86 Pa. Commw. 562 | Pa. Commw. Ct. | 1984
Opinion by
This is the appeal of Western Hickory Coal Company (Western Hickory) from an order of the Environmental Hearing Board (EHB) upholding the assessment upon the appellant by the Department of Environmental Resources (DER) of a civil penalty in the amount of $5,000.00.
The DER granted Western Hickory permits to conduct surface mining on sites in Butler County. In July of 1981, Western Hickory’s surface mining operations were approaching the boundaries of the areas covered by its permits. On August 18, 1981, it applied to DER for a mining permit for an adjacent site. The permit was not issued until September 29,
The surface mining of land not covered by a permit is forbidden by Section 4 of the Surface Mining Conservation and Reclamation Act (SMCEA), Act of May 31, 1945, P.L. 1198, as amended, 52 P.S. §1396.4. Section 18.4 of SMCEA, added by Section 13 of the Act of October 10, 1980, P.L. 835, 52 P.S. §1396.22, provides that for any violation of the Act DEE may assess a civil penalty and that if the violation leads to the issuance of a cessation order, as Western Hickory’s did, that ‘‘ a civil penalty shall be assessed. ’’ The same section provides that the penalty shall not exceed $5,000.00 per day for each violation.
Western Hickory states two questions. The first owes more to legal theory and semantics than it does to the application of the law to the facts. After making extensive findings of fact based on the record, including a finding that Western Hickory had, contrary to law, mined an area not under permit and
Referring only to the amount of the penalty (and not to DER’s other discretionary action, the issuance of the cessation order), Western Hickory contends that the EHB misapprehended the scope of its review by limiting its determination to that of whether DER had abused its discretion in fixing the amount at $5,000.00; Western Hickory contends that because EHB’s hearing and review is de novo, it should have determined the matter “on the merits” in disregard of DER’s determination. Western Hickory says that this is the teaching of Warren Sand & Gravel v. Department of Environmental Resources, 20 Pa. Commonwealth Ct. 186, 341 A.2d 556 (1975). Western Hickory has misapprehended Warren Sand & Gravel. We there wrote: “ [i]f ... DER acts with discretionary authority, then the Board, based upon the record before it, may substitute its discretion for that of DER.” 20 Pa. Commonwealth Ct. at 204, 342 A.2d at 565. We emphasize the phrase “may substitute” because it imports that EHB is not required to substitute its discretion for DER’s — that the Board may decide not
Section 18.4 also provides that in fixing the amount of the penalty the agencies should consider the willfulness of the violation, the extent of environmental harm done, the cost of restoration and other relevant factors. It was stipulated that there was here no environmental harm, leaving -willfulness as the only explicitly described consideration at issue.
Western Hickory contends that the testimony at the board hearing did not show willful conduct on its part.
Order affirmed.
Order
And Now, this 31st day of December, 1984, the order of the Environmental Hearing Board in the above-captioned matter is affirmed.
At the time of assessment of penalty, May 3, 1982, there were no departmental regulations under SMRCA in effect. In July, 1982, the Environmental Quality Board adopted the current regulations set forth in 26 Pa. Code 86, particularly the civil penalty provisions of Subchapter 6. Under the internal guidelines, which were used to arrive at the $5,000.00 penalty, the base penalty was $2,000.00 plus $1,000.00 for each acre mined (3). Under the regulations promulgated, embodied in 25 Pa. Code §86.193 (e), the minimum penalty for the surface mining activities on an unpermitted area is $2,000.00 per acre or, in this case, a total of $6,000.00: The board acknowledged that internal guidelines do not enjoy presumptive validity, but found based on the facts of this case, that the $5,000.00 penalty was reasonable. Western Hickory has not raised a question on appeal concerning the use of internal guidelines.
Western Hickory also argues that the board improperly based its finding of willfulness on actions taken before the date of the violation charged in the citation of September 11, 1981. Not so. The board viewed Western Hickory as having knowingly violated the law from late August until September 11. 1981, the date of the cessation order.
The $5,000.00 penalty is the maximum amount assessable per day of violation. See 52 P.S. 1396.22. DER points out that Western Hickory’s violations occurred over a number of days.