Subchapter E. CIVIL PENALTIES FOR NONCOAL
MINING ACTIVITIES
GENERAL PROVISIONS Sec.
77.291. Applicability.
77.292. Assessments.
77.293. Penalties.
77.294. System for assessment of penalties.
PROCEDURES
77.301. Procedures for assessment of civil penalties.
77.302. Appeal procedures.
77.303. Final assessment and payment of penalty.
Cross References This subchapter cited in 25 Pa. Code § 77.109 (relating to noncoal exploration activities).
GENERAL PROVISIONS
§ 77.291. Applicability.
This subchapter is applicable to assessments of civil penalties under:
(1) Section 21 of the act (52 P.S. § 3321).
(2) Section 605 of The Clean Streams Law (35 P.S. § 691.605).
Source The provisions of this § 77.291 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643; amended August 18, 2023, effective August 19, 2023, 53 Pa.B. 5159. Immediately preceding text appears at serial page (378132).
Cross References This section cited in 25 Pa. Code § 77.292 (relating to assessments).
§ 77.292. Assessments.
The Department will review each violation which is or may be subject to imposition of a civil penalty under the applicable provisions of law in § 77.291 (relating to applicability). The purpose of this review is to determine whether a civil penalty will be assessed and the amount of the penalty, and whether a separate penalty will be assessed for each day of a continuing violation.
Source The provisions of this § 77.292 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643.
§ 77.293. Penalties.
(a) Cessation order.
(1) The Department will assess a civil penalty of up to $5,000 per day for each violation of the act or any rule, regulation, order of the Department or a condition of any permit issued under the act which leads to a cessation order.
(2) The Department will assess a civil penalty of up to $10,000 per day for each violation of The Clean Streams Law which leads to a cessation order.
(3) If a violation involves a failure to correct within the period prescribed for its correction, a violation for which a cessation order or other abatement order has been issued, a civil penalty of at least $750 will be assessed for each day the violation continues beyond the period prescribed for its correction.
(b) Civil penalty.
(1) The Department may assess a civil penalty of up to $1,000 per day for each violation of the act or any rule, regulation, order of the Department or a condition of any permit issued under the act, unless the operator demonstrates with clear and convincing evidence that the violations:
(i) Result in no environmental damage.
(ii) Result in no injury to persons or property.
(iii) Are corrected within the required time prescribed for its abatement.
(2) If the violation involves a failure to correct within the period prescribed for its correction, a violation for which a cessation order or other abatement order was not issued, a civil penalty of at least $250 will be assessed for each day the violation continues beyond the period prescribed for its correction.
(3) The Department may assess a civil penalty of up to $10,000 per day for each violation of The Clean Streams Law.
Source The provisions of this § 77.293 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643; amended August 18, 2023, effective August 19, 2023, 53 Pa.B. 5159. Immediately preceding text appears at serial page (198719).
Cross References This section cited in 25 Pa. Code § 77.294 (relating to system for assessment of penalties).
§ 77.294. System for assessment of penalties.
(a) The Department and, in event of appeal, the EHB, will use the system described in this section to determine the amount of the penalty, and, whether a mandatory penalty will be assessed as provided in § 77.293(b) (relating to penalties). Unless otherwise indicated, the penalty may be set at an amount from zero up to the maximum amount specified in this subchapter.
(b) Civil penalties will be assessed based upon the following criteria:
(1) The seriousness of the violation as to environmental impact, public health and safety factors and damage to property.
(2) The culpability of the operator in causing or allowing the violation to occur and the operator’s history of violations during the prior 2 years.
(3) The speed of compliance exhibited by the operator once notified that a violation exists.
(4) The costs to the Commonwealth to investigate and correct the violation.
(5) The savings to the operator if the violation resulted in economic benefit.
(c) Whenever a violation is included as a basis for an administrative order requiring the cessation of a mining operation, and if the violation has not been abated within the abatement period set in the order, a civil penalty of at least $750 will be assessed for each day during which the failure continues. If the person to whom the order was issued files an appeal with respect to the violation, the abatement period shall be extended, if suspension of the abatement requirement is ordered in a supersedeas order issued by the EHB under § § 1021.76—1021.78 (relating to general; contents of petition for supersedeas; and circumstances affecting grant or denial). In this case, the period permitted for abatement will not end until the date on which the EHB issues a final adjudication with respect to the violation in question or otherwise revokes the supersedeas order.
(d) If the system described in this section yields a penalty in excess of the statutory maximum for a violation, the maximum penalty shall be imposed for that violation. Separate violations occurring on the same day may each be assessed a penalty of up to the maximum. If violations are attributed to two or more persons, a penalty of up to the statutory maximum may be assessed against each person.
Source The provisions of this § 77.294 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643.
PROCEDURES
§ 77.301. Procedures for assessment of civil penalties.
(a) Initial review. When the Department determines that a civil penalty will be assessed, it will make an initial review of the violation and will serve a copy of the results of the initial review, including the civil penalty computations, on the party responsible for the violation. The service will be by certified mail within 45 days of the Department’s issuance of the notice of violation or order.
(b) Assessment conference. Upon written request of the person to whom the results of the initial review were sent, the Department will arrange an assessment conference to discuss the results of the initial review, if the request is received within 15 days of the date the results of the initial review were received. The Department may upon its own motion arrange for an assessment conference to discuss the results of the initial review.
(c) Department representative.
(1) The Department will assign a representative to hold the assessment conference. The assessment conference will not be governed by requirements for formal adjudicatory hearings, and it may be held at the convenience of the parties.
(2) The Department will consider relevant information on the violation. After the conference is held, the Department may do one of the following:
(i) Settle the issues, in which case a settlement agreement will be prepared and signed by appropriate representatives of the Department and the person assessed.
(ii) Affirm, raise, lower or vacate the penalty.
(3) The Department representative may terminate the assessment conference when the representative determines that the issues cannot be resolved or that the person assessed is not diligently working toward resolution of the issues.
(d) Service. The Department will serve a copy of the civil penalty assessment on the person responsible for a violation as follows:
(1) Upon the failure of the assessed party to timely request an assessment conference on the results of the initial review.
(2) Upon the completion of an assessment conference, or upon review of timely submitted information for review by the Department, if the Department does not decide to vacate the penalty. The service will be by certified mail, or by personal service. If the mail is tendered at the address of the assessed person set forth on the sign required under § 77.502 (relating to signs and markers), or at an address at which that person is in fact located, and the person refuses to accept delivery of or to collect the mail, the requirements of this paragraph will be deemed to have been complied with upon that tender.
Source The provisions of this § 77.301 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643; amended August 18, 2023, effective August 19, 2023, 53 Pa.B. 5159. Immediately preceding text appears at serial pages (198720) to (198721).
§ 77.302. Appeal procedures.
(a) The person charged with a violation may contest the penalty assessment by filing an appeal with the EHB including with the appeal an amount equal to the assessed penalty—to be held in escrow as provided in subsection (b) within 30 days from receipt of the assessment. Payment under this section shall be cash in the form of certified check, treasurer’s check, bank check or cashier’s check. In the alternative, a person may file with the appeal an appeal bond in the amount of the assessed civil penalty, the bond shall be executed by a surety who is licensed to do business in this Commonwealth and is otherwise satisfactory to the Department.
(b) The EHB will transfer funds submitted under subsection (a) to the Office of the Comptroller of the Department which will hold them in escrow pending completion of the administrative and judicial review process, at which time it will disburse the funds under § 77.303 (relating to final assessment and payment of penalty).
(c) An appeal from a penalty assessment will not be deemed to be perfected unless a properly executed appeal bond or cash equal to the full amount of the assessed penalty is received by the EHB within 30 days of appellant’s receipt of the assessment or reassessment.
(d) A person may challenge either the fact of the violation or the amount of the penalty once an appeal of that issue has been perfected. In either challenge, the appellant will be bound as actions of the Department which have become final under section 4 of the Environmental Hearing Board Act (35 P.S. § 7514). A final action includes a compliance order which has become final, even though the order addresses the same violation for which a civil penalty is assessed.
Source The provisions of this § 77.302 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643.
Cross References This section cited in 25 Pa. Code § 77.303 (relating to final assessment and payment of penalty).
§ 77.303. Final assessment and payment of penalty.
(a) If the person to whom an assessment is issued fails to file an appeal as provided in § 77.302 (relating to appeal procedures), the assessment shall become final and the penalty assessed shall become due upon expiration of the time allowed to file the appeal.
(b) If a party requests judicial review of an adjudication of the EHB, the initial penalty assessed shall continue to be held in escrow until completion of the review. Otherwise, subject to subsection (c), the escrowed funds shall be transferred to the Department in payment of the penalty, and the escrow shall end.
(c) If the final decision in the administrative and judicial review process results in an order reducing or eliminating the proposed penalty assessed under this chapter, the Department will within 30 days of receipt of the order refund to the person assessed all or part of the escrowed amount, with interest accumulated by the escrow deposit.
Source The provisions of this § 77.303 adopted March 16, 1990, effective March 17, 1990, 20 Pa.B. 1643.
Cross References This section cited in 25 Pa. Code § 77.302 (relating to appeal procedures).
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