W. Va. Code R. § 47-30B-7

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 47-30B-7 - Civil Penalty Assessment

7.1. Determination of base penalty:

7.1.a. Potential for harm to human health or the environment -

7.1.a.1. The potential for harm to human health or the environment from a violation may be determined by the likelihood and degree of exposure of persons or the environment to pollution, or the degree of adverse effect of noncompliance on statutory or regulatory purposes or procedures for implementing the regulatory program.

7.1.a.2. Emphasis shall be placed on the potential harm posed by a violation rather than the actual harm that occurred. There need not be any showing of actual harm to human health or the environment to support a finding of potential harm.

7.1.a.3. The Secretary shall determine whether the potential for harm was major, moderate or minor depending on factors to be considered on a case-by-case basis.

7.1.b. Extent of Deviation from Requirements -

7.1.b.1. The extent of deviation from the statutory or regulatory requirements may be determined by the degree to which the requirement is violated.

7.1.b.2. The Secretary shall determine whether the extent of deviation from the statutory or regulatory requirement was either major, moderate or minor depending on factors to be considered on a case-by-case basis.

7.1.c. Factors the Secretary may consider in determining potential for harm to human health and the environment and the extent of deviation from a regulatory requirement may include, but are not limited to, the amount of pollutants released, the toxicity of the pollutant(s), the sensitivity of the environment potentially affected by the release, the length of time the violation took place, the actual human and environmental exposure and resultant effects upon human health and the environment, and the degree of the permittee's non-compliance.

7.1.d. Civil Penalty Matrix - Each of the above factors (potential for harm and extent of deviation from a requirement) forms one of the axes of the civil penalty matrix from which the base penalty is calculated. The selection of the exact penalty amount is within the discretion of the Secretary. In determining the base penalty, the Secretary shall not consider the reasons for the violation, the intent of the responsible party or other factors not listed in this subdivision. The civil penalty matrix is set forth in Appendix A of this rule.

7.2. Penalty Adjustment Factors:

7.2.a. The base penalty may be adjusted at the discretion of the Secretary after consideration of factors presented by the responsible party or by Inspection & Enforcement personnel of the Division of Mining and Reclamation. These adjustments may raise or lower the base civil penalty.

7.2.b. The Secretary may consider the following factors in determining whether an adjustment in the base civil penalty assessment is justified:

7.2.b.1. Degree of or absence of willfulness or negligence;

7.2.b.2. Good faith efforts to comply by the permittee both before and after an alleged violation;

7.2.b.3. Cooperation with the Secretary;

7.2.b.4. History of prior compliance or non-compliance;

7.2.b.5. Ability of the responsible party to pay a civil penalty;

7.2.b.6. Economic benefits derived by the responsible party;

7.2.b.7. Public interest;

7.2.b.8. Loss of enjoyment of the environment due to the violations;

7.2.b.9. Staff investigative costs; and

7.2.b.10. Other factors deemed relevant by the Secretary that may be present on a case-by-case analysis.

7.3. In cases of an ongoing or continuing violation, each day of violation is one distinct violation for which a calculation must be made.

W. Va. Code R. § 47-30B-7