APPEALS
§ 1021.51. Commencement, form and content.
(a) An appeal from an action of the Department shall commence with the filing of a notice of appeal with the Board.
(b) The caption of 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)(c) The notice of appeal must set forth the name, mailing address, e-mail address and telephone number of the appellant. The notice of appeal shall be signed by at least one attorney in the attorney’s individual name or by the appellant(s).
(d) If the appellant has received written notification of an action of the Department, the appellant shall attach a copy of that notification and any documents received with the notification to the notice of appeal. If the documents include a permit, the appellant only needs to attach the first page of the permit. Instead of attaching a copy of the notification of the action or related documents, the appellant may provide a link to the publication of the action in the Pennsylvania Bulletin.
(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.
(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 rejection or dismissal of the notice of appeal. The Board may request that the appellant file an amended version of the notice of appeal in proper form.
(iv) In a third-party appeal, the appellant shall, concurrent with or prior to the filing of a notice of appeal, serve by facsimile or overnight mail a copy on 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.
(v) The Board, through the electronic filing provider, will provide prompt notice of, and access to, all notices of appeal electronically filed to the Office of Chief Counsel of the Department, at an e-mail address designated by the Office of Chief Counsel.
(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) Only 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 rejection or dismissal of the notice of appeal. The Board may request that the appellant file an amended version of 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 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) 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.
(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 the notice of appeal 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 rejection or dismissal of the notice of appeal. The Board may request that the appellant file an amended version of the notice of appeal in proper form.
(vi) The appellant shall, concurrent with or prior to the facsimile filing of a notice of appeal, serve a copy by facsimile on the individuals and entities listed in paragraph (2)(vi). If a party’s fax number is not available or operational, the notice of appeal shall be served to that party by overnight delivery.
(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.
(h) For purposes of this section, ‘‘recipient of the action’’ includes the following:
(1) The recipient of a permit, license, approval, certification or order.
(2) Any affected municipality, its municipal authority and the proponent of the decision, when applicable, in appeals involving a decision under section 5 or 7 of the Pennsylvania Sewage Facilities Act (35 P. S. § § 750.5 and 750.7).
(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 parties 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 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, 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) 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 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) Subsections (a)—(k) supersede 1 Pa. Code § § 35.5—35.7 and 35.9—35.11 (relating to informal complaints; and formal complaints).
Comment: If a recipient of an action 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 recipient’s rights may be affected by an appeal, the recipient’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 Schneiderwind v. DEP, 867 A.2d 724 (Pa. Cmwlth. 2005).
Authority The provisions of this § 1021.51 amended under section 5 of the Environmental Hearing Board Act (35 P.S. § 7515).
Source The provisions of this § 1021.51 amended August 30, 1996, effective August 31, 1996, 26 Pa.B. 4222; amended September 18, 1998, effective September 19, 1998, 28 Pa.B. 4714; amended September 3, 1999, effective September 4, 1999, 29 Pa.B. 4683; amended February 10, 2006, effective February 11, 2006, 36 Pa.B. 709; amended October 16, 2009, effective October 17, 2009, 39 Pa.B. 6035; amended August 8, 2014, effective August 9, 2014, except for subsection (f)(1)(v), which takes effect on September 8, 2014, 44 Pa.B. 5328; amended October 6, 2017, effective October 7, 2017, 47 Pa.B. 6205; amended October 21, 2022, effective October 22, 2022, 52 Pa.B. 6534. Immediately preceding text appears at serial pages (388230) to (388233).
Notes of Decisions Appeal
In an appeal to the Environmental Hearing Board, the failure to file specific grounds for the appeal within the prescribed time is a defect that goes to the jurisdiction of the EHB. People United to Save Homes v. Department of Environmental Protection, 789 A.2d 319 (Pa. Cmwlth. 2001).
Financial Incapacity
This section does not mandate that, where security is required, the appellant allege economic inability to pay or post a bond, nor does it require that a notice of appeal include documentation proving payment or the execution of a bond. Stanley T. Pilawa & Disposal, Inc. v. Department of Environmental Protection, 698 A.2d 141 (Pa. Cmwlth. 1997).
Cross References This section cited in 25 Pa. Code § 1021.32 (relating to filing); 25 Pa. Code § 1021.34 (relating to service by a party); 25 Pa. Code § 1021.52 (relating to timeliness of appeal); and 25 Pa. Code § 1021.81 (relating to intervention).
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