PRIOR PRINTER'S NOS. 1675, 2137 PRINTER'S NO. 2357
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 AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
OCTOBER 26, 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; TRANSFERRING CERTAIN FUNDS; 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 A MAJORITY of the <--
19 members elected to the Senate. Initial appointments to this
20 board by the Governor may be made prior to the effective date of
21 this act, and the terms shall take effect on the effective date
22 hereof.
23 (c) Chairperson.--The Governor shall designate one member of
24 the board to serve as chairperson.
25 (d) Terms.--A member of the board shall serve for a term of
26 six years or until a successor is appointed and qualified.
27 Vacancies shall be filled in the same manner as the original
28 appointment. Initial appointments to the board shall be as
29 follows:
30 (1) One member for a term of two years.
19870H1432B2357 - 2 -
1 (2) One member for a term of four years.
2 (3) One member for a term of six years.
3 (e) Qualifications.--A member of the board must:
4 (1) Be an attorney in good standing before the Bar of
5 the Supreme Court of Pennsylvania.
6 (2) Have five years of practice before administrative
7 agencies or have equivalent experience.
8 (f) Staff and facilities.--The board shall appoint a
9 secretary to the board. The board shall provide facilities at
10 each seat under the provisions of section 6. The board may
11 employ hearing examiners and such additional personnel necessary
12 to exercise its functions. Hearing examiners shall be attorneys
13 in good standing before the Bar of the Supreme Court of
14 Pennsylvania and shall have three years of practice before
15 administrative agencies or equivalent experience. All employees
16 of the board shall be subject to the act of August 5, 1941
17 (P.L.752, No.286), known as the Civil Service Act.
18 (g) Salary.--Salaries of board members and employees of the <--
19 board shall be set by the Executive Board.
20 (G) SALARY.--SALARIES OF BOARD MEMBERS APPOINTED UNDER THIS <--
21 ACT SHALL BE $55,000 PER YEAR AND $57,500 FOR THE CHAIRPERSON
22 DURING THE FIRST TWO YEARS AFTER THE EFFECTIVE DATE OF THIS ACT.
23 SALARIES OF THE BOARD MEMBERS AND THE CHAIRPERSON SHALL BE SET
24 BY THE EXECUTIVE BOARD TWO YEARS AFTER THE EFFECTIVE DATE OF
25 THIS ACT.
26 Section 4. Jurisdiction.
27 (a) General rule.--The board has the power and duty to hold
28 hearings and issue adjudications under 2 Pa.C.S. Ch. 5 Subch. A
29 (relating to practice and procedure of Commonwealth agencies) on
30 orders, permits, licenses or decisions of the department. THE <--
19870H1432B2357 - 3 -
1 BOARD SHALL HAVE THE POWER TO ISSUE ADJUDICATIONS ON ALL MATTERS
2 PENDING BEFORE THE FORMER ENVIRONMENTAL HEARING BOARD WHERE THE
3 FORMER ENVIRONMENTAL HEARING BOARD HAS NOT ISSUED ADJUDICATIONS
4 ON THE MATTERS PRIOR TO THE DATE THAT IT IS ABOLISHED.
5 (b) Departmental action.--The department may take an action
6 initially without regard to 2 Pa.C.S. Ch. 5 Subch. A, but no
7 action of the department adversely affecting a person shall be
8 final as to that person until the person has had the opportunity
9 to appeal the action to the board. If a person has not perfected
10 an appeal in accordance with the regulations of the board, the
11 department's action shall be final as to the person.
12 (c) Supersedeas.--
13 (1) No appeal shall act as an automatic supersedeas. The
14 board may, however, grant a supersedeas upon cause shown. The
15 board, in granting or denying a supersedeas, shall be guided
16 by relevant judicial precedent and the board's own precedent.
17 Among the factors to be considered are:
18 (i) Irreparable harm to the petitioner.
19 (ii) The likelihood of the petitioner prevailing on
20 the merits.
21 (iii) The likelihood of injury to the public or
22 other parties, such as the permittee in third party
23 appeals.
24 (2) A supersedeas shall not be issued in cases where
25 pollution or injury to the public health, safety or welfare
26 exists or is threatened during the period when the
27 supersedeas would be in effect.
28 (d) Intervention.--Any interested party may intervene in any
29 matter pending before the board.
30 (e) Subpoenas.--The board may subpoena witnesses, records
19870H1432B2357 - 4 -
1 and papers. The board may enforce its subpoenas in Commonwealth
2 Court. Commonwealth Court, after a hearing, may make an
3 adjudication of contempt or may issue another appropriate order.
4 (f) Procedure.--Hearings of the board shall be conducted in
5 accordance with the regulations of the former Environmental
6 Hearing Board in effect at the effective date of this act until
7 new regulations are promulgated under section 5.
8 Section 5. Rules committee.
9 (a) Establishment.--The Environmental Hearing Board Rules
10 Committee is established. The rules committee shall consist of
11 nine attorneys who are in good standing before the Bar of the
12 Supreme Court of Pennsylvania and who have practiced before the
13 board for a minimum of three years OR WHO HAVE COMPARABLE <--
14 EXPERIENCE. Two members ONE MEMBER shall be appointed by the <--
15 President pro tempore AND ONE MEMBER SHALL BE APPOINTED BY THE <--
16 MINORITY LEADER of the Senate. Two members ONE MEMBER shall be <--
17 appointed by the Speaker AND ONE MEMBER SHALL BE APPOINTED BY <--
18 THE MINORITY LEADER of the House of Representatives. One member
19 shall be appointed by the Chairman of the Citizens Advisory
20 Council to the department. Two members shall be appointed by the
21 Governor, upon the advice of the Pennsylvania Bar Association.
22 Two members shall be appointed by the secretary. THE INITIAL <--
23 APPOINTMENTS OF THE GOVERNOR AND THE SECRETARY SHALL SERVE TERMS
24 OF ONE YEAR; THE INITIAL APPOINTMENTS OF THE PRESIDENT PRO
25 TEMPORE AND MINORITY LEADER OF THE SENATE, THE SPEAKER AND
26 MINORITY LEADER OF THE HOUSE OF REPRESENTATIVES AND THE
27 CHAIRPERSON OF THE CITIZENS ADVISORY COUNCIL SHALL SERVE TERMS
28 OF TWO YEARS COMMENCING THREE MONTHS AFTER THE EFFECTIVE DATE OF
29 THIS ACT. THEREAFTER, MEMBERS OF THE RULES COMMITTEE SHALL SERVE
30 TERMS OF TWO YEARS AND MAY BE REAPPOINTED FOR ADDITIONAL TERMS.
19870H1432B2357 - 5 -
1 SUCH VACANCIES AS MAY ARISE SHALL BE FILLED IN THE SAME MANNER
2 AS THE ORIGINAL APPOINTMENT. The chairperson of the board shall
3 be a member of the committee ex officio.
4 (B) EXPENSES.--THE BOARD SHALL REIMBURSE MEMBERS OF THE <--
5 RULES COMMITTEE FOR NECESSARY AND REASONABLE EXPENSES INCURRED
6 IN ATTENDING RULES COMMITTEE MEETINGS.
7 (b) (C) Function.--The rules committee shall recommend to <--
8 the board regulations for hearings conducted by the board. The
9 regulations shall include time limits and procedure for the
10 taking of appeals and locations of hearings. Regulations under
11 this subsection shall be promulgated by the Environmental
12 Quality Board upon a recommendation from the Environmental
13 Hearing Board. Regulations promulgated under this subsection
14 shall not be subject to the act of June 25, 1982 (P.L.633,
15 No.181), known as the Regulatory Review Act.
16 Section 6. Seats of the board.
17 (a) Location.--The board shall have offices and hearing
18 rooms in Harrisburg and Pittsburgh. The headquarters of the
19 board shall be in Harrisburg. The board may maintain additional
20 offices and hearing rooms and hear cases at other locations in
21 this Commonwealth.
22 (b) Assignments.--At least one member of the board shall sit
23 in each seat of the board. The remaining member of the board
24 shall be assigned to a seat by the chairperson. At least once
25 during the term of a member of the board, that member shall
26 rotate to one of the other seats of the board. The chairperson
27 shall determine rotation and shall determine assignment of cases
28 within each geographic area.
29 Section 7. Abolishment of Environmental Hearing Board.
30 The Environmental Hearing Board established or otherwise
19870H1432B2357 - 6 -
1 provided for under section 472, 709(m) or 1921-A of the act of
2 April 9, 1929 (P.L.177, No.175), known as The Administrative
3 Code of 1929, is hereby abolished. ABOLISHED THREE MONTHS AFTER <--
4 THE EFFECTIVE DATE OF THIS ACT. Current members of that board
5 shall be eligible for appointment to the board established under
6 this act if they meet the requirements of section 3(e).
7 SECTION 8. TRANSFER OF FUNDS. <--
8 THE SUM OF $647,000, OR THE UNEXPENDED PORTION THEREOF, OF
9 THE AMOUNT OF THE APPROPRIATION MADE TO THE DEPARTMENT OF
10 ENVIRONMENTAL RESOURCES FOR GENERAL GOVERNMENT OPERATIONS AND
11 DESIGNATED FOR USE OF THE ENVIRONMENTAL HEARING BOARD, IS HEREBY
12 TRANSFERRED TO THE ENVIRONMENTAL HEARING BOARD ESTABLISHED BY
13 THIS ACT FOR THE CURRENT FISCAL YEAR.
14 Section 8 9. Repeals. <--
15 (a) Specific.--Sections 472, 709(m) and 1921-A of the act of
16 April 9, 1929 (P.L.177, No.175), known as The Administrative
17 Code of 1929, are repealed.
18 (b) General.--All acts and parts of acts are repealed
19 insofar as they are inconsistent with this act.
20 Section 9 10. Effective date. <--
21 This act shall take effect in one year. <--
22 THIS ACT SHALL TAKE EFFECT AS FOLLOWS: <--
23 (1) SECTION 9 SHALL TAKE EFFECT IN THREE MONTHS.
24 (2) THE REMAINDER OF THIS ACT SHALL TAKE EFFECT
25 IMMEDIATELY.
E26L71DGS/19870H1432B2357 - 7 -