Prepared By: Thomas Alan Linzey, Esq.
Community Environmental Legal Defense Fund (CELDF)
Copyright ©1998

Chapter One

A. How You Got Here

    Although it’s not very important how you arrived at this spot, it is valuable at this point to look around you at the others that have come before you and the others that will follow. Obviously, you’ve been faced with an environmental and community problem that other individuals and agencies have failed to stop - perhaps the state Department of Environmental Protection (DEP) decided to issue a permit for the operation of a hazardous waste incinerator in your neighborhood; perhaps the DEP has issued a permit to allow discharge from a woodchip mill. Now, the problem is yours - either you as an individual or your organization must find the means and the will to stop a project that you know is environmentally damaging or that you know is a direct result of DEP’s failure to exercise adequate regulatory oversight.

    The Environmental Hearing Board (EHB) serves as the judicial arm of the Commonwealth of Pennsylvania’s Department of Environmental Protection (DEP). The EHB thus handles all of the administrative appeals of DEP’s actions, and will be the body handling the appeal.

    Four appointed, administrative law judges sit on the Environmental Hearing Board. Currently, these four appointed judges are George Miller, Robert Myers, Michelle A. Coleman, and Thomas Renwand. Each Notice of Appeal is assigned to one judge, who will handle the appeal on its way through the process.

    One of the reasons that you’re probably here is due to a lack of financial resources. Although some community organizations are in a position to raise the $20,000 to $80,000 necessary to pursue a citizens appeal of a permit that has been granted by the DEP, most citizen groups are unable to raise these amounts. Several individuals have thus begin litigating these permit issuances without an attorney (pro se), and this manual is intended for those individuals. This Manual focuses on the easiest and most cost-effective way in which to litigate a permit appeal through the EHB, and is based, in part, on the actual experiences of litigants that have passed this way before you.

B. Do You Want to Stay Here?

    Even by following the most cost-effective methods for navigating through the Environmental Hearing Board (EHB), some costs and time investment are inevitable. Although there is no cost to file the initial Notice of Appeal, there will be cost involved in copying Motions and documents throughout the appeal, as well as service of process costs when those documents are served on the other parties. In addition, if depositions are taken of you by the opposing parties, you can expect to spend several days answering questions posed by the other side, thus losing time from work or other activities. The time investment may also be heavy - time taken to prepare the Notice of Appeal, prepare Interrogatories and Briefs, can easily run into the hundreds of hours. In addition, many times, the opposing parties may attempt to intimidate and harass those plaintiffs moving forward without the assistance of an attorney. As a final hurdle, EHB judges continue to look askance at pro se plaintiffs, and may attempt to speed up what they see as frivolous litigation by imposing shrunken briefing schedules, and by deciding in favor of the opposing parties on Motions and other requests made by them to the Court.

    You may think that the only two parties in the litigation will be yourself and the DEP. However, in these "3^rd Party" permit appeals, the DEP usually defers to the corporation (or individual) itself who has received the permit, and expects the corporation (or individual) to step in and defend the DEP’s issuance of the permit. In most cases, therefore, it will be you versus the corporation, with the corporate entity placed in a position of defending the actions of the DEP itself.

C. Necessary Manuals, Documents, and Key Addresses

    Before proceeding on your Notice of Appeal, contact the Environmental Hearing Board (EHB) at (717) 787-3483 and request the latest edition of their publication, "Environmental Hearing Board Practice Guide". The address for the EHB is:
 

Main:  Environmental Hearing Board  Rachel Carson State Office Building - 2nd Floor  400 Market Street  P.O. Box 8457  Harrisburg, PA 17105-8457  (717) 787-3483  (717) 783-4738 (fax)

Pittsburgh:  Environmental Hearing Board  1507 Pittsburgh State Office Building  300 Liberty Avenue  Pittsburgh, PA 15222-1210  (412) 565-3511  (412) 565-5298 (fax)

 
    The EHB Practice Guide outlines all of the rules that have been promulgated for the operations of the Environmental Hearing Board - including how to serve documents, how to apply for temporary stays, how to draft motions, and how to prepare pre-hearing and post-hearing memorandum and briefs.

    You should also locate the Pennsylvania Rules of Court at your local University library or at your local courthouse. Several sections of the EHB Rules simply default to the Pennsylvania Rules of Court, and the Pennsylvania rules will therefore be the rules of the Court. (Pennsylvania Rules can also be obtained from West Publishing at 1-800-328-9352 for about $40 - ask for Pennsylvania Rules of Court, ISBN 0-314-20100-9) For example, when dealing with discovery issues, the EHB rules simply refer the litigant back to Pennsylvania Court rules and give the section number.

    Other points of contact include prior individuals that have progressed through the EHB structure in the absence of an attorney. Good contacts include:
 

Bill Belitskus  Box 172B  R.D. #1  Kane, PA 16735  (814) 778-5173  e-mail: mcbproact@penn.com  Subject Matter of Previous Appeal: Stormwater discharge permit issued to Willamette Industries	Debbie Lambert  114 Logtown Road  Darlington, PA 16115  (412) 336-3212  e-mail: zeb234@cobweb.net  Subject Matter of Previous Appeal: Hazardous waste permit issued to Envirotrol Industries
Community Environmental Legal Defense Fund (CELDF)  (717) 709-0457  Subject Matter: Process questions within the EHB.

 
    The Community Environmental Legal Defense Fund (CELDF) was established to give pro se litigants the tools they need to pursue this type of litigation in the EHB. This Manual has been produced towards that goal. In addition, CELDF has published Manuals dealing with corporate charter revocation in state courts and federal court litigation dealing with the National Environmental Policy Act (NEPA) and inadequacy of prepared Environmental Impact Statements (EIS).

    CELDF does not have the resources or personnel to personally handle the filings of motions and briefs necessary for the various cases. In fact, the Fund was founded under the recognition that the system in Pennsylvania is currently constructed so that there will always be a shortage of environmental attorneys available to handle these types of cases. Only when individual citizens and citizen organizations begin to incorporate these legal tools into their functioning, will true "citizen litigators" be formed capable of continually engaging in permit appeals, and state and federal court litigation. Eventually, the Legal Defense Fund foresees a time at which the regulatory energy "sink" will be overridden by citizens demanding more direct control over corporations chartered by the state of Pennsylvania. We believe that you are a part of this transformation.

Chapter Two:

A. Filing Your Notice of Appeal

    The most essential point of the filing of your Notice of Appeal is that it MUST BE DONE WITHIN 30 DAYS of the issuance of the permit by DEP or the other action of the DEP which is currently being appealed through the Notice. The EHB Practice Manual (available from the EHB) outlines the content and framework of the Notice of Appeal. Appealable notices of action are contained within a publication known as the Pennsylvania Bulletin (see below).

    The Notice of Appeal should be in the form as outlined in the Practice Manual at page 10, i.e. it should have a caption at the top of the first page that identifies the EHB, and the name, address, and phone number of the Appellant, with further pages containing the required information.

    The notification of the action taken by the DEP should be attached to the Notice of Appeal - this will usually consist of the Notice as published in the Pennsylvania Bulletin that the permit was issued or a specific action was taken by the Department. The Pennsylvania Bulletin is a weekly publication of the state government, and lists all of the public actions taken by all state agencies during that period of time. It should be available at your local or University library, or at your local courthouse. The thirty day period for the filing of the Notice of Appeal begins on the date that the notice is published.

    The most important portion of your Notice of Appeal will include the separate numbered paragraphs that list the specific objections to the action taken by the Department. The objections may be factual or legal. It is essential that you understand that, under state law and state regulations, DEP must examine only certain aspects of a permit application before it actually issues the permit to the corporation. It is ONLY on these legal grounds that a permit can be challenged by a citizen - e.g. an objection that a planned strip mine operation will make the landscape less esthetically pleasing, and thus tourism might be affected, would NOT be a sufficient ground for an appeal. It is important, here, that the citizen or organization drafting the appeal have a copy of the specific statute, under which the permit was issued, to guide them when preparing the grounds for appeal. Enclosed as Exhibit One is the general statute dealing with permit renewals by the Department. Note the very narrow grounds that can be challenged by an appellant to a permit renewal.

B. Making Mistakes: Filing an Amended Notice of Appeal

    Mistakes made in the Notice of Appeal itself can be corrected within twenty days from the original filing of the Notice of Appeal. This twenty day period is known as an "amendment of right" period and the appellant does not have to receive the permission of the EHB to file an amended appeal. The appellant, must, however, serve the amended Notice of Appeal to the same individuals that received the original Notice of Appeal. At the top of the document would be placed "Amended Notice of Appeal".

    After the twenty day period has passed, the Appellant may receive permission from the EHB to amend the appeal, but the Appellant must meet the conditions established under Section 1021.53 of the EHB Rules - which usually require a showing that the Appellant now has in its possession information or knowledge not possessed when the initial filing was completed and the original 20-day period had run.

C. Supersedeas and Halting Immediate Harms

    If there is an immediate harm occurring that will worsen by the time that the Notice of Appeal is processed and decided (up to a year), the Appellant has the option to file for a Temporary Supersedeas (governed by Section 1021.79) or for a Supersedeas (governed by Section 1021.76). A Temporary Supersedeas is roughly parallel to a Temporary Restraining Order (TRO) in state and federal courts, and a Supersedeas is roughly parallel to a preliminary injunction.

    A Temporary Supersedeas should be prepared under the requirements of Section 1021.79, and if granted, will provide a temporary halt to the operations authorized by the permit for six business days, or until the EHB can hold a hearing concerning the harm alleged by the Appellant.

    A Supersedeas should be prepared under 1021.77, and will provide a permanent halt to activities until the full Appeal is heard by the EHB. Both the Temporary Supersedeas and regular Supersedeas will be issued if the Appellant can show that he/she will suffer irreparable harm as a result of the permit issuance; that the Appellant has a likelihood of winning the Appeal; and that there is a likelihood of injury to the public or to the permittee as a result of granting the supersedeas.

Enclosed as Exhibit Two is a copy of a sample Motion and Brief for Supersedeas filed in an earlier suit.

Chapter Three:

A. Briefing Schedule: The Map of the Case

    Shortly after the filing of the Notice of Appeal, the assigned judge will issue a pre-trial order that will consist of a calendar of the progress of the Appeal - this Order will contain such dates as the last day to file discovery requests, the last day to file dispositive (summary judgment) motions, and the dates upon which the trial will begin and end. To determine a proper calendaring of the trial, the EHB judge may contact all of the parties by conference call or via a scheduling meeting to determine reasonable dates for the conclusion of pre-trial activities in the case.

    Expect both the judge and the opposing counsel to be hostile to you. Pro Se plaintiffs are viewed mostly as a nuisance to the EHB system, and are treated as such. The judge will be motivated to speedily dispose of the litigation, and opposing counsel will want the same result. As a pro se plaintiff unfamiliar with EHB processes and rules, you will need maximum amounts of time to prepare motions and briefs, and to gather material through the discovery process. This is one of the times that you will have to voice your opinion and forcefully request that the calendar respect your position as a pro se plaintiff, and thus, allow you greater amounts of time to process the documents necessary to the litigation.

    If the time should arise when you need additional time to respond or reply to a request or motion made by opposing counsel, don’t hesitate to request an Extension of Time. These are usually routinely granted if made far enough ahead of the date upon which the response is due. Routine procedure requires that you informally contact opposing counsel first, receive their assent to the delay, and then file an "Unopposed Motion for Request for Extension of Time" with the EHB. All requests filed with the EHB should be copied to opposing counsel - both for the corporation as well as for the DEP. (See section "B" on Motions)

Mapping the Case:

Day 1: Appellant receives notice that Action has been taken by the DEP; and this action is published in the Pennsylvania Bulletin.

Day 30: Notice of Appeal must be filed by this Day with the EHB and Service of Process must be made on all parties.

Prehearing Order Issued by Judge that establishes the following dates:

Prehearing Order + 90 Days: Discovery shall be completed by both parties.

Prehearing Order + 150 Days: Dispositive (Summary Judgment) motions must be filed by this date. In cases in which expert testimony will be offered, Prehearing Order + 180 Days will be offered for the filing of dispositive motions.

If the dates established by the Prehearing Order are unacceptable to both parties, they may submit a Joint Proposed Case Management Order to the Board which establishes different dates for discovery and submission of dispositive motions.

B. Common Motions and Getting What You Want

    The word "Motions" has been used throughout this document. A Motion is simply a request submitted by you to the court. Many times, a Motion is accompanied by a Brief in Support of the Motion. A Brief simply explains and argues why the Motion is appropriate and explains why the Motion should be granted. Most routine Motions are simply one or two page requests submitted without a supporting Brief. Make sure that you read Section 1021.70 of the EHB Rules for specific requirements for the structure of Motions. Some common Motions include:

• Motion for Extension of Time
• Motion to Amend Notice of Appeal
• Motion for Protective Order (used when being harassed by irrelevant discovery requests submitted by opposing counsel).
• Motion for Supersedeas
• Motion for Summary Judgment
• Motion to Compel Discovery (used when opposing counsel refuses to turn over documents to you or refuses to answer your interrogatories).

AND NOW, comes the Appellant and respectfully requests the Environmental Hearing Board (EHB) to enjoin the Appellee from requesting documents concerning the membership of the appellant in citizen organizations because:

1. Such information is irrelevant to the subject matter of the instant appeal; and
2. Appellees seek to use such information to prejudice this Board on the outcome of this appeal.

Respectfully Submitted,

Debbie Lambert, pro se
114 Logtown Road
Darlington, PA 16115
(412) XXX-XXXX
__________________________________________________________________

    Motions should also be accompanied by a Certificate of Service of Process, which is simply a sheet of paper that lists who was served with the Motion, and how they were served, along with a signature of the person that mailed the Motion with postage paid. Courts and the EHB require Certificates of Service simply as reassurances that you have mailed the document to opposing counsel as well as filing it with the EHB.

The Certificate of Service would look like this:
__________________________________________________________________

I, Thomas Linzey, hereby swear and affirm that I served the foregoing MOTION FOR PROTECTIVE ORDER on the following individuals by the following method:

Pre-Paid U.S. Mail

The MOTION was served on the following individuals:
 

Francis P. Fair  Dept. of Waste Management  Department of Environmental Protection  Rachel Carson Office Building  Harrisburg, Pennsylvania 17120

John Harris, Esq.  Counsel for Waste Management, Inc.  21 Plaza Square  Reading, Pennsylvania 17237

 
Signed this ______Day of March, 1998,

Thomas Linzey, pro se
2859 Scotland Road
Chambersburg, PA 17201
(717) XXX-XXXX
_________________________________________________________________

C. Briefs: What are They Good For?

    Briefs will usually only be submitted by the pro se Appellant when a Summary Judgment Motion is submitted to the Board. A Summary Judgment Brief will be submitted as the final stage document in the litigation for the pro se litigant to avoid the expense and burden of proceeding to a hearing in front of an Environmental Hearing Board (EHB) judge.

    A summary judgment Brief will be submitted after the discovery period has run, and after the Appellant believes that he/she has enough information in her possession that the judge can rule in favor of the Appellant. Under state and federal law doctrine, Summary Judgment is granted if the facts are evident, and no "material facts remain in dispute." For example, if the Appellant has alleged that the corporation that received the permit had a history of noncompliance with other permits they possess and that the DEP did not examine this history prior to issuing the permit, and the Appellant has gathered this compliance history through discovery and public files, then the judge could rule at that point that Summary Judgment should be granted in favor of the Appellant. Hence, no hearing is needed simply because nothing would be gained from holding a hearing - all of the evidence needed by the judge to make a decision has already been presented.

    Briefs are fairly complicated documents, and will always be submitted with a Motion for Summary Judgment, which will list a summary of the points made in the Brief with a request that the judge grant Summary Judgment in favor of the Appellant. The Brief itself should contain several sections, including:

• Table of Contents
• Table of Citations
• Statement of Facts
• Arguments
• Conclusion
• Certificate of Service of Process

(1) General Organizational Requirements

Table of Contents: Should list the contents of the Brief as well as the point headings for your arguments. Each section should be listed with a corresponding page number, similar to this style:
_________________________________________________________________
 

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . .	1
Table of Citations.. . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . . . . . .	5
Argument
I. DEP Acted Arbitrarily in Issuing the Permit Because They Failed to Analyze the Compliance History of Envirotrol Industries, Inc. . . . . . . . . . . . . . . . . . . . . . . . . .. . .	9
II. DEP Acted Arbitrarily in Issuing the Permit Because They Failed to Provide a Mechanism for the Proper Disposal of the Wastes Produced by the Permittee.	12
III. Conclusion

________________________________________________________________

    Each of the argument headings - i.e. the Roman Numeral sections above, will be separately developed within the body of the Brief. These argument sections will typically combine the law of a given situation and the facts giving rise to the Appeal. Thus, you will be pairing caselaw, statutory, and regulatory law with the factual situation to show how you should be victorious in the litigation.

The Table of Citations will list all of the cases, statutes, and regulations used in the text of the Brief. A sample Table of Citations would look like this:
__________________________________________________________________

Discovery 101: Making Your Case - the Interrogatory and Deposition Game

    One of the first steps that will be taken during your appeal will be the EHB’s issuance of a pre-hearing order, which will announce the time period given for Discovery. In most cases, you’ll have up to 90 days to complete Discovery. Discovery is simply the process by which you will gather information from the opposing side that will eventually make your case.

    There are two ways to conduct Discovery - by either written interrogatory or by deposition. Written interrogatories are simply written questions that are sent to the opposing party. Depositions are live interviews with the opposing party, which are conducted in the presence of a stenographer, who will administer oaths to the participants as well as transcribing the testimony that is given.

    Written Interrogatories can be submitted at any time during the Discovery period. Depositions can also be taken at any time during the Discovery Period. Depositions are, of course, more expensive to take - simply because the side holding the deposition must pay for the cost of the stenographer, room rental, payment of copies of the transcript, etc. The cost of written interrogatories are minimal - and only include the time taken to draft them, along with costs of postage, certified mail receipt, etc.

• A sample written interrogatory is included as an Exhibit to this Manual.
• A sample notice of deposition is included as an Exhibit to this Manual.

Summary Judgment

    If there are no material facts in dispute at the close of Discovery, the case will be concluded by a Summary Judgment Motion and Brief. "No material facts in dispute" simply means that the case can be proven through the use of the information gained through Discovery and by prior caselaw decided by the Court. For example, if the governing regulation states that DEP shall not issue a permit to anyone that has a substantial noncompliance history with Pennsylvania law or regulations, and you can show that this specific corporation has a noncompliance problem that DEP either refused to review or reviewed and then decided to issue the permit anyway, then Summary Judgment would be appropriate. If the judge grants summary judgment for one side or the other, then the case is over and no trial will be held.

    A sample "Motion for Summary Judgment" and "Brief in Support of Summary Judgment" is included as an Exhibit to this Manual.

    The Summary Judgment Brief will lay out each argument that is being made and will support this argument with statutory language (drawn from DEP regulations and statutes) and caselaw (language from cases that is favorable to the Plaintiff’s position). The Reply to the Defendant’s Summary Judgment Brief will argue against the arguments made by the Defendant and produce supporting caselaw and statutes against their side.

    Note that all supporting materials and attachments that support a grant of Summary Judgment need to be attached to the Motion itself and not to the Brief. Otherwise, the EHB may simply refuse to review these additional attached materials and the Motion for Summary Judgment will fail.

Beyond Summary Judgment - Going to Trial

    If the issues being raised by you or your organization in your Appeal are not proper for resolution by Summary Judgment or if the Judge has decided not to grant either side’s Summary Judgment Motion, then you will continue to a hearing on your Appeal.

    Hearings are conducted in the Environmental Hearing Board’s (EHB) hearing rooms, which are located in the Rachel Carson building in downtown Harrisburg. Presentation of your case will occur in front of the Administrative Law Judge assigned to your case, a court stenographer, and opposing counsel.

    A pre-hearing memorandum will establish the issues that will be litigated, as well as the potential witnesses that will be called and the testimony that will be given by the witnesses. Date for submission of the pre-hearing memorandum will be given by the Judge in charge of your Appeal. Contents of the pre-hearing memorandum are mandated by §1021.82 of the rules of the Environmental Hearing Board (EHB).

    Prior to going to trial you should "script" out the hearing itself, including when and which documents will be presented for inclusion in the hearing, questions to ask opposing and friendly witnesses, the lineup of witnesses to be called for testimony, and problems that may emerge during the process. Scripting out the trial record will become an invaluable tool as you continue through the hearing process.

    Conduct of a hearing is governed by §1021.86 et seq. Note that under §1021.107 technical rules of evidence do not apply to a hearing held by the Board, and that all evidence will be admitted that is "relevant" and of "reasonable probative value." Thus, the EHB is not bound to follow the rules of evidence that dictate admissibility in state and federal courts, and instead, have discretion to determine whether documents and testimony may be presented and admitted.

    Hearings are usually conducted with an opening statement, presentation of testimony and documents by the Appellant, presentation of testimony and documents by the Appellee, and then concluding statements. Hearings will rarely last more than two complete hearing days.

    After the hearing, the parties will be required to submit post-hearing Briefs, which will list suggested findings of fact and conclusions of law that derive from those findings. This document will be the final document filed by the parties.