Individual Civil Penalty Assessment to the Directors, Officers or Agents of a Corporation

PURPOSE: This rule sets forth requirements for permanent program individual civil penalty assessments. Editor’s Note: The secretary of state has determined that the publication of this rule in its entirety would be unduly cumbersome or expensive. The entire text of the rule has been filed with the secretary of state. The entire text of the rule may be found at the headquarters of the agency and is available to any interested person at a cost established by state law. (1) This rule covers the assessment of individual civil penalties to the directors, officers or agents of a corporation as provided for in section 444.870.6 of the Surface Coal Mining Law. (2) Definitions. For purposes of this rule— (A) Knowingly means that an individual, in authorizing, ordering or carrying out an act or omission on the part of a corporate permittee, knew or had reason to know that the act or omission constituted a violation, failure or refusal; (B) Violation, failure or refusal means— 1. A violation of a condition of a permit issued under sections 444.815 and 444.835 of the Surface Coal Mining Law; or 2. A failure or refusal to comply with any order issued under section 444.885, RSMo or any order incorporated in a final decision issued by the commission under the Surface Coal Mining Law, except an order incorporated in a decision issued under section 444.870.2 of that law; and (C) Willfully means that an individual acted— 1. Either intentionally, voluntarily or consciously; and 2. With intentional disregard of or plain indifference to legal requirements in authorizing, ordering or carrying out a corporate permittee’s action or omission that constituted a violation, failure or refusal. (3) When an Individual Civil Penalty May Be Assessed. (A) Except as provided in subsection (3)(B), the commission may assess an individual civil penalty against any corporate director, officer or agent of a corporate permittee who knowingly and willfully authorized, ordered or carried out a violation, failure or refusal. (B) The commission shall not assess an individual civil penalty in situations resulting from a permit violation by a corporate permittee until a cessation order has been issued by the commission or its representative to the corporate permittee for the violation and the cessation order has remained unabated for thirty (30) days. (4) Amount of Individual Civil Penalty. (A) In determining the amount of an individual civil penalty assessed under section (3) of this rule, the commission shall consider the criteria specified in section 444.870.1 of the Surface Coal Mining Law, including: 1. The individual’s history of authorizing, ordering or carrying out previous violations, failures or refusals at the particular surface coal mining operation; 2. The seriousness of the violation, failure or refusal (as indicated by the extent of damage, the cost of reclamation, or both), including any irreparable harm to the environment and any hazard to the health or safety of the public; and 3. The demonstrated good faith of the individual charged in attempting to achieve rapid compliance after notice of the violation, failure or refusal. (B) The penalty shall not exceed five thousand dollars ($5000) for each violation. Each day of a continuing violation may be deemed a separate violation and the commission may assess a separate penalty for each day the violation, failure or refusal continues, from the date of service of the underlying notice of violation, cessation order or other order incorporated in a final decision issued by the commission, until abatement or compliance is achieved. (5) Procedure for Assessment of Individual Civil Penalty. (A) The director shall serve on each individual to be assessed an individual civil penalty a notice of the proposed assessment, including a narrative explanation of the reasons for the penalty, the amount to be assessed and a copy of any underlying notice of violation and cessation order. (B) The notice of proposed individual civil penalty assessment shall become a final order of the commission thirty (30) days after service upon the individual unless— 1. The individual files within thirty (30) days of service of the notice of proposed assessment a petition for review with the commission, in accordance with section 444.870.3 of the Surface Coal Mining Law; or 2. The director and the individual or responsible corporate permittee agree within thirty (30) days of service of the notice of proposed assessment to a schedule or plan for the abatement or correction of the violation, failure or refusal. (C) For purposes of this section, service is sufficient if made in accordance with the provisions of 10 CSR 40-8.030(9) at the surface coal mining or reclamation operation or to the most current corporate address provided by the permittee to the commission. (6) Payment of Penalty. (A) If a notice of proposed individual civil penalty assessment becomes a final order in the absence of a petition for review or abatement agreement, the penalty shall be due upon issuance of the final order. (B) If an individual named in a notice of proposed individual civil penalty assessment files a petition for review in accordance with section 444.870.3 of the Surface Coal Mining Law, the penalty shall be due upon issuance of a final administrative order affirming, increasing or decreasing the proposed penalty. (C) When the director and the corporate permittee or individual have agreed in writing on a plan for the abatement of or compliance with the unabated order, an individual named in a notice of proposed individual civil penalty assessment may postpone payment until receiving either a final order from the commission stating that the penalty is due on the date of the final order, or written notice that abatement or compliance is satisfactory and the penalty has been withdrawn. (D) Following the expiration of thirty (30) days after the issuance of a final order assessing an individual civil penalty, any delinquent penalty shall be subject to interest at the rate established quarterly by the United States Department of the Treasury for use in applying late charges on late payments to the commission. The Treasury current value of funds rate is published by the Fiscal Service in the notices section of the Federal Register. Interest on unpaid penalties will run from the date payment first was due until the date of payment. Failure to pay overdue penalties may result in one (1) or more of the following actions: 1) initiating of litigation, 2) reporting to the Internal Revenue Service, 3) reporting to the Missouri Department of Revenue, 4) reporting to credit bureaus and 5) referring to collection agencies. Delinquent penalties are subject to a six percent (6%) per annum penalty from when the payment is ninety-one (91) days late until payment, in addition to the previously discussed late charges and any expenses accumulated by the commission while attempting to collect delinquent penalties. AUTHORITY: sections 444.530 and 444.810, RSMo 1994.* Original rule filed May 2, 1989, effective Aug. 1, 1989. *Original authority: 444.530, RSMo 1971, amended 1983, 1990, 1993 and 444.810, RSMo 1979, amended 1983, 1993.