Section 72.58. Certification Board hearings and procedures

(a) Actions by the Department to revoke or suspend sewage enforcement officer certifications become final only after notice and opportunity for a hearing before the Certification Board. The filing of an appeal with the Certification Board does not operate as an automatic supersedeas of the action of the Department. If no request for a hearing is filed with the Secretary of the Certification Board within 30 days of receipt of notice of the action by the certificate holder, the action becomes final. Requests for a hearing shall set forth with specificity the grounds for the appeal, including objections to the Department’s action. If the request for a hearing does not specify the grounds for the appeal, the certificateholder shall, upon notification from the Secretary of the Certification Board, be given the opportunity to file an amended request for a hearing within 30 days of receipt of the notification. The amended request shall conform to the content requirements for a request for a hearing. The Certification Board may dismiss an appeal if a certificate holder fails to file an amended request for a hearing or to comply with the requirements for filing an amended request for a hearing. The adjudications of the Certification Board shall otherwise be in accordance with 1 Pa. Code Part II (relating to general rules of administrative practice and procedure).

(b) In hearings before the Certification Board, 1 Pa. Code Part II (relating to general rules of administrative practice and procedure) applies, unless it is inconsistent with this chapter. Discovery in hearings before the Certification Board shall be permitted as provided in the Pa.R.C.P.

(c) In proceedings before the Certification Board, the burden of proceeding and the burden of proof is the same as at common law, in that the burden normally rests with the party asserting the affirmative of an issue. The affirmative of the issue shall be established by a preponderance of the evidence. The Certification Board may 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.

(d) Actions and adjudications of the Certification Board shall be by a vote of a majority of members present at a meeting called for consideration of the action or adjudication. Three members of the Certification Board constitute a quorum.

(e) The Certification Board may hear matters brought before it as a whole or may appoint hearing examiners. Hearings held by hearing examiners not members of the Certification Board shall be decided by the Board based upon its review of the record and the examiner’s proposed adjudication.

(f) An applicant is not entitled to a hearing when a certificate was denied because the applicant failed to pass the certification examination or failed to successfully complete a training program requried by the Department.

The provisions of this § 72.58 amended November 1, 1996, effective November 2, 1996, 26 Pa.B. 5347; amended November 7, 1997, effective November 8, 1997, 27 Pa.B. 5877. Immediately preceding text appears at serial pages (221900) and (234449).

Notation

Authority

The provisions of this § 72.58 amended under sections 7.2 and 9 of the Pennsylvania Sewage Facilities Act (35 P. S. § § 750.7b and 750.9); The Clean Streams Act (35 P. S. § § 691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).

Notes of Decisions

Quorum

A majority vote is required to uphold a revocation. Kuszyk v. Zoning Hearing Board of Amity Township, 834 A.2d 661, 665 Note 5 (Pa. Cmwlth. 2003)

A majority of the State Board for Certification of Sewage Enforcement Officers failed to affirm the revocation of the applicant’s certificate when two of four board members dissented from a decision to sustain the revocation since evenly divided voters insufficient. Young v. Department of Environmental Resources, 600 A.2d 667 (Pa. Cmwlth. 1991); appeal denied 609 A.2d 169 (Pa. 1992).

Cross References

This section cited in 25 Pa. Code § 72.43 (relating to powers and duties of the Department).