PROCEDURES
§ 86.201. Procedures for assessment of civil penalties.
(a) Within 15 days of service of a notice of violation or order, the person to whom it was issued may submit written information about the violation to the Department and to the inspector who issued the order. The Department will consider any information so submitted in determining the facts surrounding the violation and amount of the penalty.
(b) The Department will serve a copy of the civil penalty assessment on the person responsible for a violation. This assessment will be served within the time set forth in the applicable statute of limitations. Service will be by registered or certified mail, or by personal service. If the mail is tendered at the address of that person in the sign required under Chapter 87, 88, 89 or 90, or at an address at which that person is in fact located, and the person refuses to accept delivery ofor to collect mail, the requirements of this subsection shall be deemed to have been complied with upon the tender.
(c) The Department may, upon its own motion, or will, upon written request of the person to whom the assessment was issued, arrange for a conference to review the assessment.
(d) Requirements for assessment conferences are as follows:
(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 may be held at any time at the convenience of the parties.
(2) The Department will post notice of the time and place of the conference at the regional or district office closest to the mine at least 5 days before the conference. Any person shall have a right to attend and participate in the conference.
(3) The Department will consider all 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 shall be prepared and signed by appropriate representatives of the Department and the person assessed.
(ii) Affirm, raise, lower or vacate the penalty.
(e) The Department representative may terminate the 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.
(f) At formal review proceedings under § 86.202 (relating to final action) no evidence as to statements made or evidence produced by one party at a conference shall be introduced as evidence by another party or to impeach a witness.
(g) The time for appeal from an assessment will not be stayed by the request for or convening of an assessment conference.
Source The provisions of this § 86.201 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075; amended November 28, 1997, effective November 29, 1997, 27 Pa.B. 6186. Immediately preceding text appears at serial pages (237138) to (237139).
Notes of Decisions This section which requires prepayment of assessments prior to an appeal are not violative of due process. Twelve Vein Coal Co. v. Environmental Hearing Board, 561 A.2d 1317 (Pa. Cmwlth. 1989); appeal denied 578 A.2d 416 (Pa. 1990).
The purpose of subsection (b) that DER may, upon its own motion, or upon written request of the person to whom the assessment was issued, arrange for a conference to review the assessment, is to prevent an arbitrary or capricious action by DER. Boyle Land and Fuel Co. v. Environmental Hearing Board, 475 A.2d 928 (Pa. Cmwlth. 1984).
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