Mo. Code Regs. tit. 10 § 40-10.070

Current through Register Vol. 49, No. 21, November 1, 2024.

Section 10 CSR 40-10.070 - Enforcement

PURPOSE: This rule sets forth the requirements for enforcement procedures pursuant to sections 444.778, 444.782, 444.786, 444.787, 444.788 and 444.789, RSMo.

(1) Operations Without a Permit.

(A) If surface mining activities are being conducted without a permit or in violation of any revocation order and a variance has not been issued, enforcement action shall be taken.

1. Prior to the filing of any suit, a notice of violation shall be issued to the operator by the director or an authorized representative of the director. This notice shall be in writing, signed by the person writing the violation and setting forth:

A. The nature of the alleged violation;

B. The law, regulation or permit requirement violated;

C. The location of the affected area to which it applies;

D. The remedial action(s) required;

and

E. A reasonable time for abatement.

2. The director may vacate the notice of violation or modify the abatement requirements and the time frames if sufficient justification is presented by the operator.

3. The director shall terminate a notice of violation if all abatement measures have been accomplished. The notice of violation may be subject to an administrative penalty so defined in section (7).

4. The violation shall be served upon the operator as described in section (4).

5. If the operator fails to respond to the notice of violation as per the abatement method and time as specified in the notice, the director shall present the matter to the commission. The commission shall request the attorney general to file suit in the name of the state of Missouri in either the county where the violation has occurred or in Cole County. The suit shall be filed for injunctive relief and civil penalty of not less than fifty dollars ($50) nor to exceed one thousand dollars ($1,000) per day for each day the violation continues and for forfeiture of bond. Civil penalties may be assessed by the court of jurisdiction following the determination of a violation.

6. The operator is not entitled to an informal conference or a hearing before the commission based upon the fact of a notice of violation issued under this provision. The operator's right to appeal shall be before the court of jurisdiction.

7. The operator may enter into a settlement agreement with the commission, if adopted and approved by the court of jurisdiction. A settlement agreement shall not be prepared until a petition for injunctive relief has been filed.

(2) Operations With a Permit.

(A) Conference, Conciliation and Persuasion (CC&P). If, during the course of inspection, it is determined that a surface mining operation is being conducted contrary to or in violation of any statute or regulation promulgated by the commission, a condition of the permit or any approved variance or condition of the bond, the director, by conference, conciliation or persuasion, may endeavor to eliminate the violation.

(B) Notice of Violation. If attempts to eliminate a violation through, CC&P are not successful, the director or an authorized representative of the director shall issue a violation to the operator. The notice of violation may be issued by an authorized representative of the commission.

1. A notice of violation issued under this section shall be in writing, signed by the person writing the violation and setting forth-

A. The nature of the alleged violation;

B. The law, regulation or permit requirement violated;

C. The location on the permit to which it applies;

D. The remedial action(s) required;

and

E. A reasonable time for abatement.

2. The director may vacate the notice of violation or modify the abatement requirements and the time frames if sufficient justification is presented by the operator.

3. If the time frame for abatement of a violation is not met, the director shall file a formal complaint with the commission.

4. The director shall terminate a notice of violation if all abatement measures have been accomplished. The notice of violation may be subject to administrative penalties as defined in section (7).

(3) Formal Complaint.

(A) The director shall issue a formal complaint to the commission if the-

1. Abatement measures have not been met within the prescribed time frame; or

2. Administrative penalties assessed by the commission have not been paid within ninety (90) days.

(B) The formal complaint shall be in writing, signed by the director and include:

1. The nature of the alleged violation;

2. The law or regulation violated;

3. Remedial action required;

4. The statement that the operator has a right to a hearing; and

5. The proposed penalty assessment on the original violation.

(C) The operator may request a hearing by the commission within fifteen (15) days of receipt of the complaint by the operator.

(4) Service of Notice of Violation, Formal Complaint or Commission Orders.

(A) A notice of violation, formal complaint or commission order shall be served on the person to whom it is directed or a designated agent by certified mail or hand delivered at the mine site.

(B) If the person to receive the certified materials refuses to accept delivery or to collect the mail, the requirements of this rule shall be deemed to have been completed.

(5) Permit Revocation or Suspension.

(A) A permit may be subject to suspension or revocation if any of the following conditions apply:

1. The permittee has failed to commence corrective measures outlined in a notice of violation within ninety (90) days;

2. The permittee has become insolvent, failed in business, been adjudicated bankrupt, filed a petition in bankruptcy or for a receiver, or had a petition filed against him/her, had a receiver appointed by any court or creditor of the permittee, has attached or executed a judgment against the permittee's equipment, materials or facilities at the permit area, and the permittee cannot demonstrate or prove an ability to continue to operate in compliance with the regulatory program and permit and plan;

3. The commission shall not issue any permits to any person who has had a permit revoked until the violation that caused the revocation is corrected by the operator to the satisfaction of the commission;

4. The permittee fails to reinstate or replace a bond that has been cancelled by surety as provided by section 444.778, RSMo; or

5. The permittee fails to pay an administrative penalty within ninety (90) days of being assessed by the commission and all administrative and judicial reviews have been exhausted. Judicial review should be requested within thirty (30) days of the commission's final decision.

(B) Procedures.

1. If a hearing is held pursuant to subsection (3)(C) of this rule, the commission shall issue written findings of facts and conclusions of law.

2. If appropriate, the commission shall issue an order suspending or revoking the permit within thirty (30) days after the hearing.

(C) After a hearing is held at the request of the operator who has received a formal complaint or after considering a formal complaint when no hearing has been requested by the operator, the commission may revoke or temporarily suspend the permit. The commission may reinstate a suspended permit after the violation has been abated in a satisfactory manner.

(6) Bond Forfeiture.

(A) The commission shall notify the operator of any noncompliance when responding to a formal complaint. This notice shall give the operator a description in writing, by certified mail, of any corrective measures to be taken as approved by the commission, and if these corrective measures have not been commenced by the operator within ninety (90) days, the commission may request forfeiture of the bond.

(B) If the operator does not abate the violation, the-

1. Land Reclamation Commission will notify the operator of noncompliance in writing by certified mail; and

2. Operator will be provided with an opportunity to request a hearing within thirty (30) days after receiving the notification.

A. If the operator requests a hearing, the commission, based on the information presented at the hearing, may- (I) Vacate;

(II) Modify; or

(III) Affirm the violation.

B. If the commission affirms the violation or the operator does not request a hearing, the commission may request the attorney general's office to forfeit bond after the permit has been revoked.

C. If the surety desires to and is capable of completing reclamation, the director, under additional terms and conditions as s/he deems necessary or prudent, may enter into an agreement with the surety to complete reclamation as expeditiously as possible on a set schedule of compliance in lieu of collection of the forfeited bond. If the surety fails to complete reclamation according to the schedule of compliance, the director shall collect the forfeited bond or any instruments securing the bond.

(C) An order of bond forfeiture shall authorize the commission to utilize appropriated monies in the Mine Land Reclamation Fund to complete the reclamation.

(7) Penalty Assessment.

(A) The director shall review each notice of violation in accordance with the assessment procedures described in this rule to determine whether an administrative penalty should be assessed, the amount of the penalty and whether each day of continued 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 444.787, RSMo, within thirty (30) days of the issuance of the notice of violation.

(B) Matrix System for Penalties.

1. The matrix system described in this section shall be used to determine the amount of penalty. A penalty shall not be imposed until the director has sought to eliminate the violation through CC&P as defined in 10 CSR 40-10.100(6) or if the violation is considered a minor violation as defined in 10 CSR 40-10.100(31)(B).

2. A penalty shall be assigned in whole numbers as follows:

A. Potential for harm. The assessment of the potential for harm resulting from a violation should be based on the following:

(I) Risk of exposure. The risk of human or environmental exposure presented by a given violation depends on both the likelihood of exposure and the degree of that potential exposure. Evaluating the risk of exposure may be aided by considering these factors-

(a) Probability of exposure; if the investigation indicates that the probability of exposure is considered high-three (3) points are assigned, if considered moderate two (2) points are assigned, if considered low-one (1) point is assigned.

(b) Potential seriousness of the exposure; if the investigation indicates that the probability of exposure is considered high-three (3) points are assigned, if it is considered moderate-two (2) points are assigned, if it is considered low-one (1) point is assigned;

(II) Harm to the regulatory program. Violations may have serious implications and merit substantial penalties where the violation undermines statutory or regulatory purposes or procedures for implementing sections 444.760-444.790, RSMo and its corresponding regulations. If the actions of the operator that are the subject of a violation, have or may have a substantial adverse effect on the statutory or regulatory purposes or procedures for implementing the law or regulations and the program is substantially undermined-three (3) points shall be assigned, if the program is significantly undermined-two (2) points shall be assigned, if there is a small adverse effect- one (1) point shall be assigned; and

(III) Evaluating the potential for harm. The potential for harm should be considered to be major, moderate or minor based upon the average of the points assigned under (7)(B)2.A.(I)(a), (b) and part (7)(B)2.A.(II). If the average of the total points assigned is two and six-tenths (2.6) or greater, the assigned category in the assessment matrix in the potential for harm axis shall be considered major; if the average is from one and six-tenths (1.6) to two and three-tenths (2.3), the assigned category shall be moderate; if the average is one and three-tenths (1.3) or lower, the assigned category shall be minor.

(a) Major. The violation poses or may pose a substantial risk of exposure of humans or other environmental receptors to a health or safety hazard(s) or environmental pollution or the actions have or may have a substantial adverse effect on statutory or regulatory purposes or procedures for implementing The Land Reclamation Act or its corresponding regulations, or both;

(b) Moderate. The violation poses or may pose a significant risk of exposure of humans or other environmental receptors to a health or safety hazard(s) or environmental pollution or, actions, have or may have a significant adverse effect on statutory or regulatory purposes or procedures for implementing The Land Reclamation Act or its corresponding regulations, or both; and

(c) Minor. The violation does not pose a substantial or significant risk of exposure of humans or other environmental receptors to a health or safety hazard(s) or environmental pollution or the actions have or may have a small adverse effect on statutory or regulatory purposes or procedures for implementing The Land Reclamation Act or its corresponding regulations;

B. Extent of deviation from requirement. This relates to the degree to which the violation renders inoperative the law or regulation violated. The violator may be substantially in compliance with the provisions of the law or regulation or it may have totally disregarded the law or regulation. In determining the extent of the deviation, the following categories should be used:

(I) Major. The violator deviates from the law or regulation requirements to the extent that most (or important aspects) of the requirements are not met, resulting in substantial noncompliance;

(II) Moderate. The violator significantly deviates from the requirements of the regulation or statute, but some of the requirements are implemented as intended; and

(III) Minor. The violator does not deviate substantially or significantly from the regulatory or statutory requirements, but most (or all important aspects) of the requirements are met; and

C. Penalty assessment matrix. The factors outlined in subsections (2)(A) and (B) concerning potential for harm and extent of deviation from a requirement will be used in determining the penalty to be assessed. A matrix is formed using potential for harm and extent of deviation from a requirement as axes of the penalty assessment matrix. The matrix has nine (9) cells and the specific cell is chosen after determining whether major, moderate or minor is appropriate for both the potential for harm and the extent of deviation from requirement factors. The matrix to be used is illustrated-

Potential for Harm	Extent of Deviation
From Requirement
Major	Moderate	Minor
Major	$1000 to $800	$799 to $600	$599 to $400
Moderate	$799 to $600	$399 to $200	$199 to $100
Minor	$599 to $400	$199 to $100	$0

3. Adjustment factors. After the initial assessment is obtained from the matrix, the assessment may be adjusted by taking into account the following factors:

A. Good faith/lack of good faith. The operator can manifest good faith by promptly acting to abate the violation, in which case, the assessment would be adjusted down. The operator can also manifest lack of good faith by not meeting specified time frames for no apparent reason, in which case, the assessment may be adjusted up. No adjustment should be made where the operator's efforts primarily consist of coming into compliance. The following dollar amounts shall be used to adjust the penalty assessment as determined by the matrix:

(I) For prompt abatement-

(a) Abatement within 10% of time allowed, deduct $100;

(b) Abatement within 11 to 20% of time allowed, deduct $90;

(c) Abatement within 21 to 30% of time allowed, deduct $80;

(d) Abatement within 31 to 40% of time allowed, deduct $70;

(e) Abatement within 41 to 50% of time allowed, deduct $60;

(f) Abatement within 51 to 60% of time allowed, deduct $50;

(g) Abatement within 61 to 70% of time allowed, deduct $40;

(h) Abatement within 71 to 80% of time allowed, deduct $30;

(i) Abatement within 81 to 90% of time allowed, deduct $20;

(j) Abatement within 91 to 99% of time allowed, deduct $10;

(k) Abatement within 100% of time allowed, deduct $0;

(II) For lack of good faith, there shall be an additional five dollars ($5) added to the assessment for each day that the abatement goes beyond the date assigned in the notice of violation, for up to thirty (30) days or one hundred fifty dollars ($150) of added assessment.

B. Degree of willfulness, negligence, or both. Adjustments may be made in instances of heightened culpability. In determining whether to adjust the penalty upward, the commission shall consider the operator's control over the violation, foreseeability of the events constituting the violation, precautions taken by the operator, the operator's knowledge of the legal requirement which was violated and whether the operator knew or should have known of the hazards associated with the conduct that caused the violation. The penalty shall be adjusted as follows, considering the operator's degree of willfulness/negligence:

(I) If the events surrounding the violation were within the operator's control, the assessment shall be increased by fifty dollars ($50);

(II) If the events surrounding the violation were out of the control of the operator, the assessment shall be decreased by fifty dollars ($50);

(III) If the events surrounding the violation were foreseeable and the operator failed to act, the assessment shall be increased by fifty dollars ($50);

(IV) If the events surrounding the violation were unforeseeable, the assessment shall be decreased by fifty dollars ($50);

(V) If the operator was diligent in taking precautions to prevent or avoid the violation, the assessment shall be decreased by fifty dollars ($50);

(VI) If the operator was not diligent, there shall be no adjustment to the assessment;

(VII) If the operator was negligent in preventing the violation, fifty dollars ($50) shall be added to the assessment;

(VIII) If the violation was caused by intentional conduct and a threat to health or safety is a result, one hundred dollars ($100) is added to the assessment;

(IX) If the operator was warned of the legal requirements, twenty dollars ($20) shall be added to the assessment for each written warning given;

(X) If the operator was aware of the legal requirements, but not advised of them, ten dollars ($10) shall be added to the assessment;

(XI) If the operator was warned of the hazards posed by the violation and an environmental, health or safety hazard has been created, twenty dollars ($20) shall be added to the assessment for each warning given;

(XII) If the operator was aware of the environmental, health or safety hazards, but was not warned, ten dollars ($10) shall be added to the assessment;

C. History of noncompliance. The assessment would be adjusted upwards if the operator has a history of noncompliance. The adjustment would be based on the similarity of the previous violation(s), how recent the previous violation(s) was, the number of previous violation(s) and the operator's response to abating the previous violation(s). The history of all violation(s) that have been finalized in the past twenty-four (24) months shall be considered as follows:

(I) For violation(s) of a similar nature, twenty-five dollars ($25) each shall be added to the assessment; and

(II) For each day the operator failed to abate the notice(s) of violations(s), five dollars ($5) shall be added to the assessment for each violation.

D. Ability to pay. A downward adjustment to the assessment could be made if the operator can clearly show that the assessment is beyond its means to pay.

4. Assessment of separate violation for each day. An administrative penalty may be assessed for each day the violation continues. In determining whether to make the assessment, the factors listed in subsection (7)(B) of this rule shall be considered and the extent to which the person to whom the notice or order is issued gained an economic benefit as a result of a failure to comply may be considered.

5. Procedures for assessment of administrative penalties.

A. When the director files a notice as provided in section (4) of this rule, the procedures set forth in sections 444.787 and 444.790, RSMo will be followed.

B. The director shall serve a copy of the proposed assessment and 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.

(I) If the mail is tendered at the address of that person set forth in the permit as required under 10 CSR 40-10.020 or at any address which the person is in fact located and s/he refuses to accept delivery or to collect the mail, requirements of this paragraph shall be deemed to have been complied with upon the tender.

(II) Failure by the director to serve any proposed assessment within thirty (30) days shall not be grounds for dismissal of all or part of the assessment unless the person against whom the proposed penalty has been assessed-

(a) Proves actual prejudice as result of the delay; and

(b) Makes timely objection to the delay. An objection shall be timely only if made in the normal course of administrative review as outlined in the rules set forth.

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 a worksheet showing computation of the reassessment in the manner provided for in 10 CSR 40-10.080(6). However, in no case shall the penalty be increased where commission or department action, or failure to act, has caused a continuation of the violation that was a basis for the penalty. The procedures for requesting and holding an informal assessment conference are found in 10 CSR 40-10.080(5).

(C) Procedures for Appeal to the Commission.

1. Any person or permittee subject to an administrative penalty, after an informal assessment conference, or in lieu of an informal assessment conference, may appeal his/her penalty to the commission for a review.

2. Any appeal to the commission will be handled in accordance with section 444.789, RSMo, and according to Missouri's Administrative Procedure and Review Law, as found in Chapter 536, RSMo.

(D) Judicial Review. Any final order imposing an administrative penalty is subject to judicial review upon filing of a petition pursuant to section 536.100, RSMo, by any person subject to the penalty. Either party may require that the judicial appeal is tried as a trial de novo in the circuit court of the jurisdiction where the violation occurred.

(E) Payment of Administrative Penalties.

1. Any appeal will stay the due date of that administrative penalty until the appeal is resolved.

2. Payment of any administrative penalty shall be paid within sixty (60) days from the date of issuance of the order assessing the penalty.

3. Any person who fails to pay an administrative penalty by the final due date shall be liable to the state for a surcharge of fifteen percent (15%) of the penalty plus ten percent (10%) per annum on any amounts owed.

4. Action may be brought in the appropriate circuit court to collect any unpaid administrative penalty and for attorney's fees and costs incurred directly in the collection of it.

(F) Payment of Administrative Penalty. Any administrative 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.

(G) Civil Penalty.

1. The state may elect to request that the attorney general or prosecutor file an appropriate legal action seeking a civil penalty in the appropriate circuit court in lieu of assessing an administrative penalty.

2. Assessment of an administrative penalty shall preclude the assessment of-

A. A civil penalty for the same violation by the attorney general; and

B. The judicial assessment of a civil penalty for the same violation.

(H) The regulations in this rule may also be used in the assessment of civil penalties.

(I) Habitual Violator. A person or operator as defined in 10 CSR 40-10.100(10).

1. The limitation outlined in paragraph (7)(G)2. of this rule shall not apply for a habitual violator of the Land Reclamation Act, land reclamation laws of other states or Missouri or federal laws pertaining to land reclamation.

2. Where a habitual violator, as per the definition in 10 CSR 40-10.100(10), is identified, the commission may pursue both administrative penalties and civil penalties as outlined in this section.

10 CSR 40-10.070

AUTHORITY: sections 444.767, 444.772 and 444.784, RSMo Supp. 2004.* Original rule filed Aug. 2, 1991, effective 2/6/1992. Amended: Filed Jan. 2, 1992, effective 8/6/1992. Amended: Filed June 1, 1994, effective 11/30/1994. Amended: Filed April 1, 2004, effective 5/30/2005.

*Original authority: 444.767, RSMo 1971, amended 1990, 1993, 2001; 444.772, RSMo 1971, amended 1984, 1990, 1992, 2001; and 444.784, RSMo 1971, amended 1990, 1991, 2001.