W. Va. Code R. § 47-34-19

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

Section 47-34-19 - Civil Administrative Penalties

19.1. Enforcement Actions.

19.1.a. General - An authorized representative of the Secretary may commence an enforcement action for any observed violation.

19.1.b. Enforcement Action Procedures - An enforcement action shall be in writing, shall be signed by the Secretary or other authorized representative of the Secretary, and shall set forth with reasonable specificity:

19.1.b.1. The nature of the enforcement action with a reference to the section of the statute, rule, notice, order or certificate of approval term that was allegedly violated;

19.1.b.2. The time and date of the observance of the violation;

19.1.b.3. A reasonable description of the dam where the violation was observed, where within the operation or maintenance of the dam the observation was observed, and the condition or hazard determined by the Secretary;

19.1.b.4. The name, ownership and location of the dam and any identification number associated with it; and

19.1.b.5. In those instances where a notice or order has not been previously issued, the remedial action necessary to alleviate the violation and time limits for accomplishing the remedial action.

19.2. Penalty Assessment Procedures.

19.2.a. Review of Enforcement Action and Penalty Calculation - The Secretary shall review each enforcement action issued for civil administrative penalty assessment to determine:

19.2.a.1. The appropriateness of a civil administrative penalty;

19.2.a.2. The initial amount of penalty, if any, based upon the rates and methods given in subsection 19.5.;

19.2.a.3. The appropriateness of assessing a daily civil administrative penalty for continuing violations;

19.2.a.4. The total initial civil administrative penalty assessed; and

19.2.a.5. The appropriateness of assessing a separate civil administrative penalty against an individual person.

19.2.b. Notice of Civil Administrative Penalty - The Secretary shall provide the violator with a copy of the enforcement action and:

19.2.b.1. A notice of civil administrative penalty which shall include procedures for requesting an informal hearing and a notification of applicable time constraints; or

19.2.b.2. A notice of dismissal.

19.3. Hearings and Appeals.

19.3.a. Right to Informal Hearing - The violator has twenty (20) calendar days from his or her receipt of the notice of civil administrative penalty within which to request, in writing, an informal hearing before the assessment officer. If a hearing is requested, the assessment officer will hold the hearing within 60 days to deduce the actual facts and circumstances regarding the violation and, based thereon, will make a final recommendation of civil administrative penalty assessment to the Secretary. If no hearing is requested, the notice of civil administrative penalty becomes a final order after the expiration of the twenty-day period and the civil administrative penalty becomes due and payable.

19.3.b. Notice and Scheduling of Informal Hearing - If the violator requests an informal hearing within the twenty-day period, the assessment officer shall schedule a hearing in accordance with the following procedures:

19.3.b.1. The time and place the informal hearing is to be held is to be communicated to any authorized representative of the Secretary who filed an enforcement action bringing about the informal hearing, to the violator and to any person who has expressed an interest in writing concerning the enforcement action;

19.3.b.2. The communication shall be provided at least fifteen (15) calendar days prior to the time of the hearing; and

19.3.b.3. The assessment officer may continue the informal hearing only for good cause shown.

19.3.c. Informal Hearing Procedures - An informal hearing, as provided by this rule, is intended to be an informal discussion of the facts which gave rise to the issuance of an enforcement action and shall be conducted in the following manner:

19.3.c.1. The West Virginia Rules of Civil Procedure and West Virginia Rules of Evidence shall not apply;

19.3.c.2. A record of the informal hearing is not required but may be made by any party to the hearing at the party's expense; and

19.3.c.3. At formal review proceedings which may ensue, no evidence as to any statement made by one party at the informal hearing may be introduced as evidence by another party, nor may any statement be used to impeach a witness, unless the statement is or was available as competent evidence independent of its introduction during the informal hearing.

19.3.d. Written Decision - Within thirty (30) calendar days following the informal hearing, the Secretary shall issue and furnish to the violator a written decision affirming, increasing, decreasing, or dismissing the initial civil administrative penalty assessment and giving the reasons for the decision.

19.3.e. Request for Formal Hearing - Within thirty (30) calendar days after notification of the Secretary's informal hearing decision, the violator may request a formal hearing before the Environmental Quality Board. If no formal hearing is requested, the Secretary's decision becomes a final order after the expiration of the thirty day period and the civil administrative penalty becomes due and payable.

19.4. Separate Civil Administrative Penalties.

19.4.a. The Secretary may assess a separate civil administrative penalty against any corporate director, officer, agent, or employee of a violator, or any other person, who authorizes, orders, or carries out a violation of the statute, rule, notice, order, or certificate of approval term or who fails or refuses to follow an order from the Secretary.

19.4.b. In determining the amount of a civil administrative penalty to be assessed against a person, consideration shall be given to the criteria specified in subsection 19.5.

19.4.c. The Secretary shall serve on each person to be assessed an administrative penalty a notice of separate civil administrative penalty assessment. For purposes of this subsection, service is considered sufficient if it satisfies Rule 4 of the West Virginia Rules of Civil Procedure for service of a summons and complaint. A notice of separate civil administrative penalty assessment shall include:

19.4.c.1. A reference to the section of the statute, rule, notice, order, or certificate of approval term allegedly violated;

19.4.c.2. A concise statement of the facts alleged to constitute the violation;

19.4.c.3. A statement of the amount of the separate civil administrative penalty to be imposed;

19.4.c.4. A copy of the underlying enforcement action; and

19.4.c.5. A statement of a person's right to an informal hearing.

19.4.d. A person shall have twenty (20) calendar days from receipt of the notice of separate civil administrative penalty assessment in which to request, in writing, an informal hearing before the assessment officer. If no hearing is requested, the notice of separate civil administrative penalty becomes a final order after expiration of the thirty-day period and the separate civil administrative penalty becomes due and payable.

19.4.e. The informal hearing, if requested, will be scheduled and conducted pursuant to this section.

19.5. Civil Administrative Penalty Calculation Procedures.

19.5.a. Calculation - The Secretary shall calculate a civil administrative penalty by taking into account the seriousness of the alleged violation, good faith efforts on the part of the violator (as provided for in paragraph 19.5.c. of this section) and any history of violations by the violator.

19.5.b. History of Violations (HOV) - The Secretary shall take into account the violator's history of violations by determining if any enforcement actions concerning Certificate terms, requirements of the Act, rule requirements, notices to comply or any orders have been taken against the violator during twenty-four (24) months prior to the violation. Those enforcement actions which were withdrawn, dismissed, or vacated shall not be included in the determination. Any outstanding violation within the time period shall constitute a history of violations.

19.5.c. Good Faith Effort - Good faith effort shall be determined in accordance with Table B.

19.5.d. Maximum Assessed Penalty - The maximum assessment for a single violation shall not exceed five thousand dollars ($5,000) per day with a maximum cumulative total of twenty thousand dollars ($20,000) for this same violation. Multiple violations shall not exceed a maximum cumulative total of twenty thousand dollars ($20,000) per day. The amounts applicable to a single violation must be adhered to when developing the cumulative total for multiple days.

19.5.e. Penalty - The civil administrative penalty shall be determined through the use of Table A.

19.5.f. Penalty With Good Faith Efforts by Violator - The civil administrative penalty determined by Table A shall be reduced, if applicable, through the use of Table B.

TABLE A

Seriousness of Violation

(dollars/day/violation)

Enforcement Action	No Hazard		Serious Problem		Dangerous Condition
Failure to Comply With:	No HOV	With HOV	No HOV	With HOV	No HOV	With HOV
Certificate	250	625	750	1250	2500	5000
Act	625	1250	1500	1875	3125	5000
Rule	1250	1875	2125	2500	3750	5000
Notice	1875	2500	3125	3750	4375	5000
Order	2500	3125	3750	4375	4625	5000

TABLE B

Good Faith by Violator

Rating	0	1	2	3	4	5	6	7	8
Percent Reduction	0%	5%	10%	15%	20%	25%	30%	35%	40%

Good Faith Ratings:

0 Violator failed to take appropriate action

1-2 Violator took prompt, but insufficient action to fully comply with the violation within the required time period. Action was completed prior to end of extended time period.

3-4 Violator took prompt action and worked diligently to correct the violation. Conditions beyond the control of the violator prevented full compliance with the enforcement action and required that the compliance time period be extended for just cause.

5-6 Violator initiated compliance action immediately and expended all reasonable efforts to comply. Achieved compliance before the end of the original compliance time period.

7-8 Violator was already taking appropriate action at the time the violation was documented and expended exemplary effort in compliance action before the end of the compliance time period.

Determination of Penalty Assessment:

Enforcement Action Amount (Table A) ____________________

Less Good Faith Percent (Table B) ____________________

Total Assessment ____________________

W. Va. Code R. § 47-34-19