Young v. Department of Environmental Resources

In Young v. Department of Environmental Resources, 144 Pa. Commw. 16, 600 A.2d 667 (Pa. Cmwlth. 1991), the Department of Environmental Resources (DER) issued a notice revoking Young's certification as a sewage enforcement officer. Young appealed, and, after hearing, the four-member State Board for Certification of Sewage Officers (Board) issued an adjudication sustaining DER's revocation of Young's certification. The adjudication was signed by two of the Board members, with the other two Board members dissenting. The applicable DER regulation, stated, in relevant part, "actions and adjudications of the Certification Board shall be by a vote of a majority of members present at a meeting called for consideration of the action or adjudication. Three members of the Certification Board constitute a quorum." Young, 600 A.2d at 668 (citing 25 Pa. Code 72.58). Another regulatory provision expressly placed the burden on DER to establish the violations giving rise to the decision to revoke an individual's certification. Id. at 668-69. Nevertheless, the Board attempted to revoke Young's certification without a majority vote. On further appeal, the Court reversed the Board's revocation of Young's certification, stating: "Here, in a de novo hearing before the Board, DER bears the burden of proof by a preponderance of the evidence that the sewage enforcement officer certification of Young should be revoked for alleged violations. Such a determination must be by a vote of a majority of Board members. Since there was no majority vote to take the requested action of revoking Young's certification, the Board's equally divided vote must be viewed as a denial of the action requested of the Board, and DER's revocation of Young's certification must be reversed." Id. at 669.