Administrative Penalties

PURPOSE: This rule establishes the procedures for issuance and methods for calculation of administrative penalties by the department. PUBLISHER’S NOTE: The secretary of state has determined that the publication of the entire text of the material, which is incorporated by reference as a portion of this rule would be unduly cumbersome or expensive. This material as incorporated by reference in the rule shall be maintained by the agency at its headquarters and shall be made available to the public for inspection and copying at no more than the actual cost of reproduction. This note applies only to the reference material. The entire text of the rule is printed here. (1) Applicability. This rule applies to any licensed lead professional who violates the provisions of 19 CSR 30-70.630, Lead Abatement Work Practice Standards. (2) Definitions. (A) Adjustments: Those factors related to a violator or violation, which are not reflected in the gravity-based assessment but which distinguish legitimate differences between separate violations of the same provision. (B) Compliance: A regulated entity or individual’s meeting or conformity with applicable regulations, notifications, licensure requirements, and laws. (C) Department: Shall refer to the Missouri Department of Health and Senior Services. (D) Enforcement: A formal action taken against the regulated entity or individual for violating applicable regulations, notifications, licensure requirements, and laws. Such actions include, but are not limited to, Notice of Violation (NOV), warning letters, administrative penalties, cease and desist order, and/or licensure restriction, revocation, suspension, and/or denial. (E) Gravity-based assessment: The degree of seriousness of a violation taking into consideration the risk to public health and/or the environment posed by the violation and considering the extent of deviation from sections 701.300–701.338, RSMo. (F) Identified offense: A violation meeting the requirements specified in subsection (3)(B) of this rule in which administrative penalties may be assessed by the department. (G) Lead abatement project: The replacement, encapsulation, enclosure, or removal of a lead-bearing substance on a particular component within a particular location, which will remove or remediate the lead hazard(s) for at least twenty (20) years. (H) Multiple violation penalty: The sum of individual administrative penalties assessed when two (2) or more violations are included in the same complaint or enforcement action. (I) Multi-day penalty: The sum of each day’s administrative penalties assessed when the same violation has occurred on or continued for two (2) or more consecutive or nonconsecutive days. (J) Multi-day violation: A violation which has occurred on or continued for two (2) or more consecutive or nonconsecutive days. (K) Noncompliance: Deviation from or failure to meet applicable regulations, notifications, licensure requirements, and laws. Noncompliance can range from a single incident to chronic conduct. Noncompliance may result in a negative impact to public health and/or the environment. (L) Notice of violation (NOV): The formal written documentation that reflects the deviation from or failure of the lead abatement contractor, supervisor, or worker to meet applicable regulations, notifications, licensure requirements, and laws. A notice of violation shall include the corrective action(s) to be performed to achieve compliance. (M) Notification: A required package of information submitted to the department by the lead supervisor at least ten (10) days prior to the onset of a lead abatement project. The notification shall include a completed Lead Abatement Project Notification form, as required by the department; full payment of the notification fee prior to starting the lead abatement project; and disclosure of any potential lead hazards to the owners and tenants of a dwelling by the Missouri licensed risk assessor who conducted the initial risk assessment (occupant protection plan). The Lead Abatement Project Notification form, MO 580-2365 (1-05), is incorporated by reference in this rule and is available on the web at www.dhss.mo.gov or by contacting the department at PO Box 570, Jefferson City, MO 65102-0570, (573) 751-6111. This rule does not incorporate any subsequent amendments or additions. (N) Violation: The deviation from or failure of the licensed lead professional to meet applicable regulations, notifications, licensure requirements, and laws which require corrective action(s). (3) General Provisions. (A) Pursuant to section 701.317, RSMo, and in addition to any other remedy provided by law, upon determination by the department that any provision of sections 701.300– 701.338, RSMo, or a standard, limitation, order, rule, or regulation promulgated pursuant thereto, or a term or condition of any license has been violated, the department may issue an order assessing an administrative penalty upon the violator. (B) An administrative penalty shall not be imposed until the department has issued a notice of violation pursuant to section 701.311, RSMo, to the violator regarding the same type of violation within the calendar year except a failure to provide written notification prior to the onset of a lead abatement project according to section 701.309.3, RSMo. An order assessing an administrative penalty shall state that an administrative penalty is being assessed under section 701.317, RSMo, the manner of collection and rights of appeal. (C) An order assessing an administrative penalty shall describe the nature of the violation(s), the amount of the administrative penalty being assessed, and the basis of the penalty calculation. (D) An order assessing an administrative penalty shall be served upon the licensee through the United States Postal Service certified mail, return receipt requested. An order assessing an administrative penalty shall be considered served if the licensee verifies receipt. A refusal to accept an order assessing an administrative penalty, or a rejection of certified mail, constitutes service of the order. (E) The department may, at any time, withdraw without prejudice any administrative penalty order. (4) Calculation of Penalties. The calculation of administrative penalties may include any of the following four (4) factors: gravity-based assessment, multiple violation penalties, multi-day penalties, and adjustments. (A) Gravity-Based Assessment. The gravity-based assessment is determined by evaluating the potential for harm posed by the violation and the extent to which the violation deviates from the requirements of the law, associated rules, or licenses. 1. Potential for or actual harm. The potential for harm posed by a violation is based on the risk to public health, safety, or the environment and the degree that the violation undermines the purposes of or procedures for implementing the law, associated rules, or licenses. A. The risk of exposure is dependent on both the likelihood that humans or the environment may be exposed to lead hazards and the degree of potential exposure. Penalties will reflect the probability that the violation either did result in or could have resulted in a release of lead contamination in the environment and the harm, which either did or would have happened if the release had in fact occurred. (I) Acute— (a) The violation poses or may pose an immediate or imminent risk to public health and/or the environment; or (b) Is a violation specified in the Department of Health and Senior Services Lead Abatement Work Practice Standards Enforcement Manual as Acute Noncompliance. The manual is incorporated by reference in this rule as published May 1, 2009, by the Department of Health and Senior Services and is available on the web at www.dhss.mo.gov or by contacting the department at PO Box 570, Jefferson City, MO 65102-0570, (573) 751-6111. This rule does not incorporate any subsequent amendments or additions. (II) Significant— (a) The violation poses or may pose a considerable risk to public health and/or the environment; (b) The violation has or may have a substantial adverse effect on the purposes of or procedures for implementing sections 701.300–701.338, RSMo; or (c) Is a violation specified in the Department of Health and Senior Services Lead Abatement Work Practice Standards Enforcement Manual as Significant Noncompliance. The manual is incorporated by reference in this rule as published May 1, 2009, by the Department of Health and Senior Services and is available on the web at www.dhss.mo.gov or by contacting the department at PO Box 570, Jefferson City, MO 65102-0570, (573) 751-6111. This rule does not incorporate any subsequent amendments or additions. B. Violations which may or may not pose a potential threat to public health or the environment, but which have an adverse effect upon the purposes of or procedures for implementing the law, associated rules, or licenses, may warrant the assessment of penalties. (I) Minor— (a) The violation poses a low or minimal risk to public health and/or the environment; (b) The violation has or may have an adverse effect on the purposes of or procedures for implementing sections 701.300–701.338, RSMo; or (c) Is a violation specified in the Department of Health and Senior Services Lead Abatement Work Practice Standards Enforcement Manual as Minor Noncompliance. The manual is incorporated by reference in this rule as published May 1, 2009, by the Department of Health and Senior Services and is available on the web at www.dhss.mo.gov or by contacting the department at PO Box 570, Jefferson City, MO 65102-0570, (573) 751-6111. This rule does not incorporate any subsequent amendments or additions. 2. Extent of deviation. The extent of deviation may range from slight to total disregard of the requirements of the law, associated rules, or licenses. The extent of deviation shall be evaluated according to the degree of severity. 3. Gravity-based penalty assessment. Administrative penalties will be assessed based on significance, acuity, and extent of deviation. The penalty range selected may be adapted to the circumstances of a particular violation. (B) Penalties for Multiple Violations. Penalties for multiple violations may be determined when a violation is independent of or substantially different from any other violation. The department may order a separate administrative penalty for that violation as set forth in this rule. (C) Penalties for Multi-Day Violations. Penalties for multi-day violations may be determined when the department has concluded that a violation(s) has continued or occurred for more than one (1) day. Each day shall be a separate offense. (D) Adjustments. The department may adjust the penalty after consideration of the following: 1. Good faith efforts to comply. The department may decrease a penalty amount if the violator has adequately documented good faith efforts taken prior to a compliance inspection and the discovery of the violation; 2. The amount of control the violator had over the events constituting the violation; 3. The foreseeability of the events constituting the violation; 4. Whether the violator took reasonable precautions against the events constituting the violation; and 5. History of noncompliance. (E) Payment. Administrative penalties shall be made payable to the Missouri Department of Health and Senior Services in the form of a cashier’s check or money order and mailed to the Missouri Department of Health and Senior Services, Attention: Fee Receipts Unit, PO Box 570, Jefferson City, MO 65102. The department may negotiate a delayed payment schedule, installment plan, or penalty reduction with stipulated penalties. (5) Penalties Assessed. The department shall only impose an administrative penalty, after a notice of violation has been issued pursuant to section 701.311, RSMo, against the violator who has conducted the same type of violation within the calendar year, except a failure to provide written notification prior to the onset of a lead abatement project according to 701.309.3, RSMo. Failure to notify the department prior to the onset of a lead abatement project shall result in a fine of two hundred fifty dollars ($250) imposed against the lead abatement contractor for the first identified offense, five hundred dollars ($500) for the second identified offense, and, thereafter, fines shall be doubled up to two thousand dollars ($2,000) for each additional identified offense within the calendar year. (A) Acute. Acute violations shall result in a notice of violation and no administrative penalty for the first identified offense, a notice of violation and an administrative penalty of two hundred fifty dollars ($250) imposed against the regulated entity or individual for the second identified offense, a notice of violation and an administrative penalty of five hundred dollars ($500) for the third identified offense, and, thereafter, a notice of violation and an administrative penalty of one thousand dollars ($1,000) for each additional identified offense within the calendar year. (B) Significant. Significant violations shall result in a notice of violation with no administrative penalty for the first identified offense, a notice of violation and administrative penalties ranging from one hundred to two hundred fifty dollars ($100–$250) imposed against the regulated entity or individual for the second identified offense, a notice of violation and an administrative penalty of two hundred to five hundred dollars ($200–$500) for the third identified offense, and, thereafter, a notice of violation and an administrative penalty of five hundred dollars ($500) for each additional identified offense within the calendar year. (C) Minor. Minor violations shall result in a written warning and no administrative penalty for the first identified offense, a notice of violation and no administrative penalty for the second identified offense, a notice of violation and an administrative penalty of twenty-five dollars ($25) imposed against the regulated entity or individual for the third identified offense, a notice of violation and an administrative penalty of fifty dollars ($50) for the fourth identified offense, and, thereafter, a notice of violation and an administrative penalty of one hundred dollars ($100) for each additional identified offense within the calendar year. (6) Suspended or Revoked License Penalties. Any lead inspector, risk assessor, lead abatement supervisor, lead abatement worker, project designer, or lead abatement contractor who engages in a lead abatement project while such person’s license, issued under section 701.312, RSMo, is under suspension or revocation is guilty of a class D felony. (7) Other Penalties. Except as otherwise provided, violation of the provisions of sections 701.309, 701.311, and 701.316, RSMo, can be referred by the department for prosecution. (8) Proceeds From Administrative Penalties. The penalties collected pursuant to section 701.317(7), RSMo, shall be deposited in the Missouri Lead Abatement Loan Fund as established in section 701.337, RSMo. Such penalties shall not be considered charitable contributions for tax purposes. (9) This rule may be used as guidance in assessing civil and criminal penalties. AUTHORITY: sections 701.311, 701.317, and 701.337, RSMo Supp. 2008.* Original rule filed July 14, 2009, effective Feb. 28, 2010. *Original authority: 701.311, RSMo 1998, amended 2005; 701.317, RSMo 2005; and 701.337, RSMo 2000, amended 2005.