La. Admin. Code tit. 51 § XII-507

Current through Register Vol. 50, No. 9, September 20, 2024

Section XII-507 - Payment of Penalty/Ability to Request Mitigation of Penalty and/or Adjudicatory Hearing

A. [formerly section 4.1 of paragraph IV of appendix A] At the discretion of the state health officer, notice(s) imposing penalty assessments may be issued from time to time subsequent to either initial non-compliance with any provision of the administrative compliance order or subsequent to any continuance or reoccurrence of non-compliance while the administrative compliance order remains effective. Notices of imposition of penalties shall be served by one of the forms of service described in §503. A.1 of this Part or hand-delivered. Within the notice imposing the penalty assessment, the state health officer will inform the owner and/or operator of the public water system of the ability to apply for mitigation of the penalties imposed and for the opportunity for an adjudicatory hearing on the record relative to contesting the imposition of the penalty assessment. Penalties shall not be imposed upon any person without notice and opportunity for hearing.

B. [formerly section 4.2 of paragraph IV of appendix A] Once a penalty assessment is imposed, it shall become due and payable 35 days after receipt of notice imposing the penalty unless a written application for mitigation or a written request for an adjudicatory hearing on the record relative to contesting the imposition of the penalty assessment is received by the state health officer within 20 days after said notice is served. In order to show proof and date of service, the person applying for mitigation or an adjudicatory hearing shall transmit the written application for mitigation or written request for hearing to the agency in the same manner as described in §503. A 1, 2, or 3 of this Part.

C. [formerly section 4.3 of paragraph IV of appendix A] Upon receipt of a written application for mitigation of such penalty, the state health officer may mitigate the penalty, i.e., upon proof that all of the stipulations in the administrative order have now been complied with or upon agreement to and compliance with a Stipulation and Agreed Order setting out the conditions which will mitigate the penalty. The accompanying guidelines referenced in §505. D.2 of this Part shall also contain guidance for the state health officer when considering the amount of mitigation of the imposed penalty. When the amount of the penalty imposed is from $1,000 up to $5,000, the state health officer shall not mitigate the penalty below $500. When the amount of the penalty imposed is less than $1000, the state health officer shall not mitigate the penalty below one-half of the imposed penalty amount. The penalty shall become due and payable 35 days after mailing of notice setting forth the final disposition of the application for mitigation, unless:

1. an application for an adjudicatory hearing to contest the disposition is received within 20 days after the date of mailing the disposition notice; or

2. the state health officer specifies a different payment schedule within the disposition notice.

D. [formerly section 4.4 of paragraph IV of appendix A] Upon the timely receipt of a written application requesting an adjudicatory hearing, a hearing on the record relative to contesting the imposition of the penalty assessment may be scheduled by the agency. If after consideration of the record it is found that the issuance of the notice imposing the penalty assessment was not proper as supported by and in accordance with the evidence, the administrative law judge shall have the authority to recommend adjustment of the penalty to comply with any items found to be in error or, if justified, withdrawal of the entire penalty. The penalty shall become due and payable 35 days after mailing of notice of the final decision by the agency, unless the final decision by the agency specifies a different payment schedule within the final decision.

E. [formerly Section 4.5 of Paragraph IV of Appendix A] When a stipulation and agreed order has been proposed by the agency or the administrative law judge, a fixed number of days will be given for response. If the stipulation and agreed order is not signed and returned by the date fixed or if no response is received by the date fixed, this shall result in both the reimposition of the penalty originally imposed as well as the addition of daily penalties not previously counted from the time the order was first violated. Alternatively, failure of a public water system to comply with the conditions of a stipulation and agreed order shall result in both the reimposition of the penalty originally imposed as well as the addition of daily penalties not previously counted from the time the order was first violated.

La. Admin. Code tit. 51, § XII-507

Promulgated by the Department of Health and Hospitals, Office of Public Health, LR 28:1330 (June 2002).

AUTHORITY NOTE: Promulgated in accordance with R.S. 40:5.9 (A)(4).