W. Va. Code R. § 33-22-7 - Civil Administrative Penalty Calculation Procedures

7.1. The Secretary shall calculate a civil administrative penalty by taking into account the seriousness of the alleged violation, negligence or good faith on the part of the violator, the type of facility, and any history of noncompliance by the violator.

7.1.a. Seriousness of Violation. The Secretary shall take into account the seriousness of the violation by assigning a rating for the extent of deviation from the requirement of the statute, rule, order, or permit condition in accordance with Table A and a rating for the potential harm which may have resulted from the alleged violation in accordance with Table B. These "seriousness of the violation" ratings shall be used to determine the base penalty amount of the civil administrative penalty assessment through the use of Tables C and D. Table C shall be used for hazardous waste violations. Table D shall be used for solid waste violations.

7.2. Negligence/Good Faith. The Secretary shall take into account the negligence or good faith which the violator displayed with regard to the alleged violation by assigning a rating in accordance with Table E. The negligence/good faith rating shall be used to determine the multiplying factor to be applied to the base penalty amount through the use of Table F.

7.3. Adjustment Factor. The Secretary shall take into account the type of facility by assigning an adjustment factor in accordance with Table G. The subtotal calculated pursuant to subsections 7.1 and 7.2 shall be multiplied by the adjustment factor.

7.4. "Unique" Factors. Should the violation in question involve an actual release to the environment or harm to human health or involve a chemical that is persistent or bioaccumulative, the associated civil administrative penalty may be multiplied by a factor of up to 2.0.

7.5. History of Noncompliance. The Secretary shall take into account the violator's history of noncompliance by determining the number of previous enforcement actions (administrative, civil, or criminal) which have been taken against the facility during the twenty-four (24) months prior to the violation. Those enforcement actions which were withdrawn, dismissed, or vacated shall not be included in this determination. The number of previous enforcement actions shall be used to determine the dollar amount to be added to the penalty through the use of Tables H and I. Table H shall be used for hazardous waste violations. Table I shall be used for solid waste violations.

7.6. The civil administrative penalty shall be calculated by multiplying the base penalty amount (established from the seriousness of violation pursuant to subsection 7.1) by the multiplying factor (established from the negligence/good faith ratings pursuant to subsection 7.2), multiplying that product by the adjustment factor (established from the adjustment factor pursuant to subsection 7.3), multiplying by the "unique" factor, if applicable (established pursuant to subsection 7.4), and then adding to that product a dollar amount (established from the history of noncompliance pursuant to subsection 7.5) through the use of Table J.

7.7. The civil administrative penalty assessed may not exceed the maximum assessments prescribed by the Acts. The maximum assessment for hazardous waste violations shall not exceed seven thousand five hundred dollars ($7,500) per day per violation, up to a maximum of twenty-two thousand five hundred dollars ($22,500) total penalty. The maximum assessment for solid waste violations shall not exceed five thousand dollars ($5,000) per day per violation, up to a maximum of twenty thousand dollars ($20,000) total penalty.

Notes

W. Va. Code R. § 33-22-7