§ 1021.1. Scope of chapter.

 (a)  This chapter governs practice and procedure before the Board.

 (b)  This chapter is not applicable to a proceeding to the extent that the applicable statute governing or authorizing the proceeding sets forth inconsistent practice or procedure.

 (c)  Except when inconsistent with this chapter, 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure) is applicable insofar as it relates to adjudicatory proceedings. When the term ‘‘agency’’ is used in 1 Pa. Code Part II, ‘‘Board’’ is to be understood; when the term ‘‘participant’’ is used in 1 Pa. Code Part II, ‘‘party’’ is to be understood.

 (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.

   Department—The Department of Environmental Protection or other boards, commissions or agencies 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.

   Electronic filing—The electronic transmission of legal documents by means of a computer or device, other than by facsimile transmission. Legal documents may be electronically transmitted in the format of Word Perfect for Windows or Microsoft Word for Windows or other format as the Board may permit.

   Filing attorney—A registered attorney who files a legal document by means of electronic filing on behalf of a client whom the attorney represents in a proceeding before the Board.

   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 §  1021.81 (relating to intervention).

   Legal document—A motion, answer or other paper filed in a proceeding before the Board other than a notice of appeal or a complaint that is original process naming a defendant or defendants. A subpoena or a bond or check issued to secure payment of a penalty is not a legal document; the original of the documents excluded from this definition must be filed or served.

   Pa.R.A.P.—Pennsylvania Rules of Appellate Procedure, 42 Pa.C.S.; 210 Pa. Code.

   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 in a third-party appeal.

   Person—An individual, partnership, association, corporation, political subdivision, municipal authority or other entity.

   Pleading—A complaint filed under §  1021.71, §  1021.72 or §  1021.73 (relating to complaints filed by the Department; complaints filed by other persons; and transferred matters) or answer filed under §  1021.74 (relating to answers to complaints). Documents filed in appeals, including the notice of appeal, are not pleadings.

   Registered attorney—An attorney admitted to practice in this Commonwealth, or other counsel permitted by Board order to represent a party for purposes of a particular proceeding, who has filed an electronic filing registration statement with the Board and to whom the Board has issued a password authorizing filing and service through the Board’s website.

   Registration statement—A statement made on professional or organizational letterhead requesting the use of the Board’s website for electronic filing.

   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) except for ‘‘pleading’’ which supersedes the definition of ‘‘pleading’’ in 1 Pa. Code §  31.3.

   The provisions of this §  1021.2 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 June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085; amended November 29, 2002, effective November 30, 2002, 32 Pa.B. 5883; amended February 10, 2006, effective February 11, 2006, 36 Pa.B. 709. Immediately preceding text appears at serial pages (313835) to (313837).

   Action

   Petitioner appealed suspension of review of permit application by Environmental Hearing Board to construct a waste transfer station due to conflict between proposed facility and township zoning laws; Department’s decision to suspend technical review of permit was not an appealable decision since it did not result in any action being taken against a party and did not affect any property rights, privileges or liabilities. HJC, LLC v. Department of Environmental Protection, 949 A.2d 350, 353 (Pa. Cmwlth. 2008)

   Where compliance orders previously issued are withdrawn, there is no ‘‘action’’ from which to appeal; therefore, the appeal is moot and dismissal of the appeal is appropriate. Horsehead Resource Development Co. v. Department of Environmental Protection, 780 A.2d 856 (Pa. Cmwlth. 2001); appeal denied 796 A.2d 987 (Pa. 2002).

 (a)  The Board retains continuing jurisdiction under section 5 of the act (35 P. S. §  7515) to adopt the amendments and additions to this chapter as may be appropriate.

 (b)  The Board is authorized to establish forms as may be required to implement the act.

 The rules in this chapter shall be liberally construed to secure the just, speedy and inexpensive determination of every appeal or proceeding in which they are applicable. The Board at every stage of an appeal or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

   The provisions of this §  1021.4 adopted September 3, 1999, effective September 4, 1999, 29 Pa.B. 4683. Immediately preceding text appears at serial page (247059).

   This section cited in 25 Pa. Code §  1021.82 (relating to consolidation).

TIME

§ 1021.11. Effective dates of Board adjudications and preliminary orders.

 (a)  Adjudications and orders of the Board will be effective as of the date of entry.

 (b)  Subsection (a) supersedes 1 Pa. Code §  31.14 (relating to effective dates of agency orders).

 (a)  The time fixed or the period of time prescribed for the filing of a document required or permitted to be filed under this chapter, other than the notice of appeal, may be extended by the Board for good cause upon motion.

 (b)  The motion in subsection (a) shall conform to the provisions in §  1021.92 (relating to procedural motions).

 (c)  Subsections (a) and (b) supersede 1 Pa. Code §  31.15 (relating to extensions of time).

   The provisions of this §  1021.17 amended September 3, 1999, effective September 4, 1999, 29 Pa.B. 4683; reserved June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial pages (274914) and (270919).

REPRESENTATION BEFORE BOARD

§ 1021.21. Representation.

 (a)  Parties, except individuals appearing on their own behalf, shall be represented by an attorney at all stages of the proceedings subsequent to the filing of the notice of appeal.

 (b)  Corporations shall be represented by an attorney of record admitted to practice before the Supreme Court of Pennsylvania. Corporations may also be represented by an attorney in good standing and admitted to practice before the highest court of another state on a motion pro hac vice filed by the Pennsylvania attorney of record.

 (c)  Groups of individuals acting in concert, whether formally or informally, shall be represented by an attorney admitted to practice law before the Supreme Court of Pennsylvania or by an attorney in good standing admitted to practice before the highest court of another state who has made a motion to appear specially in the case and agrees therein to abide by the Rules of the Board and the Rules of Professional Conduct.

 (d)  Individuals may appear in person on their own behalf; however, they are encouraged to appear through counsel and may be required to appear through counsel under subsection (c) if the Board determines they are acting in concert with or as a representative of a group of individuals.

 (e)  Subsections (a)—(d) supersede 1 Pa. Code § §  31.21—31.23 (relating to appearance in person; appearance by attorney; and other representation prohibited at hearings).

   The provisions of this §  1021.21 reserved September 3, 1999, effective September 4, 1999, 29 Pa.B. 4683; amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial page (270919).

 (a)  Entries of appearance shall be filed with the Board and served upon the other parties to the proceedings.

 (b)  Subsection (a) supplements 1 Pa. Code § §  31.22 and 31.25 (relating to appearance by attorney; and form of notice of appearance).

   The provisions of this §  1021.22 amended September 3, 1999, effective September 4, 1999, 29 Pa.B. 4693; amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial pages (270919) to (270920).

 (a)  An attorney’s appearance for a party may be withdrawn without leave of the Board if another attorney has entered or simultaneously enters an appearance for the party and the change of attorneys does not delay any stage of the litigation.

 (b)  In ruling on a motion for withdrawal of appearance under other circumstances, the Board will consider the following factors: the reasons why withdrawal is requested; any prejudice withdrawal may cause to the litigants; delay in resolution of the case which would result from withdrawal; and the effect of withdrawal on the efficient administration of justice.

 (c)  In the event withdrawal of counsel will result in an unrepresented party before the Board, counsel seeking to withdraw shall provide the Board with a single contact person for future service in all proceedings.

 Comment: This rule permits the automatic withdrawal and concurrent entry of appearance of substitute counsel under ordinary circumstances. Leave of the Board must be obtained where withdrawal would have an adverse effect on the interests of the client. Rule 1.16(b) of the Rules of Professional Conduct sets forth the bases for withdrawal for good cause; however, Rule 1.16(c) provides, ‘‘When ordered to do so by a tribunal, the lawyer shall continue representation notwithstanding good cause for terminating the representation.’’

 (a)  The Secretary to the Board is authorized to refer persons who appear before the Board on a pro se basis, and who claim not to be able to afford a lawyer, to one of the following:

   (1)  The pro bono committee of the Pennsylvania Bar Association’s Environmental, Mineral and Natural Resources Law Section.

   (2)  A county bar association lawyer referral service.

 (b)  The financial standard for determining a person’s inability to afford a lawyer will be the standard adopted by the appropriate bar association at the time of referral.

 (a)  Anyone interested in legal issues involved in a matter pending before the Board may request leave to file an amicus curiae brief or memorandum of law, in regard to those legal issues. The amicus curiae shall state in its request the legal issues to be addressed in the brief and shall serve a copy of the request on all parties.

 (b)  If the Board grants a request, the amicus curiae shall file the brief within the time prescribed by the Board and shall serve a copy on all parties. Any party may file a response to a brief amicus curiae which is adverse to its interests.

 (c)  The amicus curiae may present oral argument only as the Board may direct.

   The provisions of this §  1021.30 adopted September 3, 1999, effective September 4, 1999, 29 Pa.B. 4683; reserved June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial pages (274621) to (274622).

DOCUMENTARY FILINGS

FILING AND SERVICE OF DOCUMENTS

§ 1021.31. Signing.

 (a)  Every notice of appeal, motion, legal document or other paper directed to the Board and every discovery request or response of a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name, or if a party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number.

 (b)  The signature to a document described in subsection (a) constitutes a certification that the person signing, or otherwise presenting it to the Board, has read it, that to the best of his knowledge or information and belief there is good ground to support it, and that it is submitted in good faith and not for any improper purpose such as to harass, cause unnecessary delay, or needless increase in the cost of litigation. There is good ground to support the document if the signer or presenter has a reasonable belief that existing law supports the document or that there is a good faith argument for the extension, modification or reversal of existing law.

 (c)  The Board may impose an appropriate sanction in accordance with §  1021.161 (relating to sanctions) for a bad faith violation of subsection (b).

 (a)  Documents filed with the Board shall be filed at its headquarters—2nd Floor, Rachel Carson State Office Building, 400 Market Street, Post Office Box 8457, Harrisburg, Pennsylvania 17105-8457.

 (b)  The date of filing shall be the date the document is received by the Board.

 (c)  Documents may be filed by personal delivery, by mail or by facsimile. Legal documents, as defined in §  1021.2 (related to definitions), may be filed electronically in accordance with this chapter. When a document is filed by facsimile, the original shall be deposited in the mail on the same day. If a document exceeds ten pages, the facsimile shall consist of the first five pages and last five pages of the document and the certificate of service.

 (d)  Legal documents may be filed with the Board electronically through the Board’s website by a filing attorney unless provided otherwise by Board order. A legal document filed electronically shall be deemed the equivalent of the original document subject to the following conditions:

   (l)  The electronic filing of a legal document constitutes a certification by the filing attorney that the original hard copy was properly signed and, where applicable, verified.

   (2)  An executed hard copy of the legal document, with any required verifications, shall be maintained by the filing attorney and produced at the request of the Board or any other party within 14 days of the request.

 (e)  In filing legal documents electronically, a filing attorney shall be responsible for the following:

   (1)  An objective description of the legal document consistent with the title placed on the legal document as required by the Board’s website.

   (2)  Any delay, disruption, interruption of the electronic signals and readability of the legal document.

   (3)  Any risk that a legal document may not be properly or timely filed with the Board.

 (f)  Hard copy of any electronically filed legal document which exceeds 50 pages in length shall also be filed with the Board in accordance with subsections (a) and (c) and §  1021.37 (relating to the number of copies). Exhibits to legal documents may be filed and served either electronically or by hard copy in accordance with the sections in this chapter relating to filing and service. If these requirements are met by hard copy of exhibits, they must be sent to the Board by mail or express delivery and, in the case of requests for expedited disposition, service shall mean actual receipt by the opposing party as required by §  1021.34(c) (relating to service by a party).

 (g)  Documents filed by United States mail, hand or other delivery services after the close of the business day at 4:30 p.m. Eastern Time shall be deemed to be filed on the following business day. Documents filed electronically, including by facsimile, shall be deemed filed on the day received by the Board.

 (h)  Documents filed with the Board, other than exhibits, 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. Legal documents, as defined in §  1021.2, must be double spaced, except that footnotes must be single spaced and quotations in excess of a few lines must be single spaced and indented. Photocopied documents will be accepted as typewritten, provided that all copies are legible. Failure to comply with this subsection will not result in dismissal of a filing, but the Board may request the party to resubmit the document in proper form.

 (a)  Orders, notices and other documents originating with the Board shall be served upon the person designated in the notice of appearance, or if no notice of appearance has been entered, upon the person upon whom the notice of appeal or complaint was served by mail or in person.

 (b)  Subsection (a) supersedes 1 Pa. Code §  33.31 (relating to service by the agency).

 (a)  Copies of each document filed with the Board shall be served upon every party to the proceeding on or before the day that the document is filed with the Board. Service upon a party represented by an attorney in the matter before the Board shall be made by serving the attorney.

 (b)  When a document is filed with the Board by overnight delivery, facsimile or personal service, it shall be delivered to the opposing parties on the same day or by overnight delivery.

 (c)  In matters involving requests for expedited disposition, service shall be made within the ensuing 24 hours of the time of filing with the Board. For purposes of this subsection, service means actual receipt by the opposing party.

 (d)  Service of legal documents may be made electronically on a registered attorney by any other registered attorney. The filing of a registration statement constitutes a certification that the registered attorney will accept electronic service of any legal document from any other registered attorney. A registration statement includes the attorney’s name and address, e-mail address, attorney identification number, and a request to register to file and accept service electronically. A registered attorney may withdraw his registration statement for purposes of a specific case if he chooses not to receive electronic service in that case by filing an amendment to the filing party’s registration statement.

 (e)  Subsections (a)—(d) supersede 1 Pa. Code §  33.32 (relating to service by a participant).

   The provisions of this §  1021.34 amended September 3, 1999, effective September 4, 1999, 29 Pa.B. 4683; amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085; amended November 29, 2002, effective November 30, 2002, 32 Pa.B. 5883; amended February 10, 2006, effective February 11, 2006, 36 Pa.B. 709; amended October 16, 2009, effective October 17, 2009, 39 Pa.B. 6035. Immediately preceding text appears at serial pages (317389) to (317390).

 (a)  The date of service shall be the date the document served is mailed, delivered in person or transmitted electronically. When service of the document, or hard copy of exhibits to a legal document filed electronically, is by mail, 3 days shall be added to the time required by this chapter for responding to the document.

 (b)  Subsection (a) supersedes 1 Pa. Code §  33.34 (relating to date of service).

 (a)  Each document which is required to be filed with the Board shall include a certificate of service which shall certify the date and manner of service and the name and address of the person served.

 (b)  Subsection (a) supersedes 1 Pa. Code §  33.35 (relating to proof of service).

 (a)  Except in the case of electronically filed documents, including exhibits, and unless otherwise ordered by the Board, the following number of copies shall be filed with the Board:

   (1)  One original and two copies of each of the following:

     (i)   Notices of appeal.

     (ii)   Complaints.

     (iii)   Answers.

     (iv)   Posthearing briefs.

     (v)   Dispositive motions and related memoranda, responses and replies.

   (2)  One original and one copy of each of the following:

     (i)   Petitions for supersedeas and any related responses.

     (ii)   Prehearing memoranda.

     (iii)   Nondispositive motions and petitions (other than motions for stays, extensions and continuances of procedural deadlines), and related memoranda, responses and replies.

   (3)  One original of other documents.

 (b)  One copy of all documents submitted to the Board shall be served on the other parties to the proceeding.

   The provisions of this §  1021.37 adopted June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085; amended November 29, 2002, effective November 30, 2002, 32 Pa.B. 5883. Immediately preceding text appears at serial page (289939).

 Publication of a notice of action or proposed action by the Department or Board in the Pennsylvania Bulletin shall constitute notice to or service upon all persons, except a party, effective as of the date of publication.

 (a)  The Board will maintain a docket of proceedings and a proceeding as initiated shall be assigned an appropriate designation. The Board will maintain the docket on its website available to all members of the public and will accept filings of legal documents by electronic transmission from registered attorneys.

 (b)  The docket will register the date of all filings as well as the time of the filing if the filing is made electronically. When a document is filed electronically, the Board will transmit electronically a status message to all registered attorneys in the proceeding when the document is filed.

 (c)  The Board will maintain a complete official file on all proceedings consisting of both electronic and hard copy filings. The official copy of an electronically filed document or Board order shall be that appearing on the Board’s website.

 (d)  The electronic docket will be available on the Board’s website and the hard copy portion of the official file shall be available for inspection and copying by the public during the office hours of the Board insofar as consistent with the proper discharge of the duties of the Board.

 (e)  Subsections (a)—(d) supersede 1 Pa. Code §  33.51 (relating to docket).

   The provisions of this §  1021.39 adopted November 29, 2002, effective November 30, 2002, 32 Pa.B. 5883.

   The provisions of this §  1021.41 amended September 3, 1999, effective September 4, 1999, 29 Pa.B. 4683; reserved June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial page (274624).

FORMAL PROCEEDINGS

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 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 17105-8457

  JOHN DOE, Appellant
234 Main Street, Smithtown,
Jones County, Pennsylvania 15555
(Telephone (123) 456-7890)
 

  Commonwealth of Pennsylvania
Department of

 (c)  The appeal must set forth the name, address and telephone number of the 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 must set forth in separate numbered paragraphs the specific objections to the action of the Department. The objections may be factual or legal.

 (f)  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).

 (g)  Concurrent with or prior to 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. The service shall be made at the address set forth in the document evidencing the action by the Department or at the chief place of business in this Commonwealth of the recipient.

 (h)  For purposes of this section, the term ‘‘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, where applicable, in appeals involving a decision under sections 5 or 7 of the 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 or certification 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 appellant shall provide satisfactory proof that service has been made as required by this section.

 (l)  Subsections (a)—(k) supersede 1 Pa. Code § §  35.5—35.7 and 35.9—35.11 (relating to informal complaints; and formal complaints).

   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).

   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. Immediately preceding text appears at serial pages (317393) to (317394) and (342413).

   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).

 (a)  Except as specifically provided in §  1021.53 (relating to amendments to appeal or complaint), 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 one of 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)  The appellant shall, within 20 days of the mailing of a request from the Board, file missing information required by §  1021.51(c), (d) and (i) (relating to commencement, form and content) or suffer dismissal of the appeal.

 (c)  Subsections (a) and (b) supersede 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. §  7515 (a) and (c)).

   The provisions of this §  1021.52 amended September 18, 1998, effective September 19, 1998, 28 Pa.B. 4714; amended September 3, 1999, effective September 4, 1999, 29 Pa.B. 4683. Immediately preceding text appears at serial pages (248234) to (248235).

   Appeal

 (a)  An appeal or complaint may be amended as of right within 20 days after the filing thereof.

 (b)  After the 20-day period for amendment as of right, the Board, upon motion by the appellant or complainant, may grant leave for further amendment of the appeal or complaint. This leave may be granted if no undue prejudice will result to the opposing parties. The burden of proving that no undue prejudice will result to the opposing parties is on the party requesting the amendment.

 (c)  These motions shall be governed by the procedures in § §  1021.91 and 1021.95 (relating to general; and miscellaneous motions) except that the motion shall be verified and supported by affidavits.

 (d)  If motion to amend is granted, a party may request, in writing, a period of time to conduct additional discovery limited to the issues raised by the amendment. These requests shall specify a period deemed necessary therefor. The Board will act on any such request as its discretion requires.

 (e)  Subsections (a)—(d) supersede 1 Pa. Code § §  35.5—35.7 and 35.9—35.11 (relating to informal complaints; and formal complaints).

 Comment: In addition to establishing a new standard for assessing requests for leave to amend an appeal, this rule clarifies that a nunc pro tunc standard is not the appropriate standard to be applied in determining whether to grant leave for amendment of an appeal, contrary to the apparent holding in Pennsylvania Game Commission. v. Department of Environmental Resources, 509 A.2d 877 (Pa. Cmwlth. 1986).

   The provisions of this §  1021.53 amended August 30, 1996, effective August 31, 1996, 26 Pa.B. 4222; amended February 10, 2006, effective February 11, 2006, 36 Pa.B. 709. Immediately preceding text appears at serial pages (313848) to (313849).

 The Board upon written request and for good cause shown may grant leave for the filing of an appeal nunc pro tunc; the standards applicable to what constitutes good cause shall be the common law standards applicable in analogous cases in courts of common pleas in this Commonwealth.

 (a)  When an appeal is from the assessment of a civil penalty for which the statute requires an appellant to prepay the penalty or post a bond with the Department, the appellant shall submit to the Office of Chief Counsel of the Department a check in the amount of the penalty or an appropriate bond securing payment of the penalty or a verified statement that the appellant is unable to pay.

 (b)  When an appeal is from the assessment of a civil penalty for which the statute requires an appellant to prepay the penalty or post a bond with the Board, the appellant shall submit to the Board a check in the amount of the penalty or an appropriate bond securing payment of the penalty or a verified statement that the appellant is unable to pay.

 (c)  If a civil penalty is assessed under more than one statute, an appellant shall follow the procedures set forth in each statute.

 (d)  When an appellant submits a verified statement of inability to prepay, under subsection (a) or (b), a copy of the verified statement shall be included with the notice of appeal.

   Practitioners should note that the Air Pollution Control Act (35 P. S. § §  4001—4015), requires that prepayment of a civil penalty be made to the Board and not to the Department.

   The provisions of this §  1021.54a adopted October 16, 2009, effective October 17, 2009, 39 Pa.B. 6035.

 (a)  If an appellant submits a verified statement that he is unable to pay in accordance with §  1021.54a(c) (relating to prepayment of penalties), the Board may schedule a hearing on the validity of this claim and may require the appellant to supply appropriate financial information to the Department in advance of the hearing.

 (b)  If the Board determines that the appellant is able to prepay the penalty assessed or post a bond the Board will order the appellant to do so, within a period not to exceed 30 days.

   The provisions of this §  1021.58 adopted September 3, 1999, effective September 4, 1999, 29 Pa.B. 4683; reserved June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial page (274921).

SUPERSEDEAS

§ 1021.61. General.

 (a)  A petition for supersedeas under section 4(d) of the act (35 P. S. §  7514(d)) may be filed at any time during the proceeding.

 (b)  The Board will not issue a supersedeas without a hearing, but a hearing may be limited under subsection (d).

 (c)  A hearing on a supersedeas, if necessary, shall be held expeditiously—if feasible within 2 weeks of the filing of the petition—taking into account the available time of a Board member or hearing examiner, and taking into account the urgency and seriousness of the environmental or other problem to which the order or action of the Department applies. If good cause is shown, the hearing shall be held as soon as possible after the filing of the petition.

 (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 or of cross-examination.

 (e)  Under §  1021.161 (relating to sanctions), the Board may impose costs or other appropriate sanctions on parties or attorneys who, in the Board’s opinion, have filed requests for supersedeas in bad faith or on frivolous grounds.

 (a)  A petition for supersedeas shall plead facts with particularity and shall be supported by one of the following:

   (1)  Affidavits, prepared as specified in Pa.R.C.P. 76 and 1035.4 (relating to definitions; and motion for summary judgment), setting forth facts upon which issuance of the supersedeas may depend.

   (2)  An explanation of why affidavits have not accompanied the petition if no supporting affidavits are submitted with the petition for supersedeas.

 (b)  A petition for supersedeas shall state with particularity the citations of legal authority the petitioner believes form the basis for the grant of supersedeas.

 (c)  A petition for supersedeas may be denied upon motion made before a supersedeas hearing or during the proceedings, or sua sponte, without hearing, for one of the following reasons:

   (1)  Lack of particularity in the facts pleaded.

   (2)  Lack of particularity in the legal authority cited as the basis for the grant of the supersedeas.

   (3)  An inadequately explained failure to support factual allegations by affidavits.

   (4)  A failure to state grounds sufficient for the granting of a supersedeas.

 (d)  The Board, upon motion or sua sponte, may direct that a prehearing conference be held.

   The provisions of this §  1021.62 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 June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial pages (274921) to (274922).

 (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, such as the permittee in third party appeals.

 (b)  A supersedeas will not be issued in cases where pollution or injury to the public health, safety or welfare exists or is threatened during the period when the supersedeas would be in effect.

 (c)  In granting a supersedeas, the Board may impose conditions that are warranted by the circumstances, including the filing of a bond or other security.

 (a)  An application for temporary supersedeas may be filed when a party may suffer immediate and irreparable injury before the Board can conduct a hearing on a petition for supersedeas.

 (b)  The application for temporary supersedeas shall be accompanied by a petition for supersedeas which comports with §  1021.62 (relating to contents of petitions for supersedeas).

 (c)  The application for temporary supersedeas and accompanying petition for supersedeas shall:

   (1)  Be served upon the office of the Department which issued notice of the action the applicant seeks to supersede and upon the Department’s Office of Chief Counsel.

   (2)  Include a proof of service in accordance with Pa.R.A.P. 122 (relating to content and form of proof of services).

 (d)  The Board will not issue a temporary supersedeas until it determines that the Department has been served in accordance with subsection (c) and has had a reasonable opportunity to respond by conference call or otherwise.

 (e)  When determining whether it will grant an application for temporary supersedeas, the Board will consider:

   (1)  The immediate and irreparable injury the applicant will suffer before a supersedeas hearing can be held.

   (2)  The likelihood that injury to the public, including the possibility of pollution, will occur while the temporary supersedeas is in effect.

   (3)  The length of time required before the Board can hold a hearing on the petition for supersedeas.

 (f)  Unless the Board orders otherwise, a temporary supersedeas will automatically terminate 6 business days after the date of issuance.

   The provisions of this §  1021.70 amended September 3, 1999, effective September 4, 1999, 29 Pa.B. 4683; reserved June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial pages (270931) to (270932).

   This section cited in 25 Pa. Code §  1021.53 (relating to amendments to appeal; nunc pro tunc appeals).

SPECIAL ACTIONS

§ 1021.71. Complaints filed by the Department.

 (a)  When authorized by statute the Department may commence the action by filing a complaint or petition and a notice of a right to respond. The action is commenced when the complaint or petition is filed with the Board.

 (b)  Service of the complaint or petition shall be by personal service or by certified or registered mail. In the instance of mail, service shall be complete upon delivery. Service of all other documents shall be made in accordance with §  1021.34 (relating to service by party).

 (c)  The complaint shall set forth the statutory authority under which the Board is authorized to act and shall set forth in separate numbered paragraphs the specific facts and circumstances upon which the request for action is based.

 (d)  The notice of a right to respond or defend shall conform to the following:

 [Case Caption]

 NOTICE

  If you wish to defend against the claims set forth in the following pages, you must take action within thirty (30) days after this complaint and notice are served by entering a written appearance personally or by attorney and filing in writing with the Board your answers, defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Board without further notice for any claim or relief requested by the Department.

 You should take this paper to your lawyer at once. If you do not have a lawyer or cannot afford one, contact the Secretary to the Board at (717) 787-3483.

 (e)  Subsections (a)—(d) supersede 1 Pa. Code § §  35.5—35.7 and 35.9—35.11 (relating to informal complaints; and formal complaints).

   The provisions of this 1021.71 amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085; amended November 29, 2002, effective November 30, 2002, 32 Pa.B. 5883. Immediately preceding text appears at serial page (289951).

 (a)  When authorized by statute, a person may institute an action against the Department by filing a complaint.

 (b)  Service of the complaint or petition shall be by personal service or by certified or registered mail. In the instance of mail, service shall be complete upon delivery. Service of all other documents shall be made in accordance with §  1021.34 (relating to service by a party).

 (c)  The complaint shall set forth the statutory authority under which the Board is authorized to act and shall set forth in separate numbered paragraphs the specific facts and circumstances upon which the request for action is based.

 (d)  Subsections (a)—(c) supersede 1 Pa. Code § §  35.5—35.7 and 35.9—35.11 (relating to informal complaints; and formal complaints).

   The provisions of this 1021.72 amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085; amended November 29, 2002, effective November 30, 2002, 32 Pa.B. 5883. Immediately preceding text appears at serial page (289952).

 (a)  This rule addresses matters transferred to the Board from a court.

 (b)  Within the 30-day time period directed by the Board, the party who initiated the transferred action shall file a complaint with the Board.

 (c)  Service of the complaint or petition shall be by personal service or by certified or registered mail. In the instance of mail, service shall be complete upon delivery. Service of all other documents shall be made in accordance with §  1021.34 (relating to service by a party).

 (d)  The complaint shall set forth in separate numbered paragraphs the specific facts and circumstances upon which the request for relief is based.

 (e)  Subsections (a)—(d) supersede 1 Pa. Code §  35.5—35.7 and 35.9—35.11 (relating to informal complaints; and formal complaints).

   The provisions of this §  1021.73 amended September 18, 1998, effective September 19, 1998, 28 Pa.B. 4714; amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085; amended November 29, 2002, effective November 30, 2002, 32 Pa.B. 5883. Immediately preceding text appears at serial page (289952).

 (a)  Answers to complaints shall be filed with the Board within 30 days after the date of service of the complaint, unless for cause the Board, with or without motion, prescribes a different time. An answer will not be required in less than 10 days after date of service.

 (b)  Answers to complaints shall set forth any legal objections as well as any denial of facts, in a single pleading.

 (c)  Answers shall be in writing and so drawn as to fully and completely advise the parties and the Board as to the nature of the defense, including affirmative defenses. Answers shall admit or deny specifically and in detail each material allegation of the complaint and state clearly and concisely the facts and matters of law relied upon.

 (d)  A defendant failing to file an answer within the prescribed time shall be deemed in default and, upon motion made as set forth in §  1021.76a (relating to entry of default judgment), all relevant facts in the complaint may be deemed admitted and default judgment may be entered. Further, the Board may impose any other sanctions for failure to file an answer in accordance with §  1021.161 (relating to sanctions).

 (e)  No new matter or preliminary objections shall be filed.

 (f)  Subsections (a)—(e) supersede 1 Pa. Code § §  35.5—35.7 and 35.35 (relating to informal complaints; and answers to complaints and petitions).

   The provisions of this §  1021.74 reserved June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085; amended November 29, 2002, effective November 30, 2002, 32 Pa.B. 5883; amended October 16, 2009, effective October 17, 2009, 39 Pa.B. 6035. Immediately preceding text appears at serial pages (317402) to (317403).

 After an answer is filed the prehearing procedures in §  1021.101 (relating to prehearing procedures) shall be followed.

 (a)  The Board, on motion of the plaintiff, may enter default judgment against the defendant for failure to file within the required time an answer to a complaint that contains a notice to defend.

 (b)  The motion for default judgment must contain a certification that the plaintiff served on the defendant a notice of intention to seek default judgment after the date on which the answer to the complaint was due and at least 10 days prior to filing the motion.

 (c)  The filing of an answer to the complaint by the defendant prior to the filing of a motion for default judgment by the plaintiff shall correct the default.

 (d)  When default judgment is entered in a matter involving a complaint for civil penalties, the Board may assess civil penalties in the amount of the plaintiff’s claim or may assess the amount of the penalty following an evidentiary hearing, as directed by the Board, at which the issues shall be limited to the amount of the civil penalties.

   This rule is modeled after Pa.R.C.P. 237.1 and 1037.

   The provisions of this §  1021.76a adopted October 16, 2009, effective October 17, 2009, 39 Pa.B. 6035.

   The provisions of this §  1021.80 amended September 3, 1999, effective September 4, 1999, 29 Pa.B. 4683; reserved June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial page (270938).

CONSOLIDATION, INTERVENTION AND SUBSTITUTION OF PARTIES

§ 1021.81. 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).

   The provisions of this §  1021.81 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 June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial pages (270939) to (270940) and (259873).

 (a)  The Board, on its own motion or on the motion of any party, may order proceedings involving a common question of law or fact to be consolidated for hearing of any or all of the matters in issue in such proceedings.

 (b)  Subsection (a) supersedes 1 Pa. Code §  35.45 (relating to consolidation).

 Comment: See also §  1021.4 (relating to construction and application of rules) authorizing the Board to interpret its rules to insure just, speedy and inexpensive determinations.

 (a)  A person who has succeeded to the interests of a party to an appeal by operation of law, election to public office, appointment or transfer of interest may become a party to the pending action by filing with the Board a verified petition for substitution of party, which includes a statement of material facts upon which the right to substitute is based.

 (b)  The substituted party shall have all the rights and liabilities of the original party to the proceeding provided that any other party to the proceeding may move to strike the substituted party for just cause. A substituted party-appellant is limited to pursuing only those objections raised by the original appellant in its appeal, unless both the original appellant and the substituted appellant meet the conditions of §  1021.53(b)(2) (relating to amendments to appeal and complaint).

   The provisions of this §  1021.90 adopted September 3, 1999, effective September 4, 1999, 29 Pa.B. 4683; reserved June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial pages (274629) to (274630).

MOTIONS

§ 1021.91. General.

 (a)  This section applies to all motions except summary judgment motions and those made during the course of a hearing.

 (b)  Motions and responses shall be in writing, signed by a party or its attorney and shall be accompanied by a proposed order.

 (c)  A copy of the motion or response shall be served on the opposing party.

 (d)  A motion shall set forth in numbered paragraphs the facts in support of the motion and the relief requested.

 (e)  A response to a motion shall set forth in correspondingly-numbered paragraphs all factual disputes and the reason the opposing party objects to the motion. Material facts set forth in a motion that are not denied may be deemed admitted for the purposes of deciding the motion.

 (f)  For purposes of the relief sought by a motion, the Board will deem a party’s failure to respond to a motion to be an admission of all properly-pleaded facts contained in the motion.

 (g)  The moving party may not file a reply to a response to procedural, discovery or miscellaneous motions, unless the Board orders otherwise.

 (h)  Subsection (b) supplements 1 Pa. Code §  33.11 (relating to the execution) and supersedes 1 Pa. Code §  35.178 (relating to presentation of motions). Subsection (c) supersedes 1 Pa. Code § §  33.32, 33.35 and 33.36 (relating to service by a participant; proof of service; and form of certificate of service). Subsections (d)—(f) supersede 1 Pa. Code § §  35.177 and 35.178 (relating to the scope and content of motions; and presentation of motions).

   The provisions of this §  1021.91 amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085; amended November 29, 2002, effective November 30, 2002, 32 Pa.B. 5883; amended February 10, 2006, effective February 11, 2006, 36 Pa.B. 709. Immediately preceding text appears at serial pages (313860) to (313861).

 (a)  This section applies to motions pertaining to the procedural aspects of a case, including motions for continuance, for expedited consideration, for extensions of time in which to file documents and for stay of proceedings.

 (b)  Procedural motions do not require verification.

 (c)  Procedural motions shall contain a statement indicating the nonmoving party’s position on the relief requested or a statement that the moving party, after a reasonable effort, has been unable to determine the nonmoving party’s position.

 (d)  If all parties consent to the relief requested, the request may be embodied in a letter, provided the letter indicates the consent of the other parties.

 (e)  Requests for extensions or continuances, whether in letter or motion form, shall be accompanied by a proposed order.

 (f)  A response to a procedural motion shall be filed with the Board within 15 days of the date of service of the motion unless otherwise ordered by the Board.

 (g)  Procedural motions may not be accompanied by supporting memoranda of law unless otherwise ordered by the Board.

 (h)  Subsection (b) supersedes 1 Pa. Code §  33.12 (relating to verification). Subsections (c) and (e) supersedes 1 Pa. Code §  35.177 (relating to the scope and contents of motions). Subsection (d) supersedes 1 Pa. Code §  35.179 (relating to objections to motions).

   The provisions of this §  1021.92 amended September 3, 1999, effective September 4, 1999, 29 Pa.B. 4683; amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085; amended November 29, 2002, effective November 30, 2002, 32 Pa.B. 5883. Immediately preceding text appears at serial pages (289958) to (289959).

 (a)  This section applies to motions filed to resolve disputes arising from the conduct of discovery.

 (b)  A discovery motion may not be filed unless it contains a certification that the movant has in good faith conferred or attempted to confer with the party against whom the motion is directed in an effort to secure the requested discovery without Board action. Discovery motions must contain as exhibits the discovery requests and answers giving rise to the dispute.

 (c)  Responses to discovery motions shall be filed within 15 days of the date of service of the motion, unless the Board orders otherwise.

 (d)  A party may file a memorandum of law in support of its discovery motion or its response to a discovery motion. The supporting memorandum of law shall be filed at the same time the motion or response is filed.

 (e)  Subsection (b) supersedes 1 Pa. Code §  33.12 (relating to verification). Subsections (b) and (d) supersedes 1 Pa. Code §  35.177 (relating to the scope and contents of motions). Subsection (c) supersedes 1 Pa. Code §  35.179 (relating to objections to motions).

   The provisions of this §  1021.93 amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085; amended November 29, 2002, effective November 30, 2002, 32 Pa.B. 5883; amended October 16, 2009, effective October 17, 2009, 39 Pa.B. 6035. Immediately preceding text appears at serial pages (317408) to (317409).

 (a)  Dispositive motions, responses and replies shall be in writing, signed by a party or its attorney and served on the opposing party in accordance with §  1021.34 (relating to service). Dispositive motions shall be accompanied by a supporting memorandum of law or brief. The Board may deny a dispositive motion if a party fails to file a supporting memorandum of law or brief.

 (b)  A response to a dispositive motion may be filed within 30 days of service of the motion and shall be accompanied by a supporting memorandum of law or brief.

 (c)  A reply to a response to a dispositive motion may be filed within 15 days of the date of service of the response, and may be accompanied by a supporting memorandum of law or brief. Reply briefs or memoranda of law shall be as concise as possible and may not exceed 25 pages. Longer briefs or memoranda of law may be permitted at the discretion of the presiding administrative law judge.

 (d)  An affidavit or other document relied upon in support of a dispositive motion or response, that is not already a part of the record, shall be filed at the same time as the motion or response or it will not be considered by the Board in ruling thereon.

 (e)  Subsection (a) supersedes 1 Pa. Code §  35.177 (relating to the scope and content of motions). Subsection (b) supersedes 1 Pa. Code §  35.179 (relating to objecting to motions).

   The provisions of this §  1021.94 amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085; amended November 29, 2002, effective November 30, 2002, 32 Pa.B. 5883; amended February 10, 2006, effective February 11, 2006, 36 Pa.B. 709. Immediately preceding text appears at serial pages (313862) to (313863).

 (a)  Rules governing summary judgment motions. Except as otherwise provided by these rules, motions for summary judgment shall be governed by Pa.R.C.P. Rules 1035.1—1035.5.

 (b)  Summary judgment motion record.

   (1)  A summary judgment motion record must contain the following separate items:

     (i)   A motion prepared in accordance with subsection (c).

     (ii)   A statement of undisputed material facts in accordance with subsection (d).

     (iii)   A supporting brief prepared in accordance with subsection (e).

     (iv)   The evidentiary materials relied upon by the movant.

     (v)   A proposed order.

   (2)  Motions and responses must be in writing, signed by a party or its attorney, and served on the opposing party in accordance with §  1021.34 (relating to service).

 (c)  Motion. A motion for summary judgment must contain only a concise statement of the relief requested and the reasons for granting that relief. The motion should not include any recitation of the facts and should not exceed two pages in length.

 (d)  Statement of undisputed material facts. A statement of undisputed material facts must consist of numbered paragraphs and contain only those material facts to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted. The citation must identify the document and specify the paragraphs and pages or lines thereof or the specific portions of exhibits relied on. The statement of undisputed material facts, absent the portions of exhibits and affidavits relied upon, may not exceed five pages in length unless leave of the Board is granted.

 (e)  Brief in support of the motion for summary judgment. The motion for summary judgment shall be accompanied by a brief containing an introduction, summary of the case, and the legal argument supporting the motion.

 (f)  Opposition to motion for summary judgment. Within 30 days of the date of service of the motion, 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 citation to the portion of the record contraverting 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.

   (3)  A brief containing the legal argument in opposition to the motion.

 (g)  Length of brief in support of and in opposition to summary judgment. Unless leave of the Board is granted, the brief in support of or in opposition to the motion may not exceed 30 pages.

 (h)  Evidentiary materials. Affidavits, deposition transcripts or other documents relied upon in support of a motion for summary judgment or response must accompany the motion or response and be separately bound and labeled as exhibits. Affidavits must conform to Pa.R.C.P. 76 and 1035.4 (relating to definitions; and affidavits).

 (i)  Proposed order. The motion shall be accompanied by a proposed order.

 (j)  Reply brief. A reply brief may be filed by the movant within 15 days of the date of service of the response. It may not exceed 15 pages unless leave of the Board is granted. Additional briefing may be permitted at the discretion of the presiding administrative law judge.

 (k)  Summary judgment. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading or its notice of appeal, but the adverse party’s response, by affidavits or as otherwise provided by this rule, must set forth specific facts showing there is a genuine issue for hearing. If the adverse party does not so respond, summary judgment may be entered against the adverse party. Summary judgment may be entered against a party who fails to respond to a summary judgment motion.

 (l)  Judgment rendered. The judgment sought shall be rendered forthwith if the motion record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

   The statement of material facts should be limited to those facts which are material to disposition of the summary judgment motion and should not include lengthy recitations of undisputed background facts or legal context.

   The provisions of this §  1021.94a adopted February 10, 2006, effective February 11, 2006, 36 Pa.B. 709; amended October 16, 2009, effective October 17, 2009, 39 Pa.B. 6035. Immediately preceding text appears at serial pages (317409) to (317411).

 (a)  This section applies to a motion not otherwise addressed in § §  1021.92—1021.94 (relating to procedural motions; discovery motions; and dispositive motions), including a motion in limine, a motion to strike and a motion for recusal.10

 (b)  Miscellaneous motions do not require verification.

 (c)  Responses to miscellaneous motions shall be filed within 15 days of the date of service of the motion, unless otherwise ordered by the Board.

 (d)  A memorandum of law in support of a miscellaneous motion or response to a miscellaneous motion shall be filed with the miscellaneous motion or response.

 (e)  Subsection (b) supersedes 1 Pa. Code §  33.12 (relating to verification).

   The provisions of this §  1021.95 amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085; amended November 29, 2002, effective November 30, 2002, 32 Pa.B. 5883. Immediately preceding text appears at serial page (289961).

 (a)  A motion for an expedited hearing may be filed at any time in either an appeal or special action, or the Board may order an expedited hearing on its own motion.

 (b)  The Board may issue an order for an expedited hearing notwithstanding the time requirements contained in a previous order of the Board, the Board’s Rules of Practice and Procedure in §  1021.101 (relating to prehearing procedure), or Title 231 (relating to rules of civil procedure) relating to discovery.

 (c)  In issuing such an order, the Board will be guided by relevant judicial and Board precedent. Among other factors to be considered:

   (1)  Whether pollution or injury to the public health, safety or welfare exists or is threatened during the period ordinarily required to complete the proceedings.

   (2)  Severity of prejudice to any party during the time period ordinarily required to complete the proceedings.

   (3)  The status of discovery and the realistic need of the parties for extended discovery and for time to prepare for a hearing.

   (4)  Whether the issuance of such an order would promote judicial economy or would otherwise be in the public interest.

   (5)  The effect of expedited proceedings on the nonrequesting party.

 (d)  The Board may direct that a prehearing conference be held to determine an appropriate schedule for the completion of prehearing proceedings as well as the time and place of the hearing.

 (a)  A motion for an expedited hearing must state facts with particularity and be supported by one of the following:

   (1)  Affidavits based on personal knowledge or experience setting forth facts supporting the issuance of an order for an expedited hearing.

   (2)  An explanation of why affidavits have not accompanied the motion if no affidavits are submitted with the motion for an expedited hearing.

 (b)  A motion for an expedited hearing shall be accompanied by a memorandum of law.

 (c)  A motion may not be filed unless it contains a certification that the moving party has in good faith conferred or attempted to confer with the party against whom the motion is directed in an effort to secure an agreement on expediting the proceeding.

 A response and supporting memorandum of law shall be filed within 10 days of service unless otherwise ordered by the Board.

 (a)  Nothing contained in this rule shall limit the rights of the parties to a full hearing before the Board under the applicable rules of evidence with full rights of cross-examination of witnesses. The Board may limit the number of witnesses or the subjects of examination in order to avoid duplication of evidence as provided in §  1021.126 (relating to limiting number of witnesses and additional evidence).

 (b)  Testimony may be submitted by prepared written testimony as provided for under §  1021.124 (relating to written testimony).

 (c)  After the conclusion of the hearing, the Board will direct the prompt filing of posthearing briefs.

   The Board will grant a motion for expedited hearing only in rare circumstances.

   The provisions of this §  1021.99 adopted January 19, 2001, effective January 20, 2001, 31 Pa.B. 428; reserved June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial page (274631).

PREHEARING PROCEDURES AND PREHEARING CONFERENCES

§ 1021.101. Prehearing procedure.

 (a)  Upon the filing of an appeal, the Board will issue a prehearing order providing that:

   (1)  All discovery shall be completed no later than 180 days from the date of the prehearing order.

   (2)  The service of a report of an expert together with a statement of qualifications may be substituted for an answer to expert interrogatories.

   (3)  Dispositive motions shall be filed within 210 days of the date of the prehearing order.

   (4)  The parties may, within 60 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 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) supersedes 1 Pa. Code §  35.121 (relating to initiation of hearings).

   The provisions of this §  1021.101 amended September 18, 1998, effective September 19, 1998, 28 Pa.B. 4714; amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085; amended November 29, 2002, effective November 30, 2002, 32 Pa.B. 5883; amended February 10, 2006, effective February 11, 2006, 36 Pa.B. 709. Immediately preceding text appears at serial pages (313864) to (313865).

 (a)  Except as otherwise provided in this chapter or by order of the Board, discovery in proceedings before the Board shall be governed by the Pa.R.C.P. When the term ‘‘court’’ is used in the Pa.R.C.P., ‘‘Board’’ is to be understood; when the terms ‘‘prothonotary’’ or ‘‘clerk of court’’ are used in the Pa.R.C.P., ‘‘Secretary to the Board’’ is to be understood.

 (b)  Copies of requests for discovery or responses to requests are not to be filed with the Board unless they are necessary for the resolution of a discovery dispute or disposition of a motion pending before the Board.

 (c)  If a person or party is to be deposed by oral examination more than 100 miles from his or its residence or principal place of business, the Board may, upon motion, order the payment of reasonable expenses, including attorney’s fees, as the Board deems proper.

 (d)  Discovery disputes shall be resolved pursuant to a motion filed in accordance with §  1021.93 (relating to discovery motions), except that to facilitate the prompt completion of discovery, the Board may hear argument on discovery disputes by telephone conference call at the time the dispute arises and may issue oral rulings which will be later memorialized in written orders.

 (e)  Subsections (a)—(d) supersede 1 Pa. Code § §  35.145—35.152 (relating to depositions).

 (a)  Except as otherwise provided in this chapter or by order of the Board, requests for subpoenas and subpoenas shall be governed by Pa.R.C.P. 234.1—234.4 and 234.6—234.9. When the term ‘‘court’’ is used in Pa.R.C.P. ‘‘Board’’ is to be understood; when the terms ‘‘Prothonotary’’ or ‘‘clerk of court’’ are used in Pa.R.C.P. ‘‘Secretary to the Board’’ is to be understood.

 (b)  Proof of service of the subpoena need not be filed with the Board.

 (c)  Subsections (a) and (b) supersede 1 Pa. Code § §  35.139 and 35.142 (relating to fees of witnesses; and subpoenas).

 (a)  A prehearing memorandum shall contain the following:

   (1)  A statement of the facts in dispute and the facts upon which the parties agree.

   (2)  A statement of the legal issues in dispute, including citations to statutes, regulations and caselaw supporting the party’s position.

   (3)  A description of scientific tests upon which the party will rely and a statement indicating whether an opposing party will object to their use.

   (4)  A list of expert witnesses whose qualifications will not be challenged and which may be entered into the record as an unchallenged exhibit.

   (5)  For each expert witness a party intends to call at the hearing, answers to expert interrogatories and a copy of any expert report provided under §  1021.101(a)(2) (relating to prehearing procedure). In the absence of answers to the expert interrogatories or an expert report, a summary of the testimony of each expert witness.

   (6)  The proposed order of witnesses.

   (7)  A list of the exhibits the party seeks to introduce into evidence and a statement indicating whether the opposing party will object to their introduction. A copy of each exhibit shall be attached.

   (8)  Signed copies of any stipulations reached by the parties.

   (9)  Other information as may be required by the Board’s prehearing orders.

 (b)  The Board may impose sanctions on a party which does not comply with the requirements of subsection (a). These sanctions may include the preclusion of testimony or documentary evidence and the cancellation of the hearing.

 (c)  The requirements of this section apply only to a party’s case-in-chief.

 (a)  The Board, on its own motion or on motion of a party, may hold a conference either prior to or during a hearing for the purpose of considering offers of settlement, adjustment of the proceeding or any issue therein, or other matters to expedite the orderly conduct and disposition of a hearing.

 (b)  A stipulation of the parties or rulings of the Board as a result of the conference shall be binding upon the parties.

 (c)  The Board may issue prehearing orders as it considers necessary for limiting issues of fact and law.

 (d)  The Board will, at any time, be authorized to delay a formal hearing and order settlement discussions or stipulations, either on or off the record.

 (e)  Subsections (a)—(d) supplement 1 Pa. Code § §  35.111—35.115.

 (a)  Upon request by all the parties, the Board may stay a matter for up to 120 days to allow the parties to utilize voluntary mediation services.

 (b)  The parties are responsible for selection of a mediator and payment of the mediator’s fees.

 (c)  The request shall be filed at least 14 days before initiation of hearings by the Board. The request shall identify the mediator selected and shall certify that the parties have made arrangements for payment of the mediator’s fee.

 (d)  At the end of the initial stay, the parties shall jointly file a report, prepared and signed by the mediator, which sets forth the history of mediation activities conducted. The parties may request an additional stay if necessary to complete the mediation process.

 (e)  The grant of an additional stay for mediation is in the Board’s discretion and the Board may impose limitations the Board deems appropriate.

 (f)  A settlement reached by the parties as a result of voluntary mediation shall be submitted to the Board for approval under §  1021.141 (relating to termination of proceedings).

 (g)  Only a signed settlement agreement shall be binding and it shall bind only the parties signing it.

 (h)  A party’s participation in voluntary mediation may not be used as evidence in a proceeding before the Board. Communications between the parties during the mediation period shall be regarded as offers of settlement and are neither discoverable nor admissible as evidence in a proceeding before the Board.

 (i)  Subsections (a)—(h) supplement 1 Pa. Code § §  35.111 and 35.115 (relating to conferences to adjust, settle or expedite proceedings; and offers of settlement).

 (a)  The Board may appoint hearing examiners to preside at hearings. Subject to the approval of the Board member assigned to the case, the hearing examiner shall have the following authority:

   (1)  To schedule and regulate the course of the hearings.

   (2)  To administer oaths and affirmations.

   (3)  To rule on motions in limine, offers of proof and the admission or exclusion of evidence.

   (4)  To conduct pretrial conferences, settlement conferences and related pretrial proceedings and to dispose of procedural matters.

   (5)  To schedule the filing of posthearing briefs following the conclusion of the hearing.

   (6)  To recommend to the Board member or to the Board an opinion and order or adjudication disposing of the matters considered at the hearing.

 (b)  Subsection (a) supersedes 1 Pa. Code §  35.187 (relating to authority delegated to presiding officers).

   The provisions of this §  1021.109 amended September 18, 1998, effective September 19, 1998, 28 Pa.B. 4714; reserved June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial page (259879).

HEARINGS

§ 1021.111. Initiation of hearings.

 (a)  If the proceedings are at issue and a hearing is required, a formal evidentiary hearing shall be scheduled and a notice of hearing shall be sent to all parties to the proceedings.

 (b)  Subsection (a) supersedes 1 Pa. Code §  35.121 (relating to initiation of hearings).

 (a)  A hearing need not be held if waived by appellant or respondent or if parties stipulate the essential facts or agree to submit direct and rebuttal testimony or documentary evidence in affidavit form (sworn or affirmed on personal knowledge) or by deposition.

 (b)  Subsection (a) supersedes 1 Pa. Code §  35.101 (relating to waiver of hearing).

 (a)  Hearings may not be continued except for compelling reasons. Requests for continuances shall be submitted to the Board in writing with a copy served upon the other parties to the proceedings, except that during the course of a hearing in a proceeding, the requests may be made by oral motion in the hearing.

 (b)  Subsection (a) supersedes 1 Pa. Code §  31.15 (relating to extensions of time).

 At the discretion of the Board, hearings will be held at the Commonwealth facility nearest the location of the complaint sought to be remedied by the Department with consideration for the convenience of witnesses, the public and the parties in attending the hearings.

 The Board may upon reasonable notice and at reasonable times inspect any real estate including a body of water, industrial plant, building or other premises when the Board is of the opinion that a viewing would have probative value in a matter in hearing or pending before the Board.

 (a)  Hearings may be held, at the discretion of the Board, before the Board as a whole, by individual Board members sitting as administrative law judges, or by hearing examiners who are not members of the Board. Hearings held by hearing examiners not members of the Board will be decided by the Board based upon its review of the record and the examiner’s proposed adjudication. All final decisions shall be decisions of the Board decided by majority vote. Petitions for supersedeas and other petitions and motions may be decided by the Board member hearing the petition or motion.

 (b)  Subsection (a) supersedes 1 Pa. Code §  35.123 (relating to conduct of hearings).

 (a)  Parties shall have the right to an opening statement, presentation of evidence, cross-examination, objection, motion and argument, and closing argument.

 (b)  The party with the burden of proof is required to make a prima facie case by the close of its case-in-chief.

 (c)  Subsections (a) and (b) supersede 1 Pa. Code §  35.126 (relating to presentation by the parties).

 (a)  Hearings shall be stenographically reported and a transcript of the report shall be a part of the record.

 (b)  Parties desiring copies of the transcript shall obtain the copies from the official reporter.

 (c)  Parties shall have the opportunity to review a copy of the transcript on file with the Board.

 (d)  Subsections (a)—(c) supplement 1 Pa. Code § §  35.131—35.133 (relating to transcript).

   The provisions of this §  1021.120 amended August 30, 1996, effective August 31, 1996, 26 Pa.B. 4222; amended September 18, 1998, effective September 19, 1998, 28 Pa.B. 4714; reserved June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial pages (274926) and (259883) to (259884).

EVIDENCE

§ 1021.121. Motions in limine.

 A party may obtain a ruling on evidentiary issues by filing a motion in limine.

 (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.

 (a)  The Board is not bound by technical rules of evidence and relevant and material evidence of reasonable probative value is admissible. The Board generally applies the Pennsylvania Rules of Evidence.

 (b)  Copies of an exhibit to be offered into evidence shall be made available to parties at the time it is identified as an exhibit unless otherwise ordered by the Board.

 (c)  Witnesses shall be sworn or shall affirm.

 (d)  Subsections (a)—(c) supersede 1 Pa. Code § §  35.137—35.139, 35.162 and 35.166.

 (a)  Written testimony of a witness, on numbered lines in question and answer form, may be admitted into evidence provided the witness is present for cross-examination.

 (b)  Written testimony shall be filed concurrently with the prehearing memorandum unless a different time is prescribed by the Board. Objections to written testimony which can be reasonably anticipated prior to hearing shall be in writing and filed at least 5 days before the hearing unless otherwise ordered by the Board.

 (c)  If a party desires to file written testimony prior to the close of the record, it may do so only upon motion approved by the Board. This approval shall include the scope of the written testimony and the time for filing the testimony and service upon opposing counsel.

   The provisions of this §  1021.24 amended August 30, 1996, effective August 31, 1996, 26 Pa.B. 4222; amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial pages (274927) to (274928).

   This section cited in 25 Pa. Code §  1021.96d (relating to conduct of expedited hearing).

 (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 §  1021.39(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 §  1021.133 (relating to reopening of record prior to adjudication).

 (a)  The Board may limit the number of witnesses upon an issue and may request a party to present additional evidence on an issue.

 (b)  Subsection (a) supplements 1 Pa. Code § §  35.127 and 35.128 (relating to limiting number of witnesses; and additional evidence).

   The provisions of this §  1021.126 adopted June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085.

   This section cited in 25 Pa. Code §  1021.96d (relating to conduct of expedited hearing).

POSTHEARING PROCEDURES

§ 1021.131. Posthearing briefs.

 (a)  The initial posthearing brief of each party shall contain proposed findings of fact (with references to the appropriate exhibit or page of the transcript), an argument with citation to supporting legal authority, and proposed conclusions of law.

 (b)  Reply briefs shall be as concise as possible and may not exceed 25 pages. Longer briefs may be permitted at the discretion of the presiding administrative law judge.

 (c)  An issue which is not argued in a posthearing brief may be waived.

 (d)  Subsections (a)—(c) supersede 1 Pa. Code § §  35.191—35.193 (relating to briefs).

 (a)  A party may, within 5 days after the last post-hearing briefing and prior to adjudication, request oral argument before the entire Board. The Board may grant or deny the request.

 (b)  Subsection (a) supersedes 1 Pa. Code §  35.204 (relating to oral argument before presiding officer).

 (a)  After the conclusion of the hearing on the merits of the matter pending before the Board and before the Board issues an adjudication, the Board, upon its own motion or upon a petition filed by a party, may reopen the record as provided in this section.

 (b)  The record may be reopened upon the basis of recently discovered evidence when all of the following circumstances are present:

   (1)  Evidence has been discovered which would conclusively establish a material fact of the case or would contradict a material fact which had been assumed or stipulated by the parties to be true.

   (2)  The evidence is discovered after the close of the record and could not have been discovered earlier with the exercise of due diligence.

   (3)  The evidence is not cumulative.

 (c)  The record may also be reopened to consider evidence which has become material as a result of a change in legal authority occurring after the close of the record. A petition to reopen the record on this basis shall specify the change in legal authority and demonstrate that it applies to the matter pending before the Board. Such a petition need not meet the requirements of subsection (d)(2) and (3).

 (d)  A petition seeking to reopen the record shall:

   (1)  Identify the evidence which the petitioner seeks to add to the record.

   (2)  Describe the efforts which the petitioner had made to discover the evidence prior to the close of the record.

   (3)  Explain how the evidence was discovered after the close of the record. A petition filed under subsection (b) shall be verified and all petitions shall contain a certification by counsel that the petition is being filed in good faith and not for the purpose of delay.

 (e)  The petition shall be served upon the parties to the proceedings. A petition will be treated as a miscellaneous motion under §  1021.95 (relating to miscellaneous motions) except that the motion would have to be verified or supported by affidavits. The answer shall be verified if it includes factual assertions which are not of record.

 (f)  Subsections (a)—(e) supersede 1 Pa. Code § §  35.232 and 35.233 (relating to reopening by presiding officer; and reopening by agency action).

 Comment: This sets a standard which is more stringent than the materiality test of Spang & Company v. DER, 592 A.2d 815 (Pa. Cmwlth. 1991), but broader than the grounds justifying reconsideration. The procedure differs from the standard motions practice under § §  1021.91—1021.95 (relating to motions).

   The provisions of this §  1021.133 adopted August 30, 1996, effective August 31, 1996, 26 Pa.B. 4222; amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial pages (274930) to (274931).

 (a)  At the conclusion of the proceedings, the Board will issue an adjudication containing a discussion, findings of fact, conclusions of law and an order.

 (b)  The Board will serve a copy of the adjudication on all parties to the proceeding or their representatives.

 (c)  Subsections (a) and (b) supersede 1 Pa. Code §  35.226 (relating to final orders).

   The provisions of this §  1021.134 adopted August 30, 1996, effective August 31, 1996, 26 Pa.B. 4222; amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial pages (274931) and (259891).

TERMINATION OF PROCEEDINGS

§ 1021.141. 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 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 Environmental Protection and (name of party or parties) have agreed to a settlement of the above matter. The Commonwealth had ordered under date of

 (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.

 (c)  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 provisions 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 (b)(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.

  Comment: The prior rule at §  1021.120(b) authorizing dismissal with and without prejudice was deleted because the Board thought it more appropriate to determine this matter by case law rather than by rule.

   The provisions of this §  1021.141 adopted August 30, 1996, effective August 31, 1996, 26 Pa.B. 4222; amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085; amended November 29, 2002, effective November 30, 2002, 32 Pa.B. 5883; amended February 10, 2006, effective February 11, 2006, 36 Pa.B. 709. Immediately preceding text appears at serial pages (313875) to (313877).

   The provisions of these § §  1021.142—1021.144 adopted August 30, 1996, effective August 31, 1996, 26 Pa.B. 4222; reserved June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial pages (259891) to (259892).

RECONSIDERATION

§ 1021.151. Reconsideration of interlocutory orders.

 (a)  A petition for reconsideration of an interlocutory order or ruling shall be filed within 10 days of the order or ruling. The petition must demonstrate that extraordinary circumstances justify consideration of the matter by the Board. A party may file a memorandum of law at the time the motion or response is filed.

 (b)  A copy of the petition shall be served upon the parties. A party wishing to file an answer may do so within 10 days of service or as ordered by the Board.

 (c)  The failure of a party to file a petition under this section will not result in a waiver of any issue.

 (d)  Subsections (a)—(c) supersede 1 Pa. Code §  35.241 (relating to application for rehearing or reconsideration).

 Comment: There is no need to file a petition for reconsideration of an interlocutory order in order to preserve an issue for later argument. Reconsideration is an extraordinary remedy and is inappropriate for the vast majority of the rulings issued by the Board.

 (a)  A petition for reconsideration of a final order shall be filed within 10 days of the date of the final order. A party may file a memorandum of law at the time the motion or response is filed. Reconsideration is within the discretion of the Board and will be granted only for compelling and persuasive reasons. These reasons may include the following:

   (1)  The final order rests on a legal ground or a factual finding which has not been proposed by any party.

   (2)  The crucial facts set forth in the petition:

     (i)   Are inconsistent with the findings of the Board.

     (ii)   Are such as would justify a reversal of the Board’s decision.

     (iii)   Could not have been presented earlier to the Board with the exercise of due diligence.

 (b)  A copy of the petition shall be served upon all parties simultaneously with and in the same manner as the filing of an appeal with the Board. A party wishing to file an answer may do so within 10 days of service or as ordered by the Board.

 (c)  Subsections (a) and (b) supersede 1 Pa. Code §  35.241 (relating to application for rehearing or reconsideration).

 Comment: This provides a shorter time than the standard motions practice, since reconsideration must be granted within 30 days under Pa.R.A.P. 1701. The Board’s period for reconsideration of final orders will run contemporaneously with the 30-day right of appeal to Commonwealth Court.

   The provisions of this §  1021.152 adopted June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085.

SANCTIONS

§ 1021.161. Sanctions.

 The Board may impose sanctions upon a party for failure to abide by a Board order or Board rule of practice and procedure. The sanctions may include dismissing an appeal, entering adjudication against the offending party, precluding introduction of evidence or documents not disclosed, barring the use of witnesses not disclosed, or other appropriate sanctions including those permitted under Pa.R.C.P. 4019 (relating to sanctions regarding discovery matters).

   The provisions of this 1021.161 adopted September 18, 1998, effective September 19, 1998, 28 Pa.B. 4714; amended September 3, 1999, effective September 4, 1999, 29 Pa.B. 4683; amended June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial page (259893).

   The provisions of this §  1021.162 adopted September 3, 1999, effective September 4, 1999, 29 Pa.B. 4683; reserved June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085. Immediately preceding text appears at serial page (259893).

ATTORNEY FEES AND COSTS AUTHORIZED BY THE COSTS ACT

§ 1021.171. Scope.

 This section and § §  1021.172—1021.174 (relating to application for fees and expenses; response to application; and disposition of application) apply to applications for an award of fees and expenses under the Costs Act.

 (a)  An application for fees and expenses shall be verified and shall set forth sufficient grounds to justify the award. It shall also include the following:

   (1)  Identification of the final order under which the applicant claims to be a prevailing party.

   (2)  A statement of the basis upon which the applicant claims to be a prevailing party under the Costs Act.

   (3)  Specific information which is sufficient to demonstrate that the applicant meets the definition of ‘‘party’’ under the Costs Act.

   (4)  An itemized list of recoverable fees and expenses including hours worked, the rate charged, a reasonable description of the work performed during those hours, and the nature and reasonableness of the expenses.

   (5)  The basis for the allegation that the position of the Department was not substantially justified.

 (b)  An applicant shall file an application with the Board within 30 days of the date of the final order under which the applicant claims to have prevailed, and shall be docketed at the same number as that order. An applicant shall simultaneously serve upon counsel of record for the Department a copy of the application in the same manner that it is filed with the Board. Service by telefax shall satisfy the requirements of this rule, if an additional copy is mailed on the same day.

 (c)  An application may be denied sua sponte if it fails to provide all the information required by this section in sufficient detail to enable the Board to grant the relief requested.

 Comment: In preparing the petition to submit to the Board, an applicant should consider the material contained in 4 Pa. Code Chapter 2, Subchapter A (relating to submission and consideration of applications for awards of fees and expenses) and the Board’s prior decisions.

   The provisions of this §  1021.172 adopted June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085.

 (a)  The Department or other interested party shall file its response within 15 days of the filing of an application. The response shall include the following:

   (1)  Raise any challenge to the sufficiency of the application.

   (2)  Demonstrate, if applicable, that the Department’s action was substantially justified.

   (3)  Identify special circumstances which would make the award unjust.

 (b)  If the response asserts that the action of the Department was substantially justified, it shall include the following:

   (1)  A statement of the Department’s basis for its action.

   (2)  A summary of the testimony and exhibits either in evidence or offered into evidence in support of that basis.

   (3)  The legal justification for the action taken.

 (c)  When an applicant prevails and no record has been made before theBoard, the Department may justify its action with affidavits.

   The provisions of this §  1021.173 adopted June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085.

 (a)  Each party shall file a brief simultaneously with the filing of its application or response.

 (b)  The Board will award fees and expenses based upon the application and response if it finds the following:

   (1)  The applicant is a prevailing party as defined in the Costs Act.

   (2)  The application presents sufficient justification for the award of fees and expenses.

   (3)  The action of the Department was not substantially justified, in that it had no reasonable basis in law or in fact.

   (4)  There are no special circumstances which would make the award unjust or unreasonable.

 (c)  The Board will not find the Department’s action to be substantially justified, if the response fails to present a prima facie case in support of the Department’s legal position.

 (d)  The Board may reduce the amount of an award of fees and expenses, or deny the award, to the extent that the applicant engaged in conduct during the course of the proceedings which unduly and unreasonably protracted the final resolution of the matter in controversy.

   The provisions of this §  1021.174 adopted June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085.

   This section cited in 25 Pa. Code §  1021.171 (relating to scope).

ATTORNEY FEES AND COSTS AUTHORIZED BY STATUTE OTHER THAN THE COSTS ACT

§ 1021.181. Scope.

 This subchapter applies to requests for costs and attorney fees when authorized by statute other than the Costs Act. When a statute provides procedures inconsistent with these procedures, the statutory procedures will be followed.

 (a)  A request for costs and fees shall conform to any requirements set forth in the statute under which costs are being sought.

 (b)  A request for costs and fees shall be by verified application, setting 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 costs and attorney fees.

   (2)  A statement of the basis upon which the applicant claims to be entitled to costs and attorney fees.

   (3)  An affidavit setting forth in detail all reasonable costs and fees incurred for or in connection with the party’s participation in the proceeding, including receipts or other evidence of such costs and fees.

   (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 the party from whom costs and fees are sought.

 (c)  An applicant shall file an 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 application upon the other parties to the proceeding.

 (d)  The Board may deny an application sua sponte if it fails to provide all the information required by this section in sufficient detail to enable the Board to grant the relief requested.

 A response to an application shall be filed within 30 days of service. A factual basis for the response shall be verified by affidavit.

 (a)  Each party may file a brief in accordance with a schedule established by the Board.

 (b)  The Board may allow discovery and the taking of testimony in order to resolve any factual issues raised by the application and response.

   The provisions of this §  1021.184 adopted June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085.

ATTORNEY FEES AND COSTS UNDER MORE THAN ONE STATUTE

§ 1021.191. Application for counsel fees under more than one statute.

 An applicant seeking to recover fees and costs under more than one statute shall file a single application which sets forth, in separate counts, the basis upon which fees and costs are claimed under each statute.

   The provisions of this §  1021.191 adopted June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085.

APPELLATE MATTERS

§ 1021.201. 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 shall certify the record in accordance with Pa.R.A.P. 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 adjudication, 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 briefs, 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.

 (d)  In the event that a legal document was electronically filed, a paper copy of the electronic filing will be submitted to the Commonwealth Court as part of the certified record in accordance with this rule, notwithstanding the provisions of §  1021.39(c) (relating to docket) that the official copy of an electronically filed document shall be that appearing on the Board’s website.

   The provisions of this §  1021.201 adopted June 28, 2002, effective June 29, 2002, 32 Pa.B. 3085; amended November 29, 2002, effective November 30, 2002, 32 Pa.B. 5883. Immediately preceding text appears at serial pages (289985) to (289986).