Subchapter E. CIVIL PENALTIES AND ENFORCEMENT

§ 271.401. Scope.

 This subchapter is applicable to the assessment of civil penalties and to certain other enforcement actions under the act for municipal waste management facilities.

   The provisions of this §  271.401 adopted April 8, 1988, effective April 9, 1988, 18 Pa.B. 1681.

CIVIL PENALTIES

§ 271.411. When a penalty will be assessed.

 (a)  The Department will assess a civil penalty for a violation which is included as a basis for a cessation order.

 (b)  The Department will assess a civil penalty for a violation that occurs after the release by the Department of a bond under Subchapter D (relating to financial assurances requirements).

 (c)  The Department will assess a civil penalty if a person or municipality operates a municipal waste disposal or processing facility in the following manner:

   (1)  Without a permit from the Department or outside the boundaries of a permit, including final elevations.

   (2)  Accepts waste for processing or disposal that was not approved by the Department in the permit.

   (3)  Causes or allows open burning at the facility.

   (4)  Causes or allows surface water or groundwater pollution.

 (d)  In addition to the circumstances in subsection (c), the Department will assess a civil penalty if a person or municipality operates a municipal waste landfill or construction/demolition waste landfill in the following manner:

   (1)  Fails to install or maintain soil erosion and sedimentation controls, under applicable regulations and the approved operation plan.

   (2)  Fails to apply, grade or revegetate final cover in a manner and within the time required by applicable regulations and the approved operation plan.

   (3)  Fails to install the liner system, or groundwater monitoring system, or fails to comply with the approved operation plan concerning sequence of operations, under applicable regulations and the permit.

   (4)  Fails to submit phased deposit of collateral payments for bonds within 60 days after the due date.

 (e)  In addition to the circumstances in subsection (c), the Department will assess a civil penalty for operations involving the land application of sewage sludge if:

   (1)  Sewage sludge is applied in excess of the application rate approved in the permit.

   (2)  Sewage sludge is applied in volume, composition or source that is not approved in the permit.

   (3)  Sewage sludge is applied without daily incorporation into soil when required by Chapter 275 (relating to land application of sewage sludge).

   (4)  The operator does not submit an annual report required by §  275.222 (relating to annual operation report).

 (f)  This section does not prevent the Department from assessing a civil penalty for a violation not in this section.

 (a)  The Department will use the system described in this section and §  271.413 (relating to assessment of penalties—minimum penalties) to determine the amount of the penalty. Unless otherwise indicated in this section, the penalty may be set at an amount up to the maximum amount specified in this section.

 (b)  Civil penalties shall be assessed as follows:

   (1)  Up to the statutory maximum shall be assessed based on the seriousness of the violation, including the following:

     (i)   Damage or injury to the land or waters of this Commonwealth or other natural resources or their uses.

     (ii)   Cost of restoration.

     (iii)   Hazards or potential hazards to the health or safety of the public.

     (iv)   Property damage.

     (v)   Interference with a person’s right to the use or enjoyment of property.

     (vi)   Other relevant factors.

   (2)  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, without limitation:

     (i)   Administrative costs.

     (ii)   Costs of inspection.

     (iii)   Costs of the collection, transportation and analysis of samples.

     (iv)   Costs of abatement, remedial and preventive measures taken to prevent or lessen the threat of damage or injury to property or waters of this Commonwealth or other natural resources or their uses or to a person.

   (3)  A penalty of up to the statutory maximum may be assessed by calculating the costs that the operator avoided by incurring the violation.

   (4)  A penalty of up to the statutory maximum may be assessed based on the willfulness of the violation.

   (5)  In determining a penalty for a violation, the Department will increase the civil penalty by 5% for each violation of the applicable laws for which the person or municipality has been found responsible in a prior adjudicated proceeding, agreement, consent order or decree which became final within the previous 5-year period. A 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 of the previous violation has not expired.

   (6)  A civil penalty of up to the maximum amount may be assessed based on other relevant factors.

 (c)  Each day of continuing violation is considered a separate violation for purposes of this subchapter. The cumulative effect of a continuing violation will be considered in assessing the penalty for each day of the violation.

 (d)  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. Separate violations occurring on the same day may each be assessed a penalty of up to the maximum. If violations may be attributed to two or more persons or municipalities, a penalty of up to the statutory maximum may be assessed against each person or municipality.

   The provisions of this §  271.412 adopted April 8, 1988, effective April 9, 1988, 18 Pa.B. 1681.

 (a)  This section sets forth minimum civil penalties for certain violations of the act and regulations thereunder. The Department will assess a civil penalty under §  271.412 (relating to assessment of penalties—general) only if a civil penalty calculated under §  271.412 is greater in amount than the civil penalty calculated under this section.

 (b)  If a person or municipality operates a permitted municipal waste landfill on an area for which the person or municipality was not permitted to operate the facility, or in excess of final permitted elevations, the Department will assess a minimum civil penalty of $5,000 per half acre, or portion thereof. Intermediate acreages will be assessed at the next highest half acre.

 (c)  If a person or municipality operates a construction/demolition waste landfill on an area for which the person or municipality was not permitted to operate the facility, or in excess of final permitted elevations, the Department will assess a minimum civil penalty of $500 per half acre, or a portion thereof. Intermediate acreages will be assessed at the next highest half acre.

 (d)  If a person or municipality applies sewage sludge to an area for which the person or municipality was not permitted to apply the sludge, the Department will assess a minimum civil penalty of $1,000 per acre or portion thereof.

 (e)  If a person or municipality applies sewage sludge under a permit, and the sewage sludge does not meet the physical, chemical or biological quality specified in the permit, the Department may assess a minimum civil penalty of $1,000 per occurrence.

 (f)  If a person or municipality transporting residential septage fails to submit the notice to the Department required by §  285.225 (relating to transportation of residential septage), the Department may assess a minimum civil penalty of $500 for the first offense and a minimum civil penalty of $1,000 for each subsequent offense.

 (g)  If a person or municipality fails to provide notification on a timely basis of an incident for which a reporting requirement exists in the act, regulations thereunder, the terms or conditions of a permit or order of the Department, the Department will assess a minimum civil penalty of $1,000.

 (h)  If a person or municipality refuses, hinders, obstructs, delays or threatens an agent or employe of the Department in the course of performance of a duty under the act, including, but not limited to, entry and inspection under any circumstances, the Department will assess a minimum civil penalty of $2,000.

 (i)  If a person or municipality is applying sewage sludge and has not complied with the training requirements in §  271.915(j) (relating to management practices), th Department may assess a minimum civil penalty of $1,000.

 (j)  If a violation is included as a basis for an administrative order requiring cessation of solid waste management operations, or for another abatement order, and if the violation has not been abated within the abatement period set in the order, a minimum civil penalty of at least $1,000 will be assessed for each day during which the failure continues. Nothing in this subsection limits the Department’s authority to assess an appropriate civil penalty for violations that formed the basis for issuing an order, and that occurred prior to the issuance of the order or prior to a date for compliance in the order.

   The provisions of this §  271.413 adopted April 8, 1988, effective April 9, 1988, 18 Pa.B. 1681; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 521; amended December 22, 2000, effective December 23, 2000, 30 Pa.B. 6685. Immediately preceding text appears at serial pages (234800) to (234801) and (226021).

 (a)  The Department will serve, by mail or personal service, a copy of the civil penalty assessment on the person or municipality responsible for a violation. Service shall be by registered or certified mail, or by personal service. If the service is tendered at the address of the person set forth in the application for a permit under the act or regulations thereunder, or at an address at which the person is in fact located, and the person refuses to accept delivery of or to collect the mail, the requirements of this subsection will be deemed to have been complied with upon this tender.

 (b)  The Department may upon its own motion prior to assessment, or will upon written request of the person to whom the assessment was issued, arrange for a conference to review the assessment or proposed assessment.

 (c)  The assessment conference will not be governed by requirements for formal adjudicatory hearings, and may be held at the convenience of the parties.

 (d)  The Department may terminate the conference if it determines that the issues cannot be resolved or that the person assessed is not diligently working toward resolution of the issues.

 (e)  The time for appeal from an assessment will not be stayed by the request for, or convening of, an assessment conference.

   The provisions of this §  271.414 adopted April 8, 1988, effective April 9, 1988, 18 Pa.B. 1681.

ENFORCEMENT

§ 271.421. Administrative inspections.

 (a)  The Department and its agents and employes will:

   (1)  Have access to, and require the production of, books and papers, documents and physical evidence pertinent to a matter under investigation.

   (2)  Require a person or municipality engaged in the storage, transportation, processing, treatment or disposal of municipal waste to establish and maintain records and make reports and furnish information as the Department may prescribe.

   (3)  Enter a building, property, premises or place where municipal waste is generated, stored, processed, treated, collected, transported or disposed for the purpose of making an investigation or inspection necessary to ascertain the compliance or noncompliance by the person or municipality with the act and regulations thereunder. In connection with an inspection or investigation, samples may be taken of solid, semisolid, liquid or contained gaseous material for analysis. If an analysis is made of the samples, a copy of the results of the analysis shall be furnished within 5 business days after receiving the analysis from the laboratory to the person having apparent authority over the building, property, premises or place.

 (b)  The Department, its employes and agents will conduct routine inspections as follows:

   (1)  For municipal waste landfills and construction/demolition waste landfills, at least 12 times per year.

   (2)  For resource recovery facilities, at least 12 times per year.

   (3)  For transfer facilities, composting facilities and other processing facilities, at least 4 times per year.

   (4)  For facilities for the utilization of sewage sludge for land reclamation, at least twice per year.

 (c)  The Department, its employes and agents intend to conduct inspections under the act of:

   (1)  Facilities for the agricultural utilization of sewage sludge operating under a permit issued under Chapter 275 (relating to land application of sewage sludge) or a beneficial use order issued prior to January 25, 1997, at least 2 times per year.

   (2)  Municipal waste processing facilities other than resource recovery facilities, which process or incinerate infectious or chemotherapeutic waste, at least 2 times per year.

   (3)  Municipal waste processing facilities other than resource recovery facilities, which do not process or incinerate infectious or chemotherapeutic waste, at least once per year.

   (4)  Hospitals where infectious or chemotherapeutic waste is generated, at least 2 times per year.

   (5)  Locations other than hospitals where infectious or chemotherapeutic waste is generated, at least once per year.

   (6)  Facilities subject to permit-by-rule under §  271.102 (Reserved) at least once per year.

   (7)  Facilities and beneficial use areas subject to permit-by-rule under §  271.103 (relating to permit-by-rule for municipal waste processing facilities other than for infectious or chemotherapeutic waste; qualifying facilities; general requirements), a general permit for beneficial use or processing, or both, under Subchapter I (relating to beneficial use), or a permit for the land application of sewage sludge under Subchapter J (relating to beneficial use of sewage sludge by land application), at least once per year.

 (d)  The Department, its employes and agents may conduct additional inspections, including follow-up inspections, of municipal waste processing, treatment, disposal, storage, collection and transportation facilities to observe a practice or condition related to public health, safety, welfare or the environment, compliance with the act, the environmental protection acts, this title, the terms or conditions of a permit or a requirement of an order.

 (e)  The Department, its employes and agents may also conduct inspections of municipal waste processing, treatment, disposal, storage, collection or transportation facilities, if a person or municipality presents information to the Department which gives the Department reason to believe that:

   (1)  A person or municipality may have engaged in unlawful conduct under the act.

   (2)  A person or municipality may have violated an environmental protection act.

   (3)  A condition exists which may pose a threat to public health, safety, welfare or the environment.

 (a)  The Department may hold a public hearing or informal conference prior to suspending or revoking a permit. The requirements for hearings or conferences are those for permit applications in §  271.143 (relating to public comments).

 (b)  The Department will publish in the Pennsylvania Bulletin notice of the revocation or suspension of a permit.

   The provisions of this §  271.422 adopted April 8, 1988, effective April 9, 1988, 18 Pa.B. 1681.

SEIZURE OF VEHICLES AND CONVEYANCES

§ 271.431. Forfeiture and seizure of property.

 (a)  Sections 271.432—271.434 and this section apply to actions of the Department under section 1715 of the Municipal Waste Planning, Recycling and Waste Reduction Act (53 P. S. §  4000.1715) regarding forfeiture of vehicles used for unlawful transportation or disposal of solid waste. These provisions may be used by other law enforcement officials at their election.

 (b)  A vehicle or conveyance used for the transportation or disposal of solid waste in the commission of an offense under section 610(1) of the act (35 P. S. §  6018.610(1)) shall be deemed contraband.

 (c)  Property subject to forfeiture may be seized by an agent or employe of the Department, upon issuance of process by a court of common pleas with jurisdiction over the property, or under a search warrant.

 (d)  Seized property shall be placed under seal and removed to an appropriate location pending adjudication of the forfeiture action by the court of common pleas in the judicial district where the property is located. The property seized will be deemed to be in the custody of the seizing official, is subject only to orders of the court of common pleas having jurisdiction over the property and is subject to replevin.

   The provisions of this §  271.431 adopted October 9, 1992, effective October 10, 1992, 22 Pa.B. 5105.

 (a)  The proceedings for the forfeiture of property shall be in rem, with the Department, the plaintiff and the property the defendant. A petition shall be filed in the court of common pleas of the judicial district where the property is located, verified by oath or affirmation, containing the following:

   (1)  A description of the property seized.

   (2)  A statement of the time and place where seized.

   (3)  The owner of the property, if known.

   (4)  The persons in possession of the property at the time of seizure, if known.

   (5)  An allegation that the property is subject to forfeiture under section 1715(a) of the Municipal Waste Planning, Recycling and Waste Reduction Act (53 P. S. §  4000.1715(a)).

   (6)  An averment of the material facts upon which the forfeiture action is based.

   (7)  A prayer for an order of forfeiture that the property be adjudged forfeited to the Department and ordered sold according to law, unless cause is shown to the contrary.

 (b)  A copy of the petition shall be served personally on the owner of the property or upon the person in possession of the property at the time of seizure.

   (1)  The petition shall have endorsed thereon a notice as follows:

   ‘‘To the Claimant of Within Described Property: You are required to file an answer to this petition, setting forth your title in and right to possession of said property, within 15 days from the service hereof; and you are also notified that if you fail to file said answer, a decree of forfeiture and condemnation will be entered against said property.’’

   (2)  The notice shall be signed by the petitioner or the petitioner’s attorney.

 (c)  If the owner of the property is unknown, or the owner is outside the jurisdiction of the court and there was no person in possession of the property when seized, or the person in possession cannot be found within the jurisdiction of the court, notice of the petition shall be given by advertisement in a newspaper of general circulation published in the county where the property was seized once a week for 2 consecutive weeks. The notice shall contain a statement that the property was seized, a description of the property, the time and place of seizure, and shall direct claimants to the property to file a claim with the court on or before a date given in the notice, which date shall be 10 days after the date of the final publication of the notice. If no claims are filed on or before the date given in the notice, the property shall be summarily forfeited to the Department.

 (d)  Upon the filing of a timely claim setting forth a right to possession, the case shall be deemed at issue and a time fixed for a hearing.

 (e)  At the hearing, if the Department presents evidence that the property in question was possessed or used to transport or dispose of solid waste in the commission of an offense under section 610(1) of the act (35 P. S. §  6018.610(1)), the burden shall shift to the claimant to show that:

   (1)  The claimant is the owner of the property.

   (2)  The claimant lawfully acquired the property.

   (3)  The property was not unlawfully possessed and was not used to transport or dispose of solid waste in the commission of an offense under section 610(1) of the act.

 (f)  The Department will be entitled to a forfeiture order if the Court finds that the property was unlawfully possessed or was used to transport or dispose of solid waste in the commission of an offense under section 610(1) of the act.

   The provisions of this §  271.432 adopted October 9, 1992, effective October 10, 1992, 22 Pa.B. 5105.

 Upon issuance of a forfeiture order by the court, the Department will have the property sold at public auction according to law, with the proceeds of the sale paid to the Solid Waste Abatement Fund. If the property is subject to valid secured interests of a financial institution which is regularly in the business of making loans for this kind of property, the court will determine the value of the secured interests as of the time of seizure, and order that the value will be paid to the secured lienholder at time of sale.

   The provisions of this §  271.433 adopted October 9, 1992, effective October 10, 1992, 22 Pa.B. 5105.

 The operator of a vehicle or conveyance forfeitured under § §  271.431—271.433 and this section is responsible for costs incurred in properly disposing of waste in the vehicle or conveyance, or which was illegally disposed.

   The provisions of this §  271.434 adopted October 9, 1992, effective October 10, 1992, 22 Pa.B. 5105.

   This section cited in 25 Pa. Code §  271.431 (relating to forfeiture and seizure of property).