58 Pa. Code § 51.105 - Amount of proposed civil penalty forfeiture
(a)
Amount. The amount of
the proposed civil penalty forfeiture will be set forth in the order to show
cause for civil penalty forfeiture. In determining the amount of the proposed
forfeiture, the Executive Director or a designee will consider:
(1)
Health and safety of
public. The hazards posed to the health or safety of the public. The
minimum proposed civil penalty forfeiture will be $2,500 if the Executive
Director or a designee determines, based on the uses of the waters, that the
unmarked dam poses substantial danger to the angling, boating and wading
public.
(2)
Negligence,
recklessness or intentional failure. Whether the violation was caused
by a negligent, reckless or intentional failure to comply. A civil penalty of
at least $500 should be proposed in cases of negligent failure to comply. A
civil penalty of at least $2,000 should be proposed where there is probable
cause to believe that the lack of compliance was based on reckless misconduct.
A civil penalty of at least $3,000 should be proposed when there is probable
cause to believe that the lack of compliance was based on wilful or intentional
misconduct.
(3)
Speed of
compliance. A credit will be given of up to $1,000 based on the
attempt of the owner or permittee to achieve rapid compliance after the owner
or permittee knew or should have known of the violation. The credit will be
available to offset only civil penalties assessed for the specific violation at
issue.
(4)
Cost to the
Commonwealth. In proposing the amount of a civil penalty forfeiture,
the costs to the Commonwealth will be considered. The costs may include:
(i) Administrative costs.
(ii) Costs of inspection.
(iii) Costs of preventive or restorative
measures taken by the Commission or the Department of Environmental Protection
to prevent or lessen the threat of damage to persons or property.
(5)
Savings to the dam
owner/permittee. If the owner or permittee of the dam who fails to
comply gains economic benefit as a result of the noncompliance, the proposed
civil penalty may include an amount equal to the savings up to the statutory
maximum for each violation.
(6)
History of previous violations. In determining a proposed
civil penalty for a violation, the Executive Director or a designee will
consider previous noncompliance with the requirements of section 3510 of the
code (relating to marking of dams) for which the same owner or permittee has
been found to have been responsible in a prior adjudicated proceeding,
agreement, consent order or decree that became final within the previous 3-year
period. The penalty otherwise assessable for noncompliance shall be increased
by a factor of 25% for each previous violation. The total increase in
assessment based on the history of the previous violation will not exceed
$1,000.
(i) A previous instance of
noncompliance 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 instance of noncompliance will be counted without regard to
whether it led to a civil penalty assessment.
(b)
Maximum penalty. If
consideration of the factors described in this section yields a penalty in
excess of the statutory maximum, the maximum civil penalty will be proposed for
that violation.
(c)
Revision of proposed civil penalty. The Executive Director,
upon his own initiative or upon written request received within 15 days of
issuance of an order to show cause, may revise a proposed civil penalty
calculated in accordance with the dollar limits in subsection (a). If the
Executive Director revises the civil penalty, the Commission will use the
general criteria in subsection (a) to determine the appropriate civil penalty.
When the Executive Director has elected to revise a civil penalty, he will give
a written explanation of the basis for the revised civil penalty to the dam
owner or permittee to whom the order to show cause was issued.
Notes
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