Penalty Assessment

PURPOSE: This rule sets forth the method of assessment of penalties for violation of the regulatory program, pursuant to sections 444.810 and 444.870, RSMo. (1) How Assessments Are Made. The director shall review each notice of violation and cessation order in accordance with the assessment procedures described in this rule to determine whether a civil penalty should be assessed, the amount of the penalty and whether each day of a continuing violation will be deemed a separate violation for purposes of the total penalty assessed and, when appropriate, file with the commission and serve the operator the notice provided by section 444.870, RSMo within thirty (30) days of the issuance of the notice of violation or the cessation order. (2) When Penalty Will Be Assessed. (A) A penalty shall be assessed for each cessation order. (B) A penalty shall be assessed for each notice of violation, if the violation is assigned thirty-one (31) points or more under the point system described in section (3) of this rule. (C) A penalty may be assessed for each notice of violation assigned thirty (30) points or less under the point system described in section (3) of this rule. In determining whether to assess a penalty, the factor listed in subsection (3)(B) of this rule will be considered. (3) Point System for Penalties. (A) The point system described in this section shall be used to determine the amount of the penalty and, in the case of notices of violation, whether a mandatory penalty should be assessed as provided in subsection (2)(B) of this rule. (B) Points shall be assigned as follows: 1. History of previous violations. Up to thirty (30) points shall be assigned based on the history of previous violations. One (1) point shall be assigned for each past violation contained in a notice of violation. Five (5) points shall be assigned for each violation (but not a condition or practice) contained in a cessation order. The history of previous violations, for the purpose of assigning points, shall be determined and the points assigned with respect to a particular coal exploration or surface coal mining operation as follows: A. A violation shall not be counted if the fact of the violation or the proposed assessment of the notice or order is the subject of pending administrative or judicial review or if the time to request review or to appeal any administrative or judicial decision has not expired; after that it shall be counted for only one (1) year; B. No violation for which the notice or order has been vacated shall be counted; and C. Each violation shall be counted without regard to whether it led to a civil penalty assessment; 2. Seriousness. Up to thirty (30) points shall be assigned based on the seriousness of the violation as follows: A. Probability of occurrence. Up to fifteen (15) points shall be assigned based on the probability of the occurrence of the event which a violated standard is designed to prevent. Points shall be assessed according to the following schedule: Probability of Occurrence Points None 0 Insignificant 1–4 Unlikely 5–9 Likely 10–14 Occurred 15 (I) Upon determination of the point range, unless zero (0) or fifteen (15) is chosen, the initial assignment shall be determined by averaging the low and high values; fractional averages shall be reduced to the next lowest whole number; and (II) The initial assignment may be raised or lowered based upon the evidence collected during the course of the investigation; B. Extent of potential or actual damage. Up to fifteen (15) points shall be assigned, based on the extent of the potential or actual damage, in terms of area and impact on the public or environment, as follows: (I) If the damage or impact which the violated standard is designed to prevent would remain within the coal exploration or permit area, zero to seven (0-7) points, depending on the duration and extent of the damage or impact, shall be assigned as follows: (a) If no damage is documented during the investigation and none will occur if the violation continues into the future, zero (0) points shall be assigned; (b) If no damage is documented during the investigation, but the potential exists for damage to occur, then one (1) point shall be assigned; and (c) If damage is documented during the investigation, two to seven (2–7) points shall be assigned based upon the evidence of damage collected during the course of the investigation; and (II) If the damage or impact which the violated standard is designed to prevent would extend outside the coal exploration or permit area, eight to fifteen (8–15) points, depending on the duration and extent of the damage or impact, shall be assigned as follows: (a) If no damage is documented during the investigation, but the potential exists for damage to occur, then eight (8) points shall be assigned; or (b) If damage is documented during the investigation, nine to fifteen (9–15) points shall be assigned based upon the evidence of damage collected during the course of the investigation; and C. Alternative. In the case of a violation of an administrative requirement, such as a requirement to keep records, in lieu of subparagraphs (3)(B)2.A. and B. of this rule, up to fifteen (15) points shall be assigned for seriousness, based upon the extent to which enforcement is obstructed by the violation, as follows: (I) Initially, seven (7) points shall be assigned; or (II) The initial assignment may be raised or lowered based upon the investigation; 3. Negligence. A. Up to twenty-five (25) points shall be assigned based on the degree of fault of the person to whom the notice or order was issued in causing or failing to correct the violation, condition, or practice which led to the notice or order, either through act or omission. Points shall be assessed as follows: (I) A violation which occurs through no negligence shall be assigned no penalty points for negligence; (II) A violation which is caused by negligence shall be assigned twelve (12) points or less, depending on the degree of negligence as follows: (a) Initially, six (6) points shall be assigned to which three (3) points shall be added for each warning that was issued in conjunction with the violation; and (b) The initial selection shall be raised or lowered based on the investigation; (III) A violation which occurs through a greater degree of fault than negligence shall be assigned thirteen to twenty-five (13–25) points, depending on the degree of fault, as follows: (a) Initially, nineteen (19) points shall be assigned to which three (3) points shall be assigned for each warning issued in conjunction with the violation; and (b) The initial selection of nineteen (19) shall be raised or lowered based on the investigation. B. In determining the degree of negligence involved in a violation and the number of points to be assigned, the following definitions apply: (I) No negligence means an inadvertent violation which was unavoidable by the exercise of reasonable care; (II) Negligence means the failure of a permittee to prevent the occurrence of any violation of his/her permit or any requirement of the regulatory program, permit, or plan due to indifference, lack of diligence or lack of reasonable care, or the failure to abate any violation due to indifference, lack of diligence, or lack of reasonable care; and (III) A greater degree of fault than negligence means reckless, knowing, or intentional conduct. C. In calculating points to be assigned for negligence, the acts of all persons working on the coal exploration or surface coal mining and reclamation site shall be attributed to the person to whom the notice or order was issued, unless that person establishes that they were acts of deliberate sabotage; and 4. Good faith in attempting to achieve compliance. A. Points shall be subtracted based on the degree of good faith of the person to whom the notice or order was issued in attempting to achieve rapid compliance after notification of the violation. Points shall be assigned as follows: (I) Ten (10) points shall be awarded when abatement occurs immediately or within ten percent (10%) of the time set for abatement; (II) Nine (9) points shall be awarded when abatement occurs within eleven percent to twenty percent (11%–20%) of the time set for abatement. (III) Eight (8) points shall be awarded when abatement occurs within twenty-one percent to thirty percent (21%–30%) of the time set for abatement; (IV) Seven (7) points shall be awarded when abatement occurs within thirty-one percent to forty percent (31%–40%) of the time set for abatement; (V) Six (6) points shall be awarded when abatement occurs within forty-one percent to fifty percent (41%–50%) of the time set for abatement; (VI) Five (5) points shall be awarded when abatement occurs within fifty-one percent to sixty percent (51%–60%) of the time set for abatement; (VII) Four (4) points shall be awarded when abatement occurs within sixty-one percent to seventy percent (61%–70%) of the time set for abatement; (VIII) Three (3) points shall be awarded when abatement occurs within seventy-one percent to eighty percent (71%–80%) of the time set for abatement; (IX) Two (2) points shall be awarded when abatement occurs within eighty-one percent to ninety percent (81%–90%) of the time set for abatement; (X) One (1) point shall be awarded when abatement occurs within ninety-one percent to ninety-nine percent (91%–99%) of the time set for abatement. B. The following definitions shall apply for subtraction of points: (I) Rapid compliance means that the person to whom the notice or order was issued took extraordinary measures to abate the violation in the shortest possible time and that abatement was achieved before the time set for abatement; and (II) Normal compliance means the person to whom the notice or order was issued abated the violation within the time given for abatement. C. If the consideration of this criterion is impractical because of the length of the abatement period, the assessment may be made without considering this criterion and may be reassessed after the violation has been abated. D. The fact that an abatement period has been extended by modification for good cause shown shall not disqualify an operator from an award of good faith points. (4) Determination of Amount of Penalty. The amount of any civil penalty will be determined by converting the total number of points assigned under section (3) of this rule to a dollar amount, according to the following schedule: Points Dollars Points Dollars 1 20 37 1700 2 40 38 1800 3 60 39 1900 4 80 40 2000 5 100 41 2100 6 120 42 2200 7 140 43 2300 8 160 44 2400 9 180 45 2500 10 200 46 2600 11 220 47 2700 12 240 48 2800 13 260 49 2900 14 280 50 3000 15 300 51 3100 16 320 52 3200 17 340 53 3300 18 360 54 3400 19 380 55 3500 20 400 56 3600 21 420 57 3700 22 440 58 3800 23 460 59 3900 24 480 60 4000 25 500 61 4100 26 600 62 4200 27 700 63 4300 28 800 64 4400 29 900 65 4500 30 1000 66 4600 31 1100 67 4700 32 1200 68 4800 33 1300 69 4900 34 1400 70 5000 35 1500 and 36 1600 above (5) Assessment of Separate Violations For Each Day. (A) A civil penalty may be assessed for each day from the date of issuance of the notice of violation or cessation order to the date set for abatement of the violation. In determining whether to make the assessment, the factors listed in section (3) of this rule shall be considered and the extent to which the person, to whom the notice or order was issued, gained any economic benefit as a result of a failure to comply may be considered. For any violation which continues for two (2) or more days and which is assigned more than seventy (70) points under subsection (3)(B) of this rule, a civil penalty for a minimum of two (2) separate days shall be assessed. (B) In addition to the civil penalty provided for in subsection (5)(A) of this rule, whenever a violation contained in a notice of violation or cessation order has not been abated within the abatement period set in the notice or order, or as subsequently extended pursuant to section 444.885.1., RSMo, a civil penalty of not less than one thousand twenty five dollars ($1,025) shall be assessed for each day during which this failure continued except that— 1. If suspension of the abatement requirements of the notice or order is ordered in a temporary relief proceeding under section 444.895.3., RSMo, after a determination that the person to whom the notice or order was issued will suffer irreparable loss or damage from the application of the requirements, the period permitted for abatement shall not end until the date on which the commission issues a final order with respect to the violation in question; 2. If the person to whom the notice or order was issued initiates review proceedings under section 444.900, RSMo, with respect to the violation, in which the obligations to abate are suspended by the court, the daily assessment of a penalty shall not be made for any period before entry of a final order by the court; and 3. This penalty for the failure to abate a violation shall not be assessed for more than thirty (30) days for each violation. If the permittee has not abated the violation within the thirty- (30-) day period, the commission or director shall take appropriate action pursuant to sections 444.870.5. and 6. and 444.885.3. and 5., RSMo, within thirty (30) days to ensure that abatement occurs or to ensure that there will not be a reoccurrence of the failure to abate. (6) Waiver of Use of Formula to Determine Civil Penalty. (A) The commission, upon its own initiative or upon written request received within fifteen (15) days of issuance of a notice of violation or a cessation order, may waive the use of the formula contained in section (3) of this rule to set the civil penalty, if it is determined that, taking into account exceptional factors present in the particular case, the penalty is demonstrably unjust. However, the commission will not waive the use of the formula or reduce the proposed assessment on the basis of an argument that a reduction in the proposed penalty could be used to abate violations of the regulatory program, or any condition of any permit or plan. The basis for every waiver will be fully explained and documented in the records of the case. (B) If the use of the formula is waived, the criteria set forth in subsection (3)(B) of this rule shall be used to determine the appropriate penalty. When the commission has elected to waive the use of the formula, it will give a written explanation of the basis for the assessment made to the person to whom the notice or order was issued. (7) Procedures For Assessment of Civil Penalties. (A) When the director files a notice as provided in section (1) of this rule, the procedures set forth in section 444.870, RSMo will be followed. (B) The director shall serve a copy of the proposed assessment and of the worksheet showing the computation of the proposed assessment on the person to whom the notice or order was issued by certified mail within thirty (30) days of the issuance of the notice or order. 1. If the mail is tendered at the address of that person set forth in the sign required under 10 CSR 40-3.010(3) or at any address at which that person is in fact located and s/he refuses to accept delivery of or to collect this mail, the requirements of this paragraph shall be deemed to have been complied with upon that tender. 2. Failure by the director to serve any proposed assessment within thirty (30) days shall not be grounds for dismissal of all or part of this assessment unless the person against whom the proposed penalty has been assessed— A. Proves actual prejudice as a result of the delay; and B. Makes a timely objection to the delay. An objection shall be timely only if made in the normal course of administrative review, as outlined in section 444.870, RSMo. (C) Unless a conference has been requested, the director shall review and reassess any penalty, if necessary, to consider facts which were not reasonably available on the date of issuance of the proposed assessment because of the length of the abatement period. The director shall serve a copy of any reassessment and of the worksheet showing the computation of the reassessment in the manner provided in section (8). (8) Procedures for Informal Assessment Conference. (A) The director shall arrange for an informal conference to review the proposed assessment or reassessment, upon written request of the person to whom the notice or order was issued, if the request is received within thirty (30) days from the date the proposed assessment or reassessment is received. (B) The informal conference shall be held within sixty (60) days of the receipt of the written request. (C) Failure to hold these conferences within that time period shall not be grounds for dismissal. (D) The commission shall assign the director to hold the informal assessment conference. The conference shall not be governed by Chapter 536, RSMo regarding requirements for formal adjudicatory hearings. (E) The director shall notify the person issued the notice or order; any person that caused, directly or indirectly, the issuance of the notice or order; and any interested persons of the time and place of the conference. (F) The director shall consider all relevant information on the violation. Within fortyfive (45) days after the conference is held, the director shall either— 1. Issue a proposed settlement agreement that has been prepared and signed by him/herself to the person issued the notice or order; or 2. Affirm, raise, lower, or vacate the proposed penalty. (G) The director promptly shall serve the person assessed with a notice of his/her action in the form of a settlement agreement and a cover letter explaining the action or a letter and a new worksheet, if required, if the penalty has been vacated, raised, or lowered. (H) If the settlement agreement is signed by the person issued the notice or order, the person assessed will be deemed to have waived all rights of further review of the violation or penalty in question, except as otherwise expressly provided for in the settlement agreement. The settlement agreement shall contain a clause to this effect. (I) If the settlement agreement is entered into, the agreement shall be proposed to the commission for approval or disapproval. (J) If approved, a copy of the commission order and a request for payment within thirty (30) days shall be sent to the person issued the notice or order. (K) If the settlement agreement is disapproved, or if payment is not made within thirty (30) days of commission approval, the director shall refer the agreement to the commission so that they might enforce the agreement or rescind it and affirm, raise, lower, or vacate the penalty within thirty (30) days of the rescission. (L) If the person issued the notice or order does not accept a settlement agreement or any other action of the director which is a result of the informal assessment conference, s/he may request a formal review before the commission. The request shall be received by the commission within thirty (30) days of the receipt of the director’s decision from the conference. (M) At any formal review proceedings, no evidence as to statements made or evidence produced by one (1) party at a conference shall be introduced as evidence by another party or to impeach a witness. (9) Payment of the Penalty. Any penalty assessed under this rule shall be paid to the county treasurer of the county where the violation occurred and credited to the school fund. (10) The regulations in this rule may be used for the assessment of civil or administrative penalties. AUTHORITY: section 444.810, RSMo 2000.* Original rule filed Oct. 12, 1979, effective Feb. 11, 1980. Amended: Filed April 14, 1980, effective Aug. 11, 1980. Amended: Filed Dec. 10, 1980, effective April 11, 1981. Amended: Filed June 3, 1985, effective Oct. 28, 1985. Amended: Filed Jan. 5, 1987, effective July 1, 1987. Amended: Filed Dec. 15, 1987, effective April 1, 1988. Amended: Filed March 2, 1989, effective May 15, 1989. Amended: Filed July 3, 1990, effective Nov. 30, 1990. Amended: Filed Jan. 2, 1992, effective Aug. 6, 1992. Amended: Filed May 15, 1992, effective Jan. 15, 1993. Amended: Filed Sept. 15, 1994, effective April 30, 1995. Amended: Filed July 15, 2013, effective Jan. 30, 2014. *Original authority: 444.810, RSMo 1979, amended 1983, 1993, 1995.