10 CSR 40-8.040 - 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 forty-five (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.
Notes
*Original authority: 444.810, RSMo 1979, amended 1983, 1993, 1995.
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