PROPOSED RULEMAKING
EVIRONMENTAL
HEARING BOARD
[25 PA. CODE CH. 1021]
Practice and Procedure
[38 Pa.B. 6154]
[Saturday, November 8, 2008]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 the following 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 Board.
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 Environmental Hearing Board Rules Committee (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. The Board may promulgate proposed regulations based in whole or in part on the recommendations of the Rules Committee.
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, if any, the proposal differs from the Rules Committee's recommendations.
Where the recommendations of the Rules Committee were not in proper legislative style and format, they have been modified to conform to those requirements. Similarly, where recommendations did not contain proper cross references to 1 Pa. Code Part II (relating to the General Rules of Administrative Practice and Procedure), references to those rules have been added.
The proposed rulemaking can be divided into three categories: 1) adoption of new rules; 2) substantive amendments to existing rules; and 3) correction of typographical errors.
1. § 1021.32 (relating to filing)
Two changes have been proposed to § 1021.32. The first is the correction of a typographical error in subsection (f). The second is the addition of subsection (h) which would require all documents filed with the Board to conform to recently enacted Pa.R.C.P. 204.1, requiring uniformity of filings.
2. § 1021.34(b). (relating to service by a party)
The proposed rule change in § 1021.34(b) clarifies that when documents are filed with the Board in an expedited manner, such as, by overnight mail, facsimile or same day delivery, they should also be delivered to the other parties on the same day or by overnight delivery.
3. § 1021.51. (relating to commencement, form and content)
In subsection (f), a change adds a reference to proposed new § 1021.54a (relating to prepayment of penalties), dealing with prepayment of penalties.
Subsections (h)--(j) ensure that all recipients of an action being appealed receive notice of the appeal and are provided an opportunity to participate in the appeal, under the Commonwealth Court's holding in Schneiderwind v. DEP, 867 A.2d 724 (Pa. Cmwlth. 2005).
4. § 1021.54a. (relating to prepayment of penalties).
In the last set of revisions to its rules, the Board deleted an earlier version of this rule dealing with prepayment of civil penalties since it did not conform to statutory requirements regarding prepayment of penalties. The proposed rule explains that parties must follow the requirements of the statute under which a penalty has been assessed when determining whether to submit prepayment of the penalty to either the Board or the Department.
5. § 1021.55 (relating to hearing on inability to prepay)
The proposed change adds a reference to proposed new § 1021.54a, dealing with prepayment of penalties.
6. § 1021.74 (relating to answers to complaints)
This change adds a reference to proposed new § 1021.76a, dealing with default judgment.
7. § 1021.76a. (relating to entry of default judgment)
This proposed new section clarifies that the Board, upon motion, may enter default judgment not only as to liability but also on the amount of the civil penalty requested by the Department of Environmental Protection in a complaint for civil penalties when the defendant fails to file an answer to the complaint.
8. § 1021.93. (relating to discovery motions)
This proposed amendment to subsection (b) of the existing rule would require parties to certify that they have conferred or attempted to confer with opposing parties before filing a discovery motion with the Board.
9. § 1021.94a. (relating to summary judgment motions)
This rule was created in the Board's last set of rules changes in an attempt to make summary judgment practice more manageable by discouraging the filing of summary judgment motions containing lengthy recitations of background facts to which the opposing party must respond. The proposed amendments to § 1021.94a are a further attempt to accomplish this and to discourage the filing of summary judgment motions when there are clear issues of disputed material fact. The proposed amendments require the moving party to file a statement of undisputed material facts and the opposing party to file a responding statement. The proposed amendments impose page limits on the statement of undisputed material facts, responding statement and briefs.
10. §§ 1021.96a--1021.96d (relating to expedited hearings)
The Board has proposed new rules clarifying when parties may request an expedited prehearing and hearing schedule and setting forth the factors the Board will consider in granting the request.
11. § 1021.141b. (relating to withdrawal without prejudice)
This proposed new rule would clarify that appellants may withdraw appeals without prejudice upon agreement of the parties.
The Board concurred with each of the recommendations set forth in this preamble.
III. Fiscal Impact of the Proposed Revisions
The proposed amendments will have no measurable fiscal impact on the Commonwealth, political subdivision or the private sector. The amendments may have a favorable economic impact in that they may eliminate potential litigation over existing uncertainties in the Board's procedures, authority and requirements.
IV. Paperwork Requirements for Proposed Revisions
The proposed amendments may require only minor changes to the Board's standard orders.
V. Public Meeting on Proposed Rules
In accordance with 65 Pa.C.S. §§ 701--716 (relating to Sunshine Law), a quorum of the members of the Board voted to adopt the proposed rules at a public meeting held on February 12, 2008, 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 October 28, 2008, as required under 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 (Committees). The Board also provided IRRC and the Committees with copies of a Regulatory Analysis Form prepared by the Board in compliance with Executive Order 1996-1 (relating to regulatory review and promulgation). Copies of the Regulatory Analysis Form are available to the public upon request.
If IRRC has objections to any of the proposed revisions, it will notify the Board within 30 days of the close of the public comment 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 Mary Anne Wesdak, Senior Assistant Counsel, 1507 State Office Building, 300 Liberty Avenue, Pittsburgh, PA 15222, within 30 days of this publication.
THOMAS W. RENWAND,
Acting Chairperson and Chief JudgeFiscal Note: 106-9. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART IX. ENVIRONMENTAL HEARING BOARD
CHAPTER 1021. PRACTICE AND PROCEDURES
DOCUMENTARY FILINGS
FILING AND SERVICE OF DOCUMENTS § 1021.32. Filing.
* * * * * (f) Hard copy of any electronically filed legal document which exceeds 50 pages in length must also be filed with the Board in accordance with subsections (a) and (c) and § 1021.37 (relating to the number of copies). Exhibits to legal documents may be filed and served either electronically or by hard copy in accordance with the sections in this chapter relating to filing and service. If these requirements are met by hard copy of exhibits, they must be sent to the Board by mail or express delivery and, in the case of requests for expedited disposition, service shall mean actual receipt by the opposing party as required by § 1021.34 [(b)](c) (relating to service by a party).
* * * * * (h) Pleadings and other documents filed with the Board must comply with Pa.R.C.P. 204.1 (relating to filing uniformity).
§ 1021.34. Service by a party.
* * * * * (b) When a document is filed with the Board by overnight delivery, facsimile or personal service, it shall be [served] delivered to the opposing parties on the same day or by overnight delivery [or personal service on the parties].
* * * * *
FORMAL PROCEEDINGS
APPEALS § 1021.51. Commencement, form and content.
* * * * * (f) When the appeal is from an assessment of a civil penalty for which the statute requires an appellant to prepay the penalty or post a bond, the appellant shall [submit to the Board with the appeal a check in the amount of the penalty or an appropriate bond securing payment of the penalty or a verified statement that the appellant is unable to pay] follow the procedures set forth in § 1021.54a (relating to prepayment of civil penalties) [(Editor's Note: Section 1021.54 dealing with prepayment of penalties has been deleted in this final rulemaking. Section 1021.51(f) should have been amended to reflect this change and will be corrected in future rulemaking.)].
* * * * * (h) For purposes of this section, the term ''recipient of the action'' includes the following:
(1) The [recipient of a permit, license, approval or certification] person to whom the action of the Department is directed or issued.
* * * * * (3) [The] A mining company, well operator or owner or operator of a storage tank in appeals involving a claim of subsidence damage [or], water loss [under The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. §§ 1406.1--1406.2)] or contamination.
(4) [The well operator in appeals involving a claim of pollution or diminution of a water supply under section 208 of the Oil and Gas Act (58 P. S. § 601.208).
(5) The owner or operator of a storage tank in appeals involving a claim of an affected water supply under section 1303 of the Storage Tank and Spill Prevention Act (35 P. S. § 6021.1303).
(6)] Other interested parties as ordered by the Board.
(i) The service upon the [recipient of a permit, license, approval or certification, as required by subsection (h)(1),] person to whom the action of the Department is directed or issued shall subject the recipient to the jurisdiction of the Board, and the recipient shall be added as a party to the third-party appeal without the necessity of filing a petition for leave to intervene under § 1021.81. The [recipient of a permit, license, approval or certification] person to whom the action of the Department is directed or issued who is added to an appeal [pursuant to] under this section [must] shall still comply with §§ 1021.21 and 1021.22 (relating to representation of parties; and notice of appearance.)
(j) Other recipients of an action [appealed by a third party, served as required by subsections] under subsection (h)(2), (3)[,] or (4) [or (5)], may intervene as of course in the appeal by filing an entry of appearance within 30 days of service of the notice of appeal in accordance with §§ 1021.21 and 1021.22, without the necessity of filing a petition for leave to intervene [pursuant to] under § 1021.81. If a recipient of an action under subsection (h)(2), (3) or (4) elects not to intervene as of course following service of notice of an appeal, the recipient's right to appeal from the Board's adjudication in the matter may be adversely affected.
* * * * * Comment: Subsection (j) of this rule was amended in response to the Commonwealth Court's ruling in Schneiderwind v. DEP, 867 A.2d 724 (Pa. Cmwlth. 2005).
§ 1021.54a. Prepayment of penalties.
(a) When an appeal is from the assessment of a civil penalty for which the statute requires an appellant to prepay the penalty or post a bond with the Department, the appellant shall submit to the Office of Chief Counsel of the Department a check in the amount of the penalty or an appropriate bond securing payment of the penalty or a verified statement that the appellant is unable to pay.
(b) When an appeal is from the assessment of a civil penalty for which the statute requires an appellant to prepay the penalty or post a bond with the Board, the appellant shall submit to the Board a check in the amount of the penalty or an appropriate bond securing payment of the penalty or a verified statement that the appellant is unable to pay.
(c) When an appellant claims it does not have the ability to prepay a civil penalty assessment, it shall include with the notice of appeal a verified statement that alleges financial inability to prepay or post an appeal bond.
Comment: Practitioners should note that the Air Pollution Control Act (35 P. S. §§ 4001--4015) requires that prepayment of a civil penalty be made to the Board and not to the Department. If a civil penalty is assessed under more than one statute, an appellant shall follow the procedures set forth in each statute.
§ 1021.55. Hearing on inability to prepay penalty.
(a) If an appellant submits a verified statement that he is unable to pay in accordance with §[§ 1021.51] 1021.54a(c) (relating to [commencement, form and content] prepayment of penalties), the Board may schedule a hearing on the validity of this claim and may require the appellant to supply appropriate financial information to the Department in advance of the hearing.
* * * * *
SPECIAL ACTIONS § 1021.74. Answers to complaints.
* * * * * (d) A defendant failing to file an answer within the prescribed time shall be deemed in default and, upon motion made as set forth in § 1021.76a (relating to entry of default judgment), all relevant facts in the complaint may be deemed admitted and default judgment may be entered. Further, the Board may impose any other sanctions for failure to file an answer in accordance with § 1021.161 (relating to sanctions).
* * * * * § 1021.76a. Entry of default judgment.
(a) The Board, on motion of the plaintiff, may enter default judgment against the defendant for failure to file within the required time an answer to a complaint that contains a notice to defend.
(b) The motion for default judgment must contain a certification that the plaintiff served on the defendant a notice of intention to seek default judgment after the date on which the answer to the complaint was due and at least 10 days prior to filing the motion.
(c) The filing of an answer to the complaint by the defendant prior to the filing of a motion for default judgment by the plaintiff shall correct the default.
(d) Where default judgment is sought in a matter involving a complaint for civil penalties, the Board may assess civil penalties in the amount of the plaintiff's claim or may assess the amount of the penalty following a hearing at which the issues shall be limited to the amount of the civil penalties.
Comment: This rule is modeled after Pa.R.C.P. 237.1 and 1037.
MOTIONS § 1021.93. Discovery motions.
* * * * * (b) A discovery motion may not be filed unless it contains a certification that the movant has in good faith conferred or attempted to confer with the party against whom the motion is directed in an effort to secure the requested discovery without Board action. Discovery motions [shall] must contain as exhibits the discovery requests and answers giving rise to the dispute.
* * * * * § 1021.94a. Summary judgment motions.
(a) Rules governing summary judgment motions. Except as otherwise provided by these rules, motions for summary judgment shall be governed by Pa.R.C.P. Rules 1035.1--1035.5.
(b) Summary judgment motion record.
(1) A summary judgment motion record must contain the following separate items:
(i) A motion prepared in accordance with subsection [(b)] (c).
(ii) A statement of undisputed material facts in accordance with subsection (d).
(iii) A supporting brief prepared in accordance with subsection [(c)] (e).
[(iii)] (iv) The evidentiary materials relied upon by the movant.
[(iv)] (v) A proposed order.
* * * * * [(b)] (c) Motion. A motion for summary judgment must contain only a concise statement of the relief requested and the reasons for granting that relief. The motion should not include any recitation of the facts and should not exceed two pages in length.
(d) Statement of undisputed material facts. A statement of undisputed material facts must consist of numbered paragraphs and contain only those material facts to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted. The citation must identify the document and specify the paragraphs and pages or lines thereof or the specific portions of exhibits relied on. The statement of undisputed material facts, absent the portions of exhibits and affidavits relied upon, may not exceed five pages in length unless leave of the Board is granted.
[(c)] (e) Brief in support of the motion for summary judgment. The motion for summary judgment shall be accompanied by a brief containing an introduction [and], summary of the case, [a statement of material facts] and [a discussion of] the legal argument supporting the motion. [The statement of material facts shall set forth in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted. The citation shall identify the document and specify the pages and paragraphs or lines thereof or the specific portions of exhibits relied on.
(d) Evidentiary materials. Affidavits, deposition transcripts or other documents relied upon in support of a motion for summary judgment shall accompany the motion and brief and shall be separately bound and labeled as exhibits. Affidavits shall conform to Pa.R.C.P. 76 and 1035.4.
(e) Proposed order. The motion shall be accompanied by a proposed order.]
(f) [Brief by party in opposition to motion.] Opposition to motion for summary judgment. Within 30 days of the date of service of the motion, a party opposing the motion shall file the following:
(1) A response to the motion for summary judgment which includes a concise statement, not to exceed two pages in length, as to why the motion should not be granted.
(2) [a brief containing a responding statement] A response to the statement of undisputed material facts either admitting or denying or disputing each of the facts in the movant's statement. [and a discussion of the legal argument in opposition to the motion. All material facts in the movant's statement which are sufficiently supported will be deemed admitted for purposes of the motion only, unless specifically disputed by citation conforming to the requirements of subsection (c)] Any response must include citation to the portion of the record contraverting a material fact. The citation must identify the document and specify the pages and paragraphs or lines thereof or the specific portions of exhibits relied on demonstrating existence of a genuine issue as to the fact disputed. An opposing party may also include in the responding statement additional facts the party contends are material and as to which there exists a genuine issue. Each fact shall be stated in separately numbered paragraphs [together with] and contain citations to the motion record. [Affidavits, deposition transcripts or other documents relied upon in support of a response to a motion for summary judgment, which are not already a part of the motion record, shall accompany the responding brief.] The response to the statement of undisputed material facts may not exceed five pages in length unless leave of the Board is granted.
(3) A brief containing the legal argument in opposition to the motion.
(g) Length of brief in support of and in opposition to summary judgment. Unless leave of the Board is granted, the brief in support of or in opposition to the motion may not exceed 30 pages.
(h) Evidentiary materials. Affidavits, deposition transcripts or other documents relied upon in support of a motion for summary judgment or response must accompany the motion or response and be separately bound and labeled as exhibits. Affidavits must conform to Pa.R.C.P. 76 and 1035.4 (relating to definitions; and affidavits).
(i) Proposed order. The motion shall be accompanied by a proposed order.
[(g)](j) Reply brief. A [concise] reply brief may be filed by the movant within 15 days of the date of service of the response. It may not exceed 15 pages unless leave of the Board is granted. Additional briefing may be permitted at the discretion of the presiding administrative law judge.
[(h) Motion for summary] (k) Summary judgment. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading or its notice of appeal, but the adverse party's response, by affidavits or as otherwise provided by this rule, must set forth specific facts showing there is a genuine issue for hearing. If the adverse party does not so respond, summary judgment may be entered against the adverse party. Summary judgment may be entered against a party who fails to respond to a summary judgment motion.
[(i)] (l) Judgment rendered. The judgment sought shall be rendered forthwith if the motion record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Comment: The statement of material facts [in the briefs] should be limited to those facts which are material to disposition of the summary judgment motion and should not include lengthy recitations of undisputed background facts or legal context.
§ 1021.96a. Motions for expedited hearing.
(a) A motion for an expedited hearing may be filed at any time in either an appeal or special action, or the Board may order an expedited hearing on its own motion.
(b) The Board may issue an order, for an expedited hearing notwithstanding the time requirements contained in a previous order of the Board, the Board's Rules of Practice and Procedure in § 1021.101 (relating to prehearing procedure), or the Pa.R.C.P. relating to discovery.
(c) In issuing such an order, the Board will be guided by relevant judicial and Board precedent. Among other factors to be considered:
(1) Whether pollution or injury to the public health, safety or welfare exists or is threatened during the period ordinarily required to complete the proceedings.
(2) The severity of prejudice to any party during the time period ordinarily required to complete the proceedings.
(3) The status of discovery and the realistic need of the parties for extended discovery and for time to prepare for a hearing.
(4) Whether the issuance of such an order would promote judicial economy or would otherwise be in the public interest.
(5) The effect of expedited proceedings on the nonrequesting party.
(d) The Board will grant a motion for expedited hearing only in rare circumstances.
(e) The Board may direct that a prehearing conference be held to determine an appropriate schedule for the completion of prehearing proceedings as well as the time and place of the hearing.
§ 1021.96b. Contents of motion for expedited hearing.
(a) A motion for an expedited hearing must state facts with particularity and be supported by one of the following:
(1) Affidavits based on personal knowledge or experience setting forth facts supporting the issuance of an order for an expedited hearing.
(2) An explanation of why affidavits have not accompanied the motion if no affidavits are submitted with the motion for an expedited hearing.
(b) A motion for an expedited hearing shall be accompanied by a memorandum of law.
(c) A motion may not be filed unless it contains a certification that the moving party has in good faith conferred or attempted to confer with the party against whom the motion is directed in an effort to secure an agreement on expediting the proceeding.
§ 1021.96c. Response to motion for expedited hearing.
A response and supporting memorandum of law shall be filed within 10 days of service unless otherwise ordered by the Board.
§ 1021.96d. Conduct of expedited hearing.
(a) Nothing contained in this rule limits the rights of the parties to a full hearing before the Board under the applicable rules of evidence with full rights of cross-examination of witnesses. The Board may limit the number of witnesses or the subjects of examination to avoid duplication of evidence as provided in § 1021.126 (relating to limiting number of witnesses and additional evidence).
(b) Testimony may be submitted by prepared written testimony as provided under § 1021.124 (relating to written testimony).
(c) After the conclusion of the hearing the Board will direct the prompt filing of post hearing briefs.
TERMINATION OF PROCEEDINGS § 1021.141b. Withdrawal without prejudice.
(a) Upon agreement of all parties, an appellant may withdraw an appeal without prejudice.
(b) Except as agreed by the parties under subsection (c), when an appeal is withdrawn without prejudice the withdrawal of the appeal shall have no effect upon the ability of any party to raise, in future proceedings, any issue of law or fact raised or that could have been raised in the withdrawn appeal.
(c) Any agreement by the parties that limits the issues that may be raised or that determines the finality of the action being appealed will be binding
[Pa.B. Doc. No. 08-2016. Filed for public inspection November 7, 2008, 9:00 a.m.]
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