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07/15/97 STANLEY T. PILAWA AND DISPOSAL v.

July 15, 1997

STANLEY T. PILAWA AND DISPOSAL, INC., PETITIONER
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT



Appealed From No. 96-108-MR. State Agency Environmental Hearing Board.

Before: Honorable Joseph T. Doyle, Judge, Honorable Bernard L. McGINLEY, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Judge Doyle.

The opinion of the court was delivered by: Doyle

OPINION BY JUDGE DOYLE

FILED: July 15, 1997

Stanley T. Pilawa and Disposal, Inc. (collectively, Pilawa) appeal an order of the Environmental Hearing Board (EHB), which granted the Department of Environmental Protection's (DEP) motion to dismiss Pilawa's appeal of a DEP order assessing a $21,400 civil penalty.

On September 22, 1995, DEP's emergency response team responded to an environmental emergency caused by gasoline flowing out of a fill pipe connected to an underground storage tank located on property (the site) in Mountaindale, Pennsylvania. Pilawa, who is in the business of brokering disposal of wastes, made arrangements with the owners of the site to remove the storage tanks from the site, and hired three persons to assist in that work. Neither Pilawa nor the three assistants were certified by DEP to perform tank handling activities. *fn1

DEP inspected the site and determined that Pilawa removed three storage tanks which caused a release of kerosene into the soil. The DEP inspector also observed a person attempting to cut into a storage tank using a chisel, without first determining whether the tank contained explosive vapors. When the inspector asked the identity of the certified tank installer, he was informed that no such person was on the site; the inspector suspended further work until a certified installer was on the site. The inspector also observed the excavation of contaminated soils from a tank pit, and noticed a soil pile on the site that smelled of petroleum.

DEP determined that Pilawa committed violations of the Storage Tank and Spill Prevention Act (Storage Tank Act), Act of July 6, 1989, P.L. 169, as amended, 35 P.S. §§ 6021.101-.2105, when (1) Pilawa removed storage tanks without holding a current tank installer certificate, (2) employed uncertified personnel to remove tanks, (3) allowed a release of kerosene into the soil at the site, and (4) improperly stored contaminated soils. On April 19, 1996, DEP issued an order assessing a civil penalty for the above violations of $21,400 and demanded payment within 30 days.

On May 17, 1996, Pilawa filed an appeal with the EHB challenging the civil penalty order. On June 4, 1996, DEP filed a motion to dismiss Pilawa's appeal, asserting that Pilawa failed to either prepay the penalty or post an appeal bond as required by Section 1307(b) of the Storage Tank Act, which provides in pertinent part:

The person charged with the penalty shall then have 30 days to pay the proposed penalty in full or, if the person wishes to contest the amount of the penalty or the fact of the violation, forward the proposed amount of the penalty to the department within the 30-day period . . . or post an appeal bond to the department within 30 days in the amount of the proposed penalty . . . . Failure to forward the money or the appeal bond shall result in a waiver of all legal rights to contest the violation or the amount of the penalty.

35 P.S. § 6021.1307(b). On June 25, 1996, Pilawa filed a memorandum in response to DEP's motion to dismiss, asserting, for the first time, that it was unable to prepay the penalty or file a bond because it lacked the economic resources to meet those requirements.

The EHB granted DEP's motion to dismiss, holding that, because Pilawa failed to allege in writing that it was unable to prepay the penalty within the 30-day appeal period, the EHB did not have jurisdiction over this matter. The EHB's reasoning focused on the requirement in Section 1307 of the Storage Tank Act that an appellant must either prepay a penalty or post security within the 30-day appeal period to invoke the EHB's jurisdiction. The EHB did not hold a hearing and it made no findings of fact on Pilawa's ability to comply with the appeal requirements in the Storage Tank Act. This appeal followed.

On appeal, Pilawa contends that the EHB erred in determining that its appeal must be dismissed for failing to allege that it was financially unable to pay the penalty or post a bond within the 30 day appeal period. Pilawa asserts that the EHB's order contradicts our decision in Twelve Vein Coal Co. v. Department of Environmental Resources, 127 Pa. Commw. 430, 561 A.2d 1317 (Pa. Commw. 1989), petition for allowance of appeal denied, 525 Pa. 629, 578 A.2d 416 (1990), and that the EHB's requirement that financial incapacity be asserted within the appeal period is not found in any statute or rule.

In Twelve Vein Coal Co., a coal mining company filed an appeal of a civil penalty assessment with the EHB. The coal company, however, failed to either prepay the penalty or post an appeal bond, as required by the relevant environmental statutes. The Department of Environmental Resources, the agency which formerly performed the role of DEP, filed a motion to dismiss the appeal for lack of jurisdiction, which the EHB granted. The coal company, thereafter, filed a petition for review with this Court contending that it could not comply with the requirements that it prepay the penalty or post a bond because of its poor financial condition, and was thereby deprived of any legal remedy to challenge the penalty. After reviewing ...


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