25 Pa. Code § 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.
Notes
This section cited in 25 Pa. Code § 86.193 (relating to assessment of penalty).
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