RULES AND REGULATIONS
ENVIRONMENTAL HEARING BOARD
[25 PA. CODE CH. 1021]
Practice and Procedure
[32 Pa.B. 5883] The Environmental Hearing Board (Board) amends Chapter 1021 (relating to practice and procedure) to read as set forth in Annex A. The final-form rulemaking modifies the rules of practice and procedure before the Board by implementing improvements in practice and procedure.
The Board approved the final-form rulemaking at its July 10, 2002, meeting.
Effective Date
The final-form rulemaking will go into effect upon publication in the Pennsylvania Bulletin.
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 notice is required in an alternative form, William Phillipy may also be contacted. TDD users may telephone the Board through the AT&T Pennsylvania Relay Service, (800) 654-5984.
Statutory Authority
The final-form rulemaking is 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 rulemaking from the Independent Regulatory Review Commission (IRRC). The Board received no comments from the public. IRRC's comments are addressed in the following section.
Electronic Filing
Proposed § 1021.31(c) (relating to signing) stated as follows: ''The Board may impose an appropriate sanction for a bad faith violation of subsection (b).'' IRRC recommended adding a cross-reference to § 1021.161 (relating to sanctions). This has been done in the final-form rulemaking.
Proposed §§ 1021.71--1021.73 (relating to complaints filed by the Department; complaints filed by other persons; and transferred matters) stated as follows: ''Service of the complaint shall be by personal service or any form of mail requiring a receipt. . . .'' IRRC recommended clarifying the phrase ''any form of mail.'' The final-form rulemaking has been changed to read ''certified or registered mail.''
Proposed § 1021.73 stated that a complaint shall be filed ''within the time period directed to do so by the Board.'' IRRC recommended specifying the amount of time in which the Board would allow a party to file a complaint. The final-form rulemaking has been revised to read ''within the 30-day time period directed by the Board.''
Proposed § 1021.94 (relating to dispositive motions) contained requirements for the filing of dispositive motions. IRRC recommended that the section should also contain a cross-reference to § 1021.34 (relating to service by a party). This has been done in the final-form rulemaking.
Sunset Date
A sunset date has not been established for the final-form rulemaking. The effectiveness of the regulations will be evaluated on an ongoing basis by the Board and the Rules Committee.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 10, 2002, the Board submitted a copy of the notice of proposed rulemaking, published at 32 Pa.B. 1980 (April 20, 2002), to IRRC and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing this final-form rulemaking, the Board has considered the comments received from IRRC, the Committees and the public.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), on September 26, 2002, this final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 24, 2002, and approved the final-form rulemaking.
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) The final-form rulemaking is necessary and appropriate for administration of the act.
Order
The Board, acting under its authorizing statute, orders that:
(1) The regulations of the Board, 25 Pa. Code Chapter 1021, are amended by amending §§ 1021.2, 1021.31--1021.38, 1021.74, 1021.91--1021.93, 1021.95, 1021.101, 1021.104, 1021.141, 1021.182, 1021.183 and 1021.201 and by adding §§ 1021.39 and 1021.75 to read as set forth at 32 Pa.B. 1980 and by amending §§ 1021.71--1021.73 and 1021.94 and by adding § 1021.31 to read as set forth in Annex A.
(2) The Chairperson of the Board shall submit this order, 32 Pa.B. 1980 and Annex A to the Office of Attorney General and Office of General Counsel as to legality and form as required by law.
(3) The Chairperson of the Board shall submit this order, 32 Pa.B. 1980 and Annex A to the House and Senate Committees and IRRC, as required by law.
(4) The Chairperson of the Board shall certify this order, 32 Pa.B. 1980 and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(5) This order shall take effect upon final-form 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 32 Pa.B. 5582 (November 9, 2002).)
Fiscal Note: Fiscal Note 106-7 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
DOCUMENTARY FILINGS
SIGNING, FILING AND SERVICE OF DOCUMENTS§ 1021.31. Signing.
(a) Every notice of appeal, motion, legal document or other paper directed to the Board and every discovery request or response of a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, or if a party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number.
(b) The signature to a document described in subsection (a) constitutes a certification that the person signing, or otherwise presenting it to the Board, has read it, that to the best of his knowledge or information and belief there is good ground to support it, and that it is submitted in good faith and not for any improper purpose such as to harass, cause unnecessary delay, or needless increase in the cost of litigation. There is good ground to support the document if the signer or presenter has a reasonable belief that existing law supports the document or that there is a good faith argument for the extension, modification or reversal of existing law.
(c) The Board may impose an appropriate sanction in accordance with § 1021.161 (relating to sanctions) for a bad faith violation of subsection (b).
SPECIAL ACTIONS § 1021.71. Complaints filed by the Department.
(a) When authorized by statute the Department may commence the action by filing a complaint or petition and a notice of a right to respond. The action is commenced when the complaint or petition is filed with the Board.
(b) Service of the complaint or petition shall be by personal service or by certified or registered mail. In the instance of mail, service shall be complete upon delivery. Service of all other documents shall be made in accordance with § 1021.34 (relating to service by party).
(c) The complaint shall set forth the statutory authority under which the Board is authorized to act and shall set forth in separate numbered paragraphs the specific facts and circumstances upon which the request for action is based.
(d) The notice of a right to respond or defend shall conform to the following:
[Case Caption]
NOTICE If you wish to defend against the claims set forth in the following pages, you must take action within thirty (30) days after this complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the Board your answers, defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Board without further notice for any claim or relief requested by the Department.You should take this paper to your lawyer at once. If you do not have a lawyer or cannot afford one, contact the Secretary to the Board at (717) 787-3483.(e) Subsections (a)--(d) supersede 1 Pa. Code §§ 35.5--35.7 and 35.9--35.11 (relating to informal complaints; and formal complaints).
§ 1021.72. Complaints filed by other persons.
(a) When authorized by statute, a person may institute an action against the Department by filing a complaint.
(b) Service of the complaint or petition shall be by personal service or by certified or registered mail. In the instance of mail, service shall be complete upon delivery. Service of all other documents shall be made in accordance with § 1021.34 (relating to service by a party).
(c) The complaint shall set forth the statutory authority under which the Board is authorized to act and shall set forth in separate numbered paragraphs the specific facts and circumstances upon which the request for action 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).
§ 1021.73. Transferred matters.
(a) This rule addresses matters transferred to the Board from a court.
(b) Within the 30-day time period directed by the Board, the party who initiated the transferred action shall file a complaint with the Board.
(c) Service of the complaint or petition shall be by personal service or by certified or registered mail. In the instance of mail, service shall be complete upon delivery. Service of all other documents shall be made in accordance with § 1021.34 (relating to service by a party).
(d) The complaint shall set forth in separate numbered paragraphs the specific facts and circumstances upon which the request for relief is based.
(e) Subsections (a)--(d) supersede 1 Pa. Code § 35.5--35.7 and 35.9--35.11 (relating to informal complaints and formal complaints).
MOTIONS § 1021.94. Dispositive motions.
(a) This section applies to dispositive motions. Dispositive motions shall contain a concise statement of the relief requested, the reasons for granting that relief, and, where necessary, the material facts that support the relief sought.
(b) Motions for summary judgment or partial summary judgment and responses shall conform to Pa.R.C.P. 1035.1--1035.5 (relating to motion for summary judgment).
(c) Dispositive motions, responses and replies shall be in writing, signed by a party or its attorney and served on the opposing party in accordance with § 1021.34 (relating to service by a party). Dispositive motions shall be accompanied by a supporting memorandum of law or brief. The Board may deny a dispositive motion if a party fails to file a supporting memorandum of law or brief.
(d) A response to a dispositive motion may be filed within 30 days of the date of service of the motion and shall be accompanied by a supporting memorandum of law or brief.
(e) A reply to a response to a dispositive motion may be filed within 15 days of the date of service of the response and may be accompanied by a supporting memorandum of law or brief. Reply briefs or memoranda of law shall be as concise as possible and may not exceed 25 pages. Longer briefs or memoranda of law may be permitted at the discretion of the presiding administrative law judge.
(f) An affidavit or other document relied upon in support of a dispositive motion or response, that is not already a part of the record, shall be attached to the motion or response or it will not be considered by the Board in ruling thereon.
(g) Subsection (c) supersedes 1 Pa. Code § 35.177 (relating to scope and content of motions). Subsection (d) supersedes 1 Pa. Code § 35.179 (relating to objections to motions).
[Pa.B. Doc. No. 02-2140. Filed for public inspection November 27, 2002, 9:00 a.m.]
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