W. Va. Code R. § 61-12F-4

Current through Register Vol. XLI, No. 48, November 27, 2024

Section 61-12F-4 - Consent Agreement and Negotiated Settlement

4.1. Consent agreements or negotiated settlements are intended as a mechanism to settle violations without expensive costs to both parties for administrative or criminal hearings. The violations cited in the notice of violation are capable of being recognized by the violator and the penalty settlement can be accomplished without a hearing. The enforcement officer shall provide the violator a written notice of violation, by certified mail or personal service, which includes a finding of fact and a proposed level of enforcement action. If the violator agrees with the proposed level of action, he shall sign a consent agreement form and return it with payment of the assessed penalty.

4.2. Negotiated Settlement - Right to informal hearing. In the event that the violator disagrees with the findings of the investigation and/or the level of enforcement action, the violator has 20 calendar days from his receipt of the notice of civil penalty to request a hearing. The violator has the option of requesting an informal hearing or may request a formal hearing as prescribed under sub-section 4.7 of this rule. During an informal hearing the violator may submit to the compliance officer any mitigating circumstances as to why the compliance officer should alter the investigative findings or level of enforcement action.

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

4.3.a. The compliance officer shall notify any inspector or other authorized representative of the commissioner who was involved in the investigation of the violation bringing about the informal hearing and the violator of the time and place of the informal hearing. In scheduling the location of the informal hearing, the compliance officer shall consider the location of the violation and the violator. The compliance officer may schedule the hearing anywhere in the state of West Virginia.

4.3.b. The compliance officer shall notify the parties at least fifteen (15) calendar days prior to the time of the hearing.

4.3.c. The compliance officer may continue the informal hearing only for good cause shown.

4.4. Informal Hearing Procedures. An informal hearing, as provided by these regulations, is intended to be an informal discussion of the facts which gave rise to the issuance of a notice of violation. The compliance officer shall conduct the hearing in the following manner:

4.4.a. The compliance officer shall not strictly apply The West Virginia Rules of Civil Procedure and West Virginia Rules of Evidence.

4.4.b. The compliance officer shall not discuss the case "ex parte" with either the enforcement officer or other department employees involved in the case.

4.4.c. A record of the informal hearing is not required but any party may request that a record be made at that party's expense. Any other party to the hearing may obtain copies of the record at his expense.

4.4.d. At any formal review proceedings which may occur later, 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.

4.5. Negotiated Settlement - Any settlement of the alleged violation based on agreement between the compliance officer and the violator is a negotiated settlement. The violator and the compliance officer shall sign the negotiated settlement document.

4.6. Written Decision

4.6.a. If the violator and the compliance officer are unable to reach an agreement, the compliance officer shall recommend a penalty to the commissioner.

4.6.b. Within thirty (30) calendar days following the informal hearing, the commissioner shall issue and furnish to the violator a written decision affirming, decreasing, or dismissing the initial civil administrative penalty assessment and give the reasons for his decision.

4.7. Contested Cases, Right to a Formal Hearing.

4.7.a. As provided in sub-section 4.2 of this rule or within thirty (30) calendar days after notification of a written decision rendered as a result of an informal hearing, the violator may request a formal hearing before the commissioner in accordance with Section 18 of the Act. An administrative hearing officer shall conduct the hearing and the hearing shall comply with the Administrative Procedures Act, W. Va. Code '29A-5-1 et seq.

4.7.b. If no hearing is requested the compliance officer's decision shall become a final order after the expiration of the thirty day period and the civil administrative penalty is due and payable.

TABLE 61-12F-A

Schedule of Penalty Codes

License Violations

A First Offense, No Prior Knowledge, Written Notice		B Prior Knowledge	C Each Repeat Offense or Non-Compliance after Notice
PC-1
Adverse effects not probable	E1	E2	E3
PC-2
Adverse effects Unknown	E2	E3	E4
PC-3
Adverse effects probable or demonstrated.	E3	E4	E5

Non-Use Violations

	A First Offense	B Second Offense	C Each Repeated Offense
PC-4
Regulations with no adverse effects or records statements	E1	E2	E3
PC-5
Special regulations or regulations resulting in adverse effects	E2	E3	E4
PC-6
Each repeated offense	E3	E4	E5

Use Violations

	A First Offense	B 2nd Offense or Knowing 1st Offense	C Each Repeated Offense
PC-7
Adverse effect not probable	E1	E3	E4
PC-8
Adverse effects Unknown	E2	E4	E5
PC-9
Adverse effects on plants or animals probable or demonstrated	E3	E5	E6
PC-10
Adverse effects to humans known, probable or demonstrated	E4	E6	E7

Product Violations

	A First Offense Offense	B Each Repeated Offense
PC-11
No probable adverse effects	E1	E3
PC-12
Unknown Adverse effects	E2	E4
PC-13
Adverse effects probable or demonstrated	E3	E5
PC-14
Cross Contamination	E3	E5

TABLE 61-12F-B

Schedule of Penalty Levels

Level	Level of Penalty
E1	Letter of Warning
E2	$50 -$200
E3	$200 -$300
E4	$350 -$500
E5	$500 -$650
E6	$650 -$800
E7	$800 -$1,000

W. Va. Code R. § 61-12F-4