Appeal from the Order of the Environmental Hearing Board in the case of Commonwealth of Pennsylvania, Department of Environmental Resources v. South Middleton Township Board of Supervisors and Larry Metcalf et al., No. 79-022-DP-W.
Lynn Wright, Assistant Attorney General, for petitioner.
Robert R. Black, Landis & Black, for respondents.
Thomas L. Wenger, with him Thomas W. Bergen, Wix, Wenger & Weidner, for Amicus Curiae, Pennsylvania State Township Supervisors.
President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr. and Doyle. Opinion by Judge Rogers. Concurring Opinion by Judge Doyle.
[ 73 Pa. Commw. Page 143]
The Environmental Hearing Board (EHB), after a hearing, assessed a civil penalty in the amount of $2,000 against South Middleton Township, Cumberland County, for violating the terms of a permit issued by the Department of Environmental Resources
[ 73 Pa. Commw. Page 144]
(DER) for the removal of heavy underbrush from a creek. The EHB declined also to assess civil penalties against the township secretary-treasurer and the township supervisors, on the ground that these persons were entitled to official immunity. DER has appealed*fn1 the EHB's order refusing to assess penalties against the individual respondents.
The application for the permit stated that heavy equipment would be used but would not be permitted to enter the stream bed without prior approval and the permit issued was for work to be done in accordance with the application. In the course of the work in the presence of the secretary-treasurer and one of the supervisors and with the knowledge of another supervisor, the contractor used a bulldozer in the stream bed, removing part of an island, excavating gravel and conducting other earth-moving activities along the stream bed all of which caused erosion and sedimentation and, in short, polluted the creek.
Section 605 of The Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.605 provides:
In addition to proceeding under any other remedy available at law or in equity for a violation of a provision of this act, rule, regulation, order of the department, or a condition of any permit issued pursuant to this act, the department, after hearing, may assess a civil penalty upon a person or municipality for such violation. Such a penalty may be assessed whether or not the violation was wilful. The civil penalty so assessed shall not exceed ten thousand dollars ($10,000) per ...