RULES AND REGULATIONS
Title 25—ENVIRONMENTAL PROTECTION
ENVIRONMENTAL HEARING BOARD
[ 25 PA. CODE CH. 102 ]
Practice and Procedure
[54 Pa.B. 2776]
[Saturday, May 18, 2024]The Environmental Hearing Board (Board) amends Chapter 1021 (relating to practice and procedure) to read as set forth in Annex A. The amendments to Chapter 1021 modify the rules of practice and procedure before the Board by implementing improvements in practice and procedure.
The Board approved the final regulations at its meeting on October 24, 2023.
Effective Date
This final-form rulemaking will go into effect upon publication in the Pennsylvania Bulletin.
Contact Person
For further information, contact Maryanne Wesdock, Judge, Environmental Hearing Board at mwesdock@pa.gov, (412) 565-5245, or Suite 310, Piatt Place, 301 Fifth Avenue, Pittsburgh, PA 15222. If information concerning this notice is required in an alternative form, contact Christine Walker, Secretary to the Board, at christiwal@pa.gov or (814) 871-2573. TDD users may telephone the Board through the Pennsylvania Hamilton Relay Service at (800) 654-5984 (TDD users) or (800) 654-5988 (voice users).
Statutory Authority
The Board has the authority under section 5(c) of the Environmental Hearing Board Act (act) (35 P.S. § 7515(c)) to adopt regulations pertaining to practice and procedure before the Board. Under section 5(c), regulations ''shall be promulgated by the Board upon a majority affirmative vote on the recommended regulations.''
Additionally, with regard to the amendments to §§ 1021.182—1021.184 and 1021.191, dealing with recovery of costs and attorney fees, certain statutes authorize the Board to award attorney fees and costs, including but not limited to section 307(b) of The Clean Streams Law (35 P.S. § 691.307(b)); and 27 Pa.C.S. § 7708 (relating to costs for mining proceedings).
Background and Purpose
The purpose of the amendments is to improve practice and procedure before the Board. The revisions are based on the recommendations of the Environmental Hearing Board Rules Committee (Rules Committee) which is a nine-member advisory committee created under section 5(a) and (c) of the act to make recommendations to the Board on its rules of practice and procedure.
Comments and Revisions to Proposed Rulemaking
The proposed rulemaking was published at 53 Pa.B. 3193 (June 17, 2023), with a 30-day public comment period. Two comments were submitted by the Independent Regulatory Review Commission (IRRC). The comments and the Board's response were discussed at a public meeting of the Rules Committee held by videoconference on September 14, 2023. In response to the comments received on the proposed rulemaking, the final rulemaking was prepared. A summary of the comments and Board's response follows:
§§ 1021.51(f)(1)(iv) and (2)(vi)(C). Commencement, form and content—Service of a notice of appeal on potentially adversely affected persons
IRRC noted that paragraphs (1)(iv) and (2)(vi)(C) include a general citation to the Pennsylvania Rules of Civil Procedure that is vague and does not provide clear guidance to an appellant. IRRC asked the Board to clarify these provisions. In response, the Board deletes the proposed reference to ''Pennsylvania Rules of Civil Procedure'' in paragraphs (1)(iv) and (2)(vi)(C) and replaces it with language allowing service of a notice of appeal ''at any office or usual place of business of any potentially adversely affected persons.''
This amendment is necessary because, in some instances, appellants would have difficulty determining what constitutes a person's ''chief place of business'' as currently required. The amendment in this final-form rulemaking achieves the ultimate goal of expanding the locations at which service can be made to potentially adversely affected persons.
In striking the proposed language and further amending this final-form rulemaking, the Rules Committee reviewed Pennsylvania Rules of Civil Procedure (Pa.R.C.P.) 402, 403 and 440 (relating to manner of service. acceptance of service; service by Mail; and service of Legal Papers Other than Original Process) and concluded that none of the rules specifically addressed what was contemplated by the proposed amendment to paragraphs (1)(iv) and (2)(vi)(C). For example, Pa.R.C.P. 402 provides for service by hand delivery or the filing of a specific form instead of hand delivery, whereas the Board allows service by mail. Pa.R.C.P. 403 allows service by mail but requires a receipt signed by the defendant or his authorized agent. In contrast, the Board does not require a signature for delivery of a notice of appeal by mail. Nor is the recipient of the notice of appeal a defendant. Finally, Pa.R.C.P. 440 addresses service of legal papers other than original process, whereas § 1021.51(f) (relating to commencement, form and content) addresses service of original process. After a great deal of discussion, the Rules Committee recommended deleting the reference to ''Pennsylvania Rules of Civil Procedure'' in paragraphs (1)(iv) and (2)(vi)(C) and, instead, allowing service of a notice of appeal ''at any office or usual place of business of any potentially adversely affected persons.''
§ 1021.51(j). Intervention in an appeal
IRRC asked whether an interested person identified under subsection (h)(4) is required to file a petition to intervene or whether the person may simply file an entry of appearance. In response, the Board amends the language in subsection (j) to make clear how an interested person identified under subsection (h)(4) may intervene. Namely, an interested person under subsection (h)(4) must file a petition to intervene unless the Board specifies otherwise.
IRRC also asked what intervention procedure is typically included in the order referenced in subsection (h)(4). While the Board does not retain specific data on this subject, the Board anticipates that most persons filing a petition under subsection (h)(4) will be allowed to intervene by filing an entry of appearance; however, the Board would like to preserve the right to require a petition to intervene where further information is needed.
Finally, IRRC asked the Board to consider clarifying subsection (j) so that it is consistent with the proposed comment to § 1021.81 (relating to intervention), which provides:
Section 1021.51(j) (relating to commencement, form and content) allows certain potentially adversely affected persons, as that term is defined in § 1021.51(h), to intervene in an appeal as of right by simply filing an entry of appearance.The Board believes that the final-form language is now consistent with the comment to § 1021.81, because § 1021.51 now allows certain potentially adversely affected persons, as that term is identified in § 1021.51(h), to intervene in an appeal as of right by simply filing an entry of appearance.
Miscellaneous changes and corrections
§ 1021.5(b). Citations to Board decisions
The Board makes one stylistic change in § 1021.5(b) (relating to citations to Board decisions) to avoid confusion among practitioners. Specifically, in the example provided by the Board to show the proper citation, the Board replaces the year ''2022'' with a generalized reference to ''(Date and Year).''
This generalized reference is necessary because subsection (b) of the proposed rule sets forth the format for citing to a slip opinion. Prior to publication, the Board's decisions are available as slip opinions by means of an opinion search on the Board's web site. The docket number and date of issuance are listed in the caption of each decision and, therefore, this information is easily available to anyone citing the decision.
The Board's Opinions and Adjudications (decisions) are published in reporters each year, and so the opinions and adjudications for 2022 have since been published. The reporters are available in hard copy and on the Board's web site.
The Board believes the language set forth previously provides more clarification to practitioners than the use of an actual date and year in the example.
''Fees and Costs'' language
Finally, this final-form rulemaking corrects §§ 1021.182—1021.184 and 1021.191 and the undesignated center headings that appear before those sections to replace the phrase ''costs and fees'' with ''fees and costs.'' The language was inadvertently changed to ''costs and fees'' in the proposed rulemaking and is corrected to ''fees and costs'' in this final-form rulemaking.
Sunset Date
A sunset date has not been established for these regulations. The effectiveness of the regulations will be evaluated on an ongoing basis by the Board and the Rules Committee.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on June 6, 2023, the Board submitted a copy of the notice of proposed rulemaking, published at 53 Pa.B. 3193, to IRRC and the chairperson of the Environmental Resources and Energy Committees of the Senate and chairperson of the Environmental Resources and Energy Committees of the House of Representatives for review and comment.
Under section 5(c) of the Regulatory Review Act, the Board shall submit to IRRC and the House and Senate committees copies of comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Board has considered all comments received from IRRC. No comments on the proposed regulations were received from either of the legislative committees or the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)), on March 21, 2024, the 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 March 21, 2024, and approved the final-form rulemaking.
Findings of the Board
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), referred to as the Commonwealth Documents Law, and the regulations promulgated thereunder, at 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) A public comment period was provided as required by law, and all comments were considered.
(3) This final-form rulemaking does not enlarge the purpose of the proposed rulemaking published at 53 Pa.B. 3193.
(4) These regulations are necessary and appropriate for administration of the act.
Order
(1) The regulations of the Board, 25 Pa. Code Chapter 1021, are amended by amending §§ 1021.2, 1021.51, 1021.61, 1021.63, 1021.81, 1021.92, 1021.94a, 1021.133, 1021.182, 1021.183, 1021.184 and 1021.191 and adding § 1021.5 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(2) The Chairperson of the Board shall submit this final-form rulemaking and Annex A to the Office of Attorney General and Office of General Counsel for review and approval as to legality and form, as required by law.
(3) The Chairperson of the Board shall submit this final-form rulemaking and Annex A to the House and Senate committees, and IRRC, as required by law.
(4) The Chairperson of the Board shall certify this final-form rulemaking and deposit it with the Legislative Reference Bureau as required by law.
(5) This final-form rulemaking shall take effect upon publication in the Pennsylvania Bulletin.
STEVEN C. BECKMAN,
Chief Judge and Chairperson(Editor's Note: See 54 Pa.B. 1907 (April 6, 2024) for IRRC's approval.)
Fiscal Note: Fiscal Note 106-14 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
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:
* * * * * Business day—A day that is not a Saturday, Sunday or a legal holiday.
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 governmental entities whose decisions are appealable to the Board.
Dispositive motion—A motion that seeks to resolve the issues in an appeal without the need for hearing or further hearing. The term includes a motion to quash appeal, a motion to dismiss, a motion for summary judgment, and a motion for partial summary judgment, but not a motion in limine.
* * * * * Pa.R.C.P.—Pennsylvania Rules of Civil Procedure, 42 Pa.C.S.; 231 Pa. Code.
Party—An appellant, appellee, plaintiff, defendant, permittee or intervenor.
Permittee—The recipient of a permit, license, approval or certification issued by the Department.
* * * * * Registration statement—A completed application to use the electronic filing provider for electronic filing and electronic service in Board proceedings.
Supersedeas—A suspension of the effect of an action of the Department pending proceedings before the Board.
Third-party appeal—The appeal of an action by a person to whom the action is not directed or issued.
(b) Subsection (a) supplements 1 Pa. Code § 31.3 (relating to definitions) except for ''pleading'' which supersedes the definition of ''pleading'' in 1 Pa. Code § 31.3.
§ 1021.5. Citations to Board decisions.
(a) Citations to Board decisions in briefs, legal memoranda and other documents filed with the Board shall contain the names of the parties, and the year and page number of the Environmental Hearing Board Reporter (Opinion and Adjudication volumes) located on the Board's web site. The citation shall be provided using the following format: Name of Appellant v. DEP, 2021 EHB 43. Pinpoint citations shall be preceded with a comma and a space, in the following format: Name of Appellant v. DEP, 2021 EHB 43, 45.
(b) If the Environmental Hearing Board Reporter has not been published for a particular year, the citation shall be to the slip opinion which can be found on the Board's web site. The citation shall include the names of the parties, the docket number, the type of decision being issued (that is, Adjudication or Opinion) and the date of issuance, using the following format: Name of Appellant v. DEP, EHB Docket No. ____ (Opinion and Order on Motion to Dismiss issued (date and year)).
Comment: Additional citations to legal research databases such as LexisNexis and Westlaw are permissible.
FORMAL PROCEEDINGS
APPEALS § 1021.51. Commencement, form and content.
* * * * * (f) An original notice of appeal shall be filed electronically, conventionally or by facsimile.
(1) Electronic filing.
* * * * * (iv) The appellant shall, concurrent with or prior to the filing of a notice of appeal, serve a copy on any potentially adversely affected persons as identified in subsection (h)(1)—(3). The service shall be made at the address in the document evidencing the action by the Department or at any office or usual place of business of any potentially adversely affected persons.
* * * * * (2) Conventional filing.
* * * * * (vi) The appellant shall, concurrent with or prior to the filing of a notice of appeal, serve a copy on each of the following in the same manner in which the notice of appeal is filed with the Board:
(A) The office of the Department issuing the Departmental action.
(B) The Office of Chief Counsel of the Department.
(C) A potentially adversely affected person as identified in subsection (h)(1)—(3). The service shall be made at the address in the document evidencing the action by the Department or at any office or usual place of business of any potentially adversely affected persons.
* * * * * (h) For purposes of this section, a ''potentially adversely affected person'' includes the following:
(1) The recipient of a permit, license, approval, certification or order.
(2) In appeals involving a decision under section 5 or section 7 of the Pennsylvania Sewage Facilities Act (35 P.S. §§ 750.5 or 750.7), any affected municipality, its municipal authority, the proponent of the request, when applicable, and any municipality or municipal authority whose official plan may be affected by the decision or a decision of the Board in the appeal.
(3) A mining company, well operator, or owner or operator of a storage tank in appeals involving a claim of subsidence damage, water loss or contamination.
(4) Other interested persons as ordered by the Board.
(i) 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 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, 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) Potentially adversely affected persons under subsection (h)(2) or (3) may intervene as of right 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. Potentially adversely affected persons under subsection (h)(4) may seek leave to intervene by filing a petition to intervene under § 1021.81, or may intervene as of right by filing an entry of appearance where permitted to do so by order of the Board.
* * * * *
Comment: If a potentially adversely affected person under subsection (h)(2), (3) or (4) elects not to intervene following service of notice of an appeal or notice by the Board that the person's rights may be affected by an appeal, the person's right to appeal from the Board's adjudication in the matter may be adversely affected. This comment is added in response to the Commonwealth Court's ruling in DEP v. Schneiderwind, 867 A.2d 724 (Pa. Cmwlth. 2005).
SUPERSEDEAS § 1021.61. General.
* * * * * (d) At the discretion of the Board, if necessary to ensure prompt disposition, supersedeas hearings may be limited in time and format, with parties given a fixed amount of time to present their entire case, and with restricted rights of discovery, cross-examination or reopening the record in accordance with § 1021.133 (relating to reopening of record prior to adjudication).
* * * * * § 1021.63. Circumstances affecting grant or denial.
(a) The Board, in granting or denying a supersedeas, will be guided by relevant judicial precedent and the Board's own precedent. Among the factors to be considered:
(1) Irreparable harm to the petitioner.
(2) The likelihood of the petitioner prevailing on the merits.
(3) The likelihood of injury to the public or other parties in the case.
* * * * *
CONSOLIDATION, INTERVENTION AND SUBSTITUTION OF PARTIES § 1021.81. Intervention.
* * * * *
Comment: Section 1021.51(j) (relating to commencement, form and content) allows certain potentially adversely affected persons, as that term is defined in § 1021.51(h), to intervene in an appeal as of right by simply filing an entry of appearance.
MOTIONS § 1021.92. Procedural motions.
* * * * * (e) Procedural requests, whether in letter or motion form, shall be accompanied by a proposed order.
* * * * * § 1021.94a. Summary judgment motions.
* * * * * (g) Opposition to motion for summary judgment. Within 30 days of service of the motion or, if a supporting party files a memorandum of law alone, within 30 days of service of the memorandum of law, 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 response to the statement of undisputed material facts either admitting or denying or disputing each of the facts in the movant's statement. Any response must include a citation to the portion of the record controverting 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 and contain citations to the motion record. The response to the statement of undisputed material facts may not exceed five pages in length unless leave of the Board is granted.
* * * * *
POSTHEARING PROCEDURES § 1021.133. Reopening of record.
(a) After the conclusion of the hearing on the merits of the matter pending before the Board and before the Board issues an adjudication, or after the conclusion of a hearing on a supersedeas and before the Board issues an order granting or denying a supersedeas, the Board, upon its own motion or upon a petition filed by a party, may reopen the record as provided in this section.
* * * * *
ATTORNEY FEES AND COSTS AUTHORIZED
BY STATUTE§ 1021.182. Application for fees and costs.
(a) If statutorily authorized, a party may initiate a request for fees and costs by filing a fee application with the Board. The fee application shall conform to any requirements set forth in the statute under which fees and costs are being sought and shall also conform to any requirements set forth in §§ 1021.181, 1021.183, 1021.184 and 1021.191.
(b) A fee application shall be verified by the applicant, and shall set forth sufficient grounds to justify the award, including the following:
(1) A copy of the order of the Board in the proceedings in which the applicant seeks attorney fees and costs.
(2) A statement of the basis upon which the applicant claims to be entitled to attorney fees and costs, setting forth in numbered paragraphs the facts in support of the fee application and the amount of fees and costs requested. The statement must identify all legal issues upon which the applicant contends it prevailed and the degree to which the relief sought in the appeal was granted. The fee application may not be accompanied by a supporting memorandum of law unless otherwise ordered by the Board.
(3) An affidavit, or affidavits, signed by each of the applicant's lawyers and each consultant or expert witness whose fees and costs the applicant seeks to recover, setting forth in detail all reasonable fees and costs incurred for or in connection with issues in which the party prevailed.
(4) Where attorney fees are claimed, evidence concerning the hours expended on the case, the customary commercial rate of payment for such services in the area and the experience, reputation and ability of the individual or individuals performing the services.
(5) The name of each party from whom fees and costs are sought.
(c) An applicant shall file a fee application with the Board within 30 days of the date of a final order of the Board. An applicant shall serve a copy of the fee application upon the other parties to the proceeding.
(d) The Board may deny a fee application sua sponte or require an applicant to amend its fee application within a specified time frame if the applicant fails to provide all the information required by this section in sufficient detail to enable the Board to fully evaluate the request for relief.
Comment: For the purpose of establishing the number of hours an attorney or consultant/expert witness worked under subsection (b)(4), the Board encourages the submission of records that avoid grouping multiple tasks into a single time entry.
§ 1021.183. Response to fee application.
A response to a fee application shall be filed within 30 days of service, unless a longer period of time is ordered by the Board following a fees conference under § 1021.184(c) (relating to disposition of fee application). The factual bases for the response shall be supported by affidavits signed by the parties from whom the fees and costs are sought or others with relevant knowledge. A response to a fee application shall set forth in correspondingly numbered paragraphs all factual disputes and the reason the opposing party objects to the fee application. Material facts set forth in a fee application that are not denied may be deemed admitted for the purposes of deciding the fee application.
§ 1021.184. Disposition of fee application.
(a) [Reserved].
(b) [Reserved].
(c) Within 7 days of the Board's receipt of a fee application, the Board will hold a fees conference with all parties to the appeal to determine the process and deadlines for responses, briefing, discovery and evidentiary hearings, if any. Following the fees conference, the Board will issue a fees conference order establishing case management procedures for these and any other issues that the Board may address.
(d) The applicant has the burden of proving its entitlement to the recovery of fees and costs.
(e) The fee application process will be stayed if one of the parties files an appeal from the Board's final order in the underlying appeal.
ATTORNEY FEES AND COSTS UNDER
MORE THAN ONE STATUTE§ 1021.191. Application for fees and costs under more than one statute.
An applicant seeking to recover fees and costs under more than one statute shall file a single fee application which sets forth, in separate counts, the basis upon which fees and costs are claimed under each statute. The fee application shall comport with the requirements in § 1021.182 (relating to application for fees and costs).
[Pa.B. Doc. No. 24-721. Filed for public inspection May 17, 2024, 9:00 a.m.]
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