PRINTER'S NO. 2398
No. 1872 Session of 1989
INTRODUCED BY MANDERINO, GEORGE, LEVDANSKY, DeWEESE, HASAY,
LUCYK, WOZNIAK, FEE, DOMBROWSKI, HAYDEN, JAROLIN, BOWLEY,
BELARDI, MRKONIC, SALOOM, MICHLOVIC, BORTNER, YANDRISEVITS
AND LEH, SEPTEMBER 18, 1989
REFERRED TO COMMITTEE ON CONSERVATION, SEPTEMBER 18, 1989
AN ACT
1 Providing for the management of residual waste; conferring
2 powers and duties on the Department of Environmental
3 Resources and the Environmental Quality Board; providing for
4 fees for disposal of residual waste and for the collection
5 and disposition of those fees; making an appropriation;
6 providing for civil and criminal penalties; and providing for
7 remedies.
8 TABLE OF CONTENTS
9 Chapter 1. General Provisions
10 Section 101. Short title.
11 Section 102. Declaration of policy.
12 Section 103. Definitions.
13 Section 104. Construction of act.
14 Chapter 3. Powers and Duties
15 Section 301. Department.
16 Section 302. Board.
17 Chapter 5. Host County Services Fee
18 Section 501. Host county services fee for residual waste
19 landfills and residual waste disposal
1 impoundments.
2 Section 502. Host county services fee payment.
3 Section 503. Collection and enforcement of fee.
4 Section 504. Records.
5 Section 505. Surcharge.
6 Chapter 7. Assistance to Municipalities
7 Section 701. Fund.
8 Section 702. Information provided to host counties.
9 Section 703. Joint inspections with host counties.
10 Section 704. Water supply testing.
11 Section 705. Water supply protection.
12 Section 706. Claims resulting from pollution occurrences.
13 Section 707. Independent evaluation of permit applications.
14 Chapter 9. Host Municipality Benefit Fee
15 Section 901. Host municipality benefit fee.
16 Section 902. Host municipality benefit fee payment.
17 Section 903. Collection and enforcement of fee.
18 Section 904. Records.
19 Section 905. Surcharge.
20 Chapter 11. Enforcement and Remedies
21 Section 1101. Unlawful conduct.
22 Section 1102. Enforcement orders.
23 Section 1103. Civil penalties.
24 Section 1104. Criminal penalties.
25 Section 1105. Existing rights and remedies preserved;
26 cumulative remedies authorized.
27 Section 1106. Production of materials; recordkeeping
28 requirements.
29 Section 1107. Collection of fines, fees, etc.
30 Section 1108. Remedies of citizens.
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1 Section 1109. Public information.
2 Section 1110. Joint and several responsibility.
3 Chapter 13. Miscellaneous Provisions
4 Section 1301. Severability.
5 Section 1302. Effective date.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 CHAPTER 1
9 GENERAL PROVISIONS
10 Section 101. Short title.
11 This act shall be known and may be cited as the Residual
12 Waste Minimization Act.
13 Section 102. Declaration of policy.
14 The General Assembly finds and declares as follows:
15 (1) Improper solid waste practices create public health
16 hazards, environmental pollution and economic loss and cause
17 irreparable harm to the public health, safety and welfare.
18 (2) It is appropriate to provide those living near
19 residual waste processing and disposal facilities with
20 additional guarantees of the proper operation of such
21 facilities and to provide incentives for municipalities to
22 host such facilities.
23 (3) Waste minimization is preferable to the disposal of
24 solid waste.
25 (4) Prompt payment and efficient collection of the host
26 county services fee created by this act are essential to the
27 administration of the host county benefits programs created
28 by this act.
29 (5) Removing certain materials from the solid waste
30 stream will decrease the flow of solid waste to residual and
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1 municipal waste landfills, reduce the toxicity of the solid
2 waste stream, aid in the conservation and recovery of
3 valuable resources, conserve energy in the manufacturing
4 process, increase the supply of reusable materials for the
5 industries in this Commonwealth, and reduce substantially the
6 required capacity of proposed residual waste incineration
7 facilities and contribute to their overall combustion
8 efficiency. This will result in significant cost savings in
9 the planning, construction and operation of these facilities.
10 (6) It is in the public interest to promote waste
11 minimization in an environmentally safe manner on a Statewide
12 basis so that resources may be conserved and so that reusable
13 materials may be returned to the economic mainstream in the
14 form of raw materials or products rather than be disposed of
15 or processed at the Commonwealth's overburdened residual and
16 municipal waste processing or disposal facilities.
17 (7) Waste minimization by the industries in this
18 Commonwealth and industries using this Commonwealth's
19 processing and disposal facilities, on an orderly and
20 incremental basis, will further demonstrate the
21 Commonwealth's long-term commitment to an effective and
22 coherent solid waste management strategy.
23 (8) Waste minimization by industries in this
24 Commonwealth will increase economic efficiency; promote
25 development of new businesses; create and preserve jobs;
26 conserve energy; conserve raw materials; and protect the
27 health, safety and welfare of the public in this
28 Commonwealth.
29 (9) The Commonwealth is responsible for the protection
30 of the health, safety and welfare of its citizens concerning
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1 solid waste management.
2 (10) All aspects of solid waste management, particularly
3 the disposition of solid waste and depletion of resources,
4 pose a critical threat to the health, safety and welfare of
5 the citizens of this Commonwealth.
6 (11) Effective and expeditious siting of residual waste
7 disposal and processing facilities is essential for economic
8 health and the growth of industry in this Commonwealth.
9 (12) This act has the following purposes:
10 (i) To establish and maintain a cooperative State
11 and industry program of planning and technical and
12 financial assistance for comprehensive residual waste
13 management.
14 (ii) To encourage the development of waste
15 minimization as a means of managing solid waste;
16 conserving resources; and supplying energy through
17 planning, grants and other incentives.
18 (iii) To protect the public health, safety and
19 welfare from the short-term and long-term dangers of
20 transportation, processing, treatment, storage and
21 disposal of solid waste.
22 (iv) To provide a flexible and effective means to
23 implement and enforce this act.
24 (v) To utilize, wherever feasible, the capabilities
25 of private enterprise in accomplishing the desired
26 objectives of an effective, comprehensive solid waste
27 management plan.
28 (vi) To establish a host county services fee for
29 residual waste landfills and residual waste disposal
30 impoundments to provide a fund for services provided to
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1 host counties by the department and for related purposes.
2 (vii) To establish a host municipality benefit fee
3 for residual waste landfills, disposal impoundments and
4 residual waste incineration facilities, and to provide
5 benefits to host municipalities for the presence of these
6 facilities.
7 (viii) To implement section 27 of Article I of the
8 Constitution of Pennsylvania.
9 (13) Solid waste generated or processed by industries in
10 this Commonwealth should be minimized to the greatest extent
11 practicable.
12 (14) Industries in this Commonwealth should design and
13 operate their manufacturing processes to conserve resources,
14 utilize materials with recycled content, produce goods which
15 are durable and recyclable, and reduce waste produced and the
16 toxicity of waste to the greatest extent practicable.
17 Section 103. Definitions.
18 The following words and phrases when used in this act shall
19 have the meanings given to them in this section unless the
20 context clearly indicates otherwise:
21 "Abatement." The restoration, reclamation or recovery of a
22 natural resource adversely affected by the activity of a person.
23 "Board." The Environmental Quality Board of the Department
24 of Environmental Resources.
25 "Department." The Department of Environmental Resources of
26 the Commonwealth.
27 "Disposal." The deposition, injection, dumping, spilling,
28 leaking or placing of solid waste into or on the land or water
29 in a manner that the solid waste or a constituent of the solid
30 waste enters the environment, is emitted into the air or is
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1 discharged to the waters of this Commonwealth.
2 "Flue." A duct, pipe, stack, chimney or conduit that permits
3 air contaminants to be emitted into the outdoor atmosphere and
4 that is of such a nature as to permit the performance of the
5 test methods and procedures specified in 25 Pa. Code Ch. 139
6 (relating to sampling and testing).
7 "Fund." The Host County Services Fund established in section
8 701.
9 "Hazardous waste."
10 (1) The term includes any of the following:
11 (i) Garbage, refuse or sludge from an industrial or
12 other wastewater treatment plan.
13 (ii) Sludge from a water supply treatment plant or
14 air pollution control facility.
15 (iii) Discarded material. This subparagraph includes
16 solid, liquid, semisolid or contained gaseous material
17 resulting from municipal, commercial, industrial,
18 institutional, mining or agricultural operations.
19 (2) The term does not include any of the following:
20 (i) Solid or dissolved material in domestic sewage.
21 (ii) Solid or dissolved materials in irrigation
22 return flows or industrial discharges:
23 (A) that are point sources subject to permits
24 under section 402 of the Federal Water Pollution
25 Control Act (62 Stat. 1155, 33 U.S.C. § 1342); or
26 (B) that are source, special nuclear or by-
27 product material, as defined by the Atomic Energy Act
28 of 1954 (68 Stat. 921, 42 U.S.C. § 2011 et seq.),
29 which, because of quantity, concentration or physical
30 or chemical or infectious characteristics, may cause
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1 or significantly contribute to an increase in
2 mortality or increase in morbidity in either an
3 individual or the total population or may pose a
4 substantial present or potential hazard to human
5 health or the environment when improperly treated,
6 stored, transported, disposed of or otherwise
7 managed.
8 (iii) Coal refuse as defined in the act of September
9 24, 1968 (P.L.1040, No.318), known as the Coal Refuse
10 Disposal Control Act.
11 (iv) Treatment sludges from coal mine drainage
12 treatment plants, disposal of which is being carried on
13 pursuant to and in compliance with a valid permit issued
14 pursuant to the act of June 22, 1937 (P.L.1987, No.394),
15 known as The Clean Streams Law.
16 "Host county." The county within which a residual waste
17 landfill, residual waste disposal impoundment or residual waste
18 incineration facility is located or is proposed to be located.
19 "Host municipality." The municipality other than the county
20 within which a residual waste landfill, residual waste disposal
21 impoundment or residual waste incineration facility is located
22 or is proposed to be located.
23 "Impoundment." A facility or part of a facility which is a
24 natural topographic depression, manmade excavation, or diked
25 area formed primarily of earthen materials, although it may be
26 lined with synthetic materials, and which is designed to hold an
27 accumulation of liquid waste or waste containing free liquids.
28 The term includes holding, storage, selling and aeration pits,
29 ponds and lagoons. The term does not include injection wells.
30 "Incinerator." An enclosed device which uses controlled
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1 combustion to thermally break down solid waste and which is
2 equipped with a flue.
3 "Management." The entire process, or any part thereof, of
4 storage, collection, transportation, processing and disposal of
5 solid waste by any person engaging in the process.
6 "Municipal waste." Garbage, refuse, industrial waste,
7 lunchroom waste and office waste. The term includes solid,
8 liquid, semisolid or contained gaseous material resulting from
9 the operation of residential, municipal, commercial or
10 institutional establishments and from community activities. The
11 term includes sludge that is not residual waste or hazardous
12 waste and that is from a municipal, commercial or institutional
13 water supply treatment plant; wastewater treatment plant; or air
14 pollution control facility.
15 "Municipal waste landfill." A facility that is designed,
16 operated or maintained for the disposal of municipal waste,
17 whether or not the facility possesses a permit from the
18 Department of Environmental Resources under the act of July 7,
19 1980 (P.L.380, No.97), known as the Solid Waste Management Act.
20 The term does not include a facility that is used exclusively
21 for disposal of construction/demolition waste or sludge from
22 sewage treatment plants or water supply treatment plants.
23 "Municipality." A county, city, borough, incorporated town,
24 township or home rule municipality.
25 "Operator." A person engaged in processing or disposal.
26 "Person." An individual, a partnership, a corporation, an
27 association, an institution, a cooperative enterprise, a
28 municipality, a municipal authority, the Federal Government and
29 a Federal agency, a State institution or agency, and any legal
30 entity which is recognized by law as the subject of rights and
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1 obligations. In any provision of this act prescribing a fine,
2 imprisonment or penalty, the term includes the officers and
3 directors of an entity having officers and directors.
4 "Pollution." Contamination of air, water, land or other
5 natural resources of this Commonwealth that will create or is
6 likely to create a public nuisance or to render the air, water,
7 land or other natural resources harmful, detrimental or
8 injurious to public health, safety or welfare; to domestic,
9 municipal, commercial, industrial, agricultural, recreational or
10 other legitimate beneficial uses; or to livestock, wild animals,
11 birds, fish or other life.
12 "Processing." Technology used for the purpose of reducing
13 the volume or bulk of solid waste, or technology used to convert
14 part or all of the waste materials for offsite reuse.
15 "Processing facilities." The term includes transfer
16 facilities, composting facilities and resource recovery
17 facilities.
18 "Residual waste." Garbage, refuse, discarded material or
19 waste. The term includes solid, liquid, semisolid or contained
20 gaseous materials resulting from industrial, mining and
21 agricultural operations. The term includes sludge that is not
22 hazardous waste and that is from an industrial, mining or
23 agricultural water supply treatment facility, wastewater
24 treatment facility or air pollution control facility. The term
25 does not include coal refuse as defined in section 3 of the act
26 of September 24, 1968 (P.L.1040, No.318), known as the Coal
27 Refuse Disposal Control Act, nor treatment sludges from coal
28 mine drainage treatment plants, disposal of which is being
29 carried on pursuant to and in compliance with a valid permit
30 issued pursuant to the act of June 22, 1937 (P.L.1987, No.394),
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1 known as The Clean Streams Law.
2 "Residual waste disposal facility." A facility for disposing
3 of residual waste.
4 "Residual waste disposal impoundment." A facility for
5 disposing of residual waste by impoundment.
6 "Residual waste incineration facility." A residual waste
7 processing facility which uses an incinerator that is required
8 to obtain a permit under the act of January 8, 1960 (1959
9 P.L.2119, No.787), known as the Air Pollution Control Act, and
10 which has a capacity of 500 or more pounds per hour. The term
11 does not include residual waste processing facilities that use
12 incineration to recover usable energy.
13 "Residual waste landfill." A facility for disposing of
14 residual waste. The term does not include residual waste
15 disposal impoundment; a facility for the land application of
16 residual waste; or a facility at which municipal waste, other
17 than industrial waste, lunchroom waste or office waste generated
18 at the site, is disposed of.
19 "Secretary." The Secretary of Environmental Resources of the
20 Commonwealth.
21 "Solid waste." Any waste. The term includes, but is not
22 limited to, municipal, residual or hazardous waste, including
23 solid, liquid, semisolid or contained gaseous materials.
24 "Solid Waste Abatement Fund." The fund created under section
25 701 of the act of July 7, 1980 (P.L.380, No.97), known as the
26 Solid Waste Management Act.
27 "Source reduction." The reduction or elimination of solid
28 waste generation at the source, usually within the generation
29 process. The term includes, but is not limited to, processing
30 modifications, feedstock substitutions, improvements in
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1 feedstock purity, shipping and packing modifications,
2 housekeeping and management practices, increases in the
3 efficiency of machinery, and recycling within a process.
4 "Storage." The containment of waste on a temporary basis in
5 such a manner as not to constitute disposal of such waste. It
6 shall be presumed that the containment of any waste in excess of
7 one year constitutes disposal. This presumption can be overcome
8 by clear and convincing evidence to the contrary.
9 "Transportation." The offsite removal of solid waste after
10 generation.
11 "Waste minimization." Source reduction, use or reclamation
12 activity that results in the reduction of weight or volume of
13 solid waste which is generated or which is subsequently stored,
14 processed or disposed of or that results in the reduction of
15 toxicity of solid waste which is generated or which is
16 subsequently stored, processed or disposed of, as long as the
17 reduction minimizes present and future threats to human health
18 and the environment. The term does not include treatment
19 intended solely to prepare waste for disposal, such as
20 dewatering.
21 Section 104. Construction of act.
22 (a) Liberal construction.--The terms and provisions of this
23 act are to be liberally construed so as to best achieve and
24 effectuate the goals and purposes of this act.
25 (b) Pari materia.--This act shall be construed in pari
26 materia with the act of July 7, 1980 (P.L.380, No.97), known as
27 the Solid Waste Management Act, and the act of July 28, 1988
28 (P.L.556, No.101), known as the Municipal Waste Planning,
29 Recycling and Waste Reduction Act.
30 CHAPTER 3
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1 POWERS AND DUTIES
2 Section 301. Department.
3 The department, in consultation with the Department of Health
4 regarding matters of public health significance, has the
5 following powers and duties:
6 (1) To administer the waste minimization program
7 pursuant to the provisions of this act and the regulations
8 promulgated under this act.
9 (2) To cooperate with appropriate Federal, State,
10 interstate and local units of government and with appropriate
11 private organizations in carrying out its duties under this
12 act.
13 (3) To provide technical assistance to municipalities,
14 including the training of personnel.
15 (4) To issue orders, conduct inspections and abate
16 public nuisances to implement the provisions and purposes of
17 this act and the regulations promulgated under this act.
18 (5) To institute, in a court of competent jurisdiction,
19 proceedings against any person to compel compliance with the
20 provisions of this act, regulations promulgated under this
21 act or orders of the department.
22 (6) To institute prosecutions against any person under
23 this act.
24 (7) To appoint advisory committees as the secretary
25 deems necessary and proper to assist the department in
26 carrying out the provisions of this act. The secretary is
27 authorized to pay reasonable and necessary expenses incurred
28 by the members of advisory committees in carrying out their
29 functions.
30 (8) To take any action not inconsistent with this act
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1 that the department may deem necessary or proper to collect
2 the host county services fee provided by this act and to
3 ensure the payment of the host municipality benefit fee
4 provided by this act.
5 (9) To serve as the agency of the Commonwealth for the
6 receipt of money from the Federal Government or other public
7 agencies or private agencies and expend the money for studies
8 and research with respect to, and for the enforcement and
9 administration of, the provisions and purposes of this act
10 and the regulations promulgated under this act.
11 (10) To administer and distribute money in the fund for
12 the purposes set forth in section 701.
13 (11) To do any act not inconsistent with this act which
14 it may deem necessary or proper for the effective enforcement
15 of this act and the regulations promulgated under this act.
16 On matters of public health significance, the department
17 shall consult with the Department of Health prior to taking
18 action under this paragraph.
19 Section 302. Board.
20 The board has the following powers and duties:
21 (1) To adopt the regulations of the department to
22 accomplish the purposes and to carry out the provisions of
23 this act, including, but not limited to, the establishment of
24 regulations relating to the protection of the safety, health,
25 welfare and property of the public and the air, water and
26 other natural resources of this Commonwealth.
27 (2) To adopt regulations to impose restrictions on the
28 composition, manufacture, use or sale of a product, packaging
29 or material to enhance waste minimization.
30 CHAPTER 5
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1 HOST COUNTY SERVICES FEE
2 Section 501. Host county services fee for residual waste
3 landfills and residual waste disposal
4 impoundments.
5 (a) Imposition.--As of January 1, 1991, there is imposed a
6 host county services fee upon the operator of each residual
7 waste disposal impoundment and each residual waste landfill. The
8 fee is 50¢ per ton for all solid waste that is disposed of at
9 residual waste landfills and 50¢ per 250 gallons of solid waste
10 disposed of at residual waste disposal impoundments. The fee
11 shall be paid to the department by the operator.
12 (b) Alternative calculation.--The fee for operators of
13 residual waste landfills that do not weigh solid waste when it
14 is received shall be established by the department.
15 (c) Waste weight requirement.--On and after the effective
16 date of this act, each operator of a residual waste landfill
17 that has received 30,000 or more cubic yards of solid waste in
18 the previous calendar year shall weigh all solid waste when it
19 is received. The scale used to weigh solid waste shall conform
20 to the requirements of the act of December 1, 1965 (P.L.988,
21 No.368), known as the Weights and Measures Act of 1965, and the
22 regulations promulgated under that act. The operator of the
23 scale must be a licensed public weighmaster under the act of
24 April 28, 1961 (P.L.135, No.64), known as the Public
25 Weighmaster's Act, and the regulations promulgated under that
26 act.
27 (d) Sunset for fee.--No fee shall be imposed under this
28 section after December 31 of the 14th year following the
29 effective date of this act.
30 Section 502. Host county services fee payment.
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1 (a) Quarterly payments.--An operator of a residual waste
2 landfill or residual waste disposal impoundment shall make the
3 host county services fee payment quarterly. The fee shall be
4 paid on or before the 20th day of April, July, October and
5 January for the three months ending the last day of March, June,
6 September and December.
7 (b) Quarterly reports.--A host county services fee payment
8 shall be accompanied by a form furnished by the department and
9 completed by the operator. The form shall state the total weight
10 or volume of solid waste received by the facility during the
11 payment period and provide other aggregate information deemed
12 necessary by the department to carry out the purposes of this
13 act. The form shall be signed by the operator.
14 (c) Timeliness of payment.--The operator shall be deemed to
15 have made a timely payment of the host county services fee if
16 the operator complies with all of the following:
17 (1) The enclosed payment is for the full amount owed
18 under this section, and no further departmental action is
19 required for collection.
20 (2) The payment is accompanied by the required form, and
21 the form is complete and accurate.
22 (3) The letter transmitting the payment that is received
23 by the department is postmarked by the United States Postal
24 Service by the final day on which the payment is to be
25 received.
26 (d) Discount.--An operator that makes a timely payment of
27 the host county services fee, as provided in this section, shall
28 be entitled to credit and apply against the fee payable a
29 discount of 1% of the amount of the fee collected.
30 (e) Refunds.--An operator that believes the host county
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1 services fee has been overpaid may file a petition for refund to
2 the department. If the department determines that the operator
3 has overpaid the fee, the department shall refund to the
4 operator the amount due, together with interest at a rate
5 established under section 806.1 of the act of April 9, 1929
6 (P.L.343, No.176), known as The Fiscal Code, from the date of
7 overpayment. No refund of the host county services fee shall be
8 made unless the petition for the refund is filed with the
9 department within six months of the date of the overpayment.
10 (f) Alternative proof of payment.--For purposes of this
11 section, presentation of a receipt indicating that the payment
12 was mailed by registered or certified mail by the due date shall
13 be evidence of timely payment.
14 Section 503. Collection and enforcement of fee.
15 (a) Interest.--If an operator fails to make a timely payment
16 of the host county services fee, the operator shall pay interest
17 on the unpaid amount due at the rate established under section
18 806 of the act of April 9, 1929 (P.L.343, No.176), known as The
19 Fiscal Code, from the last day for timely payment to the date
20 paid.
21 (b) Additional penalty.--In addition to the interest
22 provided in subsection (a), if an operator fails to make timely
23 payment of the host county services fee, there shall be added to
24 the amount of fee actually due 5% of the amount of the fee if
25 the failure to file a timely payment is for not more than one
26 month, with an additional 5% for each additional month, or
27 fraction thereof, during which failure continues, not exceeding
28 25% in the aggregate.
29 (c) Assessment.--
30 (1) If the department determines that an operator has
19890H1872B2398 - 17 -
1 not made a timely payment of the host county services fee, it
2 shall send the operator a written notice of the amount of the
3 deficiency within 30 days of determining the deficiency. If
4 the operator has not provided a complete and accurate
5 statement of the weight or volume of solid waste received at
6 the facility for the payment period, the department may
7 estimate the weight or volume in its notice.
8 (2) The operator charged with the deficiency shall have
9 30 days to pay the deficiency in full or, if the operator
10 wishes to contest the deficiency, forward the amount of the
11 deficiency to the department for placement in an escrow
12 account with the State Treasurer or any Pennsylvania bank or
13 post an appeal bond in the amount of the deficiency. The bond
14 must be executed by a surety licensed to do business in this
15 Commonwealth and be satisfactory to the department. Failure
16 to forward the money or the appeal bond to the department
17 within 30 days shall result in a waiver of all legal rights
18 to contest the deficiency.
19 (3) If, through administrative or judicial review of the
20 deficiency, it is determined that the amount of deficiency
21 shall be reduced, the department shall, within 30 days, remit
22 the appropriate amount to the operator, with any interest
23 accumulated by the escrow deposit.
24 (4) The amount determined after administrative hearing
25 or after waiver of administrative hearing shall be payable to
26 the Commonwealth and shall be collectible in the manner
27 provided in section 1107.
28 (5) If any amount due hereunder remains unpaid 30 days
29 after receipt of notice thereof, the department may order the
30 operator of the facility to cease receiving any solid waste
19890H1872B2398 - 18 -
1 until the amount of the deficiency is completely paid.
2 (d) Statute of limitations.--An action under this section
3 must be brought within five years of the last day for timely
4 payment.
5 (e) Filing of appeals.--Notwithstanding any other provision
6 of law, all appeals of final department actions concerning the
7 host county services fee, including, but not limited to,
8 petitions for refunds, shall be filed with the Environmental
9 Hearing Board.
10 (f) Constructive trust.--Host county services fees collected
11 by an operator and held by the operator prior to payment to the
12 department shall constitute a trust fund for the Commonwealth.
13 The trust shall be enforceable against the operator, its
14 representatives and any person receiving part of the fund
15 without consideration or with knowledge that the operator is
16 committing a breach of the trust. However, a person receiving
17 payment of lawful obligation of the operator from the fund shall
18 be rebuttably presumed to have received the payment in good
19 faith and without any knowledge of the breach of trust.
20 (g) Remedies cumulative.--The remedies provided to the
21 department in this section are in addition to any other remedies
22 provided at law or in equity.
23 Section 504. Records.
24 An operator shall keep daily records of all deliveries of
25 solid waste to the facility, as required by the department,
26 including, but not limited to, the name and address of the
27 hauler, the source of the waste, the kind of waste received and
28 the weight or volume of the waste. A copy of these records shall
29 be maintained at the site by the operator for no less than five
30 years and shall be made available to the department and the host
19890H1872B2398 - 19 -
1 municipality for inspection upon request.
2 Section 505. Surcharge.
3 The operator may collect the fee imposed by this chapter as a
4 surcharge on any fee schedule established pursuant to statute,
5 ordinance, resolution or contract for solid waste processing or
6 disposal operations at the facility. In addition, any person who
7 collects or transports solid waste subject to the host county
8 services fee to a residual waste landfill or residual waste
9 disposal impoundment may impose a surcharge on any fee schedule
10 established pursuant to statute, ordinance, resolution or
11 contract for the collection or transportation of solid waste to
12 the facility. The surcharge shall be equal to the increase in
13 disposal fees at the facility attributable to the residual waste
14 minimization fee. Interest and penalties on the fee under
15 section 503(a) and (b) may not be collected as a surcharge.
16 CHAPTER 7
17 ASSISTANCE TO MUNICIPALITIES
18 Section 701. Fund.
19 (a) Establishment.--All fees received by the department
20 under section 501 shall be paid into the State Treasury into a
21 special fund to be known as the Host County Services Fund, which
22 is hereby established.
23 (b) Appropriation.--All money placed in the fund is hereby
24 appropriated to the department for the purposes of providing
25 technical assistance to host counties and municipalities as set
26 forth in this chapter, maintaining and utilizing computerized
27 data on the management of solid waste in this Commonwealth,
28 collecting and administering money in the fund and for other
29 purposes consistent with this act. No more than 3% of the money
30 placed in the fund may be used for administration of the fund.
19890H1872B2398 - 20 -
1 The department shall annually submit to the Governor estimates
2 of amounts to be expended under this act.
3 (c) Transfer.--On the first day of the 16th year after the
4 fee imposed by section 501 becomes effective, all money in the
5 fund that is not obligated shall be transferred to the Solid
6 Waste Abatement Fund and expended in the same manner as other
7 money in the Solid Waste Abatement Fund. On the first day of the
8 19th year after the fee imposed by section 501 becomes
9 effective, all money in the fund that has not been expended
10 shall be transferred to the Solid Waste Abatement Fund and
11 expended in the same manner as other money in the Solid Waste
12 Abatement Fund.
13 (d) Annual report.--The department shall submit an annual
14 report to the General Assembly on receipts to, and disbursements
15 from, the fund in the previous fiscal year, projections for
16 revenues and expenditures in the coming fiscal year, and the
17 Commonwealth's progress in achieving the goals set forth in
18 section 102(13) and (14). The annual report on the fund that is
19 due two years before the expiration of the host county services
20 fee under section 501(d) shall contain a recommendation whether
21 the fee should continue to be imposed after the expiration date
22 and, if so, the proposed amount of the fee.
23 Section 702. Information provided to host counties.
24 (a) Departmental information.--The department shall provide
25 all of the following information to the governing body of host
26 counties for residual waste landfills, residual waste disposal
27 impoundments and residual waste incineration facilities:
28 (1) Copies of each department inspection report for the
29 facility under Federal or State environmental protection
30 statutes, including this act, within five working days after
19890H1872B2398 - 21 -
1 the preparation of such reports.
2 (2) Prompt notification of all department enforcement or
3 emergency actions for the facility, including, but not
4 limited to, abatement orders, cessation orders, proposed and
5 final civil penalty assessments and notices of violation.
6 (3) Copies of all air and water quality monitoring data
7 collected by the department at the facility, within five
8 working days after complete laboratory analysis of the data
9 becomes available to the department.
10 (b) Operator information.--An operator of a residual waste
11 landfill, residual waste disposal impoundment or residual waste
12 incineration facility shall provide to the host county copies of
13 all air and water quality monitoring data, as required by the
14 department for the facility, conducted by or on behalf of the
15 operator, within five days after the data becomes available to
16 the operator.
17 (c) Public information.--All information provided to the
18 host county under this section shall be made available to the
19 public for review upon request.
20 Section 703. Joint inspections with host counties.
21 (a) Training of inspectors.--
22 (1) The department shall establish and conduct a
23 training program to certify host county inspectors for
24 commercial residual waste landfills, commercial residual
25 waste disposal impoundments and commercial residual waste
26 incineration facilities within the county. This program will
27 be available to no more than two persons who have been
28 designated, in writing, by the host county. The department
29 shall hold training programs at least twice a year. The
30 department shall certify host county inspectors upon
19890H1872B2398 - 22 -
1 completion of the training program and satisfactory
2 performance in an examination administered by the department.
3 The department may satisfy its duty to establish a training
4 program under this section by making available to host county
5 inspectors, as provided in this section, the host
6 municipality inspector training programs established under
7 the act of July 28, 1988 (P.L.556, No.101), known as the
8 Municipal Waste Planning, Recycling and Waste Reduction Act,
9 or the act of October 18, 1988 (P.L.756, No.108), known as
10 the Hazardous Sites Cleanup Act.
11 (2) Certified host county inspectors are authorized to
12 enter property, inspect only those records required by the
13 department, take samples and conduct inspections in
14 accordance with department regulations as applicable to
15 department inspectors. Certified host county inspectors may
16 not issue orders. Upon the completion of an inspection,
17 certified host county inspectors shall transmit its findings
18 from the inspection to the department.
19 (3) The department is authorized to pay for the host
20 county inspection training program and to pay 50% of the
21 approved cost of employing a certified host county inspector
22 for a period not to exceed five years. If a county employs
23 individuals who serve as host municipality inspectors under
24 the Municipal Waste Planning, Recycling and Waste Reduction
25 Act or the Hazardous Sites Cleanup Act for a municipality in
26 the county to fulfill the duties of the host county
27 inspector, the department is authorized to pay 100% of the
28 approved cost of employing the host county inspector.
29 (b) Departmental information.--
30 (1) If a host municipality or host county presents
19890H1872B2398 - 23 -
1 information to the department which gives the department
2 reason to believe that a residual waste landfill, residual
3 waste disposal impoundment or residual waste incineration
4 facility is in violation of any requirement of a Federal or
5 State environmental protection statute, a regulation
6 promulgated pursuant to a Federal or State environmental
7 protection statute, any order issued pursuant to a Federal or
8 State environmental protection statute, or the condition of
9 any permit issued pursuant to a Federal or State
10 environmental protection statute, the department shall
11 promptly conduct an inspection of the facility.
12 (2) The department shall notify the host municipality
13 and host county of this inspection and shall allow a
14 certified inspector from the host county to accompany the
15 department's inspector during the inspection.
16 (3) If there is not sufficient information to give the
17 department reason to believe that there is a violation, the
18 department shall provide a written explanation to the host
19 municipality and host county of its decision not to conduct
20 an inspection within 30 days of the request for inspection.
21 (4) Upon written request of a host municipality or host
22 county to the department, the department shall allow a
23 certified inspector of the county within which the host
24 municipality is located to accompany department inspectors on
25 routine inspections of residual waste landfills, residual
26 waste disposal impoundments and residual waste incineration
27 facilities.
28 Section 704. Water supply testing.
29 (a) Required water sampling.--Upon written request from a
30 person owning land contiguous to a commercial residual waste
19890H1872B2398 - 24 -
1 landfill or commercial residual waste disposal impoundment, the
2 operator of the landfill or impoundment shall have quarterly
3 sampling and analysis conducted of private water supplies used
4 by the requesting person for drinking water. Sampling and
5 analysis shall be conducted by a laboratory certified under the
6 act of May 1, 1984 (P.L.206, No.43), known as the Pennsylvania
7 Safe Drinking Water Act. The laboratory shall be chosen by the
8 landowners from a list of regional laboratories supplied by the
9 department. Sampling and analysis shall be at the expense of the
10 operator. Upon request, the operator shall provide copies of the
11 analysis to persons operating residual waste incineration
12 facilities that dispose of the residue from the facilities at
13 the landfill or impoundment.
14 (b) Extent of analysis.--Water supplies shall be analyzed
15 for all parameters or chemical constituents determined by the
16 department to be indicative of typical contamination from
17 residual waste landfills or residual waste disposal
18 impoundments. The laboratory performing sampling and analysis
19 shall provide written copies of sample results to the landowner
20 and to the department.
21 (c) Additional sampling required.--If the analysis indicates
22 possible contamination from a residual waste landfill or
23 residual waste disposal impoundment, the department may conduct,
24 or require the operator to have the laboratory conduct,
25 additional sampling and analysis to determine more precisely the
26 nature, extent and source of contamination.
27 (d) Written notice of rights.--Within 60 days from the
28 effective date of this act, the operator of each residual waste
29 landfill or residual waste disposal impoundment shall provide
30 landowners within 2,500 feet from the facility with written
19890H1872B2398 - 25 -
1 notice of their rights under this section on a form prepared by
2 the department. Facilities that commence operating after the
3 effective date of this act shall provide the notice required by
4 this subsection before they begin to operate.
5 (e) Sampling for noncommercial facilities.--The department
6 may require an operator of a noncommercial residual waste
7 landfill or disposal impoundment to conduct sampling and
8 analysis in accordance with this section if the department has
9 reason to believe that the water supply of a person owning land
10 contiguous to the landfill or disposal impoundment may be
11 contaminated.
12 Section 705. Water supply protection.
13 (a) Alternative water supply requirement.--A person owning
14 or operating a residual waste management facility that adversely
15 affects a public or private water supply by pollution,
16 degradation, diminution or other means shall restore the
17 affected supply at no additional cost to the owner or replace
18 the affected supply with an alternate source of water that meets
19 the requirements of the act of May 1, 1984 (P.L.206, No.43),
20 known as the Pennsylvania Safe Drinking Water Act, and is of
21 equal or better quantity and quality to the original supply at
22 no additional cost to the owner. If a person fails to comply
23 with this requirement, the department may issue an order to the
24 person as necessary to assure compliance.
25 (b) Notification to department.--A landowner or water
26 purveyor suffering pollution, degradation or diminution of a
27 public or private water supply as a result of solid waste
28 management operations at a residual waste management facility
29 may notify the department and request that an investigation be
30 conducted. Within ten days of notification, the department shall
19890H1872B2398 - 26 -
1 begin investigation and shall, within 120 days of the
2 notification, make a determination. If the department finds that
3 the pollution, degradation or diminution was caused by the
4 operation of a residual waste management facility or if it
5 presumes the owner or operator of a residual waste facility
6 responsible for pollution, degradation or diminution pursuant to
7 subsection (c), then it shall issue an order to the owner or
8 operator as necessary to ensure compliance with subsection (a).
9 (c) Rebuttable presumption.--Unless rebutted by one of the
10 four defenses established in subsection (d), it shall be
11 presumed that the owner or operator of a residual waste landfill
12 or residual waste disposal impoundment is responsible for the
13 pollution, degradation or diminution of a public or private
14 water supply that is within one-quarter mile of the perimeter of
15 the area where solid waste management operations have been
16 carried out.
17 (d) Defenses.--In order to rebut the presumption of
18 liability established in subsection (c), the owner or operator
19 must affirmatively prove, by clear and convincing evidence, one
20 of the following four defenses:
21 (1) The pollution, degradation or diminution existed
22 prior to residual waste management operations on the site as
23 determined by a preoperation survey.
24 (2) The landowner or water purveyor refused to allow the
25 owner or operator access to conduct a preoperation survey.
26 (3) The water supply is not within one-quarter mile of
27 the perimeter of the area where solid waste disposal
28 activities have been carried out.
29 (4) The owner or operator did not cause the pollution,
30 degradation or diminution.
19890H1872B2398 - 27 -
1 (e) Independent testing.--An owner or operator electing to
2 preserve its defenses under subsection (d)(1) or (2) shall
3 retain the services of an independent certified laboratory to
4 conduct the preoperation survey of water supplies. A copy of the
5 results of the survey shall be submitted to the department and
6 the landowner or water purveyor in a manner prescribed by the
7 department.
8 (f) Other remedies preserved.--Nothing in this act shall
9 prevent a landowner or water purveyor who claims pollution,
10 degradation or diminution of a public or private water supply
11 from seeking any other remedy that may be provided at law or in
12 equity.
13 Section 706. Claims resulting from pollution occurrences.
14 (a) Financial responsibility.--
15 (1) A permit application by a person other than a
16 municipality or municipal authority under the act of July 7,
17 1980 (P.L.380, No.97), known as the Solid Waste Management
18 Act, for a residual waste landfill, residual waste disposal
19 impoundment or residual waste incineration facility must
20 certify that the applicant has in force or will, prior to the
21 initiation of operations under the permit, have in force
22 financial assurances for satisfying claims of bodily injury
23 and property damage resulting from pollution occurrences
24 arising from the operation of the facility. Financial
25 assurances must be in place until the effective date of
26 closure certification under the Solid Waste Management Act
27 and the regulations promulgated pursuant to that act, and may
28 be required for a longer period if the department determines
29 that the facility may continue to present a significant risk
30 to the public health, safety or welfare or the environment.
19890H1872B2398 - 28 -
1 (2) No person may continue to operate a residual waste
2 landfill, residual waste disposal impoundment or residual
3 waste incineration facility after the 60th day following the
4 effective date of this act unless the person can demonstrate
5 that the person has in force financial assurances for
6 satisfying claims of bodily injury and property damage
7 resulting from pollution occurrences arising from the
8 operation of the facility. Financial assurances must be in
9 place until the effective date of closure certification under
10 the Solid Waste Management Act and the regulations
11 promulgated pursuant to that act, and may be required for a
12 longer period if the department determines that the facility
13 may continue to present a significant risk to the public
14 health, safety or welfare or the environment.
15 (3) The form and amount of financial assurances shall be
16 specified by the department. The required financial
17 assurances may include, but are not limited to, the
18 following:
19 (i) Commercial pollution liability insurance.
20 (ii) A secured standby trust to become self-insured
21 that satisfies a financial test established by
22 regulation.
23 (iii) A trust fund financed by the person and
24 administered by an independent trustee approved by the
25 department.
26 (4) This subsection does not apply to the Federal
27 Government, agencies of the Federal Government, a state
28 government or agencies of a state government.
29 (b) Municipal financial responsibility.--
30 (1) Any permit application by a municipality or
19890H1872B2398 - 29 -
1 municipal authority under the Solid Waste Management Act for
2 a residual waste landfill, residual waste disposal
3 impoundment or residual waste incineration facility must
4 certify that the applicant has in force or will, prior to the
5 initiation of operations under the permit, have in force
6 financial assurances for satisfying claims of bodily injury
7 and property damage resulting from pollution occurrences
8 arising from the operation of the facility, to the extent
9 that such claims are allowed by 42 Pa.C.S. Ch. 85 Subch. C
10 (relating to actions against local parties). Financial
11 assurances shall be in place until the effective date of
12 closure certification under the Solid Waste Management Act
13 and the regulations promulgated pursuant to that act, and may
14 be required for a longer period if the department determines
15 that the facility may continue to present a significant risk
16 to the public health, safety or welfare or the environment.
17 (2) The form and amount of financial assurances shall be
18 specified by the department. The required financial
19 assurances may include, but are not limited to, the
20 following:
21 (i) Commercial pollution liability insurance.
22 (ii) A trust fund financed by the municipality and
23 administered by an independent trustee approved by the
24 department.
25 (iii) An insurance pool or self-insurance program
26 authorized by 42 Pa.C.S. § 8564 (relating to liability
27 insurance and self-insurance).
28 (3) In no case shall the department establish minimum
29 financial assurance amounts for a municipality that are
30 greater than the damage limitations established in 42 Pa.C.S.
19890H1872B2398 - 30 -
1 Ch. 85 Subch. C.
2 (c) Effect on tort claims.--Nothing in this act shall be
3 construed or understood as modifying or affecting the provisions
4 set forth in 42 Pa.C.S. Ch. 85 Subch. C.
5 Section 707. Independent evaluation of permit applications.
6 At the request of a host county, the department may reimburse
7 a host county for reasonable costs incurred for an independent
8 permit application review, by a professional engineer who is
9 licensed in this Commonwealth and who has previous experience in
10 preparing permit applications, of an application under the act
11 of July 7, 1980 (P.L.380, No.97), known as the Solid Waste
12 Management Act, for a new residual waste landfill or residual
13 waste disposal impoundment or for action that would result in
14 additional capacity for a residual waste landfill or residual
15 waste disposal impoundment. Reimbursement may not exceed $50,000
16 per complete application.
17 CHAPTER 9
18 HOST MUNICIPALITY BENEFIT FEE
19 Section 901. Host municipality benefit fee.
20 (a) Imposition.--There is imposed a host municipality
21 benefit fee upon the operator of a residual waste landfill,
22 residual waste disposal impoundment or residual waste
23 incineration facility. The fee shall be paid to the host
24 municipality. If the host municipality owns or operates the
25 facility, the fee shall not be imposed for waste generated
26 within the municipality. If the facility is located within more
27 than one host municipality, the fee shall be apportioned among
28 them according to the percentage of the permitted area located
29 in each municipality.
30 (b) Amount.--The fee is $1 per ton of weighed solid waste
19890H1872B2398 - 31 -
1 for solid waste received at a residual waste landfill or
2 residual waste incineration facility and $1 per 250 gallons of
3 solid waste received at a residual waste disposal impoundment.
4 The department shall establish alternate fees for waste which is
5 not weighed when received at the facility. Amounts paid by an
6 operator to a host municipality pursuant to a preexisting
7 agreement shall serve as a credit against the fee amount imposed
8 by this section.
9 (c) Municipal options.--Nothing in this section or section
10 902 shall prevent a host municipality from receiving a higher
11 fee or receiving the fee in a different form or at different
12 times than provided in this section and section 902 if the host
13 municipality and the operator of the residual waste landfill,
14 residual waste disposal impoundment or residual waste
15 incineration facility agree in writing.
16 Section 902. Host municipality benefit fee payment.
17 (a) Quarterly payment.--An operator subject to section 901
18 shall make the host municipality benefit fee payment quarterly.
19 The fee shall be paid on or before the 20th day of April, July,
20 October and January for the three months ending the last day of
21 March, June, September and December.
22 (b) Quarterly reports.--A host municipality benefit fee
23 payment shall be accompanied by a form furnished by the
24 department and completed by the operator. The form shall state
25 the weight or volume of solid waste received by the facility
26 during the payment period and provide other information deemed
27 necessary by the department to carry out the purposes of this
28 act. The form shall be signed by the operator. A copy of the
29 form shall be sent to the department at the same time that the
30 fee and form are sent to the host municipality.
19890H1872B2398 - 32 -
1 (c) Timeliness of payment.--An operator shall be deemed to
2 have made a timely payment of the host municipality benefit fee
3 if all of the following are met:
4 (1) The enclosed payment is for the full amount owed
5 under this section, and no further host municipality action
6 is required for collection.
7 (2) The payment is accompanied by the required form, and
8 the form is complete and accurate.
9 (3) The letter transmitting the payment that is received
10 by the host municipality is postmarked by the United States
11 Postal Service by the final day on which the payment is to be
12 received.
13 (d) Discount.--An operator that makes a timely payment of
14 the host municipality benefit fee, as provided in this section,
15 shall be entitled to credit and apply against the fee payable a
16 discount of 1% of the amount of the fee collected.
17 (e) Alternative proof.--For purposes of this section,
18 presentation of a receipt, indicating that the payment was
19 mailed by registered or certified mail by the due date, shall be
20 evidence of timely payment.
21 Section 903. Collection and enforcement of fee.
22 (a) Interest.--If an operator fails to make a timely payment
23 of the host municipality benefit fee, the operator shall pay
24 interest on the unpaid amount due at the rate established under
25 section 806 of the act of April 9, 1929 (P.L.343, No.176), known
26 as The Fiscal Code, from the last day for timely payment to the
27 date paid.
28 (b) Additional penalty.--In addition to the interest
29 provided in subsection (a), if an operator fails to make timely
30 payment of the host municipality benefit fee, there shall be
19890H1872B2398 - 33 -
1 added to the amount of fee actually due 5% of the amount of the
2 fee if the failure to file a timely payment is for not more than
3 one month, with an additional 5% for each additional month, or
4 fraction thereof, during which failure continues, not exceeding
5 25% in the aggregate.
6 (c) Assessment notices.--If the host municipality determines
7 that an operator of a residual waste landfill, residual waste
8 disposal impoundment or residual waste incineration facility has
9 not made a timely payment of the host municipality benefit fee,
10 it shall send a written notice for the amount of the deficiency
11 to the operator within 30 days from the date of determining the
12 deficiency. If the operator has not provided a complete and
13 accurate statement of the weight or volume of solid waste
14 received at the facility for the payment period, the host
15 municipality may estimate the weight or volume in its deficiency
16 notice.
17 (d) Constructive trust.--Host municipality benefit fees
18 collected by an operator and held by the operator prior to
19 payment to the host municipality shall constitute a trust fund
20 for the host municipality. The trust shall be enforceable
21 against the operator, its representatives and any person
22 receiving any part of the fund without consideration or with
23 knowledge that the operator is committing a breach of the trust.
24 A person receiving payment of a lawful obligation of the
25 operator from the fund shall be presumed to have received the
26 payment in good faith and without knowledge of the breach of
27 trust.
28 (e) Manner of collection.--The amount due under section 901
29 shall be collectible by the host municipality in the manner
30 provided in section 1107.
19890H1872B2398 - 34 -
1 (f) Remedies cumulative.--The remedies provided to host
2 municipalities in this section are in addition to any other
3 remedies provided at law or in equity.
4 Section 904. Records.
5 Each operator that is required to pay the host municipality
6 benefit fee shall keep daily records of all deliveries of solid
7 waste to the facility, as required by the host municipality,
8 including, but not limited to, the name and address of the
9 hauler, the source of the waste, the kind of waste received and
10 the weight or volume of the waste. Records shall be maintained
11 in this Commonwealth by the operator for no less than five years
12 and shall be made available to the host municipality for
13 inspection upon request.
14 Section 905. Surcharge.
15 The operator of a residual waste landfill, residual waste
16 disposal impoundment or residual waste incineration facility
17 subject to section 901 may collect the host municipality benefit
18 fee as a surcharge on a fee schedule established pursuant to
19 statute, ordinance, resolution or contract for solid waste
20 disposal or processing operations at the facility. In addition,
21 a person who collects or transports solid waste subject to the
22 host municipality benefit fee to a residual waste landfill,
23 residual waste disposal facility or residual waste incineration
24 facility subject to section 901 may impose a surcharge on a fee
25 schedule established pursuant to statute, ordinance, resolution
26 or contract for the collection or transportation of solid waste
27 to the landfill or facility. The surcharge shall be equal to the
28 increase in processing or disposal fees at the facility
29 attributable to the host municipality benefit fee. Interest and
30 penalties on the fee under section 903(a) and (b) may not be
19890H1872B2398 - 35 -
1 collected as a surcharge.
2 CHAPTER 11
3 ENFORCEMENT AND REMEDIES
4 Section 1101. Unlawful conduct.
5 (a) Offenses defined.--It shall be unlawful for any person
6 to do any of the following:
7 (1) Violate, or cause or assist in the violation of, a
8 provision of this act, a regulation promulgated under this
9 act or an order issued under this act.
10 (2) Fail to make a timely payment of the host county
11 services fee or host municipality benefit fee.
12 (3) Interfere with the department or its personnel in
13 the performance of a duty under this act.
14 (4) Interfere with host counties or host municipalities
15 or their personnel in the performance of a duty related to
16 the collection of the host municipality benefit fee or in
17 conducting an inspection authorized by this act.
18 (b) Public nuisance.--Unlawful conduct set forth in
19 subsection (a) shall also constitute a public nuisance.
20 Section 1102. Enforcement orders.
21 (a) Issuance.--The department may issue orders to persons as
22 it deems necessary to aid in the enforcement of the provisions
23 of this act. An order issued under this act shall take effect
24 upon notice unless the order specifies otherwise. An appeal to
25 the Environmental Hearing Board shall not act as a supersedeas.
26 The power of the department to issue an order under this act is
27 in addition to any other remedy which may be afforded to the
28 department pursuant to this act or any other act.
29 (b) Compliance.--A person shall proceed diligently to comply
30 with an order issued under subsection (a). If a person fails to
19890H1872B2398 - 36 -
1 proceed diligently or fails to comply with the order within such
2 time as may be specified, the person shall be guilty of contempt
3 and shall be punished by the court in an appropriate manner. For
4 this purpose, application may be made by the department to the
5 Commonwealth Court, which is granted jurisdiction.
6 Section 1103. Civil penalties.
7 (a) Assessment.--In addition to proceeding under any other
8 remedy available at law or in equity for a violation of a
9 provision of this act, the regulations promulgated under this
10 act or an order of the department issued under this act, the
11 department may assess a civil penalty against a person for the
12 violation. A penalty may be assessed whether or not the
13 violation was intentional or negligent. In determining the
14 amount of the penalty, the department shall consider the
15 willfulness of the violation; the effect on the solid waste
16 planning process; damage to air, water, land or other natural
17 resources of this Commonwealth or their uses; cost of
18 restoration and abatement; savings resulting to the person in
19 consequence of the violation; deterrence of future violations;
20 and other relevant factors. If the violation leads to issuance
21 of a cessation order, a civil penalty shall be assessed.
22 (b) Escrow.--When the department assesses a civil penalty,
23 it shall inform the person of the amount of the penalty. The
24 person charged with the penalty shall then have 30 days to pay
25 the penalty in full or, if the person wishes to contest either
26 the amount of the penalty or the fact of the violation, either
27 to forward the proposed amount to the department for placement
28 in an escrow account with the State Treasurer or with a bank in
29 this Commonwealth or to post an appeal bond in the amount of the
30 penalty. The bond must be executed by a surety licensed to do
19890H1872B2398 - 37 -
1 business in this Commonwealth and must be satisfactory to the
2 department. If, through administrative or judicial review of the
3 proposed penalty, it is determined that no violation occurred or
4 that the amount of the penalty should be reduced, the department
5 shall, within 30 days, remit the appropriate amount to the
6 person, with an interest accumulated by the escrow deposit.
7 Failure to forward the money or the appeal bond to the
8 department within 30 days shall result in a waiver of legal
9 rights to contest the violation or the amount of the penalty.
10 (c) Amount.--The maximum civil penalty which may be assessed
11 under this section is $10,000 per violation. Each violation for
12 each separate day and each violation of a provision of this act,
13 a regulation promulgated under this act or an order issued under
14 this act shall constitute a separate offense under this section.
15 (d) Statute of limitations.--The department must bring an
16 action under this section within five years of the violation.
17 Section 1104. Criminal penalties.
18 (a) Summary offense.--A person, other than a municipal
19 official exercising official duties, who violates a provision of
20 this act, a regulation promulgated under this act or an order
21 issued under this act commits a summary offense and shall, upon
22 conviction, be sentenced to pay a fine of not less than $100 nor
23 more than $1,000 and costs and, in default of the payment, to
24 imprisonment for not more than 30 days.
25 (b) Misdemeanor offense.--A person, other than a municipal
26 official exercising official duties, who violates a provision of
27 this act, a regulation promulgated under this act or an order
28 issued under this act commits a misdemeanor of the third degree
29 and shall, upon conviction, be sentenced to pay a fine of not
30 less than $1,000 nor more than $10,000 per day for each
19890H1872B2398 - 38 -
1 violation, or to imprisonment for not more than one year, or
2 both.
3 (c) Second or subsequent offense.--A person, other than a
4 municipal official exercising official duties, who, within two
5 years after being convicted of or pleading guilty or no contest
6 to a conviction of a misdemeanor under subsection (b), violates
7 a provision of this act, a regulation promulgated under this act
8 or an order issued under this act commits a misdemeanor of the
9 second degree and shall, upon conviction, be sentenced to pay a
10 fine of not less than $2,500 nor more than $25,000 for each
11 violation, or to imprisonment for not more than two years, or
12 both.
13 (d) Violations to be separate offense.--Each violation for
14 each separate day and each violation of a provision of this act,
15 a regulation promulgated under this act or an order issued under
16 this act shall constitute a separate offense under this section.
17 Section 1105. Existing rights and remedies preserved;
18 cumulative remedies authorized.
19 Nothing in this act shall be construed as estopping the
20 Commonwealth, or a district attorney of a county or solicitor of
21 a municipality from proceeding in courts of law or equity to
22 abate pollution forbidden under this act or abate nuisances
23 under existing law. It is the purpose of this act to provide
24 additional and cumulative remedies to control residual waste
25 planning and management within this Commonwealth, and nothing
26 contained in this act shall abridge or alter rights of action or
27 remedies existing at law or in equity, under the common law or
28 statutory law. Nothing in this act nor any action done by virtue
29 of this act shall be construed as estopping the Commonwealth or
30 persons in the exercise of their rights from proceeding in
19890H1872B2398 - 39 -
1 courts of law or equity to suppress nuisances, to abate
2 pollution or to enforce rights. No court of this Commonwealth
3 having jurisdiction to abate public or private nuisances shall
4 be deprived of that jurisdiction in an action to abate a private
5 or public nuisance instituted by any person for the reason that
6 such nuisance constitutes air or water pollution.
7 Section 1106. Production of materials; recordkeeping
8 requirements.
9 (a) Authority of department.--The department and its agents
10 and employees shall:
11 (1) Have access to, and require the production of,
12 papers, documents and physical evidence pertinent to a matter
13 under investigation.
14 (2) Require a person engaged in the residual waste
15 management or residual waste planning to establish and
16 maintain records and make reports and furnish information as
17 the department may prescribe.
18 (3) Have the authority to enter a place where solid
19 waste is generated, stored, processed, treated or disposed of
20 for the purposes of making an investigation or inspection
21 necessary to ascertain compliance with the provisions of this
22 act and the regulations promulgated under this act. In
23 connection with the inspection or investigation, samples may
24 be taken of a solid, semisolid, liquid or gaseous material
25 for analysis. If analysis is made of the samples, a copy of
26 the results of the analysis shall be furnished within five
27 business days after receiving the analysis to the person
28 having apparent authority over the place.
29 (b) Warrants.--An agent or employee of the department may
30 apply for a search warrant to a Commonwealth official authorized
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1 to issue a search warrant for the purposes of inspecting or
2 examining any place; of inspecting, examining or seizing any
3 record or other physical evidence; of conducting tests; or of
4 taking samples of any solid waste. The warrant shall be issued
5 upon probable cause. It shall be sufficient probable cause to
6 show any of the following:
7 (1) The inspection, examination, test or sampling is
8 pursuant to a general administrative plan to determine
9 compliance with this act.
10 (2) The agent or employee has reason to believe that a
11 violation of this act has occurred or may occur.
12 (3) The agent or employee has been refused access to the
13 place, record or physical evidence or has been prevented from
14 conducting tests or taking samples.
15 Section 1107. Collection of fines, fees, etc.
16 (a) Lien.--Fines, fees, interest, penalties and other
17 assessments shall be collectible in any manner provided by law
18 for the collection of debts. If the person liable to pay an
19 amount neglects or refuses to pay it after demand, the amount,
20 together with interest and any costs that may accrue, shall be a
21 lien in favor of the Commonwealth or the host municipality, as
22 the case may be, upon the property of the person, but only after
23 it has been entered and docketed of record by the prothonotary
24 of the county where the property is situated. The Commonwealth
25 or host municipality, as the case may be, may transmit to the
26 prothonotaries of the respective counties certified copies of
27 liens under this subsection. The prothonotary shall enter and
28 docket the lien and shall index the lien as judgments are
29 indexed without requiring the payment of costs as a condition
30 precedent to the entry.
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1 (b) Deposit of fines.--Fines collected under sections 1103
2 and 1104 shall be paid into the Solid Waste Abatement Fund.
3 Section 1108. Remedies of citizens.
4 (a) Authority to bring civil action.--Except as provided in
5 subsection (c), an aggrieved person may commence a civil action
6 against any person who is alleged to be in violation of this
7 act, a regulation promulgated under this act or an order issued
8 under this act.
9 (b) Jurisdiction.--The Environmental Hearing Board is given
10 jurisdiction over citizen suit actions brought under this
11 section against the department. Actions against any other
12 persons under this section may be taken in a court of competent
13 jurisdiction.
14 (c) Notice.--No action may be commenced under this section
15 prior to 60 days after the plaintiff has given notice of the
16 violation to the secretary, to the host municipality and to the
17 alleged violator; nor may any action be commenced under this
18 section if the secretary has commenced and is diligently
19 prosecuting an administrative action before the Environmental
20 Hearing Board or a civil or criminal action in a court of
21 competent jurisdiction to require compliance.
22 (d) Award of costs.--The Environmental Hearing Board or a
23 court of competent jurisdiction, in issuing a final order in an
24 action brought under subsection (a), may award costs of
25 litigation, including reasonable attorney and expert witness
26 fees, to a party, whenever the board or court determines the
27 award is appropriate.
28 Section 1109. Public information.
29 (a) General rule.--Except as provided in subsection (b),
30 records, reports or other information obtained under this act
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1 shall be available to the public for inspection or copying
2 during regular business hours.
3 (b) Confidentiality.--The department may, upon request,
4 designate records, reports or information as confidential when
5 the person providing the information demonstrates all of the
6 following:
7 (1) The information contains trade secrets or
8 confidential business information.
9 (2) The information does not relate to public health,
10 safety or welfare or the environment.
11 (c) Separation of information.--When submitting information
12 under this act, a person shall designate the information which
13 the person believes is confidential or shall submit that
14 information separately from other information being submitted.
15 Section 1110. Joint and several responsibility.
16 If more than one person is acting as an operator, all persons
17 are jointly and severally responsible for compliance with this
18 act.
19 CHAPTER 13
20 MISCELLANEOUS PROVISIONS
21 Section 1301. Severability.
22 The provisions of this act are severable. If any provision of
23 this act or its application to any person or circumstance is
24 held invalid, the invalidity shall not affect other provisions
25 or applications of this act which can be given effect without
26 the invalid provision or application.
27 Section 1302. Effective date.
28 This act shall take effect in 60 days.
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