dissenting.
I respectfully dissent from the majority’s decision to recalculate the penalty that the Department of Environmental Protection (DEP) assessed against American Auto Wash, Inc. (AAW) for its failure to timely install Stage II vapor recovery technology at specified gasoline stations by November 15, 1993 pursuant to Section 6.7 of the Air Pollution Control Act (Act), 35 P.S. § 4006.7. I would instead vacate the order of the Environmental Hearing Board (Board) and remand the matter for the agency to reconsider the reasonableness of the amount of the penalty in question. Moreover, I believe that on remand AAW should be permitted to introduce the excluded evidence concerning the amount of the penalties that DEP assessed against Mobil Oil Company and Sun Oil Company for similar failures to timely install Stage II technology.1
*182Section 9.1 of the Act authorizes DEP to assess penalties for violations of the Act and assigns DEP wide discretion to determine the appropriate amount of such penalties. The majority recalculates AAW’s penalty based on a policy that DEP has developed to aid its assessment of penalties for violations of the Stage II vapor recovery system installation deadline. As the majority demonstrates, it is possible to apply the facts of this case to that policy and mathematically calculate a new penalty. However, by doing so the majority improperly substitutes its judgment for the agency’s discretion as to the final penalty.
Penalty assessment is more than a mere mathematical calculation; DEP must always tailor an appropriate penalty to each individual case. That duty is recognized in the last step of the policy, which requires DEP to conduct an open-ended consideration of other relevant factors. The error identified by the majority could affect the balance of other relevant factors not apparent to this Court so that the agency would reach a final penalty different from the majority’s calculation. Accordingly, I believe that this matter must be remanded for the agency to exercise its expertise and discretion in light of the error identified by the majority. See Medusa Corporation v. Department of Environmental Resources, 51 Pa.Cmwlth. 520, 415 A.2d 105 (1980) (leaving re-analysis of an appropriate penalty to the expertise of the specialized agency). Moreover, the Court has determined that AAW’s noneompliance with DEP’s deadline was caused in part by factors beyond its control, and that is a relevant factor which DEP should consider on remand when imposing a proper assessment in accordance with the Court’s opinion.
Finally, I believe that the amount of the penalties that DEP has assessed in other cases for the same violation is relevant to determining the reasonableness of the penalty in the instant case. In fact, a principal basis of the'Board’s determination of the reasonableness of the penalty in this case was DEP’s testimony that its application of the penalty policy against AAW was in accordance with the treatment that it gave to other gasoline station operators. Board’s adjudication, p. 15. Because the assessments against Mobil Oil Company and Sun Oil Company provide contrary examples of treatment that DEP gave to other gasoline station operators, I believe that evidence concerning the amount of those assessments was relevant and should have been admitted. Any characteristics that distinguish those assessments from the instant case could be identified by DEP on cross-examination through the administrative fact-finding process. It is not for this Court to unnecessarily circumvent that process.
. I note that the Board considered the reasonableness of the amount of the penalty in its decision and reduced the penalty by $248. DEP did not file a cross-appeal of the Board’s decision, and accordingly DEP has waived any objection concerning whether the issue of the reasonableness of the penalty was properly before the Board. See Pennsylvania Human Relations Commission v. Chester Housing Authority, 458 Pa. 67, 327 A.2d 335 (1974).