Section R649-11-3 - Administrative Penalty Assessment1. General. Any person who violated Title 40, Chapter 6, Board and division of oil, gas and mining, or a division rule, order or permit may be subject to an administrative penalty.2. Maximum Administrative Penalty Amounts. 2.1. An administrative penalty on any person may not exceed $5,000 per day for each day of a violation.2.2. If the board determines that a violation is a willful violation, the board may impose an administrative penalty on that person not to exceed $10,000 for each day of the violation.2.3. Administrative penalties assessed by the division or the board may not exceed $200,000 per violation per person.3. Days of Violation. The duration of a violation shall be calculated in days as follows: 3.1. A reporting or other minor violation that presents low direct risk or threat of harm to public health, safety, and welfare, or resource detriment, begins on the day that the report should have been made or other required action should have been taken, and continues until the report is filed or the required action is completed to the division's satisfaction.3.2. Violations that present a possibility of distinct, identifiable actual or threatened adverse impact, or violations that present a significant probability of actual or threatened adverse impact, begin on the date the violation was discovered or should have been discovered through the exercise of reasonable care and continue until the appropriate corrective action is completed to the division's satisfaction.4. Penalty Calculation. The base penalty for each violation shall be calculated based on the division's penalty schedule. Each violation is initially assessed at the minor violation rate, but may be escalated to the major violation rate in accordance with Section R649-11-3.5. Issuance of Proposed Assessments. 5.1. If a violation is not abated prior to the end of the abatement period specified for that violation, the division shall issue a proposed assessment to the person containing the penalty amount after the abatement period ends. 5.1.1. Failure by the division to serve a proposed assessment within 30 days will not be grounds for dismissal of any part of such assessment unless the permittee or operator: 5.1.1.1. proves actual prejudice as a result of the delay; and5.1.1.2. makes a timely objection to the delay.5.2. Upon abatement of the violation, or when the maximum penalty amount has been reached, the division will issue a final assessment to the person containing the final penalty amount. 5.2.1. Failure by the division to serve a final proposed assessment within 30 days will not be grounds for dismissal of any part of such assessment unless the permittee or operator: 5.2.1.1. proves actual prejudice as a result of the delay; and5.2.1.2. makes a timely objection to the delay.6. Violations Designated as Class 1. 6.1. Violations that present a low direct risk or threat of harm to public health, safety and welfare, or present a low direct risk of resource detriment, including: (a) Section R649-3-1 bonding violations;(b) Section R649-3-36 shut-in and temporarily abandoned wells violations;(c) Section R649-3-15 pollution and surface damage violations;(d) Section R649-3-34 well site restoration violations;(e) Section R649-3-16 reserve pit closure violations;(f) Rule R649-8 reporting violations;(g) Section R649-9-2 improperly secured disposal facility violations;(h) Section R649-9-2 minor leaks and spills violations;(i) Section R649-9-3 garbage and solid waste in evaporation pit violations;(j) Section R649-9-3 inadequate supervision violations;(k) Section R649-9-4 failure to monitor leak detection system violations;(l) Section R649-9-10 inadequate construction notification violations;(m) Section R649-9-11 facility records for review violations; and(n) any other violation listed in Title R649 or Title 40, Chapter 6, Board and Division of Oil, Gas and Mining.7. Violations Designated as Class II.7.1. Violations that present a possibility of distinct, identifiable, actual or threatened adverse impacts to public health, safety, and welfare, or resource detriment, including: (a) Section R649-3-22 commingling without approval;(b) Section R649-3-23 completion/recompletion without approval;(c) Section R649-3-32 not reporting an incident;(d) Section R649-3-20 flaring or venting without approval;(e) Section R649-3-23 and R649-3-4 not adhering to the approved procedure or conditions on an APD or sundry notice;(f) Rule R649-5 and R649-9 violation of permit conditions, such as UIC or facility;(g) Section R649-5-2 injecting over approved pressure;(h) Section R649-9-4 less than 2 feet freeboard;(k) Rule R649-8 false reporting; and(l) any other violation listed in Title R649 or Title 40, Chapter 6, Board and Division of Oil, Gas and Mining that presents a possibility of distinct, identifiable, actual or threatened adverse impacts to public health, safety and welfare, or resource detriment.8. Violations Designated as Class III. 8.1 Violations that present a significant probability of actual or threatened adverse impact to public health, safety, and welfare, or resource detriment, including: (a) Section R649-3-4 drilling or spudding without an approved permit;(b) Section R649-3-24 P&A without approval;(c) Section R649-3-15 disposal of fluids in unapproved or improper facility or by improper method;(d) Rule R649-5 injection into reservoir or formation without approval;(e) Section R649-9-3 facility operating without a permit;(f) Section R649-9-4 pits overtopped;(g) Section R649-9-4 breached pit; and(h) any other rule violation listed in Title R649 or Title 40, Chapter 6, Board and Division of Oil, Gas and Mining that presents a significant probability of actual or threatened adverse impact to public health, safety and welfare, or resource detriment.9. Administrative Penalty Schedule.9.1. Penalty Schedule. The division's penalty schedule establishes a daily penalty based on the classification of the rule violation, Class I, II, or III as provided in Subsection (6), (7), and (8), and the degree of actual or threatened adverse impact resulting from the violation, minor or major as provided in Subsections (9.2) and (10). TABLE
9.1.1. Daily Penalty Schedule
Violation | Class I | Class II | Class III |
Degree: | | | |
Minor | $750 | $1,500 | $5,000 |
Major | $1,500 | $5,000 | $10,000 |
9.2. Degree of actual or threatened adverse impact. A minor violation and associated penalty amount may be increased to a major violation and penalty amount based on the degree of actual or threatened adverse impact to public health, safety and welfare, or resource detriment resulting from the violation. The division shall determine the degree of actual or threatened adverse impact to public health, safety, and welfare, or resource detriment, based on the totality of circumstances in each case that may involve increasing a Class I violation to a Class II or Class III violation, or increasing a Class II violation to a Class III violation.10. Penalty Adjustments based on Aggravating and Mitigating Factors. The division shall consider aggravating and mitigating factors when determining if a violation is minor or major. These factors shall include: 10.1. Aggravating factors: 10.1.1. The violation involved a substantial departure from the standards of ordinary care of a reasonable prudent person.10.1.2. The violation was a willful violation.10.1.3. The violation had a significant negative impact on human health or resource detriment.10.1.4. The violation resulted in significant waste of oil and gas resources.10.1.5. The violation had a significant negative impact on correlative rights of other parties.10.1.6. The violator was nonresponsive to the division in correcting or responding to the violation.10.1.7. The violator benefited economically from the violation, in that case the amount of such benefit shall be taken into consideration.10.1.8. The violator has a history of previous violations at the particular well or facility.10.2. Mitigating factors: 10.2.1. The violator self-reported the violation.10.2.2. The violator demonstrated prompt, effective and prudent response to the violation, including assistance to any impacted parties.10.2.3. The cause of the violation was outside of the violator's reasonable control and responsibility.10.2.4. The violator made a good faith effort to comply with applicable requirements prior to the division learning of the violation.10.2.5. The violator has demonstrated a history of compliance with division rules, orders, and permits.10.2.6. The violator has not been served with a notice of violation within the twenty-four-month period prior to the subject violation at issue.11. Repeat Violations. The division shall consider the history of previous violations at a particular well or facility when determining an appropriate administrative penalty. If the person has three or more violations of the same minor violation in the twenty-four-month period immediately preceding the violation at issue, the minor violation shall escalate to a major violation.12. Unabated Violations. The division may request an emergency order from the board requiring well or facility operations be suspended for any unabated violation where the maximum penalty amount has accrued. Operations may only resume upon abatement of the violation and payment of the penalty.13. Appeals. A notice of violation, division enforcement order, or administrative penalty assessment issued by the division may be appealed by filing a request for agency action with the division within 30 calendar days of the assessment following the procedures provided in Section R649-10-2.Utah Admin. Code R649-11-3
Adopted by Utah State Bulletin Number 2021-12, effective 5/27/2021