PROPOSED RULEMAKING
ENVIRONMENTAL
HEARING BOARD
[25 PA. CODE CH. 1021]
Practice and Procedure
[30 Pa.B. 2766] The Environmental Hearing Board (Board) proposes to revise Chapter 1021 (relating to practice and procedures) by 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 Board.
(2) To improve the rules of practice and procedure before the Board.
I. Statutory Authority for Proposed Revisions
The Board 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 Department.
II. Description of Proposed Revisions
The proposed revisions are modifications to provisions of the rules to improve practice and procedure before the Board. These proposed revisions are based on the recommendations of the Board Rules Committee, a nine member advisory committee created by section 5 of the act to make recommendations to the Board on its rules of practice and procedure. For the recommendations to be promulgated as regulations, a majority of the Board 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 Board's proposed revisions; and (3) how the proposal differs from the Board Rules Committee's recommendations.
Some of the recommendations of the Board 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 General Rules of Administrative Practice and Procedure), so references to those rules have been added.
The proposed rules consist of substantive amendments or additions as follows: referral of pro se parties to pro bono counsel (§ 1021.24); substitution of parties (§ 1021.54); and authority delegated to hearing examiners (§ 1021.99)
1. Referral of Pro Se Parties to Pro Bono Counsel
The Board's existing regulation in § 1021.22 (relating to representation) requires that parties, except individuals appearing on their own behalf, shall be represented by an attorney at all stages of the proceedings subsequent to filing the notice of appeal. While this regulation permits individuals to appear on their own behalf, it encourages them to appear through counsel and further states that they may be required to appear through counsel if the Board determines they are acting in concert or as a representative of a group of individuals.
In 1998, the Environmental, Mineral and Natural Resources Law Section (EMNRLS) of the Pennsylvania Bar Association initiated a pro bono program for the purpose of providing pro bono representation for pro se parties appearing before the Board who demonstrated financial inability to retain an attorney. The Board requested the Rules Committee to consider a rule which would provide the Board with authority to refer these parties to the EMNRLS program or to another entity willing to provide pro bono representation.
The Committee proposed a rule: (1) authorizing the Secretary to the Board to refer pro se individuals, who claim inability to afford an attorney, to a county bar association lawyer referral service; an individual attorney, law firm or organization whose name appears on a Board register of attorneys who have volunteered to take on the representation; or the pro bono committee of the EMNRLS; and (2) authorizing the Secretary to the Board to establish a register of qualified pro bono attorneys, law firms and organizations to whom pro se parties may be referred on a rotational basis.
The Board concurred with the recommendation, but made two changes to the rule as drafted by the Rules Committee. First, it renumbered the order in which the entities willing to provide pro bono services were listed in subsection (a) of the proposed rule. Whereas under the proposed rule, the EMNRLS program had been listed third, the Board determined that it should be listed first since it was a program which had been established specifically to provide pro bono representation to financially eligible parties in Board proceedings. Second, the Board added language clarifying when the Secretary to the Board may be required to establish a register of pro bono attorneys.
2. Substitution of Parties
The Board's existing regulations do not provide for substitution of parties in the case of a person who has succeeded to the interests of a party to an appeal.
The Committee recommended adding § 1021.54 (relating to substitution of parties), which will allow a person who has succeeded to the interests of a party to an appeal to become a party to the pending action by filing with the Board a petition for substitution of party. The proposed section further provides that the substituted party shall have the rights and liabilities of the original party to the proceeding, and that any other party to the proceeding may move to strike the substituted party for just cause.
The Board concurred with the recommendation but made two changes. First, it required that a petition for substitution must be verified. Second, it granted a substituted appellant the right to amend his appeal if both he and the original appellant meet the conditions of amending an appeal as contained in the Board's existing rule on amending appeals in § 1021.53 (relating to amendments to appeal; nunc pro tunc appeals). The effect of this change is to permit a substituted appellant to amend his appeal at early stages of the proceeding but would prevent amendments to the appeal at very late stages of the proceeding which might require reopening of discovery.
3. Hearing Examiners
The Board's existing regulations do not contain a rule for the delegation of authority to hearing examiners.
The Committee recommended adopting proposed § 1021.99 (relating to authority delegated to hearing examiners). This section authorizes the Board to appoint hearing examiners to preside at hearings and to handle certain other matters as authorized by this rule. The proposed rule is patterned after the General Rules of Administrative Practice and Procedure, 1 Pa. Code § 35.187 (relating to authority delegated to presiding officers). Proposed § 1021.99 will supersede and supplant 1 Pa. Code § 35.187.
The Board concurred with this recommendation.
III. Fiscal Impact of the Proposed Revisions
The proposed rules will have no measurable fiscal impact on the Commonwealth, political subdivision or the private sector. The rules may have a favorable economic impact in that they may eliminate potential litigation over existing uncertainties in Board procedures, authority and requirements.
IV. Paperwork Requirements for Proposed Revisions
The proposed revisions will not require the Board to modify its standard orders.
V. Public Meeting on Proposed Rules
Under 65 Pa.C.S. § 704 (relating to open meetings), a quorum of the members of the Board voted to adopt the proposed rules at a public meeting held on March 14, 2000, at the Board's Harrisburg office, Hearing Room 2, Second Floor, Rachel Carson State Office Building, 400 Market Street, Harrisburg, PA.
VI. Government Reviews of Proposed Revisions
On May 22, 2000, 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 to the Independent Regulatory Review Commission (IRRC) and the Senate and House Standing Committees on Environmental Resources and Energy. The Board also provided IRRC and the Committees with copies of a Regulatory Analysis Form prepared by the Board in compliance with Executive Order 1982-2 (relating to improving government regulations). Copies of the Regulatory Analysis Form are available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any of the proposed revisions, it will notify the Board within 10 days of the close of the Committees' review period, specifying the regulatory review criteria that have not been met. The Regulatory Review Act sets forth procedures for review, prior to final publication of the proposed revisions, by the Board, the General Assembly and the Governor of objections raised.
VII. Public Comment Regarding Proposed Revisions
The Board invites interested persons to submit written comments, suggestions or objections regarding the proposed revisions to William T. Phillipy, IV, Secretary to the Environmental Hearing Board, 2nd Floor, Rachel Carson State Office Building, P. O. Box 8457, Harrisburg, PA 17105-8457, within 30 days of the date of this publication.
GEORGE J. MILLER,
ChairpersonFiscal Note: 106-5. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART IX. ENVIRONMENTAL HEARING BOARD
CHAPTER 1021. PRACTICE AND PROCEDURES
Subchapter A. PRELIMINARY PROVISIONS
REPRESENTATION BEFORE THE BOARD § 1021.24. Referral of pro se parties to pro bono counsel.
(a) The Secretary to the Board is authorized to refer parties who appear before the Board on a pro se basis, who claim not to be able to afford a lawyer, to one of the following:
(1) The pro bono committee of the Pennsylvania Bar Association's Environmental, Mineral and Natural Resources Law Section.
(2) A county bar association lawyer referral service.
(3) An individual attorney, law firm or organization whose name appears on the Board's register of attorneys who have volunteered to take on the representation.
(b) If the Secretary to the Board exercises authority under subsection (a)(3), the Secretary shall establish a register of qualified pro bono attorneys, law firms and organizations and will refer pro se parties to counsel from the register on a rotational basis. To participate on the Board's register of attorneys, an attorney shall:
(1) Be admitted to practice before the Supreme Court of Pennsylvania.
(2) Have indicated a willingness and commitment not to charge a fee for services (but may be permitted to charge the reasonable expenses of the litigation).
(3) Have registered with the Secretary.
Subchapter C. FORMAL PROCEEDINGS
APPEALS § 1021.54. Substitution of parties.
(a) A person who has succeeded to the interests of a party to an appeal by operation of law, election, appointment or transfer of interest may become a party to the pending action by filing with the Board a verified petition for substitution of party, which includes a statement of material facts upon which the right to substitute is based.
(b) The substituted party shall have all the rights and liabilities of the original party to the proceeding provided that any other party to the proceeding may move to strike the substituted party for just cause. A substituted party-appellant is limited to pursuing only those objections raised by the original appellant in its appeal, unless both the original appellant and the substituted appellant meet the conditions of § 1021.53 (relating to amendments to appeal: nunc pro tunc appeals).
HEARING EXAMINERS § 1021.99. Authority delegated to hearing examiners.
(a) The Board may appoint hearing examiners to preside at hearings. Subject to the approval of the Board member assigned to the case, the hearing examiner shall have the following authority:
(1) To schedule and regulate the course of the hearings.
(2) To administer oaths and affirmations.
(3) To rule on motions in limine, offers of proof and the admission or exclusion of evidence.
(4) To conduct pretrial conferences, settlement conferences and related pretrial proceedings and to dispose of procedural matters.
(5) To schedule the filing of posthearing briefs following the conclusion of the hearing.
(6) To recommend to the Board member or to the Board an opinion and order or adjudication disposing of the matters considered at the hearing.
(b) Subsection (a) supersedes 1 Pa. Code § 35.187 (relating to authority delegated to presiding officers).
[Pa.B. Doc. No. 00-939. Filed for public inspection June 2, 2000, 9:00 a.m.]
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