Subchapter F. CIVIL PENALTIES AND ENFORCEMENT

§ 287.401. Scope.

 This subchapter applies to the assessment of civil penalties and to other enforcement actions under the act for residual waste management.

CIVIL PENALTIES

§ 287.411. When a penalty will be assessed.

 (a)  The Department will assess a civil penalty for each 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 E (relating to bonding and insurance requirements).

 (c)  The Department will assess a civil penalty when a person or municipality operates a residual 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, except for facilities operating without a permit on July 4, 1992, that are in compliance with § §  287.111 and 287.113 (relating to notice by impoundments and unpermitted processing or disposal facilities; and permitting procedure for unpermitted processing or disposal facilities). For these facilities, the Department may assess a civil penalty.

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

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

   (4)  Causes, contributes to or allows water pollution.

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

   (1)  Fails to install or maintain soil erosion and sedimentation controls, in accordance with 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, in accordance with 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 set forth in subsection (c), the Department will assess a civil penalty for operations involving the land application of residual waste if:

   (1)  Residual waste is applied in excess of the application rate approved in the permit.

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

   (3)  Residual waste is applied without daily incorporation into soil when required by Chapter 291 (relating to land application of residual waste).

   (4)  The operator does not submit an annual report as required by §  291.222 (relating to annual operation report).

 (a)  The Department will use the system described in this section and §  287.413 (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 up to the maximum amount specified in this section.

 (b)  Civil penalties will be assessed as follows:

   (1)  Up to the statutory maximum may be assessed based on one or more of the following factors:

     (i)   The willfulness of the violation.

     (ii)   The costs that the operator avoided by incurring the violation.

     (iii)   The damage or injury to the land or waters of this Commonwealth or other natural resources or their uses.

     (iv)   The cost of restoration or 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 prevent or reduce injury to a person.

     (v)   The hazards or potential hazards to the health or safety of the public.

     (vi)   The property damage.

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

     (viii)   The costs expended by the Commonwealth as a result of the violation, including administrative costs, costs of inspection, and costs of collection, transportation and analysis of samples.

     (ix)   Other relevant factors.

   (2)  Consideration of the factors set forth in paragraph (1) are solely to determine the amount of a civil penalty. Levying a civil penalty does not preclude the Department from recovering actual costs or damages through available legal or equitable means.

   (3)  In determining a penalty for a violation, the Department will increase the civil penalty by at least 5% for each violation of the applicable laws for which the same 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 the previous violation has not expired.

 (c)  Each day of continuing violation shall be considered a separate violation for purposes of this subchapter. The cumulative effect of a continuing violation shall 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 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 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.

   Automatic Penalties

   The Department of Environmental Protection abused its discretion by assessing civil penalties for violations of a compliance order based solely on an ‘‘automatic civil penalties’’ provision in the order, rather than considering the factors required under the Solid Waste Management Act, act of July 7, 1980 (P. L. 380), as amended, 35 P. S. § §  6018.101—6018.1003 (Solid Waste Management Act), and its own regulations. Stull v. Department of Environmental Protection, 1999 Pa. Envirn. LEXIS 65, (September 2, 1999).

 (a)  This section sets forth minimum civil penalties for certain violations of the act and the regulations promulgated thereunder. The Department will assess a civil penalty under §  287.412 (relating to assessment of penalties; general) only if a civil penalty calculated under §  287.412 is greater in amount than the civil penalty calculated under this section.

 (b)  If a person or municipality operates a residual waste landfill or residual waste disposal impoundment 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 1/2 acre, or portion thereof. Intermediate acreages will be assessed at the next highest 1/2 acre. This subsection does not require the imposition of a civil penalty on persons or municipalities operating without a permit on July 4, 1992, if the persons or municipalities are in compliance with § §  287.111 and 287.113 (relating to notice by impoundments and unpermitted processing or disposal facilities; and permitting procedure for unpermitted processing or disposal facilities).

 (c)  If a person or municipality applies residual waste to an area for which the person or municipality was not permitted to apply the residual waste, the Department will assess a minimum civil penalty of $500 per acre, or portion thereof.

 (d)  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, the regulations promulgated thereunder, the terms or conditions of a permit, or order of the Department, the Department will assess a minimum civil penalty of $1,000.

 (e)  If a person or municipality generating residual waste fails to provide notice to the Department as required by §  287.52 (relating to biennial report), the Department will assess a minimum civil penalty of $300.

 (f)  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 entry and inspection, the Department will assess a minimum civil penalty of $1,000.

 (g)  If a violation is included as a basis for an administrative order requiring cessation of solid waste management operations, or for any other 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 shall be assessed for each day during which the failure continues. This subsection does not limit 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 §  287.413 adopted July 2, 1992, effective July 4, 1992, 22 Pa.B. 3389; amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 235; amended January 12, 2001, effective January 13, 2001, 31 Pa.B. 235. Immediately preceding text appears at serial pages (226559) to (226560)

   The provisions of this §  287.413 amended January 24, 1997, effective January 25, 1997, 27 Pa.B. 521. Immediately preceding text appears at serial pages (199695) to (199696).

 (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 will be by registered or certified mail, or by personal service. If the service is tendered at the address of that person set forth in the application for a permit under the act or the regulations promulgated thereunder, 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 subsection will be deemed to have been complied with upon the 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 when 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.

ENFORCEMENT

§ 287.421. 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 matters under investigation.

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

   (3)  Enter a building, property, premises or place where residual waste is generated, stored, processed, treated 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 provisions of the act, the environmental acts and the regulations thereunder.

   (4)  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 will 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 may conduct routine inspections as follows:

   (1)  For residual waste landfills and residual waste disposal impoundments, at least 12 times per year.

   (2)  For residual waste incinerators and resource recovery facilities, at least 2 times per year.

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

   (4)  For facilities for the agricultural utilization of residual waste, or for utilization of residual waste for land reclamation, at least 2 times per year.

   (5)  For facilities and beneficial use areas subject to permit-by-rule under §  287.102 (relating to permit-by-rule), general permit for beneficial use or processing, or both, under § §  287.611, 287.612, 287.621—287.625, 287.631, 287.632, 287.641—287.644, 287.651 and 287.652 and beneficial use areas under § §  287.661—287.665, at least once per year.

 (c)  The Department, its employes and agents may conduct additional inspections, including follow-up inspections, of residual waste processing, treatment, disposal, storage, collection and transportation facilities or to observe practices or conditions 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.

 (d)  The Department, its employes and agents may also conduct inspections of residual waste processing, treatment, disposal, storage, collection or transportation activities or facilities, if the 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.

 (e)  This section does not create a duty on the Department to conduct a minimum number of inspections per year at a facility.

 (f)  This section does not create defenses to Department actions.

 (a)  The Department may hold a public hearing or informal conference prior to suspending or revoking a permit. The requirements for the hearings or conferences are those set forth for permit applications in §  287.153 (relating to public comments).

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