Pennsylvania Chamber of Commerce: DEP Quarterly
Adapting to a New Era of
Strict Criminal Liability
David J. Raphael
Partner
K&L Gates LLP
Harrisburg, PA
dave.raphael@klgates.com
© Copyright 2014 by K&L Gates LLP. All rights reserved.
New Era of Enforcement
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Environmental Enforcement
 Pennsylvania Department of Environmental Protection
 Administrative & Civil Enforcement
 Pennsylvania Attorney General: Environmental Crimes
Section (ECS)
 Criminal matters may be referred to ECS by
 Department of Environmental Protection
 (Through Governor’s Office of General Counsel)
 District Attorney’s Offices
 Personnel Changes
 Former head of ECS moved to DEP January 27, 2014
 New head of ECS yet to be named
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Enforcement Tools:
Pennsylvania’s Environmental Statutes
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Pennsylvania's Environmental Statutes
 Solid Waste Management Act
 Clean Streams Law
 Air Pollution Control Act
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Solid Waste Management Act
 Solid Waste Management Act (SWMA)
 Passed in 1980 to address “public health hazards,
environmental pollution, and economic loss” resulting from
the improper disposal of solid waste.
 35 P.S. § 6018.102
 Enforcement Tools:
 Strict Liability: No intent required
 Civil and Criminal Penalties
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Solid Waste Management Act
 Civil Penalties:
 Up to $25,000 per day, per violation
 Strict Liability
 35 P.S. § 6018.605
 Criminal Penalties
 “Any person . . . who violates any provision of this act, the
rules and regulations of [DEP], or any order of [DEP], or any
condition of any permit upon conviction thereof . . . shall be
guilty of . . .”
 Strict Liability
 35 P.S. § 6018.606 (a)-(j)
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Solid Waste Management Act
 Criminal Penalties (continued)
 Broad discretion for Commonwealth to select from following
options for same incident:
 Summary Offense:
 $100 to $1,000 fine or up to 30 days in prison. 606(a)
 Misdemeanor:
 $1,000 to $25,000 or up to 1 year in prison. 606(b)
 $2,500 to $50,000 or up to 2 years for repeat violators. 606(c)
 Felony:
 $2,500 to $100,000 or up to 10 years in prison. 606(f)
 Absolute (strict) Liability applies to all of the above. 606(h)
 Fines issued per violation, per day. 606(h)
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Solid Waste Management Act
 Long Statute of Limitations
 20 years for both civil and criminal penalties
 35 P.S. § 6018.617
 Commonwealth Given Extraordinary Discretion
 Strict Liability: No Intent Required
 Raises Constitutional Questions
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Challenges to SWMA Penalty Provisions
 Commonwealth v. Parker White, 515 A.2d 1358 (Pa. 1986)
 Multiple defendants charged with misdemeanors. 606(b)
 Appellees argued SWMA and its “unfettered discretion in the
prosecutor” violates:
 Due Process clause
 Equal Protection clause
 And is an improper delegation of legislative power to
executive branch
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Challenges to SWMA Penalty Provisions
 Commonwealth v. Parker White, 515 A.2d 1358 (Pa. 1986)
 Court’s response:
 Constitutional Challenges:
 Strong presumption in favor of constitutionality
 Very heavy burden to demonstrate statute “clearly, plainly, and
palpably violates some specific mandate or prohibition of the
constitution.” Id. at 1362.
 Equal Protection
 Any classification created by 606(a)&(b) has rational basis,
bearing substantial relationship to object of act. Id. at 1366.
 Due Process
 Appellees were “fully informed” of conduct restricted by the
act, which set forth “full range” of penalties to which they
may be subject. Id. at 1368.
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Challenges to SWMA Penalty Provisions
 Commonwealth v. Parker White, 515 A.2d 1358 (Pa. 1984)
 Court’s response:
 Improper Delegation of Legislative Authority
 Adequate standards existed in Act’s declaration of policy in
Section 102 to guide prosecutors. Id. at 1369-70.
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Challenges to SWMA Penalty Provisions
 Subsequent Challenges
 Baumgardner Oil Co. v. Commonwealth,
 606 A.2d 617 (Pa. Cmwlth 1992), appeal denied.
 Act not impermissibly vague because definitions of waste
were sufficient. Id. at 623.
 Not improper delegation of authority because rules function
to “amplify statutes,” not create new law. Id.
 Waste Conversion, Inc. v. Commonwealth,
 568 A.2d 738 (Pa. Cmwlth 1990), appeal denied, cert denied.
 Strong presumption of constitutionality. Id. at 741.
 Did not violate Due Process. Id. at 742.
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You Are Who You Hire
 Waste Conversion, Inc. v. Commonwealth,
 568 A.2d 738 (Pa. Cmwlth 1990)
 Liability for independent contractor’s action under SWMA
 Waste Conversion hired truck driver to transport 83,500 lbs nonhazardous waste (3,500 over permitted limit)
 Waste Conversion employees loaded truck to 83,500 lbs
 Driver, to avoid weigh station, rerouted to back road and
intentionally dumped waste
 Waste Conversion held responsible for independent contractor
truck driver’s intentional actions
 $10,000 fine
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You Are Who You Hire
 Waste Conversion, Inc. v. Commonwealth,
 568 A.2d 738 (Pa. Cmwlth 1990)
 Liability for actions of independent contractors
 Commonwealth Court’s reasoning:
 “By undertaking the responsibility to dispose of waste, Appellant
has assumed the duty to ensure that it is completed as required
by the Act. Appellant cannot absolve itself of this responsibility
by transferring it to independent contractors and claiming that it
has no control over them.” Id. at 742.
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Would These Decisions Stand Today?
 These more recent decisions were examined by Pennsylvania’s
Commonwealth Court.
 The question remains what today’s Supreme Court would do if
presented with SWMA penalty challenge, nearly 30 years after
Parker White.
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Clean Streams Law
 Civil Penalties
 5 year statute of limitations. 35 P.S. § 691.605(c).
 Up to $10,000 per day, per violation. 605(a).
 “Whether or not the violation was willful”
 Criminal Penalties
 5 year statute of limitations. 613.
 Summary Offense
 Up to $10,000 or 90 days in prison. 602(a).
 Misdemeanor (Negligence)
 Up to $25,000 or 2 years in prison. 602(b).
 Felony (Intentional or Knowing)
 Up to $50,000 or 7 years in prison. 602(b.1).
 Additional penalties for repeat or continuing violations.
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Air Pollution Control Act
 7 year statute of limitations 35 P.S. § 4010.3.
 Civil Penalties
 $25,000 per day, per violation. § 4009.1(a).
 Criminal Penalties
 Summary Offense:
 Strict Liability
 Up to $2,500 or 90 days in prison for each offense. 4009(a).
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Air Pollution Control Act
 Criminal Penalties (continued)
 Misdemeanor :
 “willfully or negligently violates any provision” 4009(b)(1)
 “knowingly makes any false statement” 4009(b)(2)
 Up to $50,000 and/or 2 years in prison for each offense
 Negligently placing another in imminent danger. 4009(3)
 Up to $50,000 and/or 1 year in prison
 Felony:
 Knowingly placing another in imminent danger. 4009(c)(1)
 Up to $1,000,000 per violation, per day and/or 20 years in prison
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Incident Response: Swift, but Smart
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Swift, Smart Response Needed
 An Immediate Response is Best Response
 Penalties are per day/per violation
 Can add up fast
 Failure to notify and remedy can result in greater penalty than
actual violation
 Westinghouse Electric Corp. v. Pa DEP, 745 A.2d 1277
(Pa. Cmwlth 2000), appeal denied.
 $1.5 million for violations of Clean Streams Law
 $1.7 million for failure to notify DEP and downstream users in
accordance with 25 Pa. Code § 91.33
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Swift, Smart Response Needed
 Communication Management is Key
 Internal:
 Know company protocol
 Tell the right folks
 Be on the same page
 External:
 Consistent, accurate, unified message to agency
 Always respond to NOVs
 Maintain records of all communication with agency
 Time stamp and retain all documents received
 Maintain paper trail
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Questions
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