the current provisions regarding service for pleadings, submittals, briefs, other documents; complaints for civil penalties; appeals from actions; service of an appeal upon recipient of a permit, license, approval or certification; and where the documents are to be filed. The section provides that copies of each document filed with the EHB shall be served upon every party to the proceeding on or before the day that the document is filed with the EHB and the service upon a party represented by an attorney shall be made by serving the attorney.
The Committee proposed that service be made on the same day the document is filed with the EHB.
The EHB decided the proposed section should require service on or before the date of filing but otherwise concurs with the recommendations.
10. Date of Service
The EHB's sections provide for the date of service, § 1021.33. Under the existing section the date of service is the date the document served is deposited in the United States mail, or is delivered in person.
The Committee proposed amendments to make the date of service the date the document is mailed or delivered in person. If service is made by mail 3 additional days are added to the time required for filing a response. The section provides the additional time because it allows for the time for the processing and receipt of mail by the receiving party and is similar to the provisions applicable in Pennsylvania courts.
The EHB concurs with the proposed amendments.
11. Certificate of Service
The EHB's existing § 1021.34 provides for the proof of service. The section gives the EHB discretion to require proof of service.
The Committee proposed to require a certificate of service for every document. The proposed section provides that all filings include a certificate of service as well as the name and address of the person served.
The EHB concurs with the Committee's recommendation but limits the requirement to documents ''required to be'' filed with the EHB. This eliminates the need for a certificate for correspondence or other informal requests for administrative action by the EHB.
12. Number of Copies
The EHB's existing § 1021.35 provides the following number of copies for: 1) pleadings and briefs--three copies; and 2) other documents--one copy as well as that a copy of briefs and other documents be served on the other party in a proceeding.
The Committee proposed to amend the section to more accurately reflect the practice before the EHB. The proposed amendments include requiring three copies of dispositive motions and posthearing briefs and giving the EHB discretion to alter the requirements by order if it deems necessary.
The EHB generally concurred with the amended section. However, the EHB decided also to require two copies for prehearing memoranda, petitions for supersedeas and all motions, other than motions for stays, extensions and continuances of procedural deadlines.
13. Publication of Notice
The EHB's existing § 1021.36 states that the publication of a notice of an action or proposed action by the Department or EHB in the Pennsylvania Bulletin shall constitute notice to or service upon all persons, except a party, effective as of the date of publication.
The Committee recommended deleting the section because it is unnecessary in view of the provisions of § 1021.52 relating to the timeliness of an appeal.
The EHB does not concur with this recommendation because this section is necessary with respect to notices which must be published by the EHB.
14. Docket
The EHB's existing § 1021.41 provides that the EHB will maintain a docket of proceedings and that proceeding, as initiated, shall be assigned an appropriate designation, that the EHB will maintain a complete official file on proceedings, and that the docket and the official file shall be available for inspection and copying by the public during the office hours of the EHB insofar as consistent with the proper discharge of the duties of the EHB.
The Committee recommends a technical change of ''supplements'' to ''supersedes'' so this section will supersede the provision of the General Rules of Administrative Practice and Procedure in 1 Pa. Code § 33.57 (relating to docket).
The EHB concurs with this recommendation.
15. Commencement, Form and Content
The EHB's existing § 1021.51 did not have a provision with respect to prepayment of a penalty in an appeal from an assessment of a civil penalty.
The proposed amendment of subsection (f) requires that an appeal from an assessment of a civil penalty must be accompanied by a check in the amount of the penalty or a bond to secure payment or a verified statement that the appellant is unable to pay.
The EHB concurs with the recommendation.
16. Timeliness and Perfection
The EHB's existing § 1021.52 no longer contains a provision which allows for the dismissal of an appeal if the appellant does not submit information required for an appeal under § 1021.51 after the EHB requests it. This authority was inadvertently omitted when the EHB recently revised its rules to eliminate the practice of filing a ''skeletal appeal.''
The proposed section includes in subsection (b) a provision that the appellant shall submit any missing information required by § 1021.51(c), (d) and (i) within 20 days or suffer dismissal of the appeal. Any failure to include specific grounds for appeal as required by subsection (e) will be considered only in connection with a motion from the opposing party.
The EHB concurs with this recommendation.
17. Complaints Filed by the Department
The EHB's existing regulations include §§ 1021.56 and 1021.57 (relating to special actions). The sections set forth the following: 1) that complaints for civil penalties may be filed by the Department when authorized; 2) that action for civil penalties shall commence when the complaint is filed and service of the complaint and of notice to plead is made upon the defendants; and 3) the form and content requirements of a complaint.
The proposed §§ 1021.56--1021.58 more accurately reflect the practice before the EHB. The EHB not only has jurisdiction over complaints for civil penalties but also has jurisdiction over other proceedings which must be instituted by complaint. A prominent example is a complaint to recover the Department's costs of response to releases of hazardous substances under the Hazardous Sites Cleanup Act (35 P. S. §§ 6020.101--6020.1304). The Committee believed that these sections should apply to all Department actions that must be instituted by complaint. Thus to avoid confusion and to provide consistency, the Committee redrafted the rules. The Committee decided to make the following changes: 1) rename the undesignated center heading from ''Complaints for civil penalties'' to ''Special Actions''; 2) state more specific guidelines on when and how a complaint may be filed and the required contents of a complaint in § 1021.56; and 3) change § 1021.57 to address the requirements for answers to complaints which must be filed with the EHB within 30 days after the date of service of the complaint, unless for cause the EHB prescribes a different time. The answer must state any legal objections and denials in a single pleading whether or not they might under other civil practice be expressed by way of preliminary objection. The answers must be in writing and must express the matters of fact and law relied upon for a defense. The failure to do so may result in the admission of facts in the complaint or other sanctions.
The Committee proposed a totally new § 1021.58, which addresses subsequent procedures to an answer to a complaint. The rule provides that after an answer is filed the prehearing procedures in § 1021.81, which is also applicable to an appeal, shall be followed.
Having made these comprehensive amendments the Committee determined that existing § 1021.61 (Special actions), § 1021.64 (Pleadings: generally), § 1021.65 (Complaints) and § 1021.66 (Answers) were no longer necessary and thus repealed them.
The EHB concurs with these recommendations.
18. Complaints for Civil Penalties--General
As noted previously, existing § 1021.56 is deleted.
19. Complaints for Civil Penalties--Form and Content
As noted previously, existing § 1021.57 is deleted.
20. Special Actions
For the reasons stated previously, existing § 1021.61 is deleted.
21. Pleadings: Generally
For the reasons stated previously, existing § 1021.64 is deleted.
22. Complaints (Civil Penalties)
For the reasons stated previously, existing § 1021.65 is deleted.
23. Answers (Civil Penalties)
For the reasons stated previously, existing § 1021.66 is deleted.
24. Motions--General
The EHB had requested the Committee to include orders precluding a party from contesting well pled facts in a complaint or motion which the responding party does not fairly meet in its response in the sanction rule. The EHB already has a rule in terms of motions that requires people to come back with detailed responses to factual averments of a motion. Thus, when the party does not respond to a motion or address the motion the EHB should have a mechanism to deem any facts admitted. After discussion with the Committee, the Committee recommended that the motions rule--§ 1021.70, specifically subsection (e), be amended to empower the EHB to find facts consistent with those averred when there is no response to the facts. The exact proposed language reads, ''. . . Material facts set forth in the motion that are not denied may be deemed admitted for the purposes of deciding the motion.''
The EHB concurs with this recommendation.
25. Consolidation
The EHB's existing § 1021.80 allows the EHB to consolidate proceedings involving a common question of law or fact for hearing of any or all of the matters in issue in proceedings whether it is on its own motion or on the motion of any party.
The Committee recommends a technical change of ''supplements'' to ''supersedes'' in subsection (b) so this section will supersede the provision of the General Rules of Administrative Practice and Procedure in 1 Pa. Code § 35.45 (relating to consolidation).
The EHB concurs with this recommendation.
26. Prehearing Procedure
The EHB's existing § 1021.81 provides among other items, that the party with the burden of proof shall serve its expert reports and answers to all expert interrogatories within 120 days of the date of the prehearing order. The opposing party shall serve its expert reports and answers to all expert interrogatories within 30 days after receipt of the expert reports and interrogatories from the party with the burden of proof.
The EHB believes that to clarify the second sentence of this provision, the following language should be added so the sentence would read, ''The opposing party ... within 30 days after receipt of the expert reports and all answers to expert interrogatories from the party with the burden of proof.''
27. Initiation of Hearings
Section 1021.85 provides that if the proceedings are at issue and a hearing is required, a formal evidentiary hearing shall be scheduled and a notice of hearing shall be sent to all parties to the proceedings.
The Committee recommends a technical change of ''supplements'' to ''supersedes'' so this section will supersede the provision of the General Rules of Administrative Practice and Procedure in 1 Pa. Code § 35.121 (relating to initiation of hearings).
The EHB concurs with the Committee's recommendations.
28. Conduct of Hearings
The EHB's existing § 1021.86 provides that hearings may be held, at the discretion of the EHB, before the whole EHB, by individual members as administrative law judges or by hearing examiners; any hearing held by a hearing examiner who is not a member of the EHB will be decided by the EHB after review of the record and the examiner's proposed adjudication; all final decisions of the EHB shall be decided by majority vote; and petitions for supersedeas and other petitions and motions may be decided by the EHB member hearing the petition or motion.
The Committee recommends a technical change of ''supplement'' to ''supersedes'' so this section will supersede the provision of the General Rules of Administrative Practice and Procedure in 1 Pa. Code § 35.123 (relating to the conduct of hearings).
The EHB concurs with this recommendation.
29. Continuance of Hearings
The existing part of § 1021.17 provides that hearings may not be continued except for compelling reasons, requests for continuances shall be submitted to the EHB in writing with a copy served upon other parties to the proceedings, except that during the course of a hearing in a proceeding, the requests may be made by oral motion in the hearing.
The Committee recommended that this provision be moved to the hearing section, specifically § 1021.87, since that is the most logical location for this section. This section will supersede the General Rules of Practice and Procedure in 1 Pa. Code § 31.15 (relating to extensions of time).
The EHB concurs with that recommendation.
30. Motions in Limine
The EHB currently does not have a section which specifies the procedure to be used for motions in limine, although the motion is referenced in the provisions on prehearing motions. Since the EHB does receive these requests the EHB believes that it would be appropriate to have a section as guidance to those individuals who appear before the EHB.
The proposed § 1021.88 states that a party may get a ruling on evidentiary issues by filing a motion in limine similar to practice in civil courts in this Commonwealth. A threshold motion may be made before or during the hearing.
The EHB concurs with this recommendation.
31. Presentation by the Parties
The current § 1021.88 provides that parties shall have the right of presentation of evidence, cross examination, objection, motion and argument.
The Committee recommends that the section be renumbered to § 1021.89 and amended to state that parties have the right to an opening statement and closing argument in addition to those matters already listed and that the party with the burden of proof is required to make a prima facie case by the close of its case-in-chief. In addition, the Committee recommends a technical change of ''supplement'' to ''supersedes'' so that this section will supersede the provision of the General Rules of Administrative Practice and Procedure in 1 Pa. Code § 35.126 (relating to presentation by the parties).
The EHB concurs with these recommendations.
32. Limiting Number of Witnesses and Additional Evidence
The EHB's existing § 1021.90 states that the EHB may limit the number of witnesses upon an issue and may require a party to present additional evidence on an issue.
The Committee recommended to the EHB that ''require'' be amended to ''request.'' This amendment permits the parties, rather than the presiding judge, to decide what evidence will be presented to the full EHB.
The EHB concurs with the Committee's recommendation.
33. Oral Argument After Hearing
The current § 1021.92 provides that a party may, within 5 days after hearing and prior to adjudication, request oral argument before the entire EHB and that the EHB may grant or deny the request.
The Committee recommended that the section be changed so that a request need not be filed until after the parties have fully briefed the case. This change gives the parties a better chance to evaluate whether they should make a request.
The EHB concurs with the recommended amendment, but has changed the language from ''briefing'' to ''the last posthearing brief.''
34. Transcript
The current § 1021.104 provides: that hearings shall be stenographically reported, a transcript of the report be made a part of the record, parties can obtain copies of the transcript from the court reporter, and parties shall have the opportunity to review a copy of the transcript on file with the EHB.
The Committee discussed the ramifications of the decision of Sierra Club v. PUC, 702 A.2d 1131 (Pa. Cmwlth. 1998), which upheld the validity of a similar regulation of the Pennsylvania Public Utility Commission against a claim that the Commission was required by the Right-to-Know Act to provide a copy of the transcript to the public for the cost of copying. The Supreme Court has granted a petition for review of the case. The Committee recommended only the technical change of ''supplement'' to ''supersedes'' so that this rule will supersede the provision of the General Rules of Administrative Practice and Procedure and to add two other sections of the General Rules of Administrative Practice and Procedure, 1 Pa. Code §§ 35.132 and 35.133, which are superseded by the EHB's rules.
The EHB concurs with the recommendation.
35. Evidence
The EHB's existing § 1021.107 provides that the EHB is not bound by technical rules of evidence but that relevant and material evidence of reasonable probative value is admissible as provided in 2 Pa.C.S. § 505 (relating to evidence and cross-examination). The section also provides that written testimony of a witness may be admitted into evidence provided the witness is present for cross-examination and provided a copy of the testimony was served upon and received by other parties. It also requires that copies of an exhibit to be offered into evidence shall be made available to parties at the time it is identified as an exhibit and witnesses shall be sworn or shall affirm.
The proposed section would make the following amendments: add a note to subsection (a) that the EHB generally applies the Pennsylvania Rules of Evidence, repeal current subsection (b) in favor of a new § 1021.108 --Written testimony, renumber the remaining subsections, and change ''supplement'' to ''supersede'' in the reference to the General Rules of Administrative Practice and Procedure.
The EHB concurs with the recommendations.
36. Written Testimony
The Committee believed that a separate section on written testimony would enhance the practice before the EHB and offer more specific guidance to parties who come before the EHB.
The Committee has proposed a new § 1021.108, which provides: 1) that a witness' written testimony be on numbered lines in a question and answer form; 2) that the testimony may be admitted into evidence provided the witness is present for cross-examination; 3) that written testimony shall be filed concurrently with the prehearing memorandum unless the EHB prescribes otherwise; 4) that any objections to the testimony which can be reasonably anticipated prior to hearing must be in writing and filed at least 5 days before the hearing or unless ordered by the EHB; and 5) a party who wishes to file written testimony at a later date must obtain EHB approval by motion. Any approval shall include the scope of the testimony and the time for filing and service upon opposing counsel.
The EHB concurs with the recommendations.
37. Subpoenas
The EHB's existing § 1021.114 provides that the EHB will provide parties with subpoenas for the attendance of witnesses or for the production of documentary evidence upon request.
The Committee proposed that, except as otherwise provided in this regulatory chapter or by order of the the EHB, requests for subpoenas and subpoenas shall be governed by Pa.R.C.P. Rules 234.1--234.4 and 234.6--234.9 and that proof of service of the subpoena need not be filed with the EHB. The proposal provides that upon the request of a party the Secretary to the EHB shall issue a subpoena in blank signed and under seal of the EHB in accordance with the Pa.R.C.P.
The EHB concurs with the recommendation.
38. Briefs
The current § 1021.116 provides that the parties may submit briefs upon their request and within the time prescribed by the EHB. The briefs shall be served on other parties and shall include suggested findings of fact and conclusions of law.
The Committee recommends that the section be amended as follows: the section be renamed ''posthearing'' briefs, that initial posthearing briefs contain proposed findings of fact with appropriate references to the exhibit or page of the transcript, an argument with citations to supporting legal authority, and proposed conclusions of law. The proposed section also provides for reply briefs which shall be as concise as possible and not exceed 25 pages, unless the presiding administrative law judge permits otherwise. Finally, the proposed section contains a provision which specifically states that any issue which is not argued in a post-hearing brief is waived. This section supersedes the General Rules of Administrative Practice and Procedure.
These changes reflect the Committee's desire to make the EHB's sections more specific and to codify policies which the EHB already implements. The limit on reply briefs is necessary to assure the parties state their full position in their initial briefs. The waiver of arguments not presented in posthearing briefs has been the rule adopted by Commonwealth Court in Lucky Strike Coal Co. v. DER, 547 A.2d 447 (Pa. Cmwlth. 1988), in which the Court stated that issues not raised in a posthearing brief are deemed to have been waived.
The EHB concurs with these recommendations.
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