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decided: February 22, 1988.


Appeals from the Order of the Environmental Hearing Board, in the case of FR&S, Inc. v. Commonwealth of Pennsylvania, Department of Environmental Resources, EHB Docket No. 83-093-M.


William F. Fox, Jr., Fox, Differ, Callahan, Ulrich & O'Hara, for petitioner.

Winifred M. Prendergast, Assistant Counsel, for respondent.

Andrew H. Cline, Deputy General Counsel, with him, Timothy D. Searchinger and Henry G. Barr, Deputy General Counsels, for intervenor, Environmental Hearing Board.

President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Craig.

Author: Craig

[ 113 Pa. Commw. Page 578]

FR&S, Inc., a landfill owner and operator, has appealed a decision of the Environmental Hearing Board issued June 16, 1987, which affirmed an April 11, 1983 order of the Pennsylvania Department of Environmental Resources (DER) requiring the closure of the FR&S landfill site and denying FR&S' application for a permit under the Solid Waste Management Act.*fn1

The threshold question is whether the EHB's decision-making was devoid of due process allegedly by reason of (1) a commingling of prosecutorial and adjudicative roles in the person of the EHB's chairman, (2) bias evidenced by the issuance of the decision only after the departure from the board of the hearing member and one other member so that a majority of the board's membership had changed completely, and (3) the failure of one of the two members voting on the decision to read any of the evidence. This court has ordered these issues to be briefed and argued initially, for a separate decision before the court reaches review of the substantive merits of the EHB order.

Resolution of the due process issues also depends upon reaching specific answers to these questions of implementation:

[ 113 Pa. Commw. Page 5791]

. Where actions affecting the due process of an administrative agency's decision-making occur only after the agency's evidentiary hearings have ended, how and before what tribunal must a complainant establish the evidentiary record necessary for appellate review of the agency's action?

2. If a reviewing court concludes that the agency's decision is irreparably tainted by lack of due process, should the remedy consist of (1) judicial adoption of an alleged proposed hearing officer's decision, or (2) a decision by the court itself on the basis of the record made before the agency, or (3) a remand to the agency for a cured reconsideration of its decision on the basis of the existing record?

History of the Case

FR&S' Berks County landfill has been the subject of DER enforcement actions, litigation in this court and review by the EHB at least since 1977. In 1978, at No. 2252 C.D. 1978, this court, partly on the basis of a 1977 DER consent order and partly on the basis of new evidence, issued an order barring pollution discharge, governing leachate collection, prescribing a permit application process and mandating inspection surveillance.

After DER issued its April 11, 1983 order denying FR&S' permit application and closing the site, this court, after allowing an initial stay pending further EHB action, granted enforcement of an EHB order of August 1984 by court orders in August and October of 1984, which mandated lowered leachate levels, to be achieved in part by conditional acceptance of waste for absorption purposes. Finally this court, after a contempt hearing, ordered FR&S to close the landfill in

[ 113 Pa. Commw. Page 580]

February 1985 for noncompliance with the 1984 EHB and court orders.

As drawn solely from the EHB's record in No. 1667 C.D. 1987, the early chronology of this case has been as follows:

April 11, 1983: DER denied FR&S' permit application and ordered the site closed and corrected. FR&S appealed to the EHB, whose members were then Chairman Dennis Harnish, Member Anthony Mazullo and Member Edward Gerjuoy.

October 11, 1983 to August 15, 1984: As hearing member, Mr. Mazullo, acting alone, presided over evidentiary hearings in the FR&S case, involving 39 days of testimony and resulting in a record of approximately 6000 pages and 200 exhibits.

August 1984 to April 19, 1985: FR&S and DER engaged in the filing of briefs to the EHB, along with replies and supplements to the same, together with motions to strike and answers.

September 1985: Attorney Maxine Woelfling, formerly assistant attorney general assigned as counsel to DER and assistant general counsel assigned to DER, became a member and chairman of the board, filling a vacancy created by the departure of Mr. Harnish in May of 1983.

April 19, 1985 to January 31, 1986: Hearing Member Mazullo, according to the EHB decision, prepared a "draft proposed adjudication" and a "draft opinion" as to the FR&S case. (Supp. R.R. A-94, A-154, A-156, A-157.)

January 31, 1986: Member Mazullo resigned, leaving only Member Gerjuoy and Chairman Woelfling.

July, 1986: Mr. William Roth became a member of the EHB.

[ 113 Pa. Commw. Page 581]

The later history emerges also from the docket of No. 3044 C.D. 1986, without reference to the hearing held by this court:

September, 1986: FR&S filed a petition for review in the nature of a mandamus action at 3044 C.D. 1986, asking this court to direct the EHB to render a decision; more than a year and four months had passed since the completion of briefing.

January, 1987: Member Gerjuoy resigned from the board, leaving Chairman Woelfling and Member Roth.

March, 1987: This court dismissed the EHB's preliminary objections to FR&S' request that the EHB be required to render a decision.

April 13, 1987: The EHB further contested the suit to require issuance of a decision, by filing an answer.

May 26, 1987: FR&S filed with the EHB a motion for the recusal of Chairman Woelfling, alleging a commingling of roles and bias.

June 9, 1987: FR&S sought to amend its action in this court to obtain assistance in its recusal claim.

June 16, 1987: The EHB, without having granted any hearing on the recusal motion, issued its decision in the FR&S appeal, denying the recusal motion and, on the merits, affirming DER's permit denial and closure order.

The allegations of FR&S' recusal motion to the EHB sought the recusal of Chairman Woelfling because (1) she had been employed by DER in a supervisory capacity as Director of the Bureau of Regulatory Counsel of DER and therefore had knowledge and may have given advice, either directly or through ...

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