Articles, Newsletters and Advisories
The Legal Intelligencer
(by Dan Hido)
On Feb. 27, 2021, the Pennsylvania Department of Environmental Protection (PADEP) published the final revision to the technical guidance document (TGD) No. 562-4180-306, titled “Civil Penalty Assessments for Coal Mining Operations,” 51 Pa.B. 1083 (Feb. 27, 2021). The previous version of the TGD was last updated in 2005. The PADEP first published draft revisions to the TGD on May 4, 2019, and subsequently re-published an updated draft on Oct. 3, 2020 because substantial changes were made in response to public comments.
The TGD sets the procedure and formula that the PADEP will generally follow in assessing penalties against coal mining operators for violations of Pennsylvania’s coal mining laws and the Clean Streams Law. The revised TGD makes several significant changes to how such penalties are calculated, including new, separate procedures for assessing penalties for water quality violations and revisions to the calculation of penalties for all other violations based on the seriousness of the violation and the culpability of the operator.
New Procedures for Water Quality Violations
The most significant change to the TGD is the addition of new procedures for assessing civil penalties for water quality violations under Section 605 of the Clean Streams Law, 35 P.S. Section 691.605(b). Such violations include violations of NPDES permit effluent limitations, and under the TGD each parameter exceeding an effluent limitation may constitute a separate violation. These procedures generally follow the 2005 TGD’s existing formula applicable to all violations, which is based on seriousness of the violation, culpability of the operator, costs to the commonwealth, savings to the violator, violation history and speed of compliance. However, the application of these factors will evaluate components specifically relating to water quality, such impacts to water resources or degree of exceedance of effluent limitations.
For instance, the seriousness component is based on several sub-components. First, the magnitude of the violation will be calculated in one of two ways. If physical evidence is available, such as impacts to fish or invertebrate communities, sediment deposition, impacts to water use or damage to land or water resources, the magnitude of the violation will be determined using Method 1. If such evidence is not available, the magnitude of the violation will be determined using Method 2, which is based on the degree of exceedance of applicable effluent limitations. There are five levels of magnitude under both Method 1 and Method 2: severe, significant, moderate, low or de minimis. The TGD provides criteria for the types of physical impacts or degree of exceedance of effluent limitations that correspond to each level of magnitude.
The second sub-component of the seriousness component, the resource component, evaluates the impact to aquatic life and recreation. In applying this factor the PADEP will first examine the use of the impacted waterbody. The TGD includes five categories of use: special protection, high use, moderate use, low use and all other uses. The PADEP will then examine the level of impact on aquatic life, water supply and recreation. Finally, the PADEP will determine the extent of the impacts.
The TGD includes a matrix that provide a base penalty amount based on the results of the magnitude and resource sub-components of the seriousness component. This base penalty amount may then be further adjusted based on the duration of the violation and the operator’s failure to report the violation.
The savings to the violator component may include costs associated with treating water to meet effluent limitations and the cost to construct and maintain treatment systems. The remaining factors (culpability, speed of compliance, costs to the commonwealth and history of violations) will be calculated using the same procedures applicable to all other violations discussed below.
Updated Procedures for All Other Violations
For violations of Pennsylvania’s coal mining laws other than those related to water quality, the TGD provides guidance to the PADEP in assessing civil penalties based on the factors in 25 Pa. Code Section 86.194. The revised TGD makes several changes to the application of these factors from the 2005 TGD, the biggest being with respect to assessment of penalties for high seriousness violations under the seriousness component. The TGD now permits the PADEP to assess penalties up to the statutory maximum for high seriousness violations. Previously, penalties for high seriousness violations were assessed only up to $2,000, and only violations meeting “extraordinary circumstances” criteria warranted a penalty up to the statutory maximum.
The revised TGD also creates a wider range of operator culpability. For instance, the revised culpability component includes willful, reckless, negligent and no culpability categories. In contrast, the 2005 TGD only included negligent and reckless categories. Under the 2005 TGD, penalties for negligent violations could be assessed up to $1,200, and penalties for reckless violations could be assessed up to the statutory maximum. Under the revised TGD, the maximum penalty of $1,200 for negligent violations remains unchanged; however, penalties for reckless violations will now only be assessed up to $1,500, rather than the statutory maximum. The criteria for what constitutes a reckless violation would also be revised. For example, violations pertaining to situations previously identified in inspection reports or notices of violations, which were previously classified as negligent violations under the 2005 TGD, are now classified as reckless violations.
Under the new willfulness criteria, a penalty up to the statutory maximum may be assessed if “the operator made a conscious choice to engage in certain conduct with knowledge that a violation will result.” Finally, the TGD creates a new no culpability category, under which no penalty assessment is warranted under the culpability component where the operator’s conduct was consistent with the standard of conduct to foresee and prevent the violation that a reasonable person would observe under the circumstances.
No significant changes were made from the 2005 TGD to the other penalty components, which include speed of compliance, costs to the commonwealth, savings to the violator and history of violations. The final revised TGD is available at http://www.depgreenport.state.pa.us/elibrary/GetFolder?FolderID=4595.
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Reprinted with permission from the March 18, 2021 edition of The Legal Intelligencer© 2021 ALM Media Properties, LLC. All rights reserved.