RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL HEARING BOARD
[25 PA. CODE CH. 102]
Practice and Procedure
[31 Pa.B. 428] 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 regulations modify the rules of practice and procedure before the Board by implementing improvements in practice and procedure.
The Board approved the final regulations at its October 4, 2000, meeting.
Effective Date
The regulations will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
Contact Person
For further information, contact 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 rulemaking is required in an alternative form, William Phillipy may be contacted at the number in this Preamble. TDD users may telephone the Board through the AT&T Pennsylvania 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 regulations from the Independent Regulatory Review Commission (IRRC) and from John W. Carroll, Esq. of Pepper Hamilton LLP. The comments will be addressed on a section-by-section basis.
§ 1021.24 Referral to Pro Bono Counsel
Mr. Carroll questioned why the pro bono program is limited to pro se litigants and to ''parties'' and suggested that the rule should also apply to organizations and all persons before they become ''parties.'' The Board agreed with this comment and has changed the rule to apply to any person who appears or intends to appear before the Board on a pro se basis and who claims inability to afford a lawyer.
Subsection (a) of the proposed rule authorized the Secretary to the Board to refer to pro bono counsel parties ''who claim not to be able to afford a lawyer.'' Both the staff of IRRC and Mr. Carroll questioned whether the Board should include a process and standard for verifying a party's financial need. Proposed subsections (a)(3) and (b), which authorized the Board Secretary to refer parties to ''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,'' were also opposed for these and other reasons.
The Board's consideration of these and other comments has led it to withdraw subsections (a)(3) and (b) of this rule. The final proposed rule only seeks authority to refer persons who claim to be unable to afford a lawyer to the appropriate state or county bar association with respect to their request for pro bono representation. Any bar association may then make its own decision as to whether or not to seek pro bono representation for the applicant based on its standards for determining whether the applicant is able to afford a lawyer. The Board has therefore added the following language to the proposed final rule: ''The financial standard for determining a person's ability to afford a lawyer will be the standard adopted or applied by the appropriate bar association at the time of referral.''
The Board's ability to refer persons not represented by counsel is important not only to the Board but also to other litigants before the Board. Persons who represent themselves in Board proceedings waste both the Board's time and that of business or municipal entities involved in the litigation as a result of favorable Department of Environmental Protection (Department) action with respect to their application. This is because persons who represent themselves are not versed in either the Board's rules of procedure or 225 Pa. Code (relating to Pennsylvania Rules of Evidence). These complex rules are applied in the hearing on the merits of the claims of the parties. In addition, persons who represent themselves have been known to improperly conduct discovery proceedings through the issuance of subpoenas to the great cost and annoyance of the other parties to the litigation.
The proposed final regulation will serve these interests by authorizing the Board's Secretary to direct these persons to the Pennsylvania Bar Association, or any relevant county bar association, for referral to pro bono counsel willing to provide these services without payment of a fee. The Board and the Pennsylvania Bar Association have inaugurated such a program under which the Secretary to the Board refers any such person to the Pennsylvania Bar Association. The Pennsylvania Bar Association will attempt to secure representation for any person who can demonstrate to the bar association an inability to pay for such legal services.
The standard for providing pro bono services to persons unable to afford legal representation through the Pennsylvania Bar Association was developed through a committee of that Bar Association's Environmental, Mineral and Natural Resources Law Section in consultation with members of the Board. The standard reflects the fact that totally destitute persons ordinarily do not take appeals from actions of the Department. However, persons owning some property may be adversely affected by Department action, but may be unable to afford legal representation. This standard also reflects the consideration that the pro bono program must be designed so that paying clients will not be taken away from attorneys in this Commonwealth who charge comparatively low legal fees. Accordingly, a standard was developed which is somewhat more liberal than what is applied under strict Legal Services Corporation guidelines. The standard applied by the Pennsylvania Bar Association under the current program is that the individual must meet one of the following eligibility criteria:
1. Income greater than 187.5% of the official Federal poverty threshold (OPT) guideline but no more than 200% of the OPT.
2. Income below 187.5% of the OPT who are nevertheless ineligible for free legal services through another program either as a result of a lack of appropriate funding or lack of environmental training on the part of program attorneys.
The Pennsylvania Bar Association will seek pro bono counsel for an appellant referred to it by the Board with a full financial disclosure that the applicant meets this standard. In the event an individual does not fall into either of these categories, the applicant may qualify for pro bono services by submitting an in forma pauperis affidavit under Pa.R.C.P. 240(h). This rule requires the party to make a complete financial disclosure and supply an affidavit from his attorney stating his belief that the party is unable to pay for legal services and that the attorney is providing free legal service to the party.
This financial standard will permit individuals having an income level somewhat above that which would qualify them for free representation in Federally funded programs as well as those persons who may be eligible for other Federally funded programs, but to whom these free legal services are unavailable or where there is a lack of appropriate environmental training on the part of program attorneys.
The Board expects that the standard for inability to pay for legal services approved by the Pennsylvania Bar Association or any relevant bar association will vary from time to time depending upon changing economic circumstances of likely applicants and of the practice of law. These standards may also vary depending on changes in state and Federal standards for providing public service to needy persons without charge. Accordingly, the Board has not proposed a fixed standard for bar associations to follow in making their decision as to whether to seek pro bono counsel for any particular applicant. However, the Board believes that the Pennsylvania Bar Association standard is most appropriate and that the bar associations will apply adequate standards for anyone who is unable to pay for legal services as circumstances may change.
The Board received other comments with respect to the now withdrawn provisions of the rule. It is unnecessary to respond to these comments in connection with this proposed final rule.
§ 1021.54 Substitution of Parties
Both IRRC and Mr. Carroll commented that the use of the word ''election'' in subsection (a) was unclear and that it should be clarified to indicate that it meant election to public office. The Board agreed with this comment and added the language ''to public office'' after the word ''election'' in subsection (a) of the final rule.
Mr. Carroll stated that the last sentence of subsection (b) referring to § 1021.53 was confusing. He questioned whether the reference should specifically be to § 1021.53(b)(2). The Board agreed and revised subsection (b) of the final rule to refer to § 1021.53(b)(2).
§ 1021.99 Authority Delegated to Hearing Examiners
IRRC submitted no comments on this proposed rule. Mr. Carroll had two comments. First, he suggested that the word ''appoint'' in subsection (a) should be replaced with ''assign.'' The Board disagreed, determining that ''appoint'' was the proper term. While the Board might assign the duties of a hearing examiner to an assistant counsel employed by the Board, the rule should be more expansive in order to include the appointment of someone not in the employ of the Board, such as a former administrative law judge, to act as a hearing examiner in times of a heavy caseload.
Mr. Carroll also felt that the use of the phrase ''dispose of procedural matters'' in subsection (a)(4) was too broad. The Board disagreed and determined that use of the word ''dispose'' was appropriate. The intent of the rule is that an assigned hearing examiner will work closely with the Board member in disposing of important objections or motions.
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 by 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 30 Pa.B. 2766 (June 3, 2000), to IRRC and the Senate and House Environmental Resources and Energy Committees for review and comment. The Board also provided IRRC and the Committees with the Regulatory Analysis Form prepared in compliance with Executive Order 1996-1 (relating to regulatory review promulgation) and copies of comments received.
In preparing the final-form regulations, the Board has considered the comments received from the public and IRRC. No comments on the proposed rulemaking were received from either of the legislative committees.
These final-form regulations were submitted to the House Environmental Resources and Energy Committee and the Senate Environmental Resources and Energy Committee on November 8, 2000. 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 December 14, 2000, and approved the regulations under section 5.1(e) of the Regulatory Review Act (71 P. S. § 745.5a(e)).
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, 1 Pa. Code §§ 7.1 and 7.2.
(2) These regulations are necessary and appropriate for administration of the act.
Order
The Board orders that:
(a) The regulations of the Board, 25 Pa. Code Chapter 1021, are amended by adding §§ 1021.24, 1021.54 and 1021.99 to read as set forth in Annex A.
(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,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 30 Pa.B. 6964 (December 30, 2000).)
Fiscal Note: Fiscal Note 106-5 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 PROCEDURE
Subchapter A. PRELIMINARY PROVISIONS
REPRESENTATION BEFORE THE BOARD § 1021.24. Referral to pro bono counsel.
(a) The Secretary to the Board is authorized to refer persons who appear before the Board on a pro se basis, and 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.
(b) The financial standard for determining a person's inability to afford a lawyer will be the standard adopted by the appropriate bar association at the time of referral.
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 to public office, 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(b)(2) (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. 01-74. Filed for public inspection January 19, 2001, 9:00 a.m.]
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