CIVIL PENALTY ASSESSMENT INFORMAL HEARING PROCEDURE FOR CLEAN WATER PROGRAM. Comment and Response Document. September 8, 2012

Transcription

1 CIVIL PENALTY ASSESSMENT INFORMAL HEARING PROCEDURE FOR CLEAN WATER PROGRAM Comment and Response Document September 8, 2012 Pennsylvania Department of Environmental Protection Bureau of Point and Non-Point Source Management The Department of Environmental Protection (DEP) published notice of the public comment period for the draft technical guidance document entitled, Civil Penalty Assessment Informal Hearing Procedure for Water Quality Operations (DEP ID: ) in the Pennsylvania Bulletin on June 20, The public comment period closed on July 20, Written comments received during the public comment period are located in this document.

2 1. Lynn R. Rauch Manko, Gold, Katcher and Fox, LLP 401 City Avenue, Suite 500 Bala Cynwyd, PA List of Commentators 2. Stephanie Wissman Director, Government Affairs Pennsylvania Chamber of Business and Industry 417 Walnut Street Harrisburg, PA Pamela A. Witmer Pennsylvania Chemical Industry Council 20 N. Market Sq., Suite 800 Harrisburg, PA Deborah Wiley Eastman Chemical Resins, Inc. Jefferson Site State Highway 837 W. Elizabeth, PA Stephen W. Rhoads President Pennsylvania Oil & Gas Association 240 North Third Street P.O. Box 806 Harrisburg, PA The applicable commentators are listed in parenthesis following each comment. - i -

3 COMMENTS AND RESPONSES 1. Comment: The Chamber notes that the proposed Doc. No represents the first guidance issued by the Department regarding informal hearings since the adoption of 25 Pa. Code (92a.103) in November Although perhaps belated, the adoption of guidance as to the process is probably appropriate. (2) Response: Thank you for your comment in support of this guidance. 2. Comment: The purpose of this draft policy for informal hearings is described as relating to civil penalty assessments for violations of NPDES permits. It would be useful to clarify that policy relates to , and does not intersect with (relating to calculation of civil penalties for pollution incidents). (1) Response: The purpose of the guidance is clear in that it is for holding an informal hearing regarding civil penalty assessments for violations of National Pollutant Discharge Elimination System (NPDES) permits for Water Quality Operations. 3. Comment: We suggest that the Department consider supplementing the policy with some standardized procedural safeguards to ensure that the informal hearing process is meaningful and effective, and that the respondent and the Department are sufficiently prepared. In this regard, we believe this section could benefit from more specificity concerning: (i) the allowed minimum-maximum range of time following respondent s request for an informal hearing until the hearing is held; (ii) timeframes within which the Department will automatically forward documentary evidence to the respondent; (iii) the scope of evidence that the Department must produce, including with respect to the findings of the underlying violations for which penalties are being assessed, how the proposed penalties were calculated and who made the findings of violations and calculated the penalties; and (iv) requiring that those Department employees who found the underlying violations for which penalties are being assessed and the employees who calculated the proposed penalties attend the informal hearing and be available for questioning by the respondent and the Presiding Officer. (1) The Department s current practice affords time for both the regulated entity and the department to meet and discuss violations and plans to address them in an informal setting with open dialogue. This draft guidance, however, appears to allow a ruling in the informal hearing process by the same department personnel involved in the issuance of the initial violation. This will create an atmosphere of formality and caution that is not intended as part of an informal effort to resolve a problem. (3) The DEP currently affords time for the regulated community to meet to discuss effluent violations and plans to address them. Setting forth guidance for this informal meeting procedure appears to sanction a ruling by the same Department head involved in sanctioning the initial violation. If an informal hearing procedure is put into place, it ought to stipulate that Department participants not be the same people who have assessed and approved the initial violation. (4) Response: In the informal hearing process, permittees are already allotted the opportunity to ask questions of DEP personnel involved with the relevant violation(s) and the ruling is decided by a representative, the Presiding Officer, who is from a separate program area within the DEP s Regional Office that issued the permit. The DEP feels changing the current timeframes and who may participate is unnecessary in that it may cause complication to a well-established process, especially where DEP participants would have no first-hand knowledge of the violation(s) in - 1 -

4 question. The DEP will clarify that the Presiding Officer will be an upper management participant from an unrelated program area within the DEP. 4. Comment: Given the inevitability that the informal hearing will not resolve all disagreements and that some final assessments will eventually be considered by the Board, we raise the possibility of providing in this policy that the Department will not oppose a respondent using any evidence produced or adduced in preparation for or during the informal hearing as part of any subsequent appeal to the Board. (1) Response: The DEP is not opposed to properly introducing additional relevant facts for use in an appeal to the Environmental Hearing Board (EHB). 5. Comment: For purposes of clarification we ask the Department to consider affirmatively stating in the policy that respondents maintain the right to contest the findings of underlying violations, as well as the proposed penalty assessment and method of calculation. (1) The guidance should make clear that whether or not an individual requests an informal hearing they in any case retain the right to appeal the final Department assessment to the Environmental Hearing Board. (2) Response: Section VI of the guidance states that the respondent may contest the final civil penalty assessment by filing a timely appeal (within 30 days) with the EHB. In addition, the notice of appeal rights is clearly stated in the actual Assessment of Civil Penalty document, of which an example is included in the guidance. We do not believe this requires further clarification. 6. Comment: We endorse the use of an impartial Presiding Officer who will conduct the informal hearing and consider the facts and evidence in reviewing proposed penalties, and believe that this process has the potential to render the need for more expensive and time-consuming Board review unnecessary in a significant number of instances. To ensure neutrality, and that the informal hearing procedure is an effective and efficient use of Department resources, we suggest adding to the policy various mechanisms to further facilitate the actual and perceived fairness of the informal hearing process with respect to the selection and role of the Presiding Officer including: (i) identifying who will select the Presiding Officer and on what basis; (ii) specifying when the Presiding Officer will be identified to respondent; (iii) providing that Department personnel involved in finding the underlying violation and or calculating penalties with respect to a particular respondent will not be eligible to serve as the Presiding Officer at the respondent s hearing and (iv) establishing procedures for respondent to request a different Presiding Officer, including a Department representative employed in a different regional office. (1) The proposed guidance should indicate that the presiding officer in any hearing (even if informal) should be an independent relatively senior Department officer or staff member. Put another way, the presiding officer should be an experienced individual who was not involved in either directing or supervising the inspection and investigation of the compliance matter, or the issuance of the permits in question. If informal hearing processes are to be valuable, they need to be framed in a manner where the person hearing the matter is not serving multiple roles of prosecutor, judge and jury. If roles are mixed - for example, if regional compliance staff chair the hearings - the process will be perceived as inherently biased and inequitable. (2) Response: Please refer to the DEP s response for comment number three

5 7. Comment: In keeping with the above, we recommend adding more procedural substance to the policy, such as (i) within what period of time following the conclusion of the informal hearing the Presiding Officer must issue, and serve upon respondent, a written final assessment and (ii) the minimum required contents of a written final assessment, such as the reasons supporting the decision to affirm, modify or vacate the proposed assessment. (1) Additionally, there is no requirement for the department to make a timely decision whereas the regulated entity is only afforded 30 days to take advantage of the informal hearing. (3) Also, though the violator has a 30 day window to file a request for a hearing, the DEP has no obligation of timeliness. (4) Response: Although 25 Pa. Code 92a a.104 does not provide for a response time that the Presiding Officer must issue the final assessment, language has been added stating the DEP will respond by issuing final assessment within 30 days. 8. Comment: To encourage the use of the informal hearing process we also believe it would be appropriate to provide in this policy that the respondent will not be subject to any extra penalties or prejudgment interest otherwise accrued pending the Presiding Officer s issuance and service upon respondent of a written final assessment. It is also advisable to restate that respondent may forego the informal hearing without waiving any defenses or arguments or the right of appeal to the Board of a final penalty assessment. (1) Response: The final assessment is the settlement for only the violation(s) described in the Assessment of Civil Penalty document. Under normal circumstances, no additional fees or interest are attached to the final assessment. It is not necessary to reiterate that a permittee served with a Notice of Proposed Assessment may file for a request for an informal hearing (within 30 days of receipt of the proposed assessment) or that the final Assessment of Civil Penalty may be appealed to the EHB by following the instructions for the Notice of Appeal Rights in the final Assessment of Civil Penalty document. 9. Comment: We look forward to continuing to work in cooperation with the Department in its formulation of penalty guidance policies that are appropriate and consistent with the Clean Streams Law. If the Department plans to publish a revised draft of any or all of the three policies discussed herein, we will appreciate the opportunity to present additional comments. (1) The Chamber appreciates the opportunity to submit these comments. (2) Response: Thank you for your comment in support of this guidance. 10. Comment: The document appears to substantially revise the methodologies and criteria upon which the Department will calculate and impose penalties for most pollutant discharges to the waters of the Commonwealth as well as for violations of National Pollutant Discharge Elimination System (NPDES) permits. The guidance documents add a number of new factors and formulae for calculating penalties that will substantially increase the amount of fines that the Department may levy. While amendment to the policies may be warranted, I am concerned that the Department has not taken the opportunity to discuss the draft policies with its Water Resources Advisory Committee (WRAC) before formally asking for public comment on them. WRAC is charged with providing technical advice to the Department on the environmental, economic and other social impacts of existing, new or proposed regulations, policies, and control techniques or technologies affecting water resources management including, but not limited to surface/ground water quality and - 3 -

6 quantity issues. WRAC was not aware that the policies were under review or revision. Given its mission, it would be most appropriate for the Department to seek WRAC s input and advice on the proposed policies before publishing them as final. I suggest that you take advantage of the resources that WRAC provides and solicit its input on the proposed policies and on your response to public comments you receive as a result of the Pennsylvania Bulletin notice by placing them on the next WRAC meeting agenda. WRAC s next meeting is scheduled for Wednesday. October 7. (5) Response: The DEP published the draft technical guidance document so that the general public and all potentially affected parties may have the opportunity to comment during the thirty-day public comment period. The document was presented at the WRAC meeting on May 16, No additional comments were received