§ 86.194. 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 § 86.193(b) (relating to assessment of penalty). Unless otherwise indicated in this section, the penalty may be set at any amount from zero through the maximum amount specified in this section.
(b) Civil penalties will be assessed as follows:
(1) Seriousness. Up to $3,000 will be assessed based on the seriousness of the violation, including:
(i) Damage or injury to the lands or to the waters of the Commonwealth or their uses.
(ii) The cost of restoration.
(iii) A hazard to the health or safety of the public.
(iv) Property damage.
(v) The interference with a person’s right to the comfortable enjoyment of life or property.
(vi) An additional amount up to the statutory maximum may be assessed in extraordinary circumstances.
(2) Culpability. If the violation was caused, contributed to or allowed to continue due to negligence on the part of persons working on the exploration or surface mining site, a penalty of up to $1,200 will be assessed depending on the degree of negligence of the persons. If the violation was willful or the result of reckless conduct on the part of the person working on the exploration or surface mining site, a penalty of up to the statutory maximum but at least $260, will be assessed.
(3) Speed of compliance. A credit will be given of up to $1,000 based on the person’s attempt to achieve rapid compliance after the person knew or should have known of the violation. If the violation is abated within the time period in an abatement order, a credit will not be given under this paragraph unless the violation is abated in the shortest possible time, in which case a credit of up to $1,000 will be given. The credit will be available to offset only civil penalties assessed for the specific violation at issue.
(4) Cost to the Commonwealth. A penalty of up to the statutory maximum may be assessed based on the costs expended by the Commonwealth as a result of the violation. The costs may include:
(i) Administrative costs.
(ii) Costs of inspection.
(iii) Costs of the collection, transportation and analysis of samples.
(iv) Costs of preventive or restorative measures taken to prevent or lessen the threat of damage to a property or environmental value, or to prevent or reduce injury to a person.
(5) Savings to the violator. If the person who commits the violation gains economic benefit as a result of the violation, a penalty may be assessed in an amount equal to the savings up to the statutory maximum for each violation.
(6) History of previous violations. In determining a penalty for a violation, the Department will consider previous violations of the applicable laws for which the same person or municipality has been found to have been responsible in a prior adjudicated proceeding, agreement, consent order or decree which became final within the previous 1-year period on the permit where the violation has occurred. The penalty otherwise assessable for each violation shall be increased by a factor of 5% for each previous violation. The total increase in assessment based on history of previous violation will not exceed $1,000.
(i) A previous violation will not be counted if it is the subject of pending administrative or judicial review, or if the time to request the review or to appeal the administrative or judicial decision determining the previous violation has not expired.
(ii) Each previous violation will be counted without regard to whether it led to a civil penalty assessment.
(c) Whenever a violation is included as a basis for an administrative order requiring the cessation of a mining operation, or for another abatement order, and if the violation has not been abated within the abatement period set in the order, a civil penalty of at least $750 per violation per day shall be assessed for each day during which the failure to abate continues. If the person to whom the order was issued files an appeal with respect to the violation, the abatement period will be extended if suspension of the abatement requirement is ordered in a supersedeas order issued by the EHB under § § 1021.61—1021.64 (relating to supersedeas). 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) Each day of a continuing violation will be considered a separate violation for purposes of this chapter. The cumulative effect of a continuing violation will be considered in assessing the penalty for each day of the violation.
(e) If the system described in this section would yield a penalty in excess of the statutory maximum for a violation, the maximum penalty will be imposed for that violation. It is the intent of this chapter that separate violations occurring on the same day may each be assessed a penalty of up to the statutory maximum. When violations may be attributed to two or more persons, a penalty of up to the statutory maximum may be assessed against each person.
(f) Revision of civil penalty.
(1) The Department, upon its own initiative or upon written request received within 15 days of issuance of an order or cessation order, may revise a civil penalty calculated in accordance with the dollar limits in subsection (b), if the Department determines that, taking into account exceptional factors present in the particular case, the civil penalty is demonstrably unjust. The Department will not reduce the civil penalty on the basis of an argument that a reduction in civil penalty could be used to abate violations of the acts, this chapter, Chapter 87, 88, 89 or 90, or a condition of a permit or exploration approval. The basis for every revision of a civil penalty shall be fully explained and documented in the records of the case.
(2) If the Department revises the civil penalty, the Department will use the general criteria in subsection (b) to determine the appropriate civil penalty. When the Department has elected to revise a civil penalty, the Department will give a written explanation of the basis for the revised civil penalty to the person to whom the order was issued.
Source The provisions of this § 86.194 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; corrected September 22, 2000, effective November 29, 1997, 30 Pa.B. 4898. Immediately preceding text appears at serial pages (238951) to (238953).
Notes of Decisions Mootness
Inasmuch as an abatement order could be used by DER to seek escalation of penalties for a future violation under subsection (b)(6), an appeal from an abatement order should not be dismissed as moot, even though the abatement order has already been complied with in full, where petitioner has shown that the penalty escalation provision constitutes a stake in the outcome which overcomes the position of the appeal being moot. Al Hamilton Contracting Co. v. Department of Environmental Resources, 494 A.2d 516 (Pa. Cmwlth. 1985).
Cross References This section cited in 25 Pa. Code § 86.193 (relating to assessment of penalty).
No part of the information on this site may be reproduced for profit or sold for profit.
This material has been drawn directly from the official Pennsylvania Code full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
