§ 86.202. Final action.
(a) The person charged with the 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 or reassessment. 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 who is otherwise satisfactory to the Department.
(b) The EHB will transfer the 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 them as provided in § 86.203 (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 the 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 to 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 § 86.202 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 (237139) to (237140).
Notes of Decisions Amendments
The Secretary of the Interior did not act arbitrarily and capriciously in approving state amendments to the Surface Mining Control and Reclamation Act, 30 U.S.C.A. § 1201 et seq., that eliminated the ‘‘willfully and knowingly’’ scienter requirement for imposition of civil penalties on corporate officers and that changed the appeal procedures by requiring alleged violators to perfect an appeal from a compliance order at the risk of having their challenge to the fact of violation deemed waived. Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231 (3d Cir. 1995).
A compliance order and a fine, which is a civil penalty assessed at a later time based on the same action, constituted a single ‘‘order’’ against a coal mining operator charged with a violation of the air blast calibration requirements. Kent Coal Mining Co. v. Department of Environmental Resources, 550 A.2d 279, 281 (Pa. Commw. 1988).
Cross References This section cited in 25 Pa. Code § 86.203 (relating to final assessment and payment of penalty).
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