R307-135-2. Assessing Penalties Against a Local Education Agency

(1) A Notice of Noncompliance may be issued to a Local Education Agency for a violation of AHERA. After a Notice of Noncompliance has been issued, the Local Education Agency must submit documentation to the director within 60 days demonstrating that the violations listed in the Notice of Noncompliance have been corrected. Failure to submit complete documentation within 60 days is a violation of this rule.

(2) A Notice of Violation may be issued to a Local Education Agency for:

(a) first-time level 1 or 2 violations as specified in R307-135-5,

(b) subsequent level 3, 4, 5, or 6 violations as specified in R307-135-5,

(c) failure to inspect and submit a management plan within 60 days of issuance of a Notice of Noncompliance,

(d) not conducting an inspection and/or submitting a plan by the statutory deadline after non-compliance has been verified by an authorized agent of the director.

(3) In accordance with Section 19-2-115, and with Section 207(a) of AHERA, the maximum penalty that may be assessed against a Local Education Agency for any and all violations in a single school building is $5,000 per day. Total penalties for a single school building which exceed $5,000 per day are to be reduced to $5,000 per day.

(4) Violations of AHERA by a Local Education Agency will be considered one-day violations, except that, in cases in which a Local Education Agency violates AHERA regulations after a Notice of Violation has been issued, additional penalties may be assessed on a per-day basis and injunctive relief may be sought.

(5) The director may use discretion in assessing penalties. The base penalty shall be determined by assessing the circumstances and the extent of the violation, as specified in R307-135-5.

(6) In determining adjustments to a base penalty assessed against a Local Education Agency in accordance with R307-135-5, the director may consider the culpability of the violator, including any history of non-compliance; ability to pay the penalty; ability to continue to provide educational services to the community; and the violator's good faith efforts to comply or lack of good faith.

(a) If it can be shown that the Local Education Agency did not know of its AHERA responsibilities, or if the violations are voluntarily disclosed by the Local Education Agency, or if the Local Education Agency did not have control over the violations, the penalty may be reduced by 25%.

(b) If violations are voluntarily disclosed by the Local Education Agency within 30 days of discovery, the penalty will be reduced by an additional 25%.

(c) If it can be shown that the Local Education Agency made reasonable efforts to assure compliance, the Notice of Violation may be eliminated.

(d) If the Local Education Agency has a demonstrated history of violations, the penalty may be increased.

(e) The attitude of the violator may be considered in increasing or decreasing the penalty by 15%.

(7) Civil penalties collected against a Local Education Agency shall be used by that Local Education Agency for the purposes of complying with AHERA. The director will defer payment of the penalty until the Local Education Agency has completed the requirements in the compliance schedule by the deadline in the schedule. When the compliance schedule expires, the Local Education Agency must present the director with a strict accounting of the cost of compliance in the form of notarized receipts, an independent accounting, or equivalent proof.

(8) If the cost of compliance equals or exceeds the amount of the civil penalty, the Local Education Agency will not be required to pay any money. If the cost of compliance is less than the amount of the penalty, the Local Education Agency shall pay the difference to the Asbestos Trust Fund.