Pennsylvania Environmental Hearing Board: Coat of Arms The
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Environmental Hearing Board


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HISTORY OF THE
ENVIRONMENTAL HEARING BOARD

The Environmental Hearing Board (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. It began operations on February 15, 19721. Since its inception the Board has been an essential component of Pennsylvania’s environmental regulation.

When the Department of Environmental Resources (Department) 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.

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 judges from three to five and required them to be full-time administrative law judges with a minimum of five years of relevant legal experience. The judges are appointed by the Governor, subject to Senate confirmation, and serve for six-year terms that may be renewed.

From the very beginning the Environmental Hearing Board has provided a forum where individuals, organizations and corporations can seek judicial-like relief from Department actions. Although the 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 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. Financially eligible litigants before the Board may qualify for pro bono representation through the Pennsylvania Bar Association Environmental and Energy Law Section’s Pro Bono Committee.

The Environmental Hearing Board’s jurisdiction extends to reviewing final actions of the Department. The Board also hears certain actions brought by the Department such as Complaints for Civil Penalties. Those cases that do not settle proceed to a final Board decision, either in the form of an adjudication (where a hearing has been held) or an opinion and order (where a dispositive motion has been granted). All decisions of the Environmental Hearing Board are published on the Board’s website.

Litigants dissatisfied with final decisions of the 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 Board in the vast majority of cases. Since its inception the Board’s decisions have been vacated, reversed or remanded only a handful of times. This record reflects the high quality of the Board’s judicial work. Because of its position as the first link in the judicial review chain, the Environmental Hearing Board has often issued the first decisions interpreting many environmental laws and regulations. The Pennsylvania appellate courts have recognized the Environmental Hearing Board’s unique expertise in environmental regulation and have generally deferred to the Board’s interpretations.

The subject matter of the cases filed with the Environmental Hearing Board mirrors the statutes and regulations and environmental issues in existence at any given time. During the early years, the cases dealt primarily with water pollution and air pollution. Those were years when the Department was striving to have municipalities construct sewage systems and treatment plants and to get industries to install water and air purification devices. Subsequently the cases dealt extensively 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 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 may be called upon to decide many controversial issues. The regulated community may 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 may result in lengthy hearings and produce thousands of pages of testimony and hundreds of exhibits. The adjudications may be quite extensive3.

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 Board concludes that the Department incorrectly took an action, it has the authority to substitute its own discretion or remand the case to the Department for corrected action. The Board also has the authority to assess civil penalties under certain statutes and to award legal fees and expenses to qualifying litigants.

The Environmental Hearing Board has had 24 judges during its existence, including the four currently serving: Chairman and Chief Judge Thomas W. Renwand, and Judges Michelle A. Coleman, Bernard A. Labuskes, Jr., and Steven C. Beckman. Thomas W. Renwand is the eighth, and longest serving, Chairman and Chief Judge 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 Board’s procedural rules and recommend changes when deemed advisable. Pursuant to the Environmental Hearing Board Act, Act of July 113, 1988, P.L. 530, P.S. § 7517, the Rules Committee consists 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 Chairman of the Rules Committee are Howard J. Wein, Esquire, and Philip L. Hinerman, Esquire, respectively.

The Board’s central office is located in Harrisburg. Since nearly the beginning of its tenure, the Board has also operated an office in Pittsburgh. An office was maintained in the Borough of Indiana for a few years ending in 1994. A Norristown office was opened in 2004 and an Erie office in 2013.

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 and the Environmental Hearing Board’s performance of it is part of a proud history.



FOOTNOTES:

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.