Petition for Writ of Certiorari — Strubinger v. Pennsylvania Department of Environmental Protection (No. 08-72)
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OD Supreme Court, U.S.
FILED
08-7 2 JUL Q ~ 2008
OFFICE OF THE CLERK
ae: Witliem Ik. Suter, Clark
IN THE
Supreme Court of the United States
SS
GERALD F. STRUBINGER.
Petitioner,
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF PENNSYLVANIA
PETITION FOR WRIT OF CERTIORARI
GERALD F. STRUBINGER, PRO-SE
555 W. 10" Street
Jim Thorpe, PA 18229
(S70) 357-2240
Petitioner Pro Se
Wright Appellate Services
(215) 733-9870 @ (800) 507-9020 @ Fax (215) 733-9872
QUESTIONS PRESENTED FOR REVIEW
This case presents important issues of law involv-
ing the burden of proof in alleged violations of state
agencies regulations, the abusive force of power of
state agencies, and the dangerous and unconstitu-
tional precedent established by the Pennsylvania
state courts.
The decisions below constitute an abuse of process
by an administrative agency resulting m a violation
of the Eighth and Fourteenth Amendment of the
United States and Commonwealth of Pennsylvania’s
Constitutions. The administrative agency was al-
lowed to allege violations of statutes that were either
inapplicable and without any evidence to support the
violation. In order to correctly apply and enforce the
terms of statutes, the underlying legislative intent
must be analyzed. In our facts, no such measures
were taken, just bare accusations
If the Writ is denied, then there will Iittle over
sight to agencies alleging unsubstantiated violations
of statutes. A tighter grip as to the excessive power
and alleged penalties and fines imposed by agencies
must be in concert with constitutional rights.
Thus, the Writ must be granted to address this sa-
hent issue.
A. WHETHER ‘THE ENVIRONMENTAL
BOARD ABUSED ITS SCOPE OF AU-
THORITY AND DISCRETION IN AS-
SESSING A CIVIL PENALTY AGAINST
THE PETITIONER RESULTING IN THE
VIOLATION OF HIS CONSTITUTIONAL
RIGHTS SINCE IT WAS AGAINST THE
WEIGHT OF SUBSTANTIAL EVIDENCE
AND NOT AUTHORIZED UNDER THE
STATUTE?
. WHETHER THE STATE COURTS VIO-
LATED THE PETITIONERS CONSTI
TUTIGNAL RIGHTS FOR FAILING TO
REVIEW THE APPLICABLE BURDEN
OF PROOF NECESSARY TO IMPOSE A
CIVIL PENALTY THAT WAS ULITI-
MATELY UNREASONABLE AND EX-
CESSIVE?
11
TABLE OF CONTENTS
Questions Presented
Ti Suche Veeaanaah Veiner abad sawed meacadicam 1
Table of Contents................... Wide aia vis aad in
NN occ devinseuvueknncuceeuestartelnsimeesen iv
Opinions Below ...... eee vere peitua Coal ee ees Aine
Statement of the Basis of Jurisdiction of the
NN No osha Sun Lod, hedundun cdveuanbaveesduden) 2
Constitutional, Statutory, and Ordinance
Provisions Involved in this Case ...........................2
OIE AE I Ce in oven oc csc oes deci vaecevcsdceansanee: 3
Argument in Writ of Certiorari............000.0............ a
I. The Pennsylvanta Courts Allowed A
State Agency ‘l’o Abuse [ts Power and
Impose Excessive Fines That Were Against
The Weight Oi The Substantial Evidence
And In Violation Of The Petitioner’s
Constitutional Rights and The
Legislative Intent Of the Statute..............
~]
A. The State Courts Violated The Pet
tioner’s Constitutional Rights for Failing
to Review The Applicable Burden of
Proof Necessary to Impose A Civil
Penalty That Was Ultimately Unrea-
sonable and Excessive .....................-.. 13
Conclusion
TABLE OF AUTHORITIES
Cases:
Allegheny West Civic Counci v. Crty Counsel of
the City of Pittsburgh, 86 Pa.Cmwlth. 308, 484
re ese sca renaaeetet eeu eta ne
Board of Trustees of State Univ. of N.Y. v. Fox,
492 U.S. 469, 480 (1989).............. ne eet eee 12. i5
Central Klectric Cooperative, Inc. v. Pennsylvania
Public Utility Commission, 111 Pa.Cmwlth. 223
Se Ae FI kh 8, 15
City of Pittsburgh Commission of Human Relations
v. U.S. Steel Corp., 127 Pa.Cmwith. 646, 562 A.2d
940 (1989) petition for allowance of appeal denied,
524 Pa. G31, 3746 A.26 TS (ISOS) ........ 5.0 000-0... 16
Commonwealth v. Powell, 527 Pa. 288, 297,
590 A.2d 1240, 1244 (1991) ........... igh ee ena ca 14
Gamble v. Workmen's Compensation Appeal
Board(Burrell Construction & Supply Co.) 143
Pa.Cmwlth.277, 598 A.2d LO7t (99D). 10
In re R.M.J., 455 U.S. 191, 203 (1982)
Kentucky Fried Chicken of Altoona v. Unemploy-
ment Compensation Board of Review, 10
Pa.Cmwlth. 90, 309 A.2d 165 (1973)
Pa. Human Relations Comm'n v. Untontown Area
Sch. Dist, 455 Pa. 52, 313 A.2d 156, 169
Pennsylvania Human Relations Commission v. St.
Joe Minerals Corp., 476 Pa. 302, 310, 382 A.2d
Be I FE icicncnsntecerieveiaceeves PR Na eo a Ret 8, 15
Pennsylvania Social Servs. Local 668 v. Labor
Relations Bd., 481 Pa. 81, 89, 392 A.2d 256, 260
(1978)
REG CT ES pa Se PA PR PPT RE 14
Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct.
ee ae, ee NN oo oes ycceecdvucersocsacossccencdss 1]
Slawek v. Board of Medical Education and
Licensure, 526 Pa. 316, 321, 586 A.2d 362, 365
ES SESE iy IS BL ieee ule Seay vet eee 16
Trevorton Anthracite Co. v. DER, 42 Pa.
Cmwlth. 84, 91, 400 A.2d 240, 243 (1979) _....... 14
United States Steel Corporation v. DER, 7 Pa.
Cmwlth. 429, 443, 300 A.2d 508, 514 (1973) ...... 14
United States v. Cartwright, 411 U.S. 546, 93
S.Ct. 1713, 36 L.Ed.2d 528 (1973)
Wilbar Realty, Ine..v DER.,663 A.2d 857, 860
(Pa. Commonwealth Ct. 1995)............................14
Vi
Constitutional Provisions:
United States Constitution,
PUM WIE os <n cn cnccsenssseccccivescesesccsvscses 2. 7, 2
United States Constitution.
Amendment XIV.................. eh See ee eee ted =. 4. oa
Statutes:
Be es A I sian ie vuxen vated ipendatecvusnenxvapmeneenvereess 16
Ne eo icgn tie sva tip nin ksns cock cav seep sen odes 2
Oe OO ae 3,9
ee ae eee 3
35 P.S.C.A. § 691.401
Vil
TABLE OF APPENDICES
Page
Appendix A — Application for Reconsideration of
Petition for Allowance of Appeal,
Gated Amrit 29, ZOOG..........6 ccc. cccccsceenes. la
Appendix B — Petition for Allowance of Appeal,
dated March 11, 2008........................ 2a
Appendix C — Order, dated August J, 2007........... 3a
Appendix D —- Memorandum Opinion, filed
pate FO se inka ce eee 4a
Appendix Ef — Order, dated June 11, 2007........... 20a
Appendix F — Adjudication and Order, filed
October 4, 2006 .................. iis esiacmet 21a
OPINIONS BELOW
The decision of the Commonwealth Court of Penn:
sylvania dated June 11, 2007 is set forth in Appen-
dix D (3a-18a).
The Petitioner filed a Petition for Allowance of
Appeal from the Order of the Commonwealth Court.
The Petition was denied on March 11, 2008. See Ap-
pendix B (2a).
An Application for Reconsideration before the Su-
preme Court of Pennsylvania Middle District was
denied on April 29, 2008. See Appendix A (1a).
This Writ is timely filed.
STATEMENT OF THE BASIS OF JURISDICTION
OF THE SUPREME COURT
The statutory provision for this Court’s jurisdic:
tion is 28 U.S.C. Section 1254. ‘The Supreme Court
of Pennsylvania Middle District issued its final deci-
sion on March 11, 2008. Appendix B (2a). An Appl
cation for Reconsideration was denied on April 29,
2008. Appendix A (ta). This Petition was timely
filed.
CONSTITUTIONAL, STATUTORY AND
ORDINANCE PROVISIONS INVOLVED IN THIS
CASE
CONSTITUTIONAL PROVISIONS
Kighth Amendment, United States Constitution-
’xcessive bail shall not be required, not excessive
fines imposed, nor cruel and unusual punishments
inflicted.
Fourteenth Amendment, United States Constitution:
The Due Process Clause of the Fourteenth
Amendment provides that no State “shall ... deprive
any person of life, liberty, or property, without due
process of law...."
STATEMENT OF THE CASE
Procedural History
On June 4, 2004, the Department of Environ:
mental Protection (the “Department) filed a Com-
plaint for Assessment of Civil Penalties against the
Petitioner, Gerald F. Strubinger, alleging violations
of Clean Streams Law, Act of June 22, 1937, PL.
1987, as amended, 35 P.S. §691.1, et. seq. and the
Dam Safety and Encroachment Act, Act of November
26, 1978, P.L. 1375, No. 325, as amended, 32 P.S.
$693.1 et. seq. with the Environmental Fearing
Board (hereinafter referred to as the “Board”).
The complaint alleged that the Petitioner was a
contractor and unlawfully encroached upon a water:
course and a pond on the property owned by his son
(Gregory F. Strubinger) without developing an ero-
sion and sediment contro! plan allegedly causing ac:
celerated erosion to occur discharge of sediment
pollution in the water. The Department had already
and obtained relief from the Petitioner’s son for the
same alleged violations.
On August 30, 2004, the Petitioner filed an An-
swer denying the claims, including the denial of any
cold water fishery upon the Property and the demial
of any change of watercourse on his son’s Property.
An initial trial was conducted on November 7 and
November 9, 2005 before the Administrative Judge
Michelle A. Coleman, (the “Judge”). The Petitioner
requested that the venue be changed from Harris
burg to the local courthouse since it would have been
more convenient for himself as well as witnesses for
both sides; the motion was denied.
On October 4, 2006, the Administrative Judge ac
cepted the Department’s position and assessed civil
penalties against the Petitioner in the sum _ of
$9,110.00. The case was affirmed by the Environ-
mental Hearing Board (hereinafter the “Board”).
The Board concluded that the Petitioner's violations
were intentional and harmed the High Quality Cold
Water Fishery watercourse.
As a result, the Petitioner filed a Notice of Appeal
to the Commonwealth Court of Pennsylvania. One
June 11, 2007, the Commonwealth Court affirmed
the Environmental Board’s decision, with one dis-
senting opinion. The, the Petitioner fited a Motion
for Reconsideration since the decision was arbitrary
and capricious and did not cite to any case law that
was contrary to the Petitioner's position. On August
1, 2007, the Motion for Reconsideration was denied.
The Petitioner diligently filed a Petition for Allow-
ance of Appeal to the Supreme Court of Pennsyl-
vania. ‘The Petition was denied on March tl, 2008.
Thereafter, the Petitioner filed an Application for
Reconsideration due to the salient public issues in-
volved in the case. However, the Application was
denied on April 29, 2008.
Thus, the Petitioner timely files this Writ seeking
relief due to the violauion of his constitutional rights.
Factual Background
Gerald Strubinger (hereinafter the “Petitioner”)
was erroneously classified by the Department of En-
vironmental Protection, (hereinafter the “Depart-
ment”), as the contractor at his son’s_ property
located along the north side of West Eighth Street,
Jim Thorpe Borough, Carbon County, Pennsylvania
(the “Property”).! In 2000, the son decided to con:
struct a single family house on his property and
sought advice from his father.
The Department alleged that the Petitioner con-
ducted carthmoving activities at his son’s Property
in August 2000 which allegedly affected the surface
water, bed and banks and watercourse. The De-
partment relied upon the District Manager for the
Carbon County Conservation District (James
Clauser) who visited the Property on August 4, 7,
and 9 2000 after receiving notice that earth was be-
' The Petitioner does own a piece of property adjacent to his
son's property. He had sought approval for earth moving con
struction in 1994 that was approved but he never proceeded
with the project thereafter.
ing moved at the Property. Mr. Clauser found the
Petitioner and Eric Craigie, who was operating a
bulldozer, at the Property. Mr. Clauser told the Pe-
titioner and Mr. Craigie to stop moving earth. Im-
mediately, the Petitioner's son instructed his
contractor, Eric Craigie, to cease performing any
work and for four years worked with the Department
in obtaining approval for his project. Between Au-
gust 4, 2000 to 2004 the only equipment used upon
the Property was to remove logs and stumps already
dug out to a property adjacent to his son’s property,
not for earthmoving activities.
Because the Petitioner was watching the activity
on his son’s property, on June 4, 2004, the Depart-
ment filed a Complaint for Assessment of Civil Pen-
alties against the Petitioner alleging that the
Petitioner unlawfully encroached upon a water-
course and a pond on the property owned by his son
without developing an erosion and sediment control
plan allegedly causing accelerated erosion to occur
discharge of sediment pollution in the water. The
Petitioner adamantly denied being his son’s contrac
tor and never instructed anyone to fill-in or change
any watercourse on his son’s Property or create any
water channel.
ARGUMENT IN WRIT OF CERTIOARI
:. THE PENNSYLVANIA COURTS AL-
LOWED A STATE AGENCY TO
ABUSE ITS POWER AND IMPOSE
EXCESSIVE FINES THAT WERE
AGAINST THE WEIGHT OF THE
SUBSTANTIAL EVIDENCE AND IN
VIOLATION OF THE PETITIONER'S
CONSTIUTIONAL RIGHTS AND THE
LEGISLATIVE INTENT OF THE
STATUTE.
The decisions below are a direct violation of the
United States constitution and a flagrant abuse of
an administrative agency. By giving an agency
unlimited powers which is against the purpose of the
legislative intent of the statute, the Petitioner’s con-
stitutional rights were violated. An unsubstantiated
penalty was imposed without any proper review.
To determine whether a fine is excessive and a vio"
lation of the constitution, a court must consider
whether the statutory provision imposes punishment
and, if so, whether the fine is excessive. U.S.C.A.
Const.Amend. 8. The Eighth Amendment provides
that excessive bail shall not be required, nor exces-
sive fines imposed, nor cruel and unusual punish:
8
ments inflicted. Jd It 1s made applicable to the
states through the Fourteenth Amendment. U.S.
CONST. Amend. XIV §1. Article I, Section 13 of the
Pennsylvania Constitution 1s coextensive with the
Eighth Amendment and provides that “le]xcessive
bail shall not be required, nor excessive fines im-
posed, nor cruel punishments inflicted.” PA. CONST.
Art. 1 813. In our facts, the sanction imposed was
excessive given that it was imposed upon the Peti-
tioner who was watching a construction project and
not the owner of the property nor the contractor.
The Environmental Board should be estopped
from exceeding its power and imposing sanctions
that were not supported by the evidence. See
Central Electric Cooperative, Inc. v. Pennsylvania
Public Utility Commission, 11\ Pa.Cmwlth. 223, 533
A.2d 1084 (1987) and Kentucky Fried Chicken of Al-
toona v. Unemployment Compensation Board of Re-
view, 10 Pa.Cmwlth. 90, 309 A.2d 165 (1973). The
decisions below were in deviation of even state law.
In Pennsylvania Human Relations Commission _v.
St. Joe Minerals Corp., 476 Pa. 302, 310, 382 A.2d
731, 736 (1978), the court held that “lolnly those
powers within the legislative grant e/ther express or
necessarily implied, can be exercised by the adminis:
trative body.” (Emphasis added). There was no ex-
pressed or implied authority that authorized the
Environmental Board to impose a sanction for a
standby pe:-on. The Board exceeded its authorities,
beyond any powers granted by the legislature. Not
only did the Board fail to provide proper notice, it
punished the Petitioner beyond the scope of its au-
thority.
The previous decisions were an abuse of discretion
since they were manifestly unreasonable, or the re-
sult of partiality, prejudice, bias or ill-will, as shown
by the evidence of record. Allegheny West Civic
Council v. City Counsel of the City of Pittsburgh, 86
Pa.Cmwlth. 308, 484 A.2d 863 (1984).
The Petitioner has been a well-respected politician
in the Borough for a number of years and the pur
pose of the wrongful penalty may be based on non:
meritorious reasons which are a direct violation of
the Petitioner’s constitutional rights.
The Petitioner appreciates the purpose of the
Clean Streams Law, Act of June 22, 1937, P.L. 1987,
as amended, 35 P.S. §691.1, et. seq.2 and the Dam
Safety and Encroachment Act, Act of November 26,
1978, P.L.. 1375, No. 325, as amended, 32 P_S. §693.1
et. seq. However, the underlying purpose of the law
and the burden to enforce any violation must be
equally applied. In our facts, the Petitioner was
cited violating the statutes, but the administrative
? The statute reads in part as follows: “It shall te unlawful for
any person or municipality to put or place intu any of the wa-
ters of the Commonwealth. ..any substance of any kind or char-
acter resulting tn pollution as herein defined...-. 35 P.S.C.A.
§691-401.
10
agency was not held to any criteria to support the
violation of the statute.
The decisions below were not supported by the
evidence. “Substantial evidence” is that which con-
stitutes such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.
Gamble v. Workmen's Compensation Appeal Board
(Burrell Construction & Supply Co.) 143
Pa.Cmwlth. 277, 598 A.2d 1071 (1991). Given the
seriousness of the violations, the Department must
be held to a stringent standard in meeting its burden
of proof. In order to protect alleged violators’ consti-
tutional rights, substantial evidence must be sub-
mitted to prove each element of the alleged violation.
If not, the Department, like other state agencies, in
creases their power by only providing minimal evi-
dence to support a_ violation. Of course, this
proposed result is against public policy and the con”
stitution.
The Petitioner should not be assessed a fine due to
any activity on his son’s land. Such overreaching
power by the Department. must be held unconstitu-
tional.
The opimion is not supported by substantial evi-
dence -- no evidence of an existing waterway, no evi-
dence that the Petitioner (not his son) caused
earthmoving activity, and no evidence that the Peti-
tioner’s alleged acts caused environmental harm. A
“watcher” of activity does not equal a violator.
11
Although courts traditionally accord some defer-
ence to the interpretation made by the agency
charged with administration of the act, the meaning
of a statute is essentially a question of law for the
court, and, when convinced that the interpretative
regulation adopted by an administrative agency is
unwise or violative of legislative intent, courts disre-
gard the regulation. Pa. Human HKelations Comm'n
v. Uniontown Area Sch. Dist., 455 Pa. 52, 313 A.2d
156, 169 (1973); see also United States v. Cart-
wright, 411 U.S. 546, 93 S.Ct. 1713, 36 L.Ed.2d 528
(1973); Skidmore v. Swift & Co., 323 U.S. 134, 65
S.Ct. 161, 89 L.Ed. 124 (1944). The Board never
cited to the applicable sections to the alleged viola-
tions. Such acts were an abuse of process.
By abusing its power and failing to evaluate the
substantial evidence using the correct standards, the
Petitioner's constitutione! rights were violated.
Fourteenth Amendment. U.S.C.A. Const.Amend.
XIV. The Petitioner's protected interest in his per
sonality and reputation as a long-time politician has
been infringed upon without proper notice and with-
out justification. Since the Petitioner did not have
notice of the actual section of the alleged statute vio-
lation, a civil penalty was unreasonable and tnap-
propriate under the circumstances.
The United States Supreme Court has interpreted
whether there is a “reasonable fit” for a penalty to
mean that the action at issue be “ ‘in proportion to
the interest served’ ” and that it be “narrowly tar
iored to achieve the desired objective.” Board of
Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469,
480 (1989) (quoting In_re R.M.J., 455 US. 191, 203
(1982).
Given the harsh and unfit sanctions rendered
against the Petitioner, criminal matters could be
pursued against him without cause and without due
process. The fine was excessive given the lack of
evidence, and thus in violation of the Eighth
Amendment of the Constitution. USC A.
Const.Amend. VIII.
Mere allegations of a violation of statute are insuf-
ficient. An administrative agency must be held to a
standard that not only cites to specific sections of
statute but also coincides with constitutional rights
of notice and due process. Excessive fines and penal-
ties that are imposed by administrative agencies
must be considered unconstitutional under’ the
Kighth Amendment. The purpose of a statute is de-
feated if liberal interpretations of violations are
wrongfully imposed upon lawful citizens.
13
A. THE STATE COURTS VIOLATED THE
PETITIONER'S CONSTITUTIONAL
RIGHTS FOR FAILING TO REVIEW THE
APPLICABLE BURDEN OF PROOF
NECESSARY TO IMPOSE A CIVIL PEN-
ALTY THAT WAS ULTIMATELY UN-
REASONABLE AND EXCESSIVE.
In order to meet due process and protect the Peti-
tioner’s constitutional rights, the Environmental
Board had to prove the necessary elements of a vio-
lation of the applicable statutes. Without providing
substantial evidence to each element, the violation
was unsupported and a direct violation of the Peti-
tioner’s constitutional rights.
The civil penalty was unreasonable and inappro-
priate under the circumstances, especially in light of
the lack of credible evidence that the Petitioner was
the contractor operating the equipment that caused
the alleged violations. The Petitioner's son admitted
during his proceedings that he controlled any earth-
moving activity upon his property resulting 10 as-
sessments. .
However, in the present case, the Petitioner was
still assessed a civil penalty for being an innocent
bystander in watching construction upon his son’s
property. Although the Court ordinarily will not
14
substitute its judgment for that of the Board, it will
vacate a penalty if it does not “reasonably fit” the
violations that were proven. Wilbar Healty, Inc. _v.
DER, 653 A.2d 857, 860 (Pa. Commonwealth Ct.
1995); Trevorton Anthracite Co. v. DER. 42 Pa.
Cmwith. $4, 91, 400 A.2d 240, 243 (1979); United
States Steel Corp. v. DER, 7 Pa. Cmwith. 429, 443,
300 A.2d 508, 514 (1973).
Although this is admittedly a deferential stan:
dard, it does not permit the Courts to abdicate its
responsibility to conduct a “meaningful” review of
the case. Yennsy/vania Social Servs. Local 668 v. La-
bor Relations Bd., 481 Pa. 81, 89, 392 A.2d 256, 260
(1978). While the scope of the Board's “discretionary
powers to deal with the factual circumstances it con:
fronts is broad, it is not unlimited. It necessarily fol-
lows that the requirement that appellate courts
defer to that exercise of discretion 1s not unlimited
either.” Commonwealth v. Powell, 527 Pa. 288. 297,
590 A.2d 1240, 1244 (1991). There was no evidence
to support a penalty under the statute.
Moreover, the penalty did not “reasonably fits” the
violations and was unreasonable. Wi/bar Realty, Ine.
v. DER. 663 A.2d 857, 860 (Pa. Cmwlth. 1995);
United States Steel Corp. v. DER, 7 Pa. Cmwlth.
429, 443, 300 A.2d 508.514 (1973). The United
States Supreme Court has tnterpreted whether there
is a “reasonable fit” to mean that the action at. issue
be “‘in proportion to the interest served’ ” and that it
be “narrowly tailored to achteve the desired object
15
tive.” Board of Trustees of State Univ. of N_Y. v. Fox,
492 U.S. 469, 480 (1989) (quoting In_re R.MJ., 455
U.S. 191, 203 (1982).
Given the harsh and unfit sanctions rendered
against the Petitioner, criminal matters could be
pursued against him without cause and without due
process. The fine was excessive given the lack of
evidence. There was no evidence but just an argu’
ment that the Petitioner acted intentionally and
willfully in conducting earth-moving activilics upon
his son’s Property.
There is a plethora of case law delineating the
limitations of an administrative agency authority to
eliminate an abuse of power. See, inter a/ia, Central
Electric Cooperative, Inc. v. Pennsylvania Public
Utility Commission, 111 Pa.Cmwlih. 223, 533 A.2d
1084 (1987) and Kentucky Fried Chicken of Altoona
v. Unemployment Compensation Board of Review,
10 Pa.Cmwilth. 90, 309 A.2d 165 (1973). As our Su:
preme Court stated in relevant part in Peonsy/vania
Human Relations Commission v._St. Joe Minerals
Corp., 476 Pa. 302, 310, 382 A.2d 731, 736 (1978):
“lolnly those powers within the legislative grant e7-
ther express or necessarily implied, can be exercised
by the administrative body.” (Emphasis added).
On appeal from the actions of most administrative
agencies, judicial discretion may not be substituted
for administrative discretion absent bad faith, capri
cious action, or abuse of power by the administrative
16
agency, City of Pittsburgh Commission of Human
Relations v. U.S. Steel Corp... \27 Pa.Cmwlth. 646,
562 A.2d 940 (1989), petition for allowance of appeal
denied, 524 Pa. 631, 574 A.2d 72 (1990); 2 Pa.C.S.A.
$704; Slawek v. Board of Medical Education and Li
censure, 526 Pa. 316, 321, 586 A.2d 362, 365 (1991).
The Petitioner argues that the refusal to abate his
civil penalties was a capricious and arbitrary action
constituting an abuse of discretion by the Board and
Department. Given the lack of evidence and that the
Petitioner's son had been fined against the Envi-
ronmental Board, no civil penalty under the statute
may be rendered against the Petitioner. Since the
Environmental Board failed to meet its burden of
proof of a violation, the penalty should have been va-
cated.
The Petitioner appreciates the role of the Depart
ment to enforce the terms of statutes to protect the
public. However, this power is not unlimited and
must be controlled and interpreted by the courts.
This Houorable Court must limit the abuse of power
imposed by the Department
17
CONCLUSION
For the foregoing reasons, Gerald F. Strubinger,
the Petitioner, respectfully requests that this Honor-
able Court grant this Writ for Certiorari so that the
Pennsylvania courts apply the proper standard of
review in an agency decision that meets the constitu-
tional requirements of Eighth and fourteenth
Amendments, and such other relief that the Court
deems just and proper.
Respectfully submitted,
Gerald F. Strubinger
The Appellant
Pro Se
APPENDIX
la
APPENDIX A — APPLICATION FOR
RECONSIDERATION OF PETITION FOR
ALLOWANCE OF APPEAL, DATED APRIL 29,
2008
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
Gerald F. Strubinger : No. 677 MAL 2007
Petitioner : Application for
Reconsideration
of Petition for Allowance of
Appeal
Vv.
Department of
Environmental
Protection
Respondent
ORDER
PER CURIAM
AND NOW, this 29% day of April, 2008, the Appl
cation for Reconsideration is DENIED.
2a
APPENDIX B — PETITION FOR ALLOWANCE OF
APPEAL, DATED MARCH 11, 2008
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
Gerald F. Strubinger : No. 677 MAL 2007
Petitioner : Petition for Allowance of
Appeal from the Order of
Commonwealth Court
Vv.
Department of
Environmental
Protection
Respondent
PER CURIAM
AND NOW, this 11th day of March, 2008, the Peti-
tion for Allowance of Appeal is DENIED.
3a
APPENDIX C — ORDER, DATED AUGUST 1, 2007
IN THE COMMONWEALTH COURT OF
PENNSYLVANIA
Gerald F. Strubinger > No. 2195 CD 2006
Petitioner,
Vv.
Department of
Environmental
Protection
Respondent
ORDER
NOW, August 1, 2007, having considered peti-
tioners application for reconsideration, the applica-
tion 1s denied.
BY THE COURT:
Bonme Brigance Leadbetter,
President Judge
4a
APPENDIX D —-MEMORANDUM OPINION, FILED
JUNE 11, 2007
IN THE COMMONWEALTH COURT OF
PENNSYLVANIA
Gerald F. Strubingeyr, > No. 2195 CD 2006
Petitioner ‘Submitted: April 5, 2007
Vv.
Department of
Environmental
Protection
Respondent :
BEFORE: Honorable James Gardner Colins, Judge
Honorable Renee Cohn Jubelirer, Judge
Honorable Jim Flaherty, Senior Judge
INION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE FLAHERTY
FILED: June 11, 2007
Gerald F. Strubinger (Strubinger) petitions, pro-
se, for review from an order of the Environmental
Hearing Board (Board) which determined that the
Department of Environmental Protection’s (DEP)
assessment of civil penalties against Strubinger in
the amount of $9,110.00 was reasonable and proper.
We affirm
Strubinger was the general contractor for the con-
struction of a house on property owned by his son,
Gregory Strubinger, located along the north side of
West Eighth Street between Spring and Pine Streets
in Jim Thorpe Borough, Carbon County (Property).
Prior to August of 2000, there was a channel of sur-
face water which had a defined bed and banks and
intermittent flow that ran across the Property and
served as a tributary to Robertson Run. This water:
course was designated as “special protected” due to it
being a high quality cold water fishery pursuant to
25 Pa. code § 93.9 (d).! There was also a pond on the
Property.
In August of 2000, Strubinger conducted earth-
moving activities on the Property and on August 4,
2000, James Clauser, District Manager for the Car
bon potential violations of The Clean Streams Law
(Law), 2? the Dam Safety and Encroachments Act
' 25 Pa. Code § 93.9 contains a table which designates water
uses and water quality criteria and their protected status.
2 Act of June 22, 1937, P.L. 1987, as amended, 32 PS. §§691.1-
691.1001.
6a
(Act)3 and the Erosion and Sediment Control Regula-
tions (Regulations) at 25 Pa.Code § 102.
Mr. Clauser observed Strubinger at the Property
operating a hydraulic excavator in and around the
watercourse and another employee of Strubinger op-
erating a bulldozer. Mr. Clauser observed that an
existing stream channel was being filled in with soil,
earthmoving operations were being conducted with-
out an erosion and sediment control plan and that
erosion and sediment control best management prac
tices (BMPs) were not incorporated. Mr. Clauser ad-
vised Strubinger to stop the ecarthmoving activities
until proper authorization could be obtained but
Strubinger refused to stop.
On August 5, 2000, Mr. Clauser returned to the
Property to observe Strubinger’s activities. Mr.
Clauser notice that the original channel of the wa-
tercourse had been filled in, there was no erosion
and sediment control plan and erosion and sediment
control BMP’s were not installed. Mr. Clauser again
advised Strubinger to stop the earthmoving activi
ties and again Strubinger declined.
On August 7, 2000, Mr. Clauser, a representative
from the DEP and a representative from the Penn-
sylvania Fish and Boat Commission (Commission)
inspected the Property. They observed the same
3 Act of November 26, 1978, P.L. 1375, as amended, 32 PS.
§693.1-693.27
problems that Mr. Clauser had seen on previous
days. Mr. Clauser advised Strubinger to cease the
earthmoving activities and install erosion and sedt-
ment control BMPs.
On August 9, 2000, Mr. Clauser and representa-
tives from the DEP and the United States Army
Corps of Engineers (Corps) inspected the Property
and found that the flow from the original channel
had been diverted to a newly excavated channe] on
the Property, that Strubinger had conducted earth-
moving activities without and erosion and sediment
control plan and that erosion and sediment control
BMPs were not incorporated.
Initially, the DEP filed a complaint against Strub-
ingers son as the owner of the Property, regarding
the underlying violations. In that case, the Board
dismissed Gregory Strubinger’s appeal of a compli
ance order requiring him to remedy the aforemen-
tioned violations on all grounds except’ the
requirement that he return the watercourse to its
original location and construct a new pond. The
Board found Gregory Strubinger acted through his
contractor, Gerald Strubinger, in changing the
course, current, and cross-section of the watercourse
by filling in the original channel and diverting the
flow into a newly excavated channe! and filling in a
pond on the Property.
On June 24, 2004, the DE filed a complaint re-
questing the assessment of civil penalties against
Strubinger pursuant to the Law and the Act. The
complaint alleged that Strubinger unlawfully en-
croached upon a watercourse and a pond on property
owned by his son, Gregory Strubinger, without de-
veloping an erosion and sediment control plan or in-
corporating erosion and sediment control BMPs,
thereby causing accelerated erosion to occur which
resulted in the discharge of sediment pollution into
the waters of the Commonwealth. The existence of
the violations was not at issue before the Board. The
issue was whether Strubinger actually committed
the violations.4
4 Strubinger’s violations as sct forth in the DEP's civil penalty
assessment evaluation included the following: 1.) violated See-
tion 102.4 of the DEP’s regulations, 25 Pa.Code § 102 4 which
provides in pertinent part as follows:
(b) For earth disturbance activities other than agricultural
plowing or tilling, the following erosion and sediment. control
requirements apply:
(1) The implementation and maitence of erosion and
sediment. control BMP’s are required to minimize the potential
for accelerated erosion and sedimentation, including for those
activities which disturb less than 5,000 square feet (464.5
square meters).
(2) A person proposing earth disturbance activities shall
develop a written Erosion and Sediment Control Plan under
this chapter if one or more of the following criteria apply:
Ya
(iii) The earth disturbance activity, because of its prox:
imity to existing drainage features or patterns, has the poten
tial to discharge to a water classified as a High Quality or
Exceptional Value water pursuant to Chapter 93 (relating to
water quality standards).
2.) violated Section 611 of the Clean Streams Law, 35 PS. §
691.611 which provides in pertinent part as follows:
It shall be unlawful to fail to comply with any rule
or regulation of the department or to fail to comply
with any order or permit or license of the depart-
ment, to violate any of the provisions of this act or
rules and regulations adopted hereunder, or any or’
der or permit or license of the department, to violate
any of the provisions of this act or rules and regula-
tions adopted hereunder, or any order or permit or Ir
cense of the department, to cause air or water
pollution, or to hinder, obstruct, prevent or interfere
with the department or its personnel in the perform
ance of any duty hereunder or to violate the provi
sions of 18 Pa.C.S. section 4903 (relating to false
swearing) or 4904 (relating to unsworn falsification
of authorities). Any person or municipality engaging
in such conduct shall be subject to the provisions of
sections 601, 602 and 605.
3) violated Section 402 of the clean Streams Law, 35 P'S. §
691.402 which provides in pertinent part as follows:
(b) Whenever a permit is required by rules and regulations
issued pursuant to this section, it shall be unlawful for a
person or municipality to conduct the activity regulated ex:
cept pursuant to a permit issued by the department. Con-
duction such activity without a permit, or contrary to the
terms or conditions of a permit or conducting an activity
contrary to the rules and regulations of the department or
10a
conducting an activity contrary to an order issued by the
department, is hereby declared to be a nuisance.
4.) violated Section 401 of the Clean Streams Law, 35 P.S. §
691.401 which provides in pertinent part as follows:
It shall be unlawful for any person or municipality to put or
place into any of the waters of the Commonwealth, or allow
or permit to be discharged from property owned or occupied
by such person or municipality into any of the waters of the
Commonwealth, any substance of any kind or character re-
sulting in pollution as herern defined. Any such discharge
is hereby declared to be a nuisance.
5.) violated Section 105,11 of the DEP’s regulations, 25 Pa.Code
§ 105.11 which provides in pertinent part as follows:
(a) A person may not construct, operate, maintain, modify,
enlarge or abandon a dam, water obstruction or encroach:
ment without first obtaining a written permit from the De-
partment.
6.) violated Section 6 of the Dam Safety and Encroachments
Act, 32 PS. §693.6 which provides in pertinent part as follows:
(a) No person shal! construct, operate, maintain, modify,
enlarge or abandon any dam, water obstruction or en-
croachment without the prior written permit of the de-
partment.
7.) violated Section 18 of the Act, 32 P.S. §693.18 which pro-
vides in pertinent part as follows:
it shall be unlawful for any person to:
(1) Violate or assist in the violation of any of the provisions
of this act or of any rules and regulations adopted here-
under.
On August 30, 2004, Strubinger answered the
DEP's complaint, denying any unlawful conduct on
the subject property.
The Board thereafter made the following pertinent
determinations:
18. {Strubinger] altered the flow of the wa-
tercourse by filing in the old channel of the
watercourse and diverting the flow into a
new channel that he dug at a different loca-
tion on the [Property].
19. {Strubinger] did not have a permit or
authorization to fill in the original channel
and relocate the watercourse.
(2) Fail to comply with any order by the department issued
hereunder...
(3) Construct, enlarge, repair, alter, remove, maintain, op-
erate or abandon any dam, water obstruction or encroach-
ment contrary to the terms and conditions of a general or
individual permit or the rules and regulations of the de-
partment.
(5) Intentionally obstruct, impair or pervert the admini-
stration of this act by the department or any municipality
by force, violence, physical interference or obstacle, breach
of official duty or any other unlawful act _..
12a
20. A small, intermittent man-made pond
existed on the [Property] prior to August
2000.
21. {Strubinger] filled in and graded over
the pond.
22. (Strubingerl did not have a permit or
authorization to eliminate the pond.
23. [Strubinger] conducted earthmoving ac-
tivities on the [Property] without developing
an erosion and sediment control plan or 1m-
plementing erosion and sediment control
BMP’s to effectively minimize the potential
for accelerated erosion and sedimentation.
24. {Strubinger]’s conduct created a danger
of sediment pollution to the watercourse.
25. (Strubinger]’s conduct. caused or allowed
accelerated erosion and sedimentation to oc
cur at the [Property].
26. The record demonstrates that (Strubin-
gerl’s conduct was intentional.
Board Decision, October 4, 2006, at 6-7. (Citations
omitted).
The Board determined that the DEP sustained its
burden of proving that Strubinger violated the Law,
the Act and the Regulations due to his conducting
earthmoving activities without developing an erosion
and sediment control plan or implementing erosion
and sediment control BMPs which resulted in the
discharge of sediment pollution into the waters of
the Commonwealth. Thereafter, the Board deter-
mined that the DEP’s assessment was reasonable
and appropriate and assessed a civil penalty in the
amount of $9,110.00 against Strubinger. Strubinger
now petitions our court for review.®
Strubinger contends that the Board erred and
abused its discretion in assessing a civil penalty
against him, that the Board’s decision was against
the weight of substantial evidence, that the civil
penalty was unreasonable and excessive, and that
the venue was improper causing sever hardship
upon Strubinger.
First, Strubinger specifically contents that he was
not the Property, that he merely advised his son on
the construction of a home on the Property and did
not commit any wrongdoing. Strubinger states that
—
5 Our review of a decision by the Board is limited to determin-
ing whether the Board committed an error of law, violated con-
stitutional rights, or whether substantial evidence Supports its
findings of fact Bethenergy Mines, Inc. v. Department of Envi-
ronmental Prote*tion, 676 A.2d 711 (Pa. Cmwlth.), appeal de
nied, 546 Pa. 668, 085 A.2d 547 (1996)
14a
his son, as the owner of the Property, had been sanc-
tioned and repaired the Property pursuant to the
DEP’s demands and that his son had stopped all
earthmoving activities on August 4, 2000 until some-
time in 2004 when the DEP approved his son’s pro-
posals. Strubinger further states that the only
equipment used on the Property after August 4,
2000, was that equipment necessary to move logs
and stumps already dug out to a lot adjacent to the
Property. Strubinger contends that there was no
evidence, credible testimony or photographs linking
him to earthmoving activity on the Property and fur-
ther that the evidence presented does not support
the fact that the waterway or pond ever existed on
the Property where the earthmoving activity took
place.
A review of the recerd reveals that the waterway
and pond were present on the Property where the
earthmoving activity took place. Ms. Mary Jane
Shanflt testified that her husband built the pond on
the Property prior to Strubinger’s son purchasing
the Property and that a stream ran into and out of
the pond. Further, pictures of the Property prior to
and after the earthmoving activity took place were
presented and support the DEP’s contention that
earthmoving activities took place on the Property.
The testimony and evidence further support the
fact that Strubinger operated a hydraulic excavator
and placed material into the channel on the Prop-
erty. Mr. Clauser testified that he watched Strubin-
l5a
ger operate the hydraulic excavator and fill in part of
the channel. (Testimony of Mr. Clauser, at 132, 205-
207, 212-213, 270-271.) Also, Ms. Mary Jane Shan-
felt testified that she watched from her house as
Strubinger dug up the pond and let the water run
across the Property. (Testimony of Ms. Shanfelf, at
13-14, 18-20.) Ms. Shanfelt testified that she saw
Strubinger using the equipment to dig on the Prop-
erty. (Testimony of Ms. Shanfelt, at 18-20.) Mr.
Clauser further testified that he visrted the Property
on three consecutive days, watched Strubinger add
fill to the channel and noted the violations each day
Further, although Strubinger testified that he did
not operate the hydraulic excavator or did so only to
move trees around, the Board found Strubinger and
his son’s testimony not credible, as their testimony
was inconsistent and in conflict with other credible
testimony. As we are foreclosed from reversing
credibility determinations of the Board, such deter-
minations must stand. Szarko v. Department of En-
vironmental Resources, 668 A.2d 1232 (Pa. Cmwith.
1995). Thus, after reviewing the credible testimony,
we find that there is substantial, competent evidence
to support the Board's decision that Strubinger was
the person who conducted the earthmoving activity
and filled in the channel and the pond on the Prop
erty.©
€ Substantial evidence is such relevant evidence as a reason-
able mind might accept as adequate to support a conclusion. Al
16a
Next we address Strubinger’s contention that the
civil penalty was unreasonable and excessive. Sec-
tion.605 of the Law provides in pertinent part as fol-
lows:
In addition to proceeding under any other
remedy available at law or equity for a vio-
lation of a provision of the act, rule, regula:
tion, order of the department, or a condition
of any permit issued pursuant to The Clean
Streams Law, the department, after hear-
ing, may assess a civil penalty upon a per-
son or municipality for such violation. Such
a penalty may be assessed whether or not
the violation was willful. The civil penalty
so assessed shall not exceed ten thousand
dollars ($10,000) per day for each violation.
In determining the amount of the civil pen-
alty the department shall consider the will-
fulness of the violation, damage or injury to
the waters of the commonwealth or their
uses, cost of restoration, and other relevant
factors.
35 P.S. §691.605. ne Section 21 of the Act
provides:
[T]he hearing board, in an action instituted
before it by the Department, may assess a
Hamilton Contracting Co. v. Department of Environmental
Protection, 680 A.2d 1209 (Pa. Cmwith. 1996)
l7a
civil penalty upon any person for such viola-
tion or unlawful conduct. Such a penalty
may be assessed whether or not the viola-.
tion was willful. The civil penalty so as-
sessed shall not exceed $10,000, plus $500
for each day of continued violation. In de-
termining the a amount of civil penalty, the
board shall consider the willfulness of the
violation, damage or injury to the stream
regimen and downstream areas of the
Commonwealth, cost of restoration, the cost
to the Commonwealth of enforcing the pro-
visions of the act against such person, and
other relevant factors. The assessment of
the civil penalty shall be made after hear-
ing, unless hearing ts specifically waived by
the respondent.
32 P.S. § 693.21
Strubinger was assessed penalties for encroach-
ment and earthmoving activitics on August 4, 7, and
9 of 2000, totaling $9,110.00. The DEP assessed
penalties in the amount of $6,100.00 against Strub-
inger for piacing fill in the watercourse and pond on
the Property and $3,010.00 for concluding earthmov-
ing activities in special protected waters absent im-
plementing BMP’s and _ operating without an
approved erosion and sediment control plan. The
record reflects that the DEP appropriately calculated
Strubinger’s penalty using the civil penalty matrix
worksheet. The DEP considered the severity of
18a
Strubinger’s violations along with the fact that
Strubinger refused to comply with the DEP, ulti-
mately requiring an adjudication from the Board.
the Board was correct in determining that the DEP
penalties were neither unreasonable nor excessive.
Finally, we address Strubinger’s contention that
the venue was improper, causing him severe hard-
ship. On July 11, 2005, Strubinger filed a motion for
change of venue with the Board requesting that the
hearing be held locally due to the economic hardship
of traveling to Harrisburg and the inconvenience for
his local witnesses. The Board denied Strubinger’s
motion, as Strubinger failed to meet his burden of
demonstrating that litigating this appeal in Harris-
burg would be “oppressive or vexatious’. See Borger
v. Murphy, 797 A.2d 309, 312 (Pa. Super. 2002).
A review of the record reveals that Strubinger did
not prove that the Harrisburg location would be op-
pressive or vexatious. Strubinger may have shown
that the location was inconvenient, but that does not
meet his burden of proof. See Johns v. First Union
Corp., 777 A.2d 489 (Pa. Super. 2001). Further, the
record reveals that the DEP did hold the first day of
the hearings in Nesquchoning, which is approxi
mately five miles from Jim Thorpe, in order to ac
commodate the local witness. All of the local
witnesses completed their testimony during that
day. ‘he remainder of the hearing was held in Har
risburg and attended by Strubinger. The record
19a
relects that Strubinger has failed to show any harm
caused by the denial of a change of venue. As an
administrative agency has broad discretion in per-
forming its administrative duties and functions, our
court will not overturn an agency's exercise of discre-
tion absent proof of fraud, bad faith or a blatant
abuse of discretion. American Auto Wash, Inc. v.
Department of Environmental Protection, 729 A.2d
175 (Pa. Cmwith. 1999). As Strubinger failed to show
fraud, bad faith or a blatant abuse of discretion, we
will not disturb the agency’s determination relating
to proper value.
Accordingly, we affirm the decision of the Board.
JIM FLAHERTY, Senior Judge
Judge Colins dissents.
20a
APPENDIX E — ORDER, DATED JUNE 11, 2007
IN THE COMMONWEALTH COURT OF
PENNSYLVANIA
Gerald F. Strubinger > No. 2195 CD 2006
Petitioner,
2
Department of
Environmental
Protection
Respondent
ORDER
AND NOW, this 11'* day of June, 2007 the order of
the Environmental Hearing Board in the above cap-
tioned matter is affirmed.
JIM FLAHERTY, Senior Judge
2la
APPENDIX F -- ADJUDICATION AND ORDER,
FILED OCTOBER 4, 2006
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF ENVIRONMENTAL
PROTECTION
EHB Docket No. 2004-120-
CP-C
Vv. Issued: October 4, 2006
GERALD STRUBINGER
ADJUDICATION
By Michelle A. Coleman, Judge
Synopsis:
The Board assesses a civil penalty against a con-
tractor in the amount of $9,110 as recommended by
the Department for violations of the Clean Streams
Law and the Dam Safety and Encroachments Act.
The Board assesses $6,100 for the contractor’s unau-
thorized encroachment to a watercourse and a pond.
The Board assesses $3,010 for the contractor’s fail-
ure to implement erosion and sediment control Best
Management Practices and for operating without an
approved erosion and sediment control plan. The
violations were intentional and resulted in damage
to a High Quality Cold Water Fishery watercourse.
22a
INTRODUCTION
The Department of Environmental Protection (De-
partment) initiated this matter on June 4, 2004, by
filing a Complaint for Assessment of Civil Penalties
against Gerald Strubinger (Defendant) pursuant to
the Clean Streams Law, Act of June 22, 1937, P.L.
1987, as amended, 35 P.S. § 691.1 et seg. (Clean
Streams Law), and the Dam Safety and Encroach-
ments Act, Act of November 26, 1978, P.L. 1375, No.
325, as amended, 32 P.S. § 693.1 et seq. (Dam Safety
and Encroachments Act). The Complaint alleges
that the Defendant uniewflully encroached upon a
watercourse and a pond on property (Site) owned by
his son, Gregory Strubinger, without developing an
erosion and sediment control plan or incorporating
erosion and sediment control Best Management
Practices (BMPs), thereby causing accelerated ero:
sion to occur and resulting in the discharge or sedi
ment pollution to the waters of the Commonwealth.
The Department requests that the Environmental
Hearing Board (Board) assess a civil penalty in the
amount of $9,110 against the Defendant for the vio
lations set. forth in the Complaint.
On August 30, 2004, the Defendant filed an An-
swer to the Complaint denying that he committed
any unlawful conduct on the Site.
The Board has previously addressed the violations
underlying this Complaint in an action involving the
23a
Defendant's son, Gregory Strubinger. See Gregory
Strubinger v. DEP, 2003 EHB 247. In that case, the
Board dismissed Gregory Strubinger’s appeal of a
compliance order requiring him to remedy the
aforementioned violations on all grounds except the
requirement that he return the watercourse to its
original location and construct a new pond. The
board found that Gregory Strubinger, acting through
his contractor (the Defendant in this matter),
changed the course, current, and cross-section of the
watercourse by filling in the original channel and di-
verting flow into a newly excavated channel, and
filled in the original pond on the Site. In the case
before us now, the Department asks the board to as-
sess a civil penalty against the Defendant for the vio-
lations that occurred at the Site. Thus, the existence
of the violations is not at issue in this case; rather,
we must determine whether the Defendant, in fact,
committed these violations, and if so, whether the
penalty amount is reasonable and appropriate under
the circumstances.
Judge Michelle A. Coleman presided over the trial
of this matte, which was conducted on November 7,
2005 and November 9, 2005. Filing of post-hearing
briefs was completed on March 2, 2006, and the mat-
ter is now ripe for adjudication. The record consists
of: a 477: page transcript from the appeal of Gregory
Strubinger v. DEP. EHB Docket No. 2001-220-L,
admitted as a Board exhibit, a 482-page transcript
from the trial of the current action, and 53 exhibits.
24a
After a careful review of the record, the Board makes
the following findings of fact.
FINDINGS OF FACT
1. Plaintiff is the Department of Environmental
Protection, the executive agency of the Common-
wealth with the duty and authority to administer
and enforce the Clean Streams Law, Act of June 22,
1937, P.L. 1987, as amended, 35 PS. § 691.1 et seq.
(Clean Streams Law); the Dam Safety and En-
croachments Act, Act of November 26, 1978, P.L.
1375, No. 325, as amended, 32 P.S. § 693.1 et seg.
(Dam Safety Encroachments Act); Section 1917-A of
the Administrative Code, Act of April 9, 1929, P.L.
177, as amended 71 P.S. § 510-17 (Administrative
Code), and the rules and regulations promulgated at
Title 25 of the Pennsylvania Code. (c. at 4 2.)
2. Defendant is Gerald Strubinger, an adult in
dividual residing at 555 West Tenth Street, Jim
Thorpe, Pennsylvania 18229. (C. at ¥ 3; C.Ex.1.)!
3. The Defendant was the general contractor for
the construction of a house on property located along
the north side of West Eighth Street between Spring
' The following abbreviations will be used: “C.__” for Com-
plaint, “C. Ex." for Commonwealth Exhibits: “D. Ex. ___” for
Defendant's Exhibits; “N.T. _ _” for the Transcript: “B.Ex. _”
for the Transcript from the proceedings in Gregory Strubinger
v. DEP. EHB Docket No. 2001-220-L, admitted into evidence as
Board Exhibit 1
25a
and Pine Streets, in Jim Thorpe Borough, Carbon
County, which is owned by his son, Gregory Strubin-
ger. The Site is identified as Carbon County Tax
Map No. 82A3-A41.01. (C. at 4 5: B. Ex 1 at 339-340,
346; N.T. at 274-275.)
4. A conveyance of surface water having a de-
fined bed and banks and ai least intermittent flow
(watercourse) which serves as a tributary to Robert-
son Run traversed the Site prior to August 2000. (c.
Ex. 2, 4, 40, 41, 48, 54, 55; B.Ex.1 at 19, 41043, 60,
65, 75, 102, 110, 112, 181, 183, 200, 204, 241, 247,
249, 375-377, 386, 392, 403, 438; N.T. at 132, 319.)
5. The watercourse is designated by Section
93.9d of the Water Quality Regulations, 25 Pa. Code
§ 93.9d, as a special protected watercourse because it
is a High Quality Cold Water Fishery. (C. at 4 6: B.
Ex. 1 at 73, 204; N.'T. at 378.)
6. The Defendant conducted earthmoving activi
ties on the Site in August 2000. (B. Ex. 1 at 339-340,
346; N.T. at 274-275.)
7. The Carbon County conservation District is by
delegation agreement with the Department author-
ized to investigate complaints and earthmoving ac:
tivitics to determine compliance with the Clean
Streams Law and Erosion and Sediment Control
Regulations promulgated thereunder at Chapter 102
of Title 25 of the Pennsylvania Code. (C.Ex.46.)
26a
8. On August 4, 2000, James Clauser, District
Manager for the Carbon County Conservation Dis
trict, inspected the Site in Response to complaints of
potential violations occurring on the Site. (B. Ex. 1 at
17; N.T. at 125, 128.)
9. Mr. Clauser observed the Defendant operating
a hydraulic excavator in and around the watercourse
and Eric Craigie operating a bulldozer on the Site.
During the course of his inspection, Mr. Clauser
noted the following conditions:
a. an existing stream channel was be-
ing filled in with excavated soil;
b. earthmoving activities were being
conducted without an erosion and
sediment control plan; and,
e. erosion and sediment control
BMP’s were not incorporated.
(C. Ex. 2, 3, 14, 15, 23, 24, 58; B. Ex. at 19-20, 39-40;
N.T. at 131-132, 138, 153-154, 159-162, 167-168,
205-206, 207-210, 213, 270-271, 436.)
10. Mr. Clauser advised the Defendant to cease
from conducting earthmoving activities on the Site
until he obtained the proper authorization. (c. Ex.2;
N.T. at 138-139.)
11. The Defendant refused to stop performing
earthmoving activities on the Site. (C. Ex. 2; N.T. at
138-139.)
12. On August 5, 2000, Mr. Clauser returned to
the Site and observed the Defendant and Mr. Craigie
operating carthmoving equipment on the Site again.
While inspecting the Site Mr. Clauser noted the fol-
lowing conditions:
a. the original channel of the water-
course had been filled in;
b. earthmoving activities were being
conducted without an erosion and
sediment control plan; and,
C. erosion and sediment control BMPs
were not installed.
(C. ex. 2; N.T. at 159-160.)
13. Mr. Clauser agatn advised the Defendant to
cease from conducting earthmoving activities on the
Site. (C. Ex.2; N.T. at 159.)
14. The Defendant refused Mr. Clauser’s request
to stop conducting earthmoving activities on the
Site. (C.Ex. 2; N.T. at 159.)
15. Mr. Clauser inspected the Site on August 7,
2000, accompanied by representatives from the De-
partment and the Pennsylvania Fish and Boat
Commission and observed the following conditions:
a. the original channel of the water:
course was filled in:
earthmoving activities had been
conducted without an erosion and
sediment control plan; and,
erosion and sediment control BMPs
were not implemented.
(C. Ex. 2; N.T. at 161-162.)
16. Mr. Clauser advised the Defendant to cease
from performing any earthmoving work on the Site
except for the installation of erosion and sediment
control BMPs. (C. Ex.2; N.T. at 164-165.)
17. Mr. Clauser inspected the Site on August 9,
2000, accompanied by representatives from the De-
partment and United States Army Corps of Engi-
neers and observed the following conditions:
a.
b.
the flow from the original channel
of the watercourse had been dir
verted to a newly excavated chan-
nel on the Site;
earthmoving activities had = oc
curred on the Site without an ero-
sion and sediment control plan;
and,
erosion and sediment control BMPs
were not incorporated.
(C_ Ex. 2; N.T. at 167.)
29a
18. The Defendant altered the flow of the water-
course by filing in the old channel of the watercourse
and diverting the flow into a new channel that he
dug at a different location on the Site. (C. Ex. 2, 4, 6,
on we, ok. 22, 26, 28, 29, 30, 31, 32, 45, 51, 58; B.
Ex. 1 at 19, 40, 43-45, 53, 59, 73, 104-105, 158, 170,
Bee, 242, 250, 257, 315, 318, 323, 383-385, 391, 438,
455, 456, 458: N.T. at 131, 153, 154-155, 158, 159-
160, 167, 175-177, 327, 355-361, 362, 366, 367.)
19. The Defendant did not have a permit or au-
thorization to fill in the original channel and relocate
the watercourse. (C. at J 8, 11; C. Ex. 6; N.T. at 361-
362.)
20. A small, intermittent man-made pond existed
on the Site prior to August 2000. (C.Ex. 6; B.Ex. 1 at
119-122, 124-126, 128-135; N.T. at 14, 158.)
21. The Defendant filled tn and graded over the
pond. (B. Ex. 1 at 132, 184: N.T. at 319, 362.)
22. The Defendant did not have a permit or au
thorization to eliminate the pond. (C. Ex. 2, 7.)
23. The Defendant conducted earthmoving activi-
ties on the Site without developing an erosion and
sediment control plan or implementing erosion and
sediment control BMPs to effectively minimize the
potential for accelerated erosion and sedimentation.
(C. ¥ 13; C. Ex. 45; N.T. at 456.)
30a
24. The Defendant's conduct created a danger of
sediment pollution to the watercourse. (C. Ex. 45:
N.T. at 456.)
25. The Defendant’s conduct caused or allowed
accelerated erosion and sedimentation to occur at
the Site. (C. 4 32; C. Ex. 2, 15, 45: B. Ex. 1 at 230-
231, 247, 398-399; N.T. at 128, 132, 133, 153-154,
391, 456-457.)
26. The record demonstrates that the Defendant's
conduct was intentional. (C. Ex. 2, N.T. at 128, 132,
133, 153-154, 391, 456-457.)
27. The violations of the Clean Streams Law and
the Dam Safety and Encroachments Act as described
in the paragraphs above subject the Defendant to
civil penalties under 35 P_S. § 691.605 and 32 PS. §
693.21. See Complaint
28. The Department uses a penalty matrix to de-
termine the recommended amounts for penalties. (C.
Ex. 45; N.T. at 459.)
29. The Department’s penalty assessment is for
the violations that occurred on August 4, 7, and 9,
2000. (C. Ex. 45.)
30. ‘The Department filed a complaint for cival
penalties in the amount of $9,110 for violations of
the Clean Streams Law and the Dam Safety and En
croachments Act. (C. at page 8.)
3la
31. Count | of the Complaint seeks an assessment
of $6,100 for an unauthorized encroachment to a wa:
tercourse and a pond, in violation of Section 6 of the
Dam Safety and Encroachments Act, 32 P.S. §
693.6(a), and Section 105.11 of the Dam Safety and
Waterway Management Regulations, 25 Pa. Code §
105.11(a). (C. at page 5.)
32. Count II of the Complaint seeks an assess:
ment of $3,010 for the Defendant’s failure to develop
an erosion and sediment control plan and implement
erosion and sediment control BMPs, and the result-
ing pollution to the waters of the Commonwealth, in
violation of Section 401 and 611 of the Clean
Streams Law, 35 P.S. §§ 691.401 and 691.6L1, and
Section 102.4 of the Erosion and Sediment Control
Regulations, 25 Pa. Code § 102.4 (C. at page 8.)
DISCUSSION
The Board's duty in a civil penalty complaint case
differs from our role in an appeal of a civil penalty
assessment. In DEP v. Leeward Construction, 2001
EHB 870, 885-86, Judge Labuskes clarified this dis-
tinction as follows:
Our role where the Department has filed
a complaint for civil penalties...1s slightly
different than our review in an appeal from
the Department’s as-assessment of a civil
penalty. In an appeal from a civil penalty
assessment, we determine whether the un:
derlying violations occurred, and then de-
32a
cide whether the among assessed 1s lawful,
reasonable, and appropriate. Farmer v.
DEP, EHB Docket No. 98-226-L (Adjudica-
tion issued March 26, 2001) s/rp op. at 13.
Although our review of an assessment is de
novo, we do not start from scratch by select-
ing what penalty we might independently
believe to be appropriate. Rather, we re-
view the Department’s’ predetermined
amount for reasonableness. Stine Farms
and Recycling, Inc., v. DEP, EHB Docket
No. 99-223-L (Adjudication issued Septem-
ber 4, 2001) s/ip op at 18; 202 Jsland Car
Wash, L.P. v. DEP, 2000 EHB 679, 690.
In contrast to an appeal from an assess-
ment, the board must make an independent
determination of the appropriate penalty
amount in a complaint action. ‘The Depart-
ment suggests an amount in the complaint,
but the suggestion is purely advisory. West-
inghouse v. DEP, 105 A.2d 1349, 1353 (Pa.
Cmwith. 1998) (“Westinghouse I”); DEP v.
Whitemarsh Disposal Corporation, 2000
EHB 300, 346; DEP v. Silverstetn, 1996
EHB 619, 637; DEP v. Landis, 1994 EHB
1781, 1787.
Leeward Construction, 2001 EHB at 885-86. The
Department bears the burden of proof. 25 Pa. Code §
1021.122 (a), (b)\(1). However, the Defendant bears
the hurder
7 esse missy 2 SS 7 o ~]
urden of proving any affirmative defenses, such
33a
as establishing other factors which may have caused
the violations at issue. Frisch v. DER, 1994 EHB
1226, affirmed, 2543 C.D. 1994 (Pa. Cmwlth. Filed
May 23, 1995).
We first turn to the issue of whether the Depart-
ment sustained its burden of proving the violations
of the relevant laws arising from the channel change
of a watercourse and filling in of a pond on the Site.
Both the Clean Streams Law and the Dam Safety
and Encroachments Act provide that failure to com-
ply with any part of the statue or any of the regula:
tions promulgated thereunder is unlawful and
subjects the violator to sanctions including the as-
sessment of civil penalties. Section 611 of the Clean
Streams Law, 35 P.S. § 691.611, and Section 18 of
the Dam Safety and Encroachments Act. 32 P.S. §
693.18. Thus, in this case, the Department has the
burden of proving by a preponderance of the evi-
dence that the Defendant committed violations of the
Cleans Streams Law and Dam Safety and En-
croachments Act and that civil penalties should be
assessed. The Department has satisfied that burden
here.
In Count I of its Complaint, the Department seeks
a penalty for violations of 32 P.S. § 693.6 (a) and 25
Pa. Code § 105.11 (a) because the Defendant en-
croached upon a watercourse and a pond on the Site
without a permit.
34a
Section 6(a) of the Dam Safety and Encroachments
Act provides that “no person shall construct, operate,
maintain, modify, enlarge or abandon any dam, wa-
ter obstruction or encroachment without the prior
written permit of the Department.” 32 PS. §
693.6(a). Section 105.11 of the Department’s Dam
Safety and Waterway Management Regulations mir-
rors this requirement. Sec 25 Pa. Code § 105.1 1(a).
An “encroachment” is “any structure or activity
which in any manner changes, expands, or dimin
ishes the course, current or cross-section of any wa-
tercourse, floodway, or body of water.” 32 P.S. §
693.3.
The Defendant denies rerouting a watercourse and
placing fill in a pond on the Site; however, the record
in this matter reveals otherwise. At trial, the De-
partment presented the testimony of James Clauser,
District Manager for the Carbon County Conserva-
tion District, who visited the Site on Several occa’
sions in response to complaints of potential
violations occurring on the Site. Mr. Clauser testi-
fied that during his first visit to the Site on August
4, 2000, he witnessed the Defendant operating a hy-
draulic excavator in and around the watercourse and
noticed that the existing channel of the watercourse
was being filled in with excavated soil. (N.T. at 125,
128.) On the following day, August 5, 2000, Mr.
Clauser returned to the Site and viewed the Defen-
dant operating the excavator again and observed
that the original channel of the watercourse had
been filled in. (N.T. at 159-160.) When inspecting the
Site with representatives from the Department and
Pennsylvania Fish and Boat Commission a couple of
days later, on August 7, 2000, Mr. Clauser observed
that the channel was completely filled in and opined
that wetlands had been impacted. (N.T. at 161-162.)
During each of these inspections, Mr. Clauser ad-
vised the Defendant to cease from conducting
earthmoving activities on the Site because he had
not obtained a written permit from the Department,
had not developed an erosion and sediment control
plan,.and had not incorporated erosion and sedimen-
tation at the Site; however, the Defendant refused to
comply with his requests. (N.T. at 138-139, 159-160,
164-165.) Thus, upon inspecting the Site on August
9, 2000, with representatives from the Department
and Army Corps Engineers, Mr. Clauser observed
that additional earthmoving activities has occurred
and the flow from the original channel of the water-
course had been diverted to a newly excavated chan-
nel at a different location on the Site. (N.T. at 167.)
Mr. Clauser’s testimony was supported by his field
notes and inspection reports from his inspections of
the Site.
Contrary to Mr. Clauser’s testimony, the Defen-
dant testified that he did not engage in any carth-
moving activities on the Site. (N.T. at 273.) In fact,
the Defendant insisted that he lacks the skill re-
quired to operate an excavator. (N.T. at 97.) Simi-
larly, the Defendant's son, Gregory Strubinger,
36a
testified that his father only served in an advisory
capacity to assist him with building a house on the
Site. (N.T. at 103.) Gregory Strubinger asserted that
he oversaw any earthmoving activity that occurred
on the Site and subcontracted out all of the earth:
moving work conduction on the Site. (N.T. at
103,104.) According to Gregory Strubinger, he hired
Randy Clemmer, Eric Craigie, Richard Beers and his
son, and Coon Excavating and Trucking, to perform
earthmoving work on the Site. (N.T. at 98, 100, 104).
We credit the testimony of Mr. Clauser and deem
him to be a credible witness: however the same can-
not be said for the testimony offered by the Defen-
dant and his son in this matter. In the previous trial
involving the Defendant’s son held before Judge La-
buskes, the Defendant testified that he performed
earthmoving work on the Site and conceded that he
was engaged in earthmoving activities on August 4,
2000, when Mr. Clauser first inspected the Site. (B.
Ex. 1 at 339-340, 346.) But in the instant case, the
Defendant has denied any involvement in the
earthmoving activities that occurred on the Site.
(N.T. at 273.) Similarly, in the previous trial, Grego
ory Strubinger acknowledged that his father was re-
sponsible for the earthmoving activities conducted
on the Site. (N.T. at 465-467.) However, in the case
at bar, Gregory Strubinger testified that he was re-
sponsible for the carthmoving activities conducted
on the Site and named several individuals he alleg-
edly hired to conduct excavation work on the Site.
37a
(N.T. at 103.) Furthermore, as the Department ar-
gues in its post-hearing brief, the Defendant's testi-
mony was not even consistent during the trial in this
matter. Initially, the Defendant alleged that he
lacked the skill necessary to operate a hydraulic ex-
cavator and asserted that any work he performed on
the Site was lmited to digging with hand tools.
(N.T. at 278.) However, the Defendant later con-
ceded that he used the excavator to move soil to the
low-lying area of the Site and remove tree stumps
and logs from the premises. (N.T. at 312, 319.)
In light of the glaring inconsistencies evidence
above, we must reject the testimony offered by the
Defendant and his son as it is clearly not credible
and thus cannot be properly relied upon. As a re-
sult, we conclude that the Defendant was the con-
tractor responsible for the earthmoving activity
conducted at the Site.
The Defendant contends that stormwater runoff
originating upslope from the Site has caused exces-
sive erosion in the Borough. He suggests that this
erosion is a result of commercial and residential de-
velopment north of the Site and the Borough’s fail-
ure to effectively manage the stormwater runoff.
Thus, he argues that the watercourse that traverses
the Site 1s nothing more than a “huge eroded ditch”
that serves as a collection point for stormwater dur:
ing rain events. (Defendant’s post-hearing brief at
page 2.) [In support of this contention, the Defendant
offered the testimony of Borough residents who at
38a
tested to the adverse impact that stormwater runoff
has had on the Borough. William Maurer, the Bor-
ough Council President, acknowledged that storm:
water runoff and the resulting erosion is a “borough:
wide problem.” (N.T. at 108.) Likewise, a retired
resident, Joseph Lesisko, testified that the “drainage
ditch” behind his property is “about 15 feet deep in
spots and straight down.” (N.T. at 69.) The Defen-
dant insists that he and other residents have sought
the assistance of federal and state agencies to rem-
edy this problem, but to no avail.
We do not discount the fact that stormwater runoff
has been and continues to be a problem in Jim
Thorpe Borough and a source or major frustration for
its residents. The Defendant has presented credible
evidence establishing this. However, the presence of
stormwater runoff on the Site does not proved a suf-
ficient basis for the unlawful conduct that occurred
there. Regardless of whether the Defendant consid-
ered the channel to be a watercourse or a “drainage
ditch,” as he and other residents suggest, the laws of
this Commonwealth prohibit him from taking ma-
ters into his own hands and resorting to self-help to
remedy the problem. See Kresge v. DEP, 200 EHB
30, 52 (parties may not engage in the self-help rem-
edy of ignoring Department orders). Such behavior
completely undermines the purpose of the Clean
Stream Law, Dam Safety and Encroachments act,
and the appurtenant regulations. Furthermore, the
fact that portions of the watercourse were suffering
39a
erosion problems does not negate the fact that the
Defendant’s unlawful conduct contributed to this
problem. See Strubinger supra, at 250. In sum, we
are not convinced that any factor, other than the De-
fendant’s conduct, caused the violations at issue in
this case. We therefore find that the Department
has sustained its burden of proving violations of the
Dam Safety and Encroachments Act and its regula:
tions because the Defendant diverted a watercourse
and filled in a pond on the Site without having first
obtained a permit authorizing him to do so.
In Count II of its Complaint, the Department
seeks a penalty for violations of 35 P.S. §§ 691.401
and 691.611, and 25 Pa. Code § 102.4 because the
Defendant conducted earthmoving activities without
developing an erosion and sediment control plan or
implementing erosion and sediment control BMPs,
and sediment pollution of the waters of the Com-
monwealth occurred as a result. These violations
are based on Mr. Clauser’s inspection of the Site on
August 7 and 9, 2000. Mr. Clauser observed that a
watercourse had been rerouted and a pond had been
filled in and no erosion and sediment control BMPs
were installed at the Site. (N.T. at 161-162, 164-165,
167.)
Chapter 102 of the Department's regulations out:
lines the erosion and sediment control requirements
for earthmoving activities conducted within this
Commonwealth:
40a
(1) Theimplementation and maintenance of
erosion and sediment control BMPs are
required to minimize the potential for
accelerated erosion and sedimentation...
(2) A person proposing earth disturbance
activities shall develop a written Erosion
and Sediment Control Plan under this
chapter if one or more of the following
apply:
(i) The earth disturbance activity will re-
sult in a total earth disturbance of 5,000
square feed (464.5 square meters) or
more.
(ii) The earth disturbance activity, be-
cause of its proximity to existing drainage
features or patterns, has the potential to
discharge to a water classified as a [ligh
Quality or Exceptional Value water pur-
suant to Chapter 93 (relating to water
quality standards).
25 Pa. Code § 102.4 (a) (1), (b) (2) G), (iid.
The Defendant does not dispute that an erosion
and sediment control plan was not developed before
earthmoving activities commenced on the Site or
that erosion and sediment control BMPs were not
installed: rather he contents that these requirements
were not his responsibility and suggests that Mr.
Clauser could have “draw[n] something up that
[was]... satisfactory to him and issue Gregory Strub-
inger the E&S plan as he had one for others in the
past.” (Defendant's post-hearing brief at 9.) We find
both of these arguments to be unpersuasive and
without merit. As someone engaged in earthmoving
activities on the Site, the Defendant was bound by
the erosion and sediment control requirements con-
tained in Chapter 102, regardless of whether he was
the record owner of the Site or not. See 25 Pa. Code
§ 102.2. Furthermore, Chapter 102 places the bur-
den of adhering to these requirements on contractors
and other persons engaged in earthmoving activities,
not the Department or the District. See Leeward
Construction Co. v. DEP, 821 A.2da 145 (Pa. Cmwlth.
2003.) While we will not speculate about Mr.
Clauser’s actions in past site inspections, it 1s clear
that he was under no obligation to develop an ero
sion and sediment control plan for the Defendant's
use as he seems to suggest. Accordingly, we hold
that the Department sustained its burden of proving
that the Defendant violated the Clean Steams Law
and the Erosion and Sediment Control Regulations
because he conducted earthmoving activities without
developing an crosion and sediment control plan or
implementing erosion and sediment control erosion
and sediment control BMPs which resulted in the
discharge of sediment pollution into the waters of
the Commonwealth.
42a
Having determined that the Defendant committed
these violations, we now turn to the amount of pen-
alty proposed by the Department for the violations.
The Board ma assess a penalty up to $10,000 per
day for each violation of the Clean Streams Law. 35
PS. § 691.605; DEP v. Carbro Construction Corp.,
1997 FEHB 1204, 1227. In determining the penalty
amount, the Board is to consider the willfulness of
the violations, damage or injury to the waters of the
Commonwealth or their uses, costs of restoration,
and other relevant factors. /d. the deterrent value of
the penalty is also a relevant factor. Westinghouse
v. DEP. 745 A.2d 1277, 1280-1281 (Pa. Cmwlth.
2000) (“Westinghouse II”); Whitemarsh, 2000 EHB
at 346. However, under the Dam Safety and En-
croachments Act, we may assess the maximum civil
penalty of $10,000 per day for each violation plus
$500 for each day of a continued violation, and a
penalty may be assessed whether the violation plus
$500 for each day of a continued violation, and a
penalty may be assessed whether the violation was
willful or not. 32 P.S. § 693.21. Nonetheless, we do
consider, for advisory purposes, the civil penalty ree
ommended by the Department. DEP v. Breslin, EHB
Docket No. 2005-069-CP-L (Adjudication issued
April 6, 2006) slip op. at 9; DEP v. Tessa, 2000 EHB
tt 767.
Our assessment 1s based on the Department's rec”
ommended civil penalty and the evidence presented
at tnal. The Department’s Complaint recommended
a civil penalty in the amount of $9,110. (C. at page
8.) In determining the appropriate penalty amount
for the violations of the Clean Streams I.aw and the
Dam Safety and Encroachments Act, the Depart:
ment utilized its civil penalty matrix worksheet.
The record demonstrates that the Defendant
committed four violations of the law on three sepa-
rate days. There were two violations of the Clean
Streams Law and Frosion and Sediment Control
Regulations on August 4 and 7, 2000, and two viola-
tions of the Dam Safety and Encroachments Act and
the Dam Safety and Waterway Management Regula-
tions on August 7 and 9, 2000.
Turning first to the classification of the violations,
the Department determined that the violations were
“severe” because the violations were conducted with-
out a permit or the implementation of BMPs and
caused accelerated erosion to occur and resulted in
sediment pollution to a High Quality Cold Water
Fishery watercourse. Having provided us with suffi-
cient evidence of the Defendant’s unlawful conduct
and the resultant damage to the waters of the Com-
monwealth, we find that the Department has estab-
lished the appropriate severity classification for the
violations.
Turning next to the willfulness of the Defendant's
actions, we have defined the levels of culpability in
the context of a civil penalty assessment as follows:
An intentional or deliberate violation of law
constitutes the highest degree of willfulness
and is characterized by a conscious choice
on the part of the violator to engage in cer-
tain conduct with knowledge that a viola:
tion will result. Recklessness is
demonstrated by a conscious disregard of
the fact that one’s conduct may result in a
violation of the law. Negligent conduct is
conduct which results in a violation which
reasonably could have been foreseen and
prevented through the existence of reason-
able care.
Whitemarsh, 2000 EHB 300, 349. The Department
has determined that these violations were inten-
tional, We agree and adopt the Department's con-
clusion. The exhibits introduced at trial indicate
that the Defendant was personally made aware of
the need to acquire a permit and implement erosion
and sediment control BMPs before encroaching upon
the watercourse on the Site on at least September
12, 1997 and September 23, 1997, as shown by a let-
ter from the District directed to his attention and his
signature on an inspection report, yet the violations
still occurred after these dates. (C. Ex. 46, 48.) Also,
the Defendant was advised on three separate occa:
sions to cease from conducting earthmoving activi
tics on the Site until he obtained the proper
authorization. [lowever, he openly disregarded Mr.
Clauser’s requests and proceeded with the earthmov:
ing work underway. In addition, although the De:
fendant was advised that erosion and sediment con-
trol BMPs were required to be installed at the Site,
he proceeded to conduct earthmoving work without
making the slightest attempt to do so.
The Defendant’s unlawful conduct resulted in con-
siderable harm to the environment. The Depart-
ment provided ample evidence establishing this fact
at trial. The Defendant eliminated approximately
150 feet of the original channel of a watercourse by
filling it in with excavated material. (C. Ex. 4; N.T.
at 357.) He then rerouted the flow from the original
channel to a newly excavated channel at a different
location on the Site. The channel change to the wa-
tercourse caused accelerated erosion downstream
from the Site and resulted in the discharge of sedi-
ment into a protected watercourse. No evidence of
the costs of restoration or the costs of the Depart-
ment’s enforcement efforts was presented at trial?
We think the Department's assessment is reason-
able and appropriate under the circumstances.
Thus, the Board assessed a civil penalty in the
2 In Breslin we recently stated: “we . strongly encourage the
Department and other parties to produce evidence along these
lines in future cases where this Board ts asked to assess a civil
penalty.” Having not. received such evidence in this case, we
continue to do so. See also DEP v. Hostetler, EHB Docket No.
2005-O011-CP-K (Adjudication tssued June 8, 2006) and Lee
ward Construction, 2001 EHB at 918 (Krancer concurring).
46a
amount of $9,110 against the Defendant. While it is
within our discretion to assess a higher or lower
penalty than recommended by the Department, we
do not believe it is necessary to do so in this case.
The Department’s assessment in sufficient to deter
the Defendant from thinking he is above the law in
the future.
CONCLUSION OF LAW
1. The Environmental Hearing Board has jurts-
diction over the parties and subject matter of this
complaint. See 35 P.S. § 691.605; 32 P.S. § 693.21; 35
P.S. § 7514.
2. The Department bears the burden of proof
when it files a complaint for a civil penalty. 25 Pa.
Yode § 1021.122 (b)(1).
3. The Defendant encroached upon a_ water-
course and a pond on the Site without a permit in
violation of Section 6 of the Dam Safety and En-
croachments Act, 32 P.S. § 693.6(a) and Section
105.11€a) of the Dam Safety and Waterway Man-
agement Regulations, 25 Pa.Code § 105.1 1(a).
4. The Defendant’s unauthorized encroachments
constitute unlawful conduct under 32 P.S. § 693.18
of the Dam Safety and Encroachments Act and 35
P.S.§ 691.611 of the Clean Streams Law.
5. The Defendant failed to develop an erosion
and sediment control plan prior to conducting
47a
earthmoving activities in violation of Section 102.4 of
the Erosion and Sediment Control Regulations, 25
Pa. Code § 102.4.
6. The Defendant failed to implement erosion
and sediment control Best Management Practices to
effectively minimize accelerated erosion and sedt-
mentation in violation of Section 102,4 of the Erosion
and Sediment Control Regulations, 25 Pa. Code §
102.4.
7. The Defendant’s failure to develop an erosion
and sediment control plan and implement erosion
and sediment control Best Management Practices for
earthmoving activities constitutes unlawful conduct
under Section 18 of the Dam Safety and Encroach-
ments Act, 32 P.S. § 693.18, and Section 611 of the
Clean Streams Law, 35 PS. § 691.611.
8. The Defendant’s unlawful conduct resulted in
the discharge of sediment pollution into waters of
the Commonwealth in violation of Section 401 of the
Clean Streams Law, 35 P.S. § 691.401.
9. The Board assessed a civil penalty in the
amount of $9,110 against the Defendant for his vio-
lations of the Dam Safety and Encroachments Act
and the Clean Streams Law and the regulations
promulgated thereunder.
48a
COMMONWEALTH OF PENNSYLVANIA
ENVIRONMENTAL HEARING BOARD
Commonwealth of PA
Dept. of Environmental
Protection
Vv. - FEHB Docket No.
- 2004-120-CP-C
Gerald Strubinger :
ORDER
AND NOW, this 4" day of October 2006, tt is
hereby ORDERED that civil penalties are assessed
against Gerald Strubinger in the total amount of
$9,110.
49a
ENVIRONMENTAL HEARING BOARD
Michael L. Krancer
Chief Judge and Chairman
George J. Miller —
Judge
Thomas W. Renwand
Judge
Michelle A. Coleman
Judge
Bernard A. Labuskes, Jr.
Judge
Dated: October 4, 2006
he
DEP Bureau of Litigation
Attention: Brenda K. Morris, Library
For the Commonwealth, DEP:
Fay Dempsey, Esquire
50a
Northeast Regional Counsel
for Defendant
Gerald Strubinger
555 West Tenth Street
Jim Thorpe, Pennsylvania 18229
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.