§ 1021.122. Burden of proceeding and burden of proof.
(a) In proceedings before the Board, the burden of proceeding and the burden of proof shall be the same as at common law in that the burden shall normally rest with the party asserting the affirmative of an issue. It shall generally be the burden of the party asserting the affirmative of the issue to establish it by a preponderance of the evidence. In cases where a party has the burden of proof to establish the party’s case by a preponderance of the evidence, the Board may nonetheless require the other party to assume the burden of proceeding with the evidence in whole or in part if that party is in possession of facts or should have knowledge of facts relevant to the issue.
(b) The Department has the burden of proof in the following cases:
(1) When it assesses or files a complaint for a civil penalty.
(2) When it files a complaint for any other purpose.
(3) When it revokes or suspends a license, permit, approval or certification.
(4) When it issues an order.
(c) A party appealing an action of the Department shall have the burden of proof in the following cases:
(1) When the Department denies a license, permit, approval or certification.
(2) When a party who is not the recipient of an action by the Department protests the action.
(3) When a party to whom a permit approval or certification is issued protests one or more aspects of its issuance or modification.
(4) When a party appeals or objects to a settlement of a matter between the Department and another private party.
Authority The provisions of this § 1021.122 amended under section 5 of the Environmental Hearing Board Act (35 P. S. § 7515).
Source The provisions of this § 1021.122 amended August 30, 1996, effective August 31, 1996, 26 Pa.B. 4222; amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085; amended August 8, 2014, effective August 9, 2014, 44 Pa.B. 5328. Immediately preceding text appears at serial pages (345922) to (345923).
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