Title 25--ENVIRONMENTAL PROTECTION ENVIRONMENTAL HEARING BOARD [25 PA. CODE CH. 1021] Practice and Procedures [28 Pa.B. 4714] The Environmental Hearing Board (Board) by this order amends Chapter 1021 (relating to practice and procedures) to read as set forth in Annex A. The amendments modify the rules of practice and procedure before the Board by adding or correcting terminology relating to the Board and implementing improvements in practice and procedure.
The Board approved the final-form regulations at its May 26, 1998, meeting.
Effective Date
The amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
Contact Person
For further information, contact William T. Phillipy, IV, Secretary to the Board, 2nd Floor, Rachel Carson State Office Building, P. O. Box 8457, Harrisburg, PA 17105-8457, (717) 787-3483. If information concerning this notice is required in an alternative form, William Phillipy may be contacted at the above number. TDD users may telephone the Board through the AT&T Pennsylvania relay center at (800) 654-5984.
Statutory Authority
The amendments are promulgated under the authority of section 5 of the Environmental Hearing Board Act (35 P. S. § 7515) which empowers the Board to adopt regulations pertaining to practice and procedure before the Board.
Comments and Revisions to Proposed Rulemaking
The Board received comments on the proposed revisions from the Independent Regulatory Review Commission (IRRC); Joel R. Burcat, Esq., John P. Krill, Jr., Esq. and R. Timothy Weston, Esq. of Kirkpatrick & Lockhart; and the Pennsylvania Coal Association (PCA). The commentators had specific comments which will be addressed on a section-by-section basis. Comments and recommendations will be addressed as a group only when the commentators have the same comments and recommendations. However, comments and recommendations which have only been raised by one of the commentators will be separately addressed.
§ 1021.2 Definitions
The final rulemaking incorporates revisions to several definitions. The revisions were made to simplify the definitions and to have them conform to the Board's rules.
One commentator agreed that the definitions needed to be revised but recommended that the Board consider using the definitions in 1 Pa. Code Part I (relating to General Rules of Administrative Practice and Procedure) rather than developing new definitions.
The Board has considered this suggestion and it will continue to have its own set of definitions because they were drafted to be very specific to the Board and the matters which come before it. Accordingly, this section of the final rulemaking has not been modified.
§ 1021.51 Commencement, form and contents
One commentator stated that the proposed amendment to § 1021.51(f) requiring service of the appeal on the same day is unfair. The commentator noted that the revision will be burdensome and unfair to many appellants since the appellant or appellant's counsel has very little time to prepare the appeal and suggested that the Board allow 10 days to serve a copy.
The Board wants to prevent the delay of service upon persons after the notice has been filed with the Board and to streamline the appeal process. The Board sees no burden with the final rulemaking requiring service of the notice of appeal by mailing the notice of appeal to the Department and any affected permittee on the same day. Accordingly, § 1021.51(f) of the final rulemaking has not been modified.
§ 1021.52 Timeliness of appeal
Regarding § 1021.52(a)(2) one commentator suggested: 1) that the language ''whichever occurs first'' should be added; and 2) delete ''if there is no notice of the action published in the Pennsylvania Bulletin'' in subparagraph (ii). IRRC recommended that the colon after the word ''Bulletin'' in subsection (a)(2)(i) be replaced with a semi-colon and the word ''or.'' After further consideration IRRC recommended that the Board should have the first line of (a)(2) read as follows: ''Any other person aggrieved by an action of the Department shall file its appeal with the Board within:'' and subparagraph (ii) should be written to read, ''(ii) Thirty days after actual notice of the action if a notice of the action is not published in the Pennsylvania Bulletin.''
The Board has considered IRRC's recommendations and has decided the recommendations would clarify the proposal and has adopted the changes in the final rulemaking.
One commentator suggested that the Board retain the practice of ''skeleton'' appeals with a mandatory 30-day perfection or revision period following the filing of the appeals.
The Board has retained the proposal as published. The Board decided to do away with the skeletal appeal as it believes those provisions to be unnecessary in view of the provisions of § 1021.53 (relating to amendments to appeal; nunc pro tunc appeals) which now permit the filing of amendments to the appeal under certain conditions and time limitations. Those provisions should govern the right to make a substantive change to the appeal. If the appeal should fail to meet some formal requirement of § 1021.51, the appellant may remedy the failure following notice of the Board's request or as a result of a motion filed by an opposing party. Of course, failure to effect or provide proof of service on the Department would be ground for dismissal of the appeal.
Another commentator recommended that the rule should include a third category of persons who could file an appeal within 30 days of receipt of written notice. The third category would include a person who has participated in the administrative process leading to action and who has received a written notice of the action but was not the person to whom the action of the Department was directed or issued. IRRC staff did not suggest that the change be made, but recommended that the Board consider adding a third category in subsection (a)(2) to address constructive notice to unincorporated association members.
The Board has decided not to adopt these suggestions. The Board believes that the grant of additional time provided to third party appellants provided by starting the 30-day period for appeal with publication of notice of the Department's action in the Pennsylvania Bulletin is, in absence of a contrary Legislative directive, appropriate. Even though third parties may have participated in the administrative process leading to the Department's action, they ordinarily cannot afford to participate with the full assistance of counsel and experts as can be done by the permittee. After the Department takes action, these third party appellants ordinarily need time to consult counsel, experts and others in the affected community to prepare a proper appeal. The Board views a special rule of constructive notice for unincorporated associations to be unnecessary. The Board will continue to apply a rule of constructive notice to bar late appeals from members of an association when the officers of the association would have been bound to appeal within 30 days of the Department's action or the publication of notice in the Pennsylvania Bulletin. Because other circumstances may also require the application of the rule of constructive notice, the Board prefers to act on a case-by-case basis rather than to adopt a special rule now for the unincorporated associations. The special rule might be used in other circumstances to argue that the special rule for unincorporated associations is the limit of the application of a rule of constructive notice.
§ 1021.81 Prehearing Procedures
One commentator noted that the proposal would be unfair to many appellants because it provides unnecessary additional burdens on private appellants since a private appellant must obtain counsel, prepare a case, conduct discovery, obtain expert witnesses and prepare for trial. In addition, the commentator stated that the proposed requirement of serving expert reports within 120 days of the date of the prehearing order is also an unfair burden. Furthermore, the commentator noted that the proposed rule would limit or preclude opinions from experts engaged after the filing of an appeal who may be unable to form an opinion until discovery has closed and all discovered data are evaluated since this type of expert may not have gathered any data himself and may not have access to data outside of discovery. In addition, expert opinions based not just on data known at the close of discovery but also on tests or models using the data would be foreclosed by the rule. Finally, the commentator suggested that the rule should recognize that expert opinions given at the hearing must be based on the evidence in the record.
The Board believes that the final rulemaking is not unduly burdensome on private appellants. The Board's practice is to be liberal in granting extensions of time for meeting prehearing requirements such as completing discovery and the filing of dispositive motions. The same practice will be followed in the case of meeting the deadline for the identification of, and filing of reports from, experts. In addition, the parties are encouraged to agree upon their own case management order so that the steps necessary to prepare for the hearing on the merits may be tailored by the parties to meet the individual needs of the case. The Board's experience is that many experts are retained well before the completion of discovery, and that necessary tests may be conducted and demonstrative evidence may be developed outside the discovery process so that there is little likelihood that a party will be prejudiced by the Board's application of this rule. The Board will not adopt a rule permitting expert testimony only on the basis of evidence introduced at the hearing. The Pennsylvania Rules of Evidence effective on October 1, 1998, in Rule 703 permit experts to rely on facts or data of a type reasonably relied upon by experts in the field and does not require that those facts be admissible in evidence. The Board believes this to be a statement of existing Pennsylvania law and intends to continue to apply this principle in connection with expert testimony.
§ 1021.101 Burden of Proceeding and Burden of Proof
A commentator recommended that the Board amend subsection (b)(3) by adding the words ''modifies or suspends'' after the word ''revokes.'' IRRC concurred with the suggestion stating that the additional language improves the clarity of the provision. The Board agrees the rule should be modified. The final rule will read, ''. . . revokes or suspends . . . .'' Upon consideration of the suggestions, the Board omitted the term ''modifies'' since modifications may arise under different situations and depending on the situation at hand the burden may be either on the Department or on the appellant. Thus, including ''modifies'' would only create confusion rather than clarity. The Board solicited its Rules Committee's opinion on this matter and the Committee agreed that for clarity the term ''modifies'' should be omitted.
The Board has determined that proposed Rule 1021.101(c)(1) needed to be revised to place the burden of proof on the appellant when the Department either denies or refuses to modify a permit. Accordingly, the Board has decided to modify (c)(1) as follows: ''When the Department denies or refuses to modify a license, permit approval or certification.''
One commentator recommended that in subsection (c)(2) the Board replace ''recipient'' with ''addressee'' since addressee is more accurate because in many instances the recipient is not necessarily the party who has a direct interest in the matter or who would properly be a party in an appeal. IRRC questioned whether the language ''recipient of action'' and ''the person to whom the action is directed or issued'' are synonymous and if they are then the Board should use ''recipient of action'' throughout the regulation.
One commentator had the following comments regarding subsection (c)(3): 1) the proposed rule as written appears to place the burden on both the Department and the party appealing the action since ''action'' is defined to include ''order;'' and 2) the proposed rule is internally inconsistent because an ''action'' is issued it is not ''modified.'' IRRC recommended that ''action'' in this subsection be deleted and replaced with ''permit, approval or certification'' to clarify what ''action'' refers to and to establish consistency within the section.
After consideration of the comments, the Board plans to modify the final rule. The Board will delete ''who is the recipient of an action'' and substitute the following language ''to whom a permit approval or certification is issued.'' Thus, the modified final rule will read, ''When a party to whom a permit approval or certification is issued protests one or more aspects of its issuance or modification.'' The Board concurs a change to the language in subsection (c)(3) is necessary to avoid apparent inconsistency created by the use of ''action'' in that subsection. The use of ''action'' in subsection (c)(3) along with the language in subsection (b) appears to place the burden of proof on both the appellant and the Department in many appeals which is not the result the Board intended with the revision. The Board will modify the rule.
Other Proposed Changes
The Board did not receive any comments on proposed changes to §§ 1021.109, 1021.120 and 1021.161.
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 Board's Rules Committee.
Regulatory Review
Under section 5.1(a) of the Regulatory Review Act (71 P. S. § 745.5a(a)), on February 4, 1998, the Board submitted copies of the proposed revisions, which were published at 28 Pa.B. 807 (February 14, 1998), to IRRC and the Senate and House Environmental Resources and Energy Committees for review and comment. The Board, in accordance with section 5(b.1) of the Regulatory Review Act (71 P. S. § 745.5(b.1)), also provided IRRC and the Committees with the Regulatory Analysis Form prepared in compliance with Executive Order 1996-2 (relating to regulatory review and promulgation) and copies of all comments received.
In preparing these final-form regulations, the Board has considered all comments received from the public and IRRC. No comments on the proposed amendments were received from either of the Legislative committees.
These final-form regulations were approved by the House and Senate Committees on August 14, 1998. IRRC met on August 27, 1998, and approved the final-form regulations under section 5(c) of the Regulatory Review Act.
Findings
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) and the regulations thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) These regulations are necessary and appropriate for administration of the Environmental Hearing Board Act.
Order
The Board orders that:
(a) The regulations of the Board, 25 Pa. Code Chapter 1021, are amended by amending §§ 1021.2, 1021.51, 1021.52, 1021.62, 1021.73, 1021.81, 1021.101, 1021.109, 1021.120 and 1021.161 to read as set forth in Annex A.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of Attorney General and Office of General Counsel as to legality and form as required by law.
(c) The Chairperson of the Board shall submit this order and Annex A to the House Environmental Resources and Energy Committee, the Senate Environmental Resources and Energy Committee and IRRC, as required by law.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect upon publication in the Pennsylvania Bulletin.
GEORGE J. MILLER,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 28 Pa.B. 4683 (September 12, 1998).)
Fiscal Note: Fiscal Note 106-3 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 PROCEDURES Subchapter A. 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:
Act--The Environmental Hearing Board Act (35 P. S. §§ 7511--7516).
Action--An order, decree, decision, determination or ruling by the Department affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of a person, including, but not limited to, a permit, license, approval or certification.
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.
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 Law.
Department--The Department of Environmental Resources or its successor agencies.
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.
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 § 1021.62 (relating to intervention).
Party--An appellant, appellee, plaintiff, defendant, permittee or intervenor.
Permittee--The recipient of a permit, license, approval or certification in a third-party appeal.
Person--An individual, partnership, association, corporation, political subdivision, municipal authority or other entity.
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 who is not the recipient of the action.
(b) Subsection (a) supplements 1 Pa. Code § 31.3 (relating to definitions).
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 appeal shall 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 appeal shall set forth name, address, and telephone number of appellant.
(d) If the appellant has received written notification of an action of the Department, a copy of the action shall be attached to the appeal.
(e) The appeal shall set forth in separate numbered paragraphs the specific objections to the action of the Department. The objections may be factual or legal. An objection not raised by the appeal or an amendment thereto under § 1021.53 (relating to amendments to appeal; nunc pro tunc appeals) shall be deemed waived, provided that, upon good cause shown, the Board may agree to hear the objection. For the purpose of this subsection, good cause shall include the necessity for determining through discovery the basis of the action from which the appeal is taken.
(f) Concurrent with the filing of a notice of appeal, the appellant shall serve a copy thereof on each of the following:
(1) The office of the Department issuing the notice of Departmental action.
(2) The Office of Chief Counsel of the Department or agency taking the action appealed.
(3) In a third party appeal, the recipient of the action.
(g) The service upon the recipient of an action as required by this section, shall subject the recipient to the jurisdiction of the Board as a party.
(h) Upon order of the Board, the appellant shall provide satisfactory proof that service has been made as required by this section.
(i) Subsections (a)--(h) supersede 1 Pa. Code §§ 35.5--35.7 and §§ 35.9--35.11 (relating to informal complaints; and formal complaints).
§ 1021.52. Timeliness of appeal.
(a) Except as specifically provided in § 1021.53 (relating to appeal nunc pro tunc), jurisdiction of the Board will not attach to an appeal from an action of the Department unless the appeal is in writing and is filed with the Board in a timely manner, as follows, unless a different time is provided by statute:
(1) The person to whom the action of the Department is directed or issued shall file its appeal with the Board within 30 days after it has received written notice of the action.
(2) Any other person aggrieved by an action of the Department shall file its appeal with the Board within the following:
(i) Thirty days after the notice of the action has been published in the Pennsylvania Bulletin.
(ii) Thirty days after actual notice of the action if a notice of the action is not published in the Pennsylvania Bulletin.
(b) Subsection (a) supersedes 1 Pa. Code §§ 35.5--35.7 and 35.9--35.11 (relating to informal complaints; and formal complaints).
Comment: The language ''person to whom the action of the Department is issued or directed'' is intended to include, but not be limited to, the recipient of: an order, a permit or license issuance or denial, a civil penalty assessment, or certification. See section 4(a) and (c) of the act (35 P. S. § 7514(a) and (c)).
INTERVENTION § 1021.62. Intervention.
(a) A person may petition the Board to intervene in any pending matter prior to the initial presentation of evidence.
(b) A petition to intervene shall be verified, and shall contain sufficient factual averments and legal assertions to establish the following:
(1) The reasons the petitioner seeks to intervene.
(2) The basis for asserting that the identified interest is greater than that of the general public.
(3) The manner in which that interest will be affected by the Board's adjudication.
(4) The specific issues upon which the petitioner will offer evidence or legal argument.
(c) A copy of the petition shall be served upon the parties to the proceedings.
(d) A party may file an answer to the petition. An answer shall be verified and filed within 15 days after service of the petition, unless a shorter time is ordered by the Board.
(e) The Board will deny the petition if it fails to include sufficient legal grounds or verified factual averments to establish the right to intervene.
(f) If the Board grants the petition, the order may specify the issues as to which intervention is allowed. An order granting intervention allows the intervenor to participate in the proceedings remaining at the time of the order granting intervention.
(g) Subsections (a)--(d) supersede 1 Pa. Code §§ 35.27--35.32 and 35.36 (relating to intervention; and answers to petitions to intervene).
MOTIONS § 1021.73. Dispositive motions.
(a) This section applies to dispositive motions.
(b) Motions for summary judgment or partial summary judgment and responses shall conform to Pa.R.C.P. 1035.1--1035.5 (relating to motion for summary judgment) except for the provision of the 30-day period in which to file a response.
(c) Dispositive motions shall be accompanied by a supporting memorandum of law. The Board may deny a dispositive motion if a party fails to file a supporting memorandum of law.
(d) A response to a dispositive motion may be filed within 25 days of the date of service of the motion, and may be accompanied by a supporting memorandum of law.
(e) A reply to a response to a dispositive motion may be filed within 20 days of the date of service of the response, and may be accompanied by a supporting memorandum of law.
(f) An affidavit or other document relied upon in support of a dispositive motion, response or reply, that is not already a part of the record, shall be attached to the motion, response or reply or it will not be considered by the Board in ruling thereon.
(g) Subsection (c) supplements 1 Pa. Code § 35.177 (relating to the scope and content of motions). Subsection (d) supersedes 1 Pa. Code § 35.179 (relating to objections to motions).
Comment: Subsection (d) supersedes the filing of a response within 30 days set forth in Pa.R.C.P. No. 1035.3(a).
PREHEARING CONFERENCES AND PREHEARING PROCEDURES § 1021.81. Prehearing procedure.
(a) Upon the filing of an appeal, the Board will issue a prehearing order providing that:
(1) Discovery shall be concluded within 90 days of the date of the prehearing order.
(2) The party with the burden of proof shall serve its expert reports and answers to all expert interrogatories within 120 days of the date of the prehearing order. The opposing party shall serve its expert reports and answers to all expert interrogatories within 30 days after receipt of the expert reports and interrogatories from the party with the burden of proof.
(3) Dispositive motions in a case requiring expert testimony shall be filed within 180 days of the date of the prehearing order. If neither party plans to call an expert witness, dispositive motions shall be filed within 150 days after the filing of the appeal unless otherwise ordered by the Board.
(4) The parties may, within 45 days of the date of the prehearing order, submit a Joint Proposed Case Management Order to the Board.
(b) A Joint Proposed Case Management Order shall, inter alia, propose alternate dates for the conclusion of discovery, the service of expert or supplemental reports, and the filing of dispositive motions. The Board may issue subsequent prehearing orders incorporating the alternate dates proposed by the parties or other dates the Board deems appropriate.
(c) After the Board resolves all dispositive motions, it will establish a hearing date for the remaining issues. The Board may also direct that the parties meet prior to the hearing to stipulate to uncontested facts, the qualifications of experts and the admissibility of exhibits.
(d) The parties shall file their prehearing memoranda at least 20 days before the scheduled hearing date.
(e) Subsection (d) supplements 1 Pa. Code § 35.121 (relating to initiation of hearings).
BURDEN OF PROCEEDING AND BURDEN OF PROOF § 1021.101. 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 a private party.
OFFICIAL NOTICE § 1021.109. Official notice of facts.
(a) The Board may take official notice of the following:
(1) Matters which may be judicially noticed by the courts of the Commonwealth.
(2) Facts which are not in dispute.
(3) Record facts reflected in the official docket of the Board as referenced in § 1021.41(a) (relating to docket).
(b) Any party shall, on timely request, be afforded an opportunity to show why the Board should not take official notice of items listed in subsection (a).
(c) A party requesting the taking of official notice after the conclusion of the hearing shall do so in accordance with § 1021.122 (relating to reopening of record prior to adjudication).
TERMINATION OF PROCEEDINGS § 1021.120. Termination of proceedings.
(a) A proceeding before the Board may be terminated by one of the following:
(1) Withdrawal of the appeal prior to adjudication.
(2) Settlement agreement.
(3) Consent adjudication.
(b) When a proceeding is withdrawn prior to adjudication, withdrawal shall be with prejudice as to all matters which have preceded the action unless otherwise indicated by the Board.
(c) When a proceeding is sought to be terminated by the parties as a result of a settlement agreement, the form of the settlement agreement may be a consent order, a consent assessment of civil penalties, a permit modification, or any other basis for settling an action as permitted by law. If the settlement includes any action of the Department which would have to be published if taken independently of the settlement, that action shall be published by the Department as required by law. Appealable actions of the Department contained in the settlement may be appealed to the Board by an aggrieved person not a party to the settlement in the manner provided by law. A party to the settlement may appeal only to the extent permitted by the terms of the agreement. After the parties have agreed upon a settlement they may do one of the following:
(1) Notify the Board that the case has been settled and request that the docket be marked settled.
(2) Notify the Board that the case has been settled, provide the Board with a copy of the settlement agreement for inclusion in the record of the case, and request that the docket be marked settled.
(3) Notify the Board that the case has been settled, provide the Board with a copy of the settlement agreement for inclusion in the record, request the notice of the settlement be published in the Pennsylvania Bulletin and request that the case be marked as settled.
The notice of publication shall be in substantially the following form:
RE: (Case and Docket Number) The Commonwealth of Pennsylvania (Department of ______ ) and (parties) have agreed to a settlement of the above matter. The Commonwealth had ordered under date of ______ , the party (party or parties) to:
(Summarize order or appeal describing other action of the Commonwealth from which appeal was taken).
The parties have agreed to a settlement, the major provisions of which include:
(Summarize major substantive provisions of settlement agreement.)
Copies of the full agreement are in the hands of:
(Names, addresses of counsel and telephone numbers) and at the office of the Environmental Hearing Board, and may be reviewed by any interested party on request during normal business hours.
(d) When a proceeding is sought to be terminated by the parties pursuant to a consent adjudication, all parties shall submit the proposed consent adjudication to the Board for approval. No proposed consent adjudication will be approved by the Board unless it contains the agreement of all parties to the action. The Board may refuse to approve a proposed consent adjudication if any of its provision are contrary to law or constitute, in the discretion of the Board, overreaching or bad faith by any party. Prior to approval, the Board will publish the major substantive provisions of the consent adjudication in the manner indicated in subsection (c)(3). In addition, the notice shall provide a comment period of at least 30 days for comments to be provided by the public. When comments are received from the public the parties to the consent adjudication shall respond to the comments. The Board may schedule a hearing prior to taking action on the consent adjudication. Any appeal from a consent adjudication shall lie to the Commonwealth Court, and shall, when taken by an aggrieved person not a party to the action, be taken within 30 days of the date of the Board's action.
§ 1021.161. Composition of the certified record on appeal to Commonwealth Court.
(a) Unless the parties file a stipulation with the Board providing otherwise, within 20 days of the filing of the petition for review, the Board will certify the record in accordance with Pa.R.A.P. No. 1951 (relating to record below in proceedings on petition for review) and the record shall consist of:
(1) A list of the docket entries.
(2) The notice of appeal and the Department action appealed to the Board, or, if the proceedings before the Board were initiated with a complaint, the complaint.
(b) In addition to items listed in subsection (a), for appeals of Board adjudications, the record shall also include:
(1) The Board's adjudication and order.
(2) The notes of testimony from the hearing, all exhibits admitted into evidence.
(3) The parties' posthearing memoranda, including requested findings of fact and conclusions of law.
(4) Petitions for reconsideration or to reopen the record, answers and accompanying exhibits.
(5) Other documents which formed the basis of the Board's adjudication.
(c) In addition to items listed in subsection (a), for appeals of Board opinions and orders, the record shall also include:
(1) The Board's opinion and order.
(2) The motion or petition which was the subject of the Board's opinion and order, together with responses, answers, and replies, and accompanying exhibits.
(3) Petitions for reconsideration of the Board's opinion and order, responses, answers, and replies, and accompanying exhibits.
(4) Other documents which formed the basis of the Board's opinion and order.
[Pa.B. Doc. No. 98-1519. Filed for public inspection September 18, 1998, 9:00 a.m.]
