DEP’s September 2019 Order required Spencer to cease placement of campers and vehicles in the floodway that would diminish the course, cross-section, or current of the floodway on two parcels he owns on Lower Twomile Run in Cranberry Township, Venango County and, within 30 days, to remove all items, campers and vehicles within the floodway located on his property.
Spencer took no action to comply with the Order for 521 days.
The Order was issued in response to a July 19-20, 2019 “unprecedented rain event,” when campers, vehicles, and other objects that had been located on the Spencer site in the floodway of Lower Twomile Run, were washed downstream, were deposited in, and caused silt and sediment to enter Lower Twomile Run and the Allegheny River.
Approximately a month after the July rain event, a DEP aquatic biologist did a mussel survey right below the confluence of the Lower Twomile Run and the Allegheny River and found chassis of vehicles/RVs and parts of RVs such as carpeting, blankets, refrigerators, glass, tires, and other debris in the river.
DEP observed several species of dead freshwater mussels and described the crushed state of the dead mussels observed in the Allegheny River as being consistent with items rolling along the river bottom and smothering the stream bottom substrate.
The dead mussels included riffleshell and clubshell mussels, which are on the federal and state endangered species lists.
The damage to Lower Twomile Run and the Allegheny River and the deaths of the endangered freshwater mussel species were consistent with the debris observed in the Allegheny River that had come from the Spencer site.
In October 2019, Spencer appealed the September 2019 Order and filed a supersedeas request which was denied without a hearing.
On November 20, 2019, DEP filed a petition to enforce the Order with Commonwealth Court which was granted in January 2020. The Court found Spencer in contempt for his ongoing failure to remove the items from the floodway and in-fact placed new items in the floodway, according to testimony heard by the Board.
On November 16, 2020, the Environmental Hearing Board granted summary judgment in favor of DEP terminating the 2019 appeal.
In total, Spencer failed to comply with DEP’s Order for 521 days through April 4, 2021.
The role of the Environmental Hearing Board in evaluating a DEP complaint for civil penalties is to make an independent determination of the appropriate penalty amount.
DEP proposed a penalty of $123,459.80 that included a base penalty, daily penalties for willful violations, and DEP’s costs for inspections and other actions related to the enforcement action.
The Board said DEP’s calculation of the “willfulness” part of the penalty was “generous on the part of the Department.”
The Board discussion said, “The violation at issue in this case was Mr. Spencer’s decision to ignore the Department’s directive to cease placing new items, including campers and vehicles in the floodway and to remove the items, campers and vehicles that were already located in the floodway of Lower Twomile Run.
“This directive was in response to the impact from the flood event that took place in July 2019 that left debris strewn along Lower Twomile Run and the Allegheny River impacting important habitat for threatened and endangered mussels and clearly killing some number of the mussels.
“The need for the actions the Department requested was readily apparent and the evidence in this case makes it clear that Mr. Spencer was aware of the issue and simply decided not to address the problem.
“We understand the Department’s desire to give him the benefit of the doubt and allow the legal process to play out, but we think his actions showed intentional disregard for his responsibilities and the need to act as directed by the Department.”
“The evidence also makes clear that the burden to comply that the September 2019 Order placed on Mr. Spencer was relatively minor.”
“Mr. Spencer made no effort to comply and did not remove a single item during the 500 plus days that this matter worked its way through the legal system.
“Only when Mr. Spencer faced a contempt hearing in the Commonwealth Court did he remove the items and, moreover, he accomplished their removal in less than a week.”
“Mr. Spencer could have easily complied with the September 2019 Order and then, if he had prevailed in his legal challenge, he could have just as easily returned the items to the Site.
“Instead, he knowingly and intentionally chose noncompliance for an extended period of time and risked a repeat of the harm observed following the July 2019 flood event.”
The Board noted DEP did not seek a penalty for the harm to Lower Twomile Run and the Allegheny River as a result of Spencer’s failure to comply with the 2019 Order.
DEP also made no claim for restoration costs as part of the proposed civil penalty.
“The facts of this case warrant a substantial penalty, but the penalty amount we assess is mitigated by a key factor we are required to consider under the Act, namely, the impact to the environment resulting from the violation.
“This case is about the potential for harm given the events of July 2019 and the proximity of the Site to the Allegheny River and the critical mussel habitat, but that threat needs to be balanced against the fact that no actual harm took place due to Mr. Spencer’s noncompliance.
“We also find that a substantial penalty is warranted because of the apparent need to deter Mr. Spencer from again placing items into the floodway of Lower Twomile Run.
“Despite the protracted legal proceedings that went against him at every turn, including the possibility that Mr. Spencer would be incarcerated by the Commonwealth Court for contempt, Mr. Lybrook [DEP] testified that Mr. Spencer has recently placed at least one item back into the floodway. (T.92).
“We conclude that a substantial civil penalty is required to convince Mr. Spencer that he should comply with the law. We believe that the amount we are assessing properly balances the issues in this case and is in line with our prior rulings.”
Click Here for a copy of the adjudication.
Documents related to the adjudication can be found at EHB Docket # 2022-038.
Visit the Environmental Hearing Board website for more information on appeals of DEP actions.
[Posted: August 14, 2024] PA Environment Digest
No comments :
Post a Comment