Pennsylvania Act 2000-138 — ENVIRONMENTAL RESOURCES (27 PA.C.S.) - AMEND

Act text

ENVIRONMENTAL RESOURCES (27 PA.C.S.) - AMEND
                 Act of Dec. 20, 2000, P.L. 980, No. 138              Cl. 27
                             Session of 2000
                               No. 2000-138

     HB 393

                                  AN ACT

     Amending Title 27 (Environmental Resources) of the Pennsylvania
        Consolidated Statutes, providing for participation in
        environmental law or regulation and for costs in mining
        proceedings.
        The General Assembly finds and declares as follows:
            (1)  It is contrary to the public interest to allow
        lawsuits, known as Strategic Lawsuits Against Public
        Participation (SLAPP), to be brought primarily to chill the
        valid exercise by citizens of their constitutional right to
        freedom of speech and to petition the government for the
        redress of grievances.
            (2)  It is in the public interest to empower citizens to
        bring a swift end to retaliatory lawsuits seeking to
        undermine their participation in the establishment of State
        and local environmental policy and in the implementation and
        enforcement of environmental law and regulations.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Part VI of Title 27 of the Pennsylvania
     Consolidated Statutes is amended by adding a subpart and a
     chapter to read:
                                SUBPART A
                            GENERAL PROVISIONS
     Chapter
       77.  Costs and Fees
                                CHAPTER 77
                              COSTS AND FEES
     Sec.
     7707.  Participation in environmental law or regulation.
     7708.  Costs for mining proceedings.
      § 7707.  Participation in environmental law or regulation.
        A person that successfully defends against an action under
     Chapter 83 (relating to participation in environmental law or
     regulation) shall be awarded reasonable attorney fees and the
     costs of litigation. If the person prevails in part, the court
     may make a full award or a proportionate award.
      § 7708.  Costs for mining proceedings.
        (a)  Purpose.--This section establishes costs and fees
     available in proceedings involving coal mining activities. The
     purpose of this section is to provide costs and fees to the same
     extent of section 525(e) of the Surface Mining Control and
     Reclamation Act of 1977 (Public Law 95-87, 30 U.S.C. § 1201 et
     seq.) and the regulations promulgated pursuant thereto. It is
     hereby determined that it is in the public interest for the
     Commonwealth to maintain primary jurisdiction over the
     enforcement and administration of the Surface Mining Control and
     Reclamation Act of 1977 and that the purpose of this section is
     to maintain primary jurisdiction over coal mining in this
     Commonwealth but in no event to authorize standards which are
     more stringent than Federal standards for the award of costs and
     fees.
        (b)  General rule.--Any party may file a petition for award
     of costs and fees reasonably incurred as a result of that
     party's participation in any proceeding involving coal mining
     activities which results in a final adjudication being issued by
     the Environmental Hearing Board or a final order being issued by
     an appellate court.
        (c)  Recipients of awards.--Appropriate costs and fees
     incurred for a proceeding concerning coal mining activities may
     be awarded:
            (1)  To any party from the permittee if:
                (i)  The party initiates or participates in any
            proceeding reviewing enforcement actions upon a finding
            that a violation of a Commonwealth coal mining act,
            regulation or permit has occurred or that an imminent
            hazard existed.
                (ii)  The Environmental Hearing Board determines that
            the party made a substantial contribution to the full and
            fair determination of the issues.
        except that the contribution of a party who did not initiate
        a proceeding shall be separate and distinct from the
        contribution made by a party initiating the proceeding.
            (2)  To any party, other than a permittee or his
        representative, from the department if that party:
                (i)  Initiates or participates in any proceeding
            concerning coal mining activities.
                (ii)  Prevails in whole or in part, achieving at
            least some degree of success on the merits.
        upon a finding that the party made a substantial contribution
        to a full and fair determination of the issues.
            (3)  To a permittee from the department when the
        permittee demonstrates that the department in a matter
        concerning coal mining activities issued an order of
        cessation, a compliance order or an order to show cause why a
        permit should not be suspended or revoked, in bad faith and
        for the purpose of harassing or embarrassing the permittee.
            (4)  To a permittee from any party where the permittee
        demonstrates that the party, in bad faith and for the purpose
        of harassing or embarrassing the permittee:
                (i)  initiated a proceeding under one or more of the
            coal mining acts or the regulations promulgated pursuant
            to any of those acts concerning coal mining activities;
            or
                (ii)  participated in such a proceeding in bad faith
            for the purpose of harassing or embarrassing the
            permittee.
        (d)  Time for filing.--The petition for an award of costs and
     fees shall be filed with the Environmental Hearing Board within
     30 days of the date an adjudication of the Environmental Hearing
     Board becomes final.
        (e)  Contents of petition.--A petition filed under this
     section shall include the name of the party from whom costs and
     fees are sought, and the following shall be submitted in support
     of the petition:
            (1)  An affidavit setting forth in detail all reasonable
        costs and fees reasonably incurred for or in connection with
        the party's participation in the proceeding.
            (2)  Receipts or other evidence of such costs and fees.
            (3)  Where attorney fees are claimed, evidence concerning
        the hours expended on the case, the customary commercial rate
        of payment for such services in the area and the experience,
        reputation and ability of the individual or individuals
        performing the services.
        (f)  Answer.--Any party shall have 30 days from service of
     the petition within which to file an answer to such petition.
        (g)  Exclusive remedy.--Except for section 601 of the act of
     June 22, 1937 (P.L.1987, No.394), known as The Clean Streams
     Law, section 18.3 of the act of May 31, 1945 (P.L.1198, No.418),
     known as the Surface Mining Conservation and Reclamation Act,
     section 13 of the act of April 27, 1966 (1st Sp.Sess., P.L.31,
     No.1), known as The Bituminous Mine Subsidence and Land
     Conservation Act, and section 13 of the act of September 24,
     1968 (P.L.1040, No.318), known as the Coal Refuse Disposal
     Control Act, this section shall be the exclusive remedy for the
     awarding of costs and fees in proceedings involving coal mining
     activities.
        (h)  Definitions.--The following words and phrases when used
     in this section shall have the meanings given to them in this
     subsection unless the context clearly indicates otherwise:
        "Coal mining activities."  The extraction of coal from the
     earth, waste or stockpiles, pits or banks by removing the strata
     or material which overlies or is above or between them or
     otherwise exposing and retrieving them from the surface,
     including, but not limited to, strip mining, auger mining,
     dredging, quarrying and leaching and all surface activity
     connected with surface or underground coal mining, including,
     but not limited to, exploration, site preparation, coal
     processing or cleaning, coal refuse disposal, entry, tunnel,
     drift, slope, shaft and borehole drilling and construction, road
     construction, use, maintenance and reclamation, water supply
     restoration or replacement, repair or compensation for damages
     to structures caused by underground coal mining and all
     activities related thereto.
        "Coal mining acts."  The provisions of the act of June 22,
     1937 (P.L.1987, No.394), known as The Clean Streams Law, the act
     of May 31, 1945 (P.L.1198, No.418), known as the Surface Mining
     Conservation and Reclamation Act, the act of April 27, 1966 (1st
     Sp.Sess., P.L.31, No.1), known as The Bituminous Mine Subsidence
     and Land Conservation Act, and the act of September 24, 1968
     (P.L.1040, No.318), known as the Coal Refuse Disposal Control
     Act, which govern coal mining or activities related to coal
     mining.
        "Costs and fees."  All reasonable costs and expenses,
     including attorney fees and expert witness fees, reasonably
     incurred as a result of participation in a proceeding involving
     coal mining activities.
        "Department."  The Department of Environmental Protection of
     the Commonwealth.
        "Proceeding."  Appeals of final Department of Environmental
     Protection actions before the Environmental Hearing Board and
     judicial review of Environmental Hearing Board adjudications.
                                CHAPTER 83
             PARTICIPATION IN ENVIRONMENTAL LAW OR REGULATION
     Sec.
     8301.  Definitions.
     8302.  Immunity.
     8303.  Right to a hearing.
     8304.  Intervention.
     8305.  Construction.
      § 8301.  Definitions.
        The following words and phrases when used in this chapter
     shall have the meanings given to them in this section unless the
     context clearly indicates otherwise:
        "Communication to the government."  A written or oral
     statement or writing made:
            (1)  before a legislative, executive or judicial
        proceeding or any other official proceeding authorized by
        law;
            (2)  in connection with an issue under consideration or
        review by a legislative, executive or judicial body or any
        other official proceeding authorized by law; or
            (3)  to a government agency in connection with the
        implementation and enforcement of environmental law and
        regulations.
        "Enforcement of environmental law and regulation."  Activity
     relating to the identification and elimination of violations of
     environmental laws and regulations, including investigations of
     alleged violations, inspections of activities subject to
     regulation under environmental law and regulations and responses
     taken to produce correction of the violations.
        "Government agency."  The Federal Government, the
     Commonwealth and any of the Commonwealth's departments,
     commissions, boards, agencies, authorities, political
     subdivisions or their departments, commissions, boards, agencies
     or authorities.
        "Implementation of environmental law and regulation."
     Activity relating to the development and administration of
     environmental programs developed under environmental law and
     regulations.
      § 8302.  Immunity.
        (a)  General rule.--Except as provided in subsection (b), a
     person that, pursuant to Federal or State law, files an action
     in the courts of this Commonwealth to enforce an environmental
     law or regulation or that makes an oral or written communication
     to a government agency relating to enforcement or implementation
     of an environmental law or regulation shall be immune from civil
     liability in any resulting legal proceeding for damages where
     the action or communication is aimed at procuring favorable
     governmental action.
        (b)  Exceptions.--A person shall not be immune under this
        section if the allegation in the action or any communication
        to the government is not relevant or material to the
        enforcement or implementation of an environmental law or
        regulation and:
            (1)  the allegation in the action or communication is
        knowingly false, deliberately misleading or made with
        malicious and reckless disregard for the truth or falsity;
            (2)  the allegation in the action or communication is
        made for the sole purpose of interfering with existing or
        proposed business relationships; or
            (3)  the oral or written communication to a government
        agency relating to enforcement or implementation of an
        environmental law or regulation is later determined to be a
        wrongful use of process or an abuse of process.
      § 8303.  Right to a hearing.
        A person who wishes to raise the defense of immunity from
     civil liability under this chapter may file a motion with the
     court requesting the court to conduct a hearing to determine the
     preliminary issue of immunity. If a motion is filed, the court
     shall then conduct a hearing and if the motion is denied, the
     moving party shall have an interlocutory appeal of right to the
     Commonwealth Court, during which time all discovery shall be
     stayed.
      § 8304.  Intervention.
        A government agency has the right to petition to intervene or
     otherwise participate as an amicus curiae in the action
     involving public petition and participation.
      § 8305.  Construction.
        Nothing in this chapter shall be construed to limit any
     constitutional, statutory or common law protections of
     defendants to actions involving public petition and
     participation.
        Section 2.  (a)  The following acts or parts of acts are
     repealed:
        The fifth sentence of section 4(b) and section 4.2 (f)(5) of
     the act of May 31, 1945 (P.L.1198, No.418), known as the Surface
     Mining Conservation and Reclamation Act.
        The last sentence of section 5(g) of the act of April 27,
     1966 (1st Sp.Sess., P.L.31, No.1), known as The Bituminous Mine
     Subsidence and Land Conservation Act.
        The last sentence of section 5(i) of the act of September 24,
     1968 (P.L.1040, No.318), known as the Coal Refuse Disposal
     Control Act.
        (b)  All other acts and parts of acts are repealed insofar as
     they are inconsistent with this act.
        Section 3.  The addition of 27 Pa.C.S. § 7708 shall apply to
     all proceedings and petitions for costs and fees filed after the
     effective date of this act.
        Section 4.  This act shall take effect as follows:
            (1)  The following provisions shall take effect
        immediately:
                (i)  The addition of 27 Pa.C.S. § 7708.
                (ii)  This section.
            (2)  The remainder of this act shall take effect in 60
        days.

     APPROVED--The 20th day of December, A. D. 2000.

     THOMAS J. RIDGE