PRIOR PRINTER'S NO. 1675 PRINTER'S NO. 2137
No. 1432 Session of 1987
INTRODUCED BY GEORGE, ITKIN, LUCYK, STEIGHNER, BELARDI, TRELLO,
MORRIS, BATTISTO, LLOYD, KUKOVICH, VAN HORNE, KOSINSKI,
STABACK, LASHINGER, McHALE, McCALL, DeLUCA AND FOX,
MAY 27, 1987
AS RE-REPORTED FROM COMMITTEE ON APPROPRIATIONS, HOUSE OF
REPRESENTATIVES, AS AMENDED, SEPTEMBER 29, 1987
AN ACT
1 Establishing the Environmental Hearing Board as an independent,
2 quasi-judicial agency; providing for the membership and
3 staff, the powers and duties, the seats and the existing
4 members of the board; making an appropriation; and making <--
5 repeals.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Short title.
9 This act shall be known and may be cited as the Environmental
10 Hearing Board Act.
11 Section 2. Definitions.
12 The following words and phrases when used in this act shall
13 have the meanings given to them in this section unless the
14 context clearly indicates otherwise:
15 "Board." The Environmental Hearing Board established under
16 this act.
17 "Department." The Department of Environmental Resources of
18 the Commonwealth.
1 "Rules committee." The Environmental Hearing Board Rules
2 Committee established under section 5.
3 "Secretary." The Secretary of Environmental Resources of the
4 Commonwealth.
5 Section 3. Board.
6 (a) Establishment.--The Environmental Hearing Board is
7 established as an independent quasi-judicial agency.
8 (b) Membership.--The board shall consist of three members.
9 The members shall be full-time administrative law judges.
10 Members shall devote full time to their official duties. No
11 member or hearing examiner shall hold any office or position,
12 the duties of which are incompatible with the duties of his
13 office, or be engaged in any business, employment or vocation
14 for which he shall receive any remuneration, except that members
15 may speak, write or lecture if any reimbursed expenses,
16 honorariums, royalties or other moneys received in connection
17 with these activities are disclosed. Members shall be appointed
18 by the Governor with the consent of two-thirds of the members
19 elected to the Senate. Initial appointments to this board by the
20 Governor may be made prior to the effective date of this act,
21 and the terms shall take effect on the effective date hereof.
22 (c) Chairperson.--The Governor shall designate one member of
23 the board to serve as chairperson.
24 (d) Terms.--A member of the board shall serve for a term of
25 six years or until a successor is appointed and qualified.
26 Vacancies shall be filled in the same manner as the original
27 appointment. Initial appointments to the board shall be as
28 follows:
29 (1) One member for a term of two years.
30 (2) One member for a term of four years.
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1 (3) One member for a term of six years.
2 (e) Qualifications.--A member of the board must:
3 (1) Be an attorney in good standing before the Bar of
4 the Supreme Court of Pennsylvania.
5 (2) Have five years of practice before administrative
6 agencies or have equivalent experience.
7 (f) Staff and facilities.--The board shall appoint a
8 secretary to the board. The board shall provide facilities at
9 each seat under the provisions of section 6. The board may
10 employ hearing examiners and such additional personnel necessary
11 to exercise its functions. Hearing examiners shall be attorneys
12 in good standing before the Bar of the Supreme Court of
13 Pennsylvania and shall have three years of practice before
14 administrative agencies or equivalent experience. All employees
15 of the board shall be subject to the act of August 5, 1941
16 (P.L.752, No.286), known as the Civil Service Act.
17 (g) Salary.--Salaries of board members and employees of the
18 board shall be set by the Executive Board.
19 Section 4. Jurisdiction.
20 (a) General rule.--The board has the power and duty to hold
21 hearings and issue adjudications under 2 Pa.C.S. Ch. 5 Subch. A
22 (relating to practice and procedure of Commonwealth agencies) on
23 orders, permits, licenses or decisions of the department.
24 (b) Departmental action.--The department may take an action
25 initially without regard to 2 Pa.C.S. Ch. 5 Subch. A, but no
26 action of the department adversely affecting a person shall be
27 final as to that person until the person has had the opportunity
28 to appeal the action to the board. If a person has not perfected
29 an appeal in accordance with the regulations of the board, the
30 department's action shall be final as to the person.
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1 (c) Supersedeas.--
2 (1) No appeal shall act as an automatic supersedeas. The
3 board may, however, grant a supersedeas upon cause shown. The
4 board, in granting or denying a supersedeas, shall be guided
5 by relevant judicial precedent and the board's own precedent.
6 Among the factors to be considered are:
7 (i) Irreparable harm to the petitioner.
8 (ii) The likelihood of the petitioner prevailing on
9 the merits.
10 (iii) The likelihood of injury to the public or
11 other parties, such as the permittee in third party
12 appeals.
13 (2) A supersedeas shall not be issued in cases where
14 pollution or injury to the public health, safety or welfare
15 exists or is threatened during the period when the
16 supersedeas would be in effect.
17 (d) Intervention.--Any interested party may intervene in any
18 matter pending before the board.
19 (e) Subpoenas.--The board may subpoena witnesses, records
20 and papers. The board may enforce its subpoenas in Commonwealth
21 Court. Commonwealth Court, after a hearing, may make an
22 adjudication of contempt or may issue another appropriate order.
23 (f) Procedure.--Hearings of the board shall be conducted in
24 accordance with the regulations of the former Environmental
25 Hearing Board in effect at the effective date of this act until
26 new regulations are promulgated under section 5.
27 Section 5. Rules committee.
28 (a) Establishment.--The Environmental Hearing Board Rules
29 Committee is established. The rules committee shall consist of
30 nine attorneys who are in good standing before the Bar of the
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1 Supreme Court of Pennsylvania and who have practiced before the
2 board for a minimum of three years. Two members shall be
3 appointed by the President pro tempore of the Senate. Two
4 members shall be appointed by the Speaker of the House of
5 Representatives. One member shall be appointed by the Chairman
6 of the Citizens Advisory Council to the department. Two members
7 shall be appointed by the Governor, upon the advice of the
8 Pennsylvania Bar Association. Two members shall be appointed by
9 the secretary. The chairperson of the board shall be a member of
10 the committee ex officio.
11 (b) Function.--The rules committee shall recommend to the
12 board regulations for hearings conducted by the board. The
13 regulations shall include time limits and procedure for the
14 taking of appeals and locations of hearings. Regulations under
15 this subsection shall be promulgated by the Environmental
16 Quality Board upon a recommendation from the Environmental
17 Hearing Board. Regulations promulgated under this subsection
18 shall not be subject to the act of June 25, 1982 (P.L.633,
19 No.181), known as the Regulatory Review Act.
20 Section 6. Seats of the board.
21 (a) Location.--The board shall have offices and hearing
22 rooms in Harrisburg and Pittsburgh. The headquarters of the
23 board shall be in Harrisburg. The board may maintain additional
24 offices and hearing rooms and hear cases at other locations in
25 this Commonwealth.
26 (b) Assignments.--At least one member of the board shall sit
27 in each seat of the board. The remaining member of the board
28 shall be assigned to a seat by the chairperson. At least once
29 during the term of a member of the board, that member shall
30 rotate to one of the other seats of the board. The chairperson
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1 shall determine rotation and shall determine assignment of cases
2 within each geographic area.
3 Section 7. Abolishment of Environmental Hearing Board.
4 The Environmental Hearing Board established or otherwise
5 provided for under section 472, 709(m) or 1921-A of the act of
6 April 9, 1929 (P.L.177, No.175), known as The Administrative
7 Code of 1929, is hereby abolished. Current members of that board
8 shall be eligible for appointment to the board established under
9 this act if they meet the requirements of section 3(e).
10 Section 8. Appropriation. <--
11 The sum of $1,500,000, or as much thereof as may be
12 necessary, is hereby appropriated to the Environmental Hearing
13 Board for the current fiscal year to carry out the provisions of
14 this act.
15 Section 9 8. Repeals. <--
16 (a) Specific.--Sections 472, 709(m) and 1921-A of the act of
17 April 9, 1929 (P.L.177, No.175), known as The Administrative
18 Code of 1929, are repealed.
19 (b) General.--All acts and parts of acts are repealed
20 insofar as they are inconsistent with this act.
21 Section 10 9. Effective date. <--
22 This act shall take effect in one year.
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