PROPOSED RULEMAKINGS
ENVIRONMENTAL
HEARING BOARD
[ 25 PA. CODE CH. 1021 ]
Practice and Procedure
[43 Pa.B. 2591]
[Saturday, May 11, 2013]The Environmental Hearing Board (Board) proposes to amend Chapter 1021 (relating to practice and procedure) by adding procedural rules to read as set forth in Annex A. The proposed procedural rules have the following objectives: 1) to provide the regulated community, 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; and 3) to institute additional and modified rules of practice and procedure before the Board to require electronic filing and service in nearly all matters before the Board.
This proposed rulemaking was adopted by the Board at its meeting on November 8, 2012.
A. Effective Date
This proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.
B. Contact Persons
For further information, contact Maryanne Wesdock, Senior Counsel, Environmental Hearing Board, Suite 310, 301 Fifth Avenue, Pittsburgh, PA 15222, (412) 565-5245, mwesdock@pa.gov.
C. Statutory Authority
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.
D. Background and Purpose
The proposed rulemaking improves practice and procedure before the Board. The proposed rulemaking is 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.
The Board established an electronic filing system allowing parties appearing before the Board to file nearly any document in a proceeding on an electronic docket. This system, after being utilized on a case-by-case basis, is now being proposed as the primary docketing system for the Board. In addition to some omnibus rule amendments, the proposed amendments will allow the Board to require nearly all parties to file nearly all documents in matters before the Board electronically in a manner that will allow the Board's proceedings to be more efficient, open to the public and accessible to parties appearing before the Board.
E. Summary of Proposed Rulemaking
This summary provides a description of the existing rules of practice and procedure when relevant to proposed revisions, the proposed amendments and how the proposed amendments differ from the Rules Committee's recommendations.
The Board concurred with the Rules Committee's recommendations.
When the recommendations of the Rules Committee were not in proper legislative style and format, they have been modified to conform to those requirements. Similarly, when recommendations did not contain proper cross references to 1 Pa. Code Part II (relating to 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.
§ 1021.2. Definitions
The definition of ''Costs Act'' is proposed to be deleted because the statute is no longer in effect and the references to it are proposed to be deleted. The other proposed amendments to this section are necessary to support the adoption of a comprehensive set of rules to adopt mandatory participation in the Board's electronic filing system in most appeals.
§ 1021.31. Signing
Proposed amendments to this section clarify that every document filed by a party is covered by the Board's rule on signing and delete any possible distinction that paper documents are to be treated differently.
§ 1021.32. Filing
Proposed amendments to this section are the result of the Board's adoption of a comprehensive electronic filing system. The obligations of parties practicing before the Board are proposed to be amended to move Board practice to near-universal electronic filing participation. Therefore, the proposed amendments provide for electronic filing by parties regardless of whether they are licensed attorneys, describe when a party may be able to file by conventional means (in paper) or by facsimile and revise procedures for filing conducted through the Board's electronic filing web site.
§ 1021.32a. Privacy issues
This proposed section creates an obligation for filing parties to redact or refrain from including certain personal or private information in filings before the Board under most circumstances.
§ 1021.33. Service by the Board
Proposed amendments to this section change the Board's internal procedure to reflect the comprehensive electronic filing system and decrease duplicated efforts.
§ 1021.34. Service by a party
Proposed amendments to this section change the obligations of parties serving documents in a matter before the Board to reflect the comprehensive electronic filing system.
§ 1021.35. Date of service
Proposed amendments to this section change the calculation of effective dates of service for conventionally and electronically filed documents.
§ 1021.36. Certificate of service
Proposed amendments to this section change the requirement to file a certificate of service to coordinate with the Board's comprehensive electronic filing system.
§ 1021.36a. E-mail addresses
This proposed section requires users of the Board's electronic filing system to keep and maintain an up-to-date e-mail address with the Board's electronic filing provider.
§ 1021.37. Number of copies
Proposed amendments to this section delete the obligation of parties to submit duplicate copies of documents filed with the Board under most circumstances.
§ 1021.39. Docket
Proposed amendments to this section more clearly explain the Board's electronic filing system and the docket that is maintained on it by the Board's electronic filing provider.
§ 1021.51. Commencement, form and content
Proposed amendments to this section change the Board's rules for beginning a matter before the Board by providing for electronic filing of notices of appeal through the Board's electronic filing system and other amendments.
§ 1021.94. Dispositive motions other than summary judgment motions
Proposed amendments to this section place the same obligation on parties against whom a dispositive motion is filed as is currently stated in § 1021.94a (relating to summary judgment motions).
Proposed amendments also change the rules for parties seeking to express support of another party's dispositive motion. Two options were proposed for the second amendment. One option, which is in Annex A, would prohibit responses in support of a dispositive motion from containing legal and factual bases not in the original motion. The alternative option would be to allow responses in support of a dispositive motion to include legal and factual bases not in the original motion, but would provide a different time period for the filing of responses to allow the opposing party ample time to address both the dispositive motion and the response in support of the dispositive motion.
§ 1021.94a. Summary judgment motions
Proposed amendments to this section change the Board's summary judgment rule as it applies to parties seeking to express support of another party's motion for summary judgment.
§ 1021.103. Subpoenas
Proposed amendments to this section incorporate additional Pennsylvania Rules of Civil Procedure into the Board's rules for subpoenas.
§ 1021.122. Burden of proceeding and burden of proof
Proposed amendments to this section make a minor change to clarify the burden of proof in third-party appeals.
§§ 1021.171—1021.174
These sections are proposed to be rescinded to reflect the fact that a party is not eligible to recover its costs through the Costs Act because the statute was repealed.
§ 1021.181. Scope
Proposed amendments to this section delete references to the Costs Act.
§ 1021.201. Composition of the certified record on appeal to Commonwealth Court
Proposed amendments to this section clarify that the Board will include a printed copy of electronically filed documents in records certified for the Commonwealth Court.
F. Benefits, Costs, Compliance and Paperwork
Benefits
Mandatory electronic filing for most parties before the Board will provide a measurable benefit to the Commonwealth, the public and parties appearing before the Board. By moving nearly all aspects of Board practice to the electronic filing program, the Board will experience a reduction in the administrative burden posed by service by mail, paper recordkeeping and consumption of paper and other supplies. Parties appearing before the Board will have greater access to docket materials and a reduction in the administrative burden posed by service by mail. Members of the public will benefit from more extensive public access to the Board's open dockets allowing anyone with Internet access to view nearly all documents filed during the course of the Board's appeal process.
Costs
The proposed electronic filing amendments will have a favorable economic impact on the Commonwealth and private parties in that it will greatly reduce the amount of paper used by the Board, other Commonwealth agencies appearing before the Board and the private bar filing documents with the Board. The remaining proposed amendments will either not have measurable fiscal impact on the Commonwealth, political subdivision or the private sector or may have a favorable economic impact in that they may eliminate potential litigation over existing uncertainties in Board procedures, authority and requirements. Further, the expansion of the Board's electronic filing system may relieve some burdens on the Commonwealth under the Right-to-Know Law (65 P. S. §§ 67.101—67.3104) when information in the Board's dockets is directly accessible to the public.
Compliance
The proposed rulemaking will have a minimal impact on compliance costs for parties participating in matters before the Board. Under most circumstances, the ability to conduct nearly all aspects of appeal procedure electronically through the Board's electronic filing system will result in a reduction of the administrative burden for parties who will no longer have to provide the Board with paper records or conduct service by mail. Parties who face an undue burden by the proposed rulemaking will be able to seek relief from the Board from the electronic filing requirements.
Paperwork
The proposed rulemaking may require only minor changes to the Board's standard orders.
H. Sunset Review
These regulations will be reviewed in accordance with the sunset review schedule published by the Board to determine whether the regulations effectively fulfill the goals for which they were intended.
I. Public Meeting on Proposed Rulemaking
In accordance with 65 Pa.C.S. § 704 (relating to open meetings), a quorum of the members of the Board voted to adopt the proposed rulemaking at a public meeting held on November 8, 2012, at the Board's Harrisburg office in Hearing Room 2, Second Floor, Rachel Carson State Office Building, 400 Market Street, Harrisburg, PA.
J. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 26, 2013, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Environmental Resources and Energy Committees. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.
K. Public Comment
The Board invites interested persons to submit written comments, suggestions or objections regarding the proposed rulemaking to Maryanne Wesdock, Senior Counsel, Environmental Hearing Board, 2nd Floor, Rachel Carson State Office Building, P. O. Box 8457, Harrisburg, PA 17105-8457, mwesdock@pa.gov within 30 days of the date of publication in the Pennsylvania Bulletin.
THOMAS W. RENWAND,
ChairpersonFiscal Note: 106-10. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART IX. ENVIRONMENTAL HEARING BOARD
CHAPTER 1021. PRACTICE AND [PROCEDURES] PROCEDURE
PRELIMINARY PROVISIONS
GENERAL § 1021.2. Definitions.
(a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Board—The Environmental Hearing Board, consisting of its chairperson and four members, all of whom are administrative law judges appointed by the Governor to hear appeals from actions of the Department.
Business day—A day that is not a Saturday, Sunday or a legal holiday.
[Costs Act—The act of December 13, 1982 (P. L. 1127, No. 257) (71 P. S. §§ 2031—2035), known as the Commonwealth Agency Adjudicatory Expenses Award.]
Conventional filing—Presenting documents to the Board by hand, mail or other personal delivery services, for purposes of filing.
Department—The Department of Environmental Protection or other boards, commissions or agencies whose decisions are appealable to the Board.
* * * * * Electronic filing—[The electronic transmission of legal documents by means of a computer or device, other than by facsimile transmission. Legal documents may be electronically transmitted in the format of Word Perfect for Windows or Microsoft Word for Windows or other format as the Board may permit.] The electronic transmission of documents to the Board through the electronic filing provider for purposes of filing.
Electronic filing provider—The entity providing electronic filing and electronic service of documents by means of the Internet in Board proceedings.
Electronic service—The electronic transmission of documents through the electronic filing provider to a party, attorney or representative under this chapter.
Facsimile filing—The transmission of documents to the Board, for purposes of filing, using a machine that can send and receive a facsimile transmission either as a stand-alone device or as part of a computer system.
Facsimile transmission—The transmission of a source document between locations by encoding the document into electronic signals, transmitting the signals over the telephone system and reconstructing the electronic signals to print a duplicate of document at the receiving destination.
[Filing attorney—A registered attorney who files a legal document by means of electronic filing on behalf of a client whom the attorney represents in a proceeding before the Board.]
Hearing examiner—A person other than a Board member designated by the Board to preside at hearings or conferences.
Intervenor—A person who has been permitted to intervene by the Board, as provided by § 1021.81 (relating to intervention).
[Legal document—A motion, answer or other paper filed in a proceeding before the Board other than a notice of appeal or a complaint that is original process naming a defendant or defendants. A subpoena or a bond or check issued to secure payment of a penalty is not a legal document; the original of the documents excluded from this definition must be filed or served.]
Legal holiday—A day designated as a holiday by the President or Congress of the United States or the Commonwealth.
Pa.R.A.P.—Pennsylvania Rules of Appellate Procedure, 42 Pa.C.S.; 210 Pa. Code.
* * * * * Pleading—A complaint filed under § 1021.71, § 1021.72 or § 1021.73 (relating to complaints filed by the Department; complaints filed by other persons; and transferred matters) or answer filed under § 1021.74 (relating to answers to complaints). Documents filed in appeals, including the notice of appeal, are not pleadings.
[Registered attorney—An attorney admitted to practice in this Commonwealth, or other counsel permitted by Board order to represent a party for purposes of a particular proceeding, who has filed an electronic filing registration statement with the Board and to whom the Board has issued a password authorizing filing and service through the Board's website.]
Registration statement—[A statement made on professional or organizational letterhead requesting the use of the Board's website for electronic filing.] A completed application to use the electronic filing provider for electronic filing and electronic service in Board proceedings.
Registered user—An individual who has submitted a registration statement to the Board and to whom the Board has issued a password authorizing electronic filing and electronic service.
Supersedeas—A suspension of the effect of an action of the Department pending proceedings before the Board.
* * * * *
DOCUMENTARY FILINGS
FILING AND SERVICE OF DOCUMENTS § 1021.31. Signing.
(a) Every [notice of appeal, motion, legal document or other paper] document 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] document must state the signer's mailing address, e-mail address and telephone number.
* * * * * § 1021.32. Filing.
[(a) Documents filed with the Board shall be filed at its headquarters—2nd Floor, Rachel Carson State Office Building, 400 Market Street, Post Office Box 8457, Harrisburg, Pennsylvania 17105-8457.
(b) The date of filing shall be the date the document is received by the Board.
(c) Documents may be filed by personal delivery, by mail or by facsimile. Legal documents, as defined in § 1021.2 (related to definitions), may be filed electronically in accordance with this chapter. When a document is filed by facsimile, the original shall be deposited in the mail on the same day. If a document exceeds ten pages, the facsimile shall consist of the first five pages and last five pages of the document and the certificate of service.
(d) Legal documents may be filed with the Board electronically through the Board's website by a filing attorney unless provided otherwise by Board order. A legal document filed electronically shall be deemed the equivalent of the original document subject to the following conditions:
(l) The electronic filing of a legal document constitutes a certification by the filing attorney that the original hard copy was properly signed and, where applicable, verified.
(2) An executed hard copy of the legal document, with any required verifications, shall be maintained by the filing attorney and produced at the request of the Board or any other party within 14 days of the request.
(e) In filing legal documents electronically, a filing attorney shall be responsible for the following:
(1) An objective description of the legal document consistent with the title placed on the legal document as required by the Board's website.
(2) Any delay, disruption, interruption of the electronic signals and readability of the legal document.
(3) Any risk that a legal document may not be properly or timely filed with the Board.
(f) Hard copy of any electronically filed legal document which exceeds 50 pages in length shall 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(c) (relating to service by a party).
(g) Documents filed by United States mail, hand or other delivery services after the close of the business day at 4:30 p.m. Eastern Time shall be deemed to be filed on the following business day. Documents filed electronically, including by facsimile, shall be deemed filed on the day received by the Board.
(h) Documents filed with the Board, other than exhibits, must be typewritten on letter size paper (approximately 8 to 8 1/2 inches by 10 1/2 to 11 inches) and pages after the first must be numbered. Legal documents, as defined in § 1021.2, must be double spaced, except that footnotes must be single spaced and quotations in excess of a few lines must be single spaced and indented. Photocopied documents will be accepted as typewritten, provided that all copies are legible. Failure to comply with this subsection will not result in dismissal of a filing, but the Board may request the party to resubmit the document in proper form.]
(a) Conventional filing. The following documents shall be conventionally filed or facsimile filed:
(1) A complaint that is original process naming a defendant or defendants.
(2) A motion to be excused from the Board's mandatory electronic filing requirement.
(b) Filing of notice of appeal. An original notice of appeal may be filed electronically, conventionally, or by facsimile.
(c) Electronic filing.
(1) Documents except those listed in subsections (a) and (b) shall be electronically filed unless the Board orders otherwise in a particular proceeding. Persons shall file a motion under § 1021.92 (relating to procedural motions) to be excused from the mandatory electronic filing requirement. The Board will excuse persons from the mandatory electronic filing requirement, with respect to all filings or with respect to specific filings, if the Board determines that the requirement would impose an unreasonable burden on the potential filer.
(2) Documents filed electronically may not also be filed by other means unless the Board orders otherwise or the document to be filed includes an original bond or check. When electronically filing documents including an original bond or check, a copy of the document, including a copy of the original bond or check, shall be electronically filed. The original, including the original bond or check, shall be deposited in the mail, addressed to the Board's headquarters at the address provided in subsection (e)(1).
(3) Electronic filing can be performed only by registered users. Individuals who are not registered users can become registered users by submitting a registration statement to the Board and receiving a password authorizing electronic filing and service. The registration statement must be on a form prepared by the Board and include the user's name and mailing address, e-mail address, attorney identification number (if the registered user is an attorney), a request for authorization to participate in electronic filing and electronic service, and consent to accept electronic service of documents permitted to be electronically filed.
(4) When registration is complete, a registered user may not withdraw from the electronic filing and electronic service system except with leave from the Board.
(5) A filer is responsible for providing an objective description of documents electronically filed. The description must include:
(i) The party filing or serving the document.
(ii) The title of the document (for example, Appellant ABC Corporation's Motion for Summary Judgment, Appellant Smith's Motion to Compel Permittee XYZ, Inc. to Produce Documents).
(6) When a document has been filed electronically, the official record is the electronic document filed with the Board and the filer is bound by the document as filed.
(7) The registered user's log-in and password required to file documents using the electronic filing provider serve as the registered user's signature on electronic documents filed with the Board. The log-in and password serve as a signature for purposes of § 1021.31 (relating to signing) and other purposes for which a signature is required in connection with proceedings before the Board.
(8) If an electronically filed document does not bear the actual signature of the registered user, the name of the registered user under whose log-in and password the document is submitted must be preceded by ''s/'' and typed in the space in the document's signature block where the signature would otherwise appear (for example, ''s/ Jane Doe'').
(9) A registered user or other person may not knowingly permit or cause a registered user's password to be used by an individual other than an authorized agent of the registered user.
(10) A document that is electronically filed and requires an original signature other than that of the registered user shall be maintained by counsel or, if the party is not represented by the party itself, for 1 year after periods for appeals expire. Documents shall be maintained by the filer and produced at the request of the Board or other party within 14 days of the request.
(11) Each document filed electronically must indicate in the caption that it has been electronically filed.
(12) Documents may be electronically filed in WordPerfect format, Microsoft Word format, PDF format or other formats permitted by the Board. The electronic filing provider automatically converts uploaded documents not already in PDF format to PDF format. A document may exceed page limitation rules if the additional pages result solely from the electronic conversion by the electronic filing provider.
(13) To the extent practicable, electronically filed documents must be formatted in accordance with subsection (e)(4).
(14) An electronic filing complete before midnight Eastern Time will be considered to be filed on that date so long as it is accepted by the Board. Upon completion of the filing, the electronic filing provider will issue a transaction receipt that includes the date and time the document was received. The transaction receipt serves as proof of filing. If the Board rejects the submitted documents following review, the documents will not become part of the official Board record and the filer will receive notification of the rejection. Filers may be required to refile the documents to meet the necessary filing requirements.
(15) Except in the case of notices of appeal, if electronic filing or service does not occur or is made untimely because of a technical issue, the party affected may seek appropriate relief from the Board.
(16) A registered user shall submit as exhibits or attachments only excerpts of the referenced documents that are directly germane to the matter under consideration by the Board. Excerpted information must be clearly and prominently identified as such. A registered user who files excerpts of documents as exhibits or attachments under this paragraph does so without prejudice to his right to timely file additional excerpts or the complete document and shall, upon request, provide responding parties with the complete document. A responding party may timely file the complete document or additional excerpts that it believes are directly germane.
(d) Facsimile filing.
(1) Documents permitted under subsections (a), (b) and (c)(1) and (2) to be filed by facsimile shall be transmitted to the Board's facsimile line at (717) 783-4738.
(2) The date of facsimile filing is the date the document is received by the Board.
(3) For documents more than ten pages long, the facsimile filed must consist of the certificate of service and the first five pages and last five pages of each document except exhibits. Exhibits shall be omitted from the filing transmitted to the Board's facsimile line.
(4) On the same day a document is transmitted to the Board's facsimile line, the original (including exhibits) shall be deposited in the mail, addressed to the Board's headquarters at the address provided in subsection (e)(1). When facsimile filing a document including an original bond or check, a copy of the bond or check must be included with the document transmitted by facsimile. The original bond or check must be included with the original of the document deposited in the mail.
(5) Documents must be formatted in accordance with subsection (e)(4).
(e) Conventional filing.
(1) Documents permitted to be conventionally filed with the Board under subsections (a), (b) and (c)(1) and (2) shall be filed at the Board's headquarters—2nd Floor, Rachel Carson State Office Building, 400 Market Street, Post Office Box 8457, Harrisburg, Pennsylvania 17105-8457.
(2) The date of conventional filing is the date the document is received by the Board.
(3) Only hard copies may be conventionally filed unless the filer has secured prior approval from the Board to conventionally file documents in other formats, such as CDs, DVDs or other digital storage media.
(4) With the exception of exhibits, documents filed with the Board must be typewritten on letter-size paper (approximately 8 to 8 1/2 inches by 10 1/2 to 11 inches) and pages after the first must be numbered. With the exception of exhibits, notices of appeal, and complaints, documents filed must be double spaced, except that footnotes must be single spaced and quotations in excess of a few lines must be single spaced and indented. Photocopied documents will be accepted as typewritten, provided that all copies are legible.
(f) Format of filing. Failure to comply with subsection (c)(5) or (11), (d)(5) or (e)(4) will not result in dismissal of a filing, but the Board may request that the party resubmit the document in proper form.
(Editor's Note: The following section is new and printed in regular type to enhance readability.)
§ 1021.32a. Privacy issues.
A person filing documents shall refrain from including, or shall redact when inclusion is necessary, the following personal identifiers from documents filed with the Board, including exhibits, unless filed under seal or otherwise ordered by the Board:
(1) Social Security numbers.
(2) Financial account numbers.
(3) Dates of birth.
(4) Names of minor children.
§ 1021.33. Service by the Board.
(a) Orders, notices and other documents [originating with] entered or issued by the Board [shall] will be served upon the person designated in the notice of appearance, or if no notice of appearance has been entered, upon the person upon whom the notice of appeal or complaint was served [by mail or in person].
(b) The Board will serve documents it enters or issues upon registered users participating in the proceeding through the electronic filing provider, subject to the provisions in this chapter. The Board will serve persons other than registered users by mail or in person.
(c) An order filed electronically without the original signature of an administrative law judge has the same force and effect as if the administrative law judge had affixed a signature to a paper copy of the order.
[Subsection (a) supersedes] (d) Subsections (a)—(c) supersede 1 Pa. Code § 33.31 (relating to service by the agency).
§ 1021.34. Service by a party.
[(a) Copies of each document filed with the Board shall be served upon every party to the proceeding on or before the day that the document is filed with the Board. Service upon a party represented by an attorney in the matter before the Board shall be made by serving the attorney.
(b) When a document is filed with the Board by overnight delivery, facsimile or personal service, it shall be delivered to the opposing parties on the same day or by overnight delivery.
(c) In matters involving requests for expedited disposition, service shall be made within the ensuing 24 hours of the time of filing with the Board. For purposes of this subsection, service means actual receipt by the opposing party.
(d) Service of legal documents may be made electronically on a registered attorney by any other registered attorney. The filing of a registration statement constitutes a certification that the registered attorney will accept electronic service of any legal document from any other registered attorney. A registration statement includes the attorney's name and address, e-mail address, attorney identification number, and a request to register to file and accept service electronically. A registered attorney may withdraw his registration statement for purposes of a specific case if he chooses not to receive electronic service in that case by filing an amendment to the filing party's registration statement.
(e) Subsections (a)—(d) supersede 1 Pa. Code § 33.32 (relating to service by a participant).]
(a) Notices of appeal shall be served as provided in § 1021.51(h) (relating to commencement, form and content). Complaints filed by the Department will be served as provided in § 1021.71(b) (relating to complaints filed by the Department).
(b) Copies of each document filed with the Board shall be served upon every party to the proceeding on or before the day that the document is filed with the Board. Service upon a party represented by an attorney in the matter before the Board shall be made by serving the attorney.
(c) Electronic service of documents to other registered users through the electronic filing provider shall be considered valid and effective service and have the same legal effect as serving an original paper document. Registered users who receive documents by electronic service shall access the documents using the electronic filing provider.
(d) Documents filed electronically shall be served by hand, mail, other personal delivery, or facsimile upon parties not represented by registered users or, for parties representing themselves, upon parties who are not registered users.
(e) Subpoenas and documents that must be conventionally filed with the Board under § 1021.32(b) (relating to filing) shall be served by hand, mail or other personal delivery. Documents that are conventionally or facsimile filed with the Board under § 1021.32(a) shall be served by hand, mail, other personal delivery or facsimile.
(f) If a party does not receive electronic service in a matter involving a request for expedited disposition, service shall be made upon that party within 24 hours of filing the document with the Board. For purposes of this subsection, service means actual receipt by the party served.
(g) If a person filing electronically becomes aware that the notice of electronic filing was not successfully transmitted to a registered user, or that the notice transmitted to the registered user is defective, the filer shall serve the electronically filed document upon the registered user by hand, mail, other personal delivery or facsimile immediately upon notification of the deficiency.
(h) The filing of a registration statement constitutes a certification that the registered user will accept electronic service of documents permitted to be electronically filed.
(i) Subsections (a)—(h) supersede 1 Pa. Code § 33.32 (relating to service by a participant).
§ 1021.35. Date of service.
[(a) The date of service shall be the date the document served is mailed, delivered in person or transmitted electronically. When service of the document, or hard copy of exhibits to a legal document filed electronically, is by mail, 3 days shall be added to the time required by this chapter for responding to the document.
(b) Subsection (a) supersedes 1 Pa. Code § 33.34 (relating to date of service).]
(a) For electronic service, the date of service of a document is the date that the electronic filing provider transmits the notice of electronic filing. For other types of service, the date of service is the date the document served is mailed, delivered in person or transmitted to the party's facsimile line.
(b) For the sole purpose of computing the deadlines under this chapter for responding to documents:
(1) Documents served by electronic service shall be deemed served, for purposes of responding, when notice of the electronic filing is transmitted to registered users in the proceeding, provided the transmission is complete before 4:30 p.m. Eastern Time on a business day. Otherwise, documents served by electronic service shall be deemed served the next business day.
(2) Documents served by facsimile shall be deemed served, for purposes of responding, when transmission of the facsimile is complete, provided the transmission is complete before 4:30 p.m. Eastern Time on a business day. Otherwise, documents served by facsimile shall be deemed served the next business day.
(3) Documents served by mail shall be deemed served 3 days after the date of actual service.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 33.34 (relating to date of service).
§ 1021.36. Certificate of service.
(a) Each document [which is required to be] filed with the Board [shall] must include a certificate of service which [shall certify] certifies the date and manner of service and the name and mailing address of the person served, except as provided in subsection (b).
(b) For electronic service, it shall be sufficient for the certificate to state that the document was filed using the electronic filing provider and to identify the registered users in the proceedings.
[Subsection (a) supersedes] (c) Subsections (a) and (b) supersede 1 Pa. Code § 33.35 (relating to proof of service).
(Editor's Note: The following section is new and printed in regular type to enhance readability.)
§ 1021.36a. E-mail addresses.
A registered user shall maintain an active e-mail address to receive electronic notice and electronic service from the electronic filing provider. A registered user has a duty to promptly update his e-mail account information with the electronic filing provider when there is a change in e-mail address.
§ 1021.37. Number of copies.
(a) [Except in the case of electronically filed documents, including exhibits, and unless otherwise ordered by the Board, the following number of copies shall be filed with the Board:] When a document is electronically filed, the filer shall electronically file one copy of the document.
[(1) One original and two copies of each of the following:
(i) Notices of appeal.
(ii) Complaints.
(iii) Answers.
(iv) Posthearing briefs.
(v) Dispositive motions and related memoranda, responses and replies.
(2) One original and one copy of each of the following:
(i) Petitions for supersedeas and any related responses.
(ii) Prehearing memoranda.
(iii) Nondispositive motions and petitions (other than motions for stays, extensions and continuances of procedural deadlines), and related memoranda, responses and replies.
(3) One original of other documents.]
(b) For conventional filings and hard copies mailed to the Board in association with a facsimile filing, one original shall be filed unless the Board orders otherwise.
(c) One copy of all documents submitted to the Board shall be served on the other parties to the proceeding.
§ 1021.39. Docket.
(a) The Board will maintain a docket of proceedings and a proceeding as initiated [shall] will be assigned an appropriate designation. The Board will maintain the docket on its [website] web site available to all members of the public and will accept [filings of legal documents by electronic transmission from registered attorneys] electronic filing of documents from registered users subject to the provisions in this chapter.
(b) The docket will register the date of all filings as well as the time of the filing if the filing is made electronically. When a document is filed electronically, the [Board will transmit electronically a status message to all registered attorneys in the proceeding when the document is filed] electronic filing provider will transmit a notice of the electronic filing to all registered users in the proceeding.
(c) The Board will maintain a complete official file on all proceedings consisting of [both] electronic and hard copy filings. The official copy of an electronically filed document or Board order shall be that appearing on the Board's [website] web site.
* * * * *
FORMAL PROCEEDINGS
APPEALS § 1021.51. Commencement, form and content.
(a) An appeal from an action of the Department shall commence with the filing of a [written] notice of appeal with the Board.
(b) The caption of [an] a notice of appeal must be in the following form:
ENVIRONMENTAL HEARING BOARD
2nd Floor, Rachel Carson State Office Building
400 Market Street, Post Office Box 8457
Harrisburg, Pennsylvania 17105-8457JOHN DOE, Appellant
234 Main Street, Smithtown,
Jones County, Pennsylvania 15555
(Telephone (123) 456-7890)[______ v. Docket No. ______
Commonwealth of Pennsylvania
Department of ______ , Appellee](c) The notice of appeal must set forth the name, mailing address, e-mail address and telephone number of the appellant. If the appellant is represented by an attorney, the notice of appeal shall be signed by at least one attorney of record in the attorney's individual name.
(d) If the appellant has received written notification of an action of the Department, a copy of the action [shall] must be attached to the notice of appeal.
(e) The notice of appeal must set forth in separate numbered paragraphs the specific objections to the action of the Department. The objections may be factual or legal.
(f) An original notice of appeal shall be filed electronically, conventionally or by facsimile.
(1) Electronic filing.
(i) If a bond or check is required to secure payment of a penalty, a copy of the bond or check must be included with the electronic filing. The notice of appeal and attachments, including the original bond or check, shall be deposited in the mail, addressed to the Board's headquarters at the address provided in paragraph (2)(i).
(ii) An electronic filing complete before midnight Eastern Time will be considered to be filed on that date, so long as it is accepted by the Board.
(iii) To the extent practical, the notice of appeal must be formatted in accordance with paragraph (2)(v). Failure to comply with this requirement will not result in dismissal of the notice of the filing. The Board may request that the appellant resubmit the notice of appeal in proper form.
(iv) The appellant shall, concurrent with or prior to the filing of a notice of appeal, serve by facsimile or overnight mail a copy on each of the following:
(A) The office of the Department issuing the notice of Departmental action.
(B) The Office of Chief Counsel of the Department or agency taking the action appealed.
(C) In a third-party appeal, the recipient of the action. The service shall be made at the address in the document evidencing the action by the Department or at the chief place of business in this Commonwealth of the recipient.
(2) Conventional filing.
(i) An original notice of appeal that is conventionally filed shall be filed at the Board's headquarters—2nd Floor, Rachel Carson State Office Building, 400 Market Street, Post Office Box 8457, Harrisburg, Pennsylvania 17105-8457.
(ii) The date of conventional filing is the date the original notice of appeal is received by the Board.
(iii) One copy of the notice of appeal and attachments shall be conventionally filed unless the Board orders otherwise.
(iv) Hard copies of original notices of appeal shall be conventionally filed unless the filer has secured prior approval from the Board to conventionally file the original notice of appeal in another format, such as CDs, DVDs or other digital storage media.
(v) The notice of appeal must be typewritten on letter-size paper (approximately 8 to 8 1/2 inches by 10 1/2 to 11 inches) and pages after the first must be numbered. Photocopies will be accepted as typewritten, provided that the copies are legible. Failure to comply with these requirements will not result in dismissal of a filing. The Board may request that the appellant resubmit the notice of appeal in proper form.
(vi) The appellant shall, concurrent with or prior to the filing of a notice of appeal, serve a copy on the individuals and entities listed in paragraph (1)(iv)(A)—(C) in the same manner in which the notice of appeal is filed with the Board.
(3) Facsimile filing.
(i) Original notices of appeal filed by facsimile shall be transmitted to the Board's facsimile line at (717) 783-4738. If a bond or check is required to secure payment of a penalty, a copy of the bond or check must be included with the facsimile filing. The notice of appeal and attachments, including the original bond or check, shall be deposited in the mail, addressed to the Board's headquarters at the address provided in paragraph (2)(i).
(ii) The date of facsimile filing is the date the original notice of appeal is received by the Board.
(iii) For original notices of appeal more than ten pages long, the facsimile filed must consist of the certificate of service and the first five pages and last five pages of each document except exhibits. Except for copies of checks and bonds required to secure payment of a penalty, exhibits shall be omitted from the filing transmitted to the Board's facsimile line.
(iv) On the same day an original notice of appeal is transmitted to the Board's facsimile line, the original, including exhibits, shall be deposited in the mail, addressed to the Board's headquarters at the address provided in paragraph (2)(i).
(v) The notice of appeal must be formatted in accordance with paragraph (2)(v). Failure to comply with this requirement will not result in dismissal of the notice of the filing. The Board may request that the appellant resubmit the notice of appeal in proper form.
(g) 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 follow the procedures in § 1021.54a (relating to prepayment of penalties) in addition to the procedures in this section.
[(g)] (h) Concurrent with or prior to the filing of a notice of appeal, the appellant shall serve a copy thereof on each of the following:
* * * * * [(h)] (i) For purposes of this section, the term ''recipient of the action'' includes the following:
* * * * * [(i)] (j) The service upon the recipient of a permit, license, approval, certification or order, as required under subsection (h)(1), 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 (relating to intervention). The recipient of a permit, license, approval [or], certification or order who is added to an appeal under this section shall still comply with §§ 1021.21 and 1021.22 (relating to representation; and notice of appearance.)
[(j)] (k) Other recipients of an action under subsection (h)(2), (3) or (4)[,] 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 under § 1021.81.
[(k) The appellant shall provide satisfactory proof that service has been made as required by this section.]
(l) The original notice of appeal must include a certificate of service which certifies the date and manner of service and the name and mailing address of the person served.
[(l)] (m) Subsections (a)—(k) supersede 1 Pa. Code §§ 35.5—35.7 and 35.9—35.11 (relating to informal complaints; and formal complaints).
SPECIAL ACTIONS (Editor's Note: The following section is new and printed in regular type to enhance readability.)
§ 1021.74a. Verification of pleadings.
Pleadings authorized under §§ 1021.71—1021.74 shall be verified in accordance with Pa.R.C.P. 1024 (relating to verification).
MOTIONS § 1021.94. Dispositive motions other than summary judgment motions.
* * * * * (b) A response in opposition to a dispositive motion [may] shall be filed within 30 days of service of the motion and shall be accompanied by a supporting memorandum of law or brief.
(c) A notification to the Board that a party joins in a dispositive motion shall be filed within 15 days of service of the motion. Non-moving parties shall not raise any additional legal or factual bases in support of the dispositive motion except as permitted by order of the Board.
(d) 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] Board.
[(d)] (e) 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 filed at the same time as the motion or response or it will not be considered by the Board in ruling thereon.
(f) When a dispositive motion is made and supported as provided in this rule, an adverse party may not rest upon mere allegations or denials of the adverse party's pleading or its notice of appeal, but the adverse party's response must set forth specific issues of fact or law showing there is a genuine issue for hearing. If the adverse party fails to adequately respond, the dispositive motion may be granted against the adverse party.
[(e)] (g) Subsection (a) supersedes 1 Pa. Code § 35.177 (relating to [the] scope and content of motions). Subsection (b) supersedes 1 Pa. Code § 35.179 (relating to [objecting] objections to motions).
Comment The responses to a dispositive motion should be limited to the legal and factual bases contained in the motion; a party wishing to raise other grounds for granting a dispositive motion should file a separate motion before the dispositive motion deadline or seek leave from the Board to file a dispositive motion after the dispositive motion deadline.
§ 1021.94a. Summary judgment motions.
* * * * * (f) Other parties supporting a motion for summary judgment. A notification to the Board that a party joins in a motion for summary judgment may be filed within 15 days of service of the motion. Non-moving parties may not raise any additional legal or factual bases in support of the motion for summary judgment except as permitted by order of the Board.
(g) 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:
* * * * * [(g)] (h) 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)] (i) 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)] (j) Proposed order. The motion shall be accompanied by a proposed order.
[(j)] (k) Reply brief. A 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] Board.
[(k)] (l) 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.
[(l)] (m) 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 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. The responses to a motion for summary judgment should ordinarily be limited to the legal and factual bases contained in the motion; a party wishing to raise other grounds for summary judgment should file a separate motion before the dispositive motion deadline or seek leave from the Board to file a motion for summary judgment after the dispositive motion deadline.
PREHEARING PROCEDURES AND PREHEARING CONFERENCES § 1021.103. Subpoenas.
(a) Except as otherwise provided in this chapter or by order of the Board, requests for subpoenas and subpoenas shall be governed by Pa.R.C.P. 234.1—234.4 [and], 234.6—234.9 and 4009.21—4009.27. When the term ''court'' is used in Pa.R.C.P. ''Board'' is to be understood; when the terms ''Prothonotary'' or ''clerk of court'' are used in Pa.R.C.P. ''Secretary to the Board'' is to be understood.
EVIDENCE § 1021.122. Burden of proceeding and burden of proof.
* * * * * (c) A party appealing an action of the Department shall have the burden of proof in the following cases:
* * * * * (4) When a party appeals or objects to a settlement of a matter between the Department and [a] another private party.
[ATTORNEY FEES AND COSTS AUTHORIZED BY THE COSTS ACT] § 1021.171. [Scope] (Reserved).
[This section and §§ 1021.172—1021.174 (relating to application for fees and expenses; response to application; and disposition of application) apply to applications for an award of fees and expenses under the Costs Act.]
§ 1021.172. [Application for fees and expenses] (Reserved).
[(a) An application for fees and expenses shall be verified and shall set forth sufficient grounds to justify the award. It shall also include the following:
(1) Identification of the final order under which the applicant claims to be a prevailing party.
(2) A statement of the basis upon which the applicant claims to be a prevailing party under the Costs Act.
(3) Specific information which is sufficient to demonstrate that the applicant meets the definition of ''party'' under the Costs Act.
(4) An itemized list of recoverable fees and expenses including hours worked, the rate charged, a reasonable description of the work performed during those hours, and the nature and reasonableness of the expenses.
(5) The basis for the allegation that the position of the Department was not substantially justified.
(b) An applicant shall file an application with the Board within 30 days of the date of the final order under which the applicant claims to have prevailed, and shall be docketed at the same number as that order. An applicant shall simultaneously serve upon counsel of record for the Department a copy of the application in the same manner that it is filed with the Board. Service by telefax shall satisfy the requirements of this rule, if an additional copy is mailed on the same day.
(c) An application may be denied sua sponte if it fails to provide all the information required by this section in sufficient detail to enable the Board to grant the relief requested.
Comment: In preparing the petition to submit to the Board, an applicant should consider the material contained in 4 Pa. Code Chapter 2, Subchapter A (relating to submission and consideration of applications for awards of fees and expenses) and the Board's prior decisions.]
§ 1021.173. [Response to application] (Reserved).
[(a) The Department or other interested party shall file its response within 15 days of the filing of an application. The response shall include the following:
(1) Raise any challenge to the sufficiency of the application.
(2) Demonstrate, if applicable, that the Department's action was substantially justified.
(3) Identify special circumstances which would make the award unjust.
(b) If the response asserts that the action of the Department was substantially justified, it shall include the following:
(1) A statement of the Department's basis for its action.
(2) A summary of the testimony and exhibits either in evidence or offered into evidence in support of that basis.
(3) The legal justification for the action taken.
(c) When an applicant prevails and no record has been made before the Board, the Department may justify its action with affidavits.]
§ 1021.174. [Disposition of application] (Reserved).
[(a) Each party shall file a brief simultaneously with the filing of its application or response.
(b) The Board will award fees and expenses based upon the application and response if it finds the following:
(1) The applicant is a prevailing party as defined in the Costs Act.
(2) The application presents sufficient justification for the award of fees and expenses.
(3) The action of the Department was not substantially justified, in that it had no reasonable basis in law or in fact.
(4) There are no special circumstances which would make the award unjust or unreasonable.
(c) The Board will not find the Department's action to be substantially justified, if the response fails to present a prima facie case in support of the Department's legal position.
(d) The Board may reduce the amount of an award of fees and expenses, or deny the award, to the extent that the applicant engaged in conduct during the course of the proceedings which unduly and unreasonably protracted the final resolution of the matter in controversy.]
ATTORNEY FEES AND COSTS AUTHORIZED BY STATUTE [OTHER THAN THE COSTS ACT] § 1021.181. Scope.
This subchapter applies to requests for costs and attorney fees when authorized by statute [other than the Costs Act]. When a statute provides procedures inconsistent with these procedures, the statutory procedures will be followed.
APPELLATE MATTERS § 1021.201. Composition of the certified record on appeal to Commonwealth Court.
* * * * * (d) [In the event that a legal document was electronically filed] For electronic filings, a paper copy of the electronic filing will be submitted to the Commonwealth Court as part of the certified record in accordance with this rule, notwithstanding the provisions of § 1021.39(c) (relating to docket) that the official copy of an electronically filed document shall be that appearing on the Board's [website] web site.
[Pa.B. Doc. No. 13-869. Filed for public inspection May 10, 2013, 9:00 a.m.]
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