OPINION BY
The Pines at West Penn, LLC (Petitioner) petitions for review of the May 14, 2010, order of the Environmental Hearing Board (Board), upholding a civil penalty in the amount of $11,589.00 imposed by the Department of Environmental Protection (DEP) for repeated violations of the effluent limitations of Petitioner’s National Pollutant Discharge Elimination System (NPDES) permit.
As a result, on February 8, 2006, DEP issued a notice of violation to Petitioner. (Finding of Fact No. 21.) On April 4, 2006, DEP and representatives of Petitioner participated m an enforcement conference to discuss the effluent violations and the standard operating procedures at the sewage treatment plant; DEP advised Petitioner that the violations resulted from the fact that a certified operator was not visiting the plant frequently enough. (Findings of Fact Nos. 22-23.) On October 27, 2006, DEP issued a second notice of violation to Petitioner. (Finding of Fact No. 25.) On January 29, 2008, DEP forwarded a proposed consent assessment of civil penalty in the amount of $6,000.00 to Petitioner, but Petitioner rejected the same, (R.R. at 146a, 171a.) Ultimately, by notice of final assessment dated August 1, 2008, DEP imposed a civil penalty against Petitioner in the amount of $11,689.00. (Finding of Fact No. 26.)
The Board issued these relevant findings:
37. [DEP] calculated the following penalties for the monthly-average violations:
Month/Parameter Permit Limit DMR Reported Penalty $
16.3 $1,000 5/05/TSS t — 4
12.28 $1,000 5/05 / N02 + N03 t*H
10.8 $1,000 6/05 / CBOD5 T — i
47.04 $1,163 7/05 / N02 + N03 i — l
41.96 $1,125 9/05 / N02 + N03 i — l
15.37 $1,000 10/05 / N02 + N03 i — l
3955 $1,000 11/05 FC O o C'J
10.1 $1,000 1/06 NH3-N 05
12.59 $1,000 1/06 N02 + N03 o i-I
5.2 $1,000 7/07 NH3-N CO
13.1 $1,000 12/07 NH3-N 05
Monthly total: $11,289
(C. Ex. 31.)
38. In all but two instances, [DEP] assessed the minimum $1,000 monthly penalty specified in [DEP’s] guidance matrix[
40. [DEP] also assessed the minimum $100 penalty under [DEP’s] guidance matrix for the following daily violations:
Date/Parameter Permit Limit DMR Reported Penalty $
9/13/05 /N02 + N03 10 40.41 o o
7/06 /FC 1000 20000 o o
7/07 / FG 1000 2400 o o x/v-
Monthly total: $300
(C. Ex. 31; T. 77.)
(Findings of Fact Nos. 37-40.) Additionally, DEP assessed a $100.00 penalty for Petitioner’s December 2005 DMR that was reportedly received two days late. (Finding of Fact No. 41.) Petitioner thereafter appealed to the Board.
At a hearing before the Board, DEP presented the testimony of Stephen Bro-kenshire, a compliance specialist in the Northeast Region Water Management Program who calculated the penalty assessed against Petitioner. (Finding of Fact No. 28.) Brokenshire explained that he calculated the penalty using DEP’s guidance document “Civil Penalty Calculations for Effluent Violations” and an associated Microsoft Excel computer program (the matrix), which specified a minimum penalty of $1,000.00 for monthly violations, $250.00 for weekly violations, and $100.00 for daily violations.
Brokenshire assessed the minimum $1,000.00 penalty for nine monthly violations; increased penalties of $1,163.00 and $1,125.00 for months in which the effluent violations exceeded four times the permitted limits; the minimum $100.00 penalty for each of three daily violations; and a penalty of $100.00 for a late DMR.
The Board concluded that the evidence of record was insufficient to support a
On appeal to this Court,
Section 605(a) of The Clean Streams Law authorizes the assessment of civil penalties, providing, in pertinent part, as follows:
In addition to proceeding under any other remedy available at law or in equity for a violation of a provision of this act, rule, regulation, order of the department, or a condition of any permit issued pursuant to this act, the department, after hearing, may assess a civil penalty upon a person or municipality for such violation. Such a penalty may be assessed whether or not the violation was wilful. The civil penalty so assessed shall not exceed ten thousand dollars ($10,000) per day for each violation. In determining the amount of the civil penalty the department shall consider the wilfullness of the violation, damage or injury to the waters of the Commonwealth or their uses, cost of restoration, and other relevant factors....
35 P.S. § 691.605(a). The deterrent effect of a penalty is one of the “other relevant factors” which may be considered when assessing a penalty under this section. Leeward Construction, Inc. v. Department of Environmental Protection,
DEP has the burden of proving the propriety of its assessment of a civil penalty by a preponderance of the evidence. Department of Environmental Protection v. Bethenergy Mines, Inc.,
In Leeward Construction, Leeward Construction, Inc. (Leeward) was hired as an earthmoving subcontractor at a construction site for a new Wal-Mart in Wayne County, Pennsylvania. DEP issued Wal-Mart a NPDES permit authorizing the discharge of storm water from construction activities at the construction site as well as an adjacent site where waste materials were placed. The permit required Wal-Mart to implement a DEP-approved, site-specific erosion and sediment (E & S)
In United States Steel Corporation, the Department of Environmental Resources (DER) found that United States Steel Corporation (U.S. Steel) had discharged great quantities of oils, constituting industrial waste, into the Monongahela River in violation of The Clean Streams Law. U.S. Steel challenged DER’s finding before the Board. The Board, concluding that DER presented sufficient evidence in support of this finding, issued an adjudication assessing a civil penalty against U.S. Steel in the amount of $2,000.00. The next day, the Board issued a corrected adjudication amending the civil penalty to $5,000.00 without providing any explanation for the increase. On appeal, this Court remanded the matter to the Board with the direction that the Board reinstitute the original $2,000.00 penalty, concluding that the imposition of an increased civil penalty of $5,000.00 without any explanation on the record or any opportunity for U.S. Steel to challenge that figure would strike at one’s conscience as being unreasonable and would not fit the statutory violation.
Petitioner first argues that the penalty is excessive because the record lacks evidence of harm to the receiving stream. In making this argument, Petitioner stresses the absence of any testimony concerning observations of damage to the receiving stream or analytical sampling. Petitioner notes that the guidance document cited by Brokenshire considers damage to the receiving stream and requires that “[DEP] personnel determine damage by observation and analytical sampling.” (R.R. at 190a.) However, Petitioner’s argument neglects the fact that it performed its own analytical sampling and self-reported the effluent violations in its monthly DMRs. The guidance document specifically indicates that the DMRs as well as sampling results from DEP inspections are the primary sources of data for the matrix calculations. (R.R. at 189a.)
Petitioner relies on this Court’s previous decisions in Westinghouse Electric Corporation v. Department of Environmental Protection,
Westinghouse I and Westinghouse II are based on the same underlying facts. Westinghouse Electric Corporation (Westinghouse) operated an elevator manufacturing plant near Gettysburg, Pennsylvania from 1969 to 1989. Westinghouse routinely used trichloroethylene and trichloroethane as degreasers in various operations at the plant. In 1988, the Department of Environmental Resources filed a complaint seeking assessment of civil penalties against Westinghouse resulting from the release of trichloroethy-lene and trichloroethane into the soil and surrounding waters over a period of approximately seven years. DEP noted the presence of these chemicals in a water sample collected near the plant’s storm sewer discharge point, as well as in sixty nearby residential wells.
In Westinghouse I, the Board concluded that the evidence of record established Westinghouse’s continual leakages of trichloroethylene and trichloroethane, but only two instances of the actual entry of the degreasers into the groundwater. The Board thereafter assessed a civil penalty against Westinghouse totaling $5,451,283.00. However, in contemplating the degree of harm under its penalty analysis, the Board considered that all of the contaminated wells in the area resulted from Westinghouse’s illegal discharges, a fact not found by the Board. This Court concluded that the Board could not base its penalty calculation on matters not found to be proven, and we remanded to the Board for a new penalty calculation.
On remand, the Board in Westinghouse II reduced the civil penalty assessed against Westinghouse to $3,296,515.00. Citing the number, seriousness, and duration of the violations in the case, this Court concluded that the amount of the penalty reasonably fit the sheer scale of Westinghouse’s violations. We specifically rejected an argument by Westinghouse that a severe penalty is only warranted where intentional or reckless conduct is established.
In Koppers Company, the Board concluded that, even in the absence of proof of injury to the waters of the Commonwealth, the imposition of a “nominal” civil penalty in the amount of $1,000.00 was appropriate and reasonable. In that case, the Board noted that the record failed to reveal the extent of the damage to the waters of the Commonwealth resulting from the discharge of industrial waste by Koppers Company, Inc. Nevertheless, the Board concluded that it could presume that a discharge in excess of environmental quality board regulations resulted in damage to such waters, thereby justifying a “nominal” civil penalty of $1,000.00. Further, the Board in Koppers Company indicated that it would have imposed a greater penalty had the Department established substantial harm to the waterways in question.
In the present case, Petitioner self-reported numerous effluent violations in its monthly DMRs over a period of two and a half years. Brokenshire testified that the violations resulted from Petitioner’s negligence in the nature of a lack of adequate plant supervision. Additionally, Broken-shire testified in the present case that the receiving stream is classified by DEP biologists as a trout stock fishery. (R.R. at 138a-39a.) As noted above, stream classification is one of the many factors considered under the matrix. Petitioner’s NPDES permit includes a special condition directing Petitioner’s attention to the fact that the receiving stream is a “seasonally dry stream” and that the effluent discharges would be “intermittently without the benefit of dilution.” (R.R. at 207a.) In
Next, Petitioner questions the Board’s statement that “anything less than the amounts that were assessed by [DEP] for monthly-average violations would not have the necessary general or specific deterrent effect.” (Board op. at 12.) Specifically, Petitioner asserts that a lesser amount would have a sufficient deterrent effect and that the Board failed to explain what conduct the civil penalty was designed to deter. Petitioner’s argument lacks merit. The Board rejected a contention by Petitioner that all of the violations were accidental and resulted from unforeseen malfunctions or breakage of treatment components, noting that Petitioner failed to credibly connect specific malfunctions to specific exceedances. Instead, Patrick Musinski, a water quality specialist supervisor with DEP, testified before the Board that the violations resulted from the fact that a certified plant operator only visited the site weekly. (R.R. at 127a.) Brokenshire offered identical testimony, and he characterized Petitioner’s oversight in this regard as negligent. (R.R. at 134a, 138a, 145a.) The Board specifically referenced this testimony when discussing the issue of deterrence in its opinion.
Finally, Petitioner argues that the penalty assessed does not reasonably fit the violations because there is no evidence that a monthly average violation warrants a higher penalty than a daily violation.
Because the record supports the Board’s findings and conclusions, we conclude that the penalties assessed by the Board reasonably fit Petitioner’s established violations and do not strike at one’s conscience as being unreasonable. Accordingly, the order of the Board is affirmed.
ORDER
AND NOW, this 18th day of March, 2011, the May 14, 2010, order of the Environmental Hearing Board is hereby affirmed.
Notes
. DEP originally assessed Petitioner with a civil penalty in the amount of $11,689.00.
. Section 605(a) of The Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.605(a), authorizes a maximum penalty of $10,000.00 per day for each violation.
. The guidance document explains that the penalty formula under the matrix initially assigns the statutory maximum penalty and then reduces that amount after factoring in the willfulness and magnitude of the violation, which are represented by percentages entered by DEP personnel. (R.R. at 189a.) Willfulness includes consideration of the cause of the violation, the violator’s compliance history, and other permit or regulatory requirements. (R.R. at 190a.) Magnitude includes consideration of the damage to the receiving stream, stream classification, the size of the facility, and the degree to which the discharge exceeded permit limits. (R.R. at 190a-91a.) The guidance document notes that every discharge by a treatment facility has an impact on receiving waters and sets forth the minimum penalties described above. (R.R. at 189a, 191a.)
. While the total penalties equal $11,688.00, and not $11,689.00 as imposed by DEP, Petitioner does not challenge the latter figure.
. Our scope of review of the Board’s order is limited to determining whether the findings of fact are supported by substantial evidence and whether the Board committed constitutional violations or errors of law. Eureka Stone Quarry, Inc. v. Department of Environmental Protection, 957 A.2d 337 (Pa.Cmwlth.2008). The resolution of conflicts in testimony, the credibility of witnesses, and the weight given the evidence are within the province of the Board. Id.
.We note that The Clean Streams Law twice declares the discharge of sewage into the waters of the Commonwealth to be a nuisance. Section 3 of The Clean Streams Law states that "[t]he discharge of sewage ... into the waters of this Commonwealth, which causes or contributes to pollution as herein defined or creates a danger of such pollution is hereby declared not to be a reasonable or natural use of such waters, to be against public policy and to be a public nuisance.” 35 P.S. § 691.3. Section 202 provides, in pertinent part, that "[a] discharge of sewage ... contrary to the terms and conditions of a permit or contrary to the rules and regulations of the department is hereby declared to be a nuisance.” 35 P.S. § 691.202.
. We note that both Musinski and Broken-shire also testified that the violations substantially decreased and/or ceased after the certified plant operator increased the frequency of his visitation to the site to four to five times per week. (R.R. at 127a, 148a.)
. In the course of this argument, Petitioner, citing June of 2005 in particular, asserts that DEP cannot impose a penalty for a monthly-average violation and a daily-maximum violation in the same month. However, the violations in June of 2005 related to different effluent limitations, the monthly-average violation representing carbonaceous biochemical demand and the daily-maximum violation representing total nitrogen.