Subchapter G. CIVIL PENALTIES FOR COAL MINING ACTIVITIES

§ 86.191. Applicability.

 This subchapter is applicable to assessments of civil penalties under:

   (1)  Section 11 of the Coal Refuse Disposal Control Act (52 P. S. §  30.61).

   (2)  Section 605(b) of The Clean Streams Law (35 P. S. §  691.605).

   (3)  Section 18.4 of the Surface Mining Conservation and Reclamation Act (52 P.S. §  1396.18d).

   (4)  Section 17(f) and (g) of the Bituminous Mine Subsidence and Land Conservation Act (52 P. S. §  1406.17(f) and (g)).

   The provisions of this §  86.191 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. Immediately preceding text appears at serial page (158799).

 The Department will review each violation which is or may be subject to imposition of a civil penalty under the applicable provisions of law in §  86.191 (relating to applicability). The purpose of this review will be to determine whether a civil penalty will be assessed, the amount of the penalty, and whether a separate penalty will be assessed for each day of a continuing violation. The Department may review violations to determine whether assessment of penalties against individual corporate officers or officials of other entities is appropriate.

 (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 each violation if the violation is assessable in an amount of $1,100 or more under the system for assessment described in §  86.194 (relating to system for assessment of penalties).

 (c)  The Department may assess a penalty for each violation which is assessable in an amount less than $1,100 under the system for assessment described in §  86.194.

   The provisions of this §  86.193 amended under the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a); the Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § §  1406.1—1406.21); The Clean Streams Law (35 P. S. § §  691.1—691.1001); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   The provisions of this §  86.193 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 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended November 28, 1997, effective November 29, 1997, 27 Pa.B. 6186. Immediately preceding text appears at serial pages (237134) to (237135).

   Although the provisions dealing with penalties for mining activities on an unpermitted area had not been enacted at the time this case arose, the Board found that a $5000 penalty, using internal guidelines, for mining three acres of unpermitted land was reasonable. Western Hickory Coal Co. v. Department of Environmental Resources, 485 A.2d 877 (Pa. Cmwlth. 1984).

 (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 § §  1021.76—1021.78 (relating to reserved). 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.

   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).

   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).

 (a)  The Department may assess a civil penalty against a corporate officer who participates in a violation or whose misconduct or intentional neglect causes or allows a violation.

 (b)  Whenever the Department issues an order to an operator for failing to abate violations contained in a previous order, it will send by certified mail to each corporate officer listed in the surface mining operator’s license application under §  86.353 (relating to identification of ownership), or to each corporate officer listed in a coal mining activities application under §  86.62 (relating to identification of interests), a copy of the failure to abate order and a notice of the officer’ liability under this section. If the violations are not abated within 30 days of issuance of the failure to abate order, the Department may assess a civil penalty against each officer receiving the notice provided by this subsection.

 (c)  When the Department and the permittee or corporate officer have agreed in writing on a plan for the abatement of or compliance with the failure to abate order, the corporate officer may postpone payment until receiving a decision under §  86.203 (relating to final assessment and payment of penalty), or written notice that abatement or compliance is satisfactory and the penalty has been withdrawn.

   The provisions of this §  86.195 adopted June 25, 1993, effective June 26, 1993, 23 Pa.B. 3075; amended November 14, 1997, effective November 15, 1997, 27 Pa.B. 6041; amended November 28, 1997, effective November 29, 1997, 27 Pa.B. 6186. Immediately preceding text appears at serial page (237138).

   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).

   Intent

   Arguably, this regulation makes the scienter requirement as to corporate officers one of general intent rather than specific intent. Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231 (3d Cir. 1995).

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.

   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).

   This section which requires prepayment of assessments prior to an appeal are not violative of due process. Boyle Land and Fuel Co. v. Environmental Hearing Board, 561 A.2d 1317 (Pa. Cmwlth. 1989).

 (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.

   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).

   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).

 (a)  If the person to whom an assessment is issued fails to file an appeal as provided in §  86.202 (relating to appeal procedures), the assessment shall become final and the penalty assessed shall become due and payable upon expiration of the time allowed to file the appeal.

 (b)  If a party requests judicial review of an adjudication of the EHB, the initial penalty assessed shall continue to be held in escrow until completion of the review. Otherwise, subject to subsection (c) the escrowed funds shall be transferred to the Department in payment of the penalty, and the escrow shall end.

 (c)  If the final decision in the administrative and judicial review process results in an order reducing or eliminating the proposed penalty assessed under this chapter, the Department will, within 30 days of receipt of the order refund to the person assessed all or part of the escrowed amount, with any interest accumulated by the escrow deposit.

 (d)  If the final decision in the administrative and judicial review process results in an order increasing the penalty, the person to whom the notice or order was issued shall pay the difference to the Department within 30 days after the order is mailed to such person.

   The provisions of this §  86.203 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.

   This section cited in 25 Pa. Code §  86.202 (relating to appeal procedures).