Section 287.412. Assessment of penalties; general

(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.

Notation

Notes of Decisions

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).

Cross References

This section cited in 25 Pa. Code § 287.413 (relating to assessment of penalties; minimum penalties).