Environmental Hearing Board
ENVIRONMENTAL HEARING BOARD
The Environmental Hearing Board was created as part of the Department of Environmental Resources by the Act of December 3, 1970, P.L. 834, 71 P.S. § 510-1 et seq. Although this statute went into effect in January 1971, the Environmental Hearing Board was not staffed and ready to function until February 15, 19721. The 40th anniversary of this date will be February 15, 2012. During this time the Environmental Hearing Board has been an essential component of Pennsylvania’s environmental regulation.
When the Department of Environmental Resources was established, the Legislature abolished several other departments, boards, and commissions and transferred their powers and duties to the new department. The set-up was unique in that the Department was given its own legislative arm and its own judicial arm. The legislative arm, the Environmental Quality Board, was given the sole power to adopt environmental regulations. The judicial arm, the Environmental Hearing Board, was given the sole power to hear and decide appeals from Department actions. Both arms were given semi-independent status. This was achieved for the Environmental Hearing Board by having the Governor appoint the Board members, subject to Senate confirmation, for six year terms.
The Environmental Hearing Board was made completely independent of the Department2 by the Environmental Hearing Board Act, Act of July 13, 1988, P.L. 530, 35 P.S. §§ 7511-7516. This Act, effective January 1, 1989, also increased the number of Board Members from three to five and required them to be full-time administrative law judges with a minimum of five years of relevant legal experience.
From the very beginning the Environmental Hearing Board has provided a forum where persons or corporations displeased with Department actions can seek judicial-like relief. Although the Environmental Hearing Board is not part of the judicial branch of government, it operates like a court. Litigants file pleadings, motions and petitions, engage in discovery, take part in hearings and submit briefs. Legal representation is required for all but individuals, and the Environmental Hearing Board urges all litigants to have a lawyer because of the technical, scientific nature of environmental law and the intricacies of entering evidence into the record.
While it functions like a court, the Environmental Hearing Board’s jurisdiction is limited - it can review only final actions of the Department. But, since the Department has such extensive authority - administering fifty or so statutes - the Environmental Hearing Board is kept busy. Moreover, the Environmental Hearing Board also hears certain actions brought by the Department such as Complaints for Civil Penalties. Over 13,600 cases have been filed during the 38 ½ years of its existence. Many of these were settled for one reason or another. The others proceeded to a final Environmental Hearing Board decision, either in the form of an adjudication (where a hearing has been held) or an opinion and order (where a dispositive motion had been granted). All adjudications of the Environmental Hearing Board are circulated immediately to a list of subscribers and are published on the Board’s website. These opinions are published annually in printed volumes and they contain more than 2600 opinions.
Litigants dissatisfied with final decisions of the Environmental Hearing Board have the right to appeal to the Commonwealth Court and from there, if allowed, to the Pennsylvania Supreme Court. These courts have rendered opinions in more than 400 Board cases, agreeing with the Environmental Hearing Board in the vast majority of cases. Since 1998 the Environmental Hearing Board decisions have only been vacated, reversed or remanded thirteen times. This record reflects the high quality of the Environmental Hearing Board’s judicial work. Because of its position as the first link in the judicial review chain, the Environmental Hearing Board has made the first decisions interpreting many environmental laws and regulations with no judicial precedents to rely on. The Pennsylvania appellate courts have recognized the Environmental Hearing Board’s unique expertise in environmental regulation and have generally deferred to the Environmental Hearing Board’s interpretations.
The subject matter of the cases filed with the Environmental Hearing Board mirrors the statutes and regulations in existence and being enforced at any one time. During the early years, the cases dealt primarily with water pollution and air pollution. These were years when the Department was striving to get municipalities to construct sewage systems and treatment plants and to get industries to install water and air purification devices. Then the cases dealt more with solid waste (landfills and incinerators) and the surface mining of coal and non-coal minerals. In recent years, many of the cases have involved issues concerning the development of energy resources in an environmentally sound way. Other subject areas include, for example, dams and encroachments, oil and gas, air, safe drinking water, storage tanks, stormwater management, underground coal mining, water allocations, and sewage facilities planning.
Because of its role in environmental regulation, the Environmental Hearing Board becomes involved in many controversial issues. The regulated community may strongly oppose Department attempts to bring them into compliance, arguing that the requirements are excessive, not based on scientific principles or financially disastrous. Individuals living near existing or proposed facilities may protest the issuance of Department permits, arguing that the sites are unsuitable or that the permit conditions are not adequate. These highly controversial cases frequently occupy the Environmental Hearing Board’s time. These protracted hearings produce thousands of pages of testimony and hundreds of exhibits. The adjudications sometimes exceed 100 pages3.
The Environmental Hearing Board acts de novo. This means that it decides cases on the basis of the evidence before it, which may differ from that considered by the Department. If the Environmental Hearing Board concludes that the Department abused its discretion, it has the authority to substitute its own discretion. More often, however, the Environmental Hearing Board remands the case to the Department for corrected action. The Environmental Hearing Board also has the authority to assess civil penalties under some statutes and to award legal fees and expenses to qualifying litigants.
The Environmental Hearing Board has had 24 members during its 43 year history, including the five currently serving: Chairman and Chief Judge Thomas W. Renwand, and Judges Michelle A. Coleman, Bernard A. Labuskes, Jr., Richard P. Mather, Sr., and Steven C. Beckman, Thomas W. Renwand is the eighth Chairman of the Environmental Hearing Board. Christine Walker serves as the Secretary to the Environmental Hearing Board. Six others held the position prior to Ms. Walker.
The Environmental Hearing Board has had a procedural rules committee since its inception. These attorneys meet regularly to consider the Environmental Hearing Board’s procedural rules and recommend changes when deemed advisable. Under the Environmental Hearing Board Act, Act of July 113, 1988, P.L. 530, P.S. § 7517, the Rules Committee is to consist of nine persons, designated by the Governor, legislative leaders, the Department Secretary and the Department’s Citizens Advisory Council, for terms of two years. The current Chairman and Vice Chairwoman of the Rules Committee are Howard J. Wein, Esquire, and Maxine M. Woelfling, Esquire, respectively.
Offices of the Environmental Hearing Board have been in Harrisburg since the beginning and in Pittsburgh for nearly that long. An office was maintained in the Borough of Indiana for a few years ending in 1994. A Norristown office was opened in 2004. The Environmental Hearing Board’s Harrisburg office and hearing rooms are currently located on the second floor of the Rachel Carson State Office Building on Market Street. In Pittsburgh, they are on the second floor of Piatt Place on Fifth Avenue, and in Norristown they are on the fourth floor at 2 East Main Street. Computerization of Environmental Hearing Board records and functions has been occurring since 1989.
Environmental regulation in Pennsylvania began nearly a century ago with efforts to preserve Penn’s Woods (and streams) and restore Penn’s vision of a Peaceable Kingdom, where man and nature can live together in harmony. Air and land were caught up in this preservation effort during the past half century. The Environmental Hearing Board has served as a buffer between the regulators and the regulated, providing all citizens a forum where they can challenge the actions of the Department and receive judicial-like relief. This is an important role in a controversial arena and the Environmental Hearing Board’s performance of it is part of a proud history.
1. Prior to that date, the Environmental Hearing Board’s functions were carried out by the Secretary of Environmental Resources, as provided by the enabling statute. A total of 151 appeals had been filed by February 15, 1972, of which 72 were still pending when the Board began functioning.
2. The Department of Environmental Resources was changed to the Department of Environmental Protection by Act No. 1995-18 effective July 1, 1995. This Act also created the Department of Conservation and Natural Resources.
3. Board adjudications contain detailed findings of fact with references to the evidence supporting them, detailed conclusions of law, a discussion of the facts and law, and a final order. This format makes it easier for litigants and appellate courts to review the opinions.