No. 27018 (New Rule): R647-8. Inspection and Enforcement: Individual Civil Penalties

DAR File No.: 27018
Filed: 03/26/2004, 10:05
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

This proposed new rule adds in part, the necessary rulemaking for S.B. 159 from the 2002 General Session of the Utah Legislature. (DAR NOTE: S.B. 159 is found at UT L 2002 Ch 194, and was effective May 6, 2002.)

 

Summary of the rule or change:

This proposed new rule adds a description of the individual civil penalties necessary to implement the inspection and enforcement provisions of S.B. 159.

 

State statutory or constitutional authorization for this rule:

Section 40-8-1 et seq.

 

Anticipated cost or savings to:

the state budget:

There is very little or no anticipated impact to the State budget from this new rule as the enforcement procedures currently in use by the Division and Board are more complex and require more administrative activity than is contemplated from the enforcement powers granted by S.B. 159. This new rule allows more efficient field activity. In either case, under the previous law or the revised one, if an operator exhibits poor environmental compliance, penalties may be assessed and collected at about the same cost. The amount of these collections is not quantifiable at this time due to an inability to predict future performance.

 

local governments:

If local government chooses to operate a non-coal mine, it may be affected by this rule if compliance performance is substandard. Traditionally, however, mines are run by private industry, the effect on industry is outlined in the response to "Other persons" below.

 

other persons:

Others who may be affected by this rule are mining companies. While the rule in combination with other provisions authorizes the assessment of civil penalties, these penalties would be levied only in cases of noncompliance or malcompliance. Those additional costs are not quantifiable at this time because it is difficult to predict future compliance.

 

Compliance costs for affected persons:

Industry compliance costs should not increase as a result of this rule since the standards for performance are not changing, only the method of enforcement.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

There will be no fiscal impact for those businesses who are in full compliance with the reclamation program. Penalties will be assessed for those businesses who are not in compliance with the regulatory program.

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Natural Resources
Oil, Gas and Mining; Non-Coal
1594 W NORTH TEMPLE
SALT LAKE CITY UT 84116-3154

 

Direct questions regarding this rule to:

Ron Daniels at the above address, by phone at 801-538-5316, by FAX at 801-359-3940, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/17/2004

 

Interested persons may attend a public hearing regarding this rule:

4/28/2004 at 10:00 AM, 1594 West North Temple, Suite 1050, Salt Lake City, UT

 

This rule may become effective on:

05/18/2004

 

Authorized by:

Ron Daniels, Coordinator of Minerals Research

 

 

RULE TEXT

R647. Natural Resources; Oil, Gas and Mining; Non-Coal.

R647-8. Inspection and Enforcement: Individual Civil Penalties.

R647-8-101. Information on Individual Civil Penalties.

1. The rules in R647-8 provide guidance to exercise the authority set forth in Subsection 40-8-9.1(6).

2. Individual civil penalties will be assessed by a Division-appointed assessment officer using the process described in R647-8.

 

R647-8-102. When an Individual Civil Penalty May Be Assessed.

1. Except as provided in R647-8-102.2, the assessment officer may assess an individual civil penalty against any corporate director, officer, or agent of a permittee or operator, or any other person who may be liable under Section 40-8-9.1 who knowingly and willfully authorized, ordered or carried out a violation, failure, or refusal.

2. The assessment officer will not assess an individual civil penalty in situations resulting from a permit violation by a corporate permittee or operator until a cessation order has been issued by the Division to the corporate permittee or operator for the violation, and the cessation order has remained unabated for 30 days.

 

R647-8-103. Amount of the Individual Civil Penalty.

1. In determining the amount of an individual civil penalty assessed under R647-8-102, the assessment officer will consider the criteria specified in Section 40-8-9.1, including:

1.11. The individual's history of authorizing, ordering or carrying out previous violations, failures or refusals at the particular mining operation and reclamation;

1.12. The seriousness of the violation failure or refusal (as indicated by the extent of damage and/or the cost of reclamation), including any irreparable harm to the environment and any hazard to the health or safety of the public; and

1.13. The demonstrated good faith of the individual charged in attempting to achieve rapid compliance after notice of the violation, failure, or refusal.

2. The individual civil penalty will not exceed $5,000 for each violation. Each day of continuing violation may be deemed a separate violation and the assessment officer may assess a separate individual civil penalty for each day the violation, failure or refusal continues, from the date of service of the underlying notice of violation, cessation order, or other order incorporated in a final decision issued by the Board, until abatement or compliance is achieved.

 

R647-8-104. Procedure for Assessment of Individual Civil Penalty.

1. Notice. The Division will serve on each individual to be assessed an individual civil penalty a notice of proposed individual civil penalty assessment, including a narrative explanation of the reasons for the penalty, the amount to be assessed, and a copy of any underlying notice of violation and cessation order.

2. Final order and opportunity for review. The notice of proposed individual civil penalty assessment shall become a final order of the Division 30 days after service upon the individual unless:

2.11. The individual files within 30 days of service of the notice of proposed individual civil penalty assessment a petition for review with the Board; or

2.12. The Division and the individual or responsible corporate permittee or operator agree within 30 days of service of the notice of proposed individual civil penalty assessment to a schedule or plan for the abatement or correction of the violation, failure or refusal.

3. Service. Service of notice under R647-8-104 will satisfy the standard of R641, concerning the rules of practice and procedure before the Board.

 

R647-8-105. Payment of Penalty.

1. No abatement or appeal. If a notice of proposed individual civil penalty assessment becomes a final order in the absence of a petition for review or abatement agreement, the penalty will be due upon issuance of the final order.

2. Appeal. If an individual named in a notice of proposed individual civil penalty assessment files a petition for review in accordance with R641, the penalty will be due upon issuance of a final Board order affirming, increasing, or decreasing the proposed penalty.

3. Abatement agreement. Where the Board and the corporate permittee, operator, or individual have agreed in writing on a plan for the abatement of or compliance with the unabated order, an individual named in a notice of proposed individual civil penalty assessment may postpone payment until receiving either a final order from the Board stating that the penalty is due on the date of such final order, or written notice that abatement or compliance is satisfactory and the penalty has been withdrawn.

4. Delinquent payment. Following the expiration of 30 days after the issuance of a final order assessing an individual civil penalty, any delinquent penalty will be subject to interest at the rate established quarterly by the U.S. Department of the Treasury for use in applying late charges on late payments to the Federal Government, pursuant to Treasury Financial Manual 6-8020.20. The Treasury current value of funds rate is published by the Fiscal Service in the notices section of the Federal Register. Interest on unpaid penalties will run from the date payment first was due until the date of payment. Failure to pay overdue penalties will result in referral to the Utah Attorney General for appropriate collection action.

 

KEY: minerals reclamation

2004

40-8-1 et seq.