Individual Civil Penalty Assessment to the Directors, Officers or Agents of a Corporation

10 CSR 40-8.045 Individual Civil Penalty Assessment to the Directors, Officers or Agents of a Corporation PURPOSE: This rule sets forth requirements for permanent program individual civil penalty assessments. Editor’s Note: The secretary of state has determined that the publication of this rule in its entirety would be unduly cumbersome or expensive. The entire text of the rule has been filed with the secretary of state. The entire text of the rule may be found at the headquarters of the agency and is available to any interested person at a cost established by state law. (1) This rule covers the assessment of individual civil penalties to the directors, officers or agents of a corporation as provided for in section 444.870.6 of the Surface Coal Mining Law. (2) Definitions. For purposes of this rule— (A) Knowingly means that an individual, in authorizing, ordering or carrying out an act or omission on the part of a corporate permittee, knew or had reason to know that the act or omission constituted a violation, failure or refusal; (B) Violation, failure or refusal means— 1. A violation of a condition of a permit issued under sections 444.815 and 444.835 of the Surface Coal Mining Law; or 2. A failure or refusal to comply with any order issued under section 444.885, RSMo or any order incorporated in a final decision issued by the commission under the Surface Coal Mining Law, except an order incorporated in a decision issued under section 444.870.2 of that law; and (C) Willfully means that an individual acted— 1. Either intentionally, voluntarily or consciously; and 2. With intentional disregard of or plain indifference to legal requirements in authorizing, ordering or carrying out a corporate permittee’s action or omission that constituted a violation, failure or refusal. (3) When an Individual Civil Penalty May Be Assessed. (A) Except as provided in subsection (3)(B), the commission may assess an individual civil penalty against any corporate director, officer or agent of a corporate permittee who knowingly and willfully authorized, ordered or carried out a violation, failure or refusal. (B) The commission shall not assess an individual civil penalty in situations resulting from a permit violation by a corporate permittee until a cessation order has been issued by the commission or its representative to the corporate permittee for the violation and the Chapter 8—Definitions and General Requirements cessation order has remained unabated for thirty (30) days. (4) Amount of Individual Civil Penalty. (A) In determining the amount of an individual civil penalty assessed under section (3) of this rule, the commission shall consider the criteria specified in section 444.870.1 of the Surface Coal Mining Law, including: 1. The individual’s history of authorizing, ordering or carrying out previous violations, failures or refusals at the particular surface coal mining operation; 2. The seriousness of the violation, failure or refusal (as indicated by the extent of damage, the cost of reclamation, or both), including any irreparable harm to the environment and any hazard to the health or safety of the public; and 3. The demonstrated good faith of the individual charged in attempting to achieve rapid compliance after notice of the violation, failure or refusal. (B) The penalty shall not exceed five thousand dollars ($5000) for each violation. Each day of a continuing violation may be deemed a separate violation and the commission may assess a separate 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 commission, until abatement or compliance is achieved. (5) Procedure for Assessment of Individual Civil Penalty. (A) The director shall serve on each individual to be assessed an individual civil penalty a notice of the proposed 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. (B) The notice of proposed individual civil penalty assessment shall become a final order of the commission thirty (30) days after service upon the individual unless— 1. The individual files within thirty (30) days of service of the notice of proposed assessment a petition for review with the commission, in accordance with section 444.870.3 of the Surface Coal Mining Law; or 2. The director and the individual or responsible corporate permittee agree within thirty (30) days of service of the notice of proposed assessment to a schedule or plan for the abatement or correction of the violation, failure or refusal. (C) For purposes of this section, service is sufficient if made in accordance with the provisions of -8.030(9) at the surface coal mining or reclamation operation or to the most current corporate address provided by the permittee to the commission. (6) Payment of Penalty. (A) 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 shall be due upon issuance of the final order. (B) If an individual named in a notice of proposed individual civil penalty assessment files a petition for review in accordance with section 444.870.3 of the Surface Coal Mining Law, the penalty shall be due upon issuance of a final administrative order affirming, increasing or decreasing the proposed penalty. (C) When the director and the corporate permittee 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 commission stating that the penalty is due on the date of the final order, or written notice that abatement or compliance is satisfactory and the penalty has been withdrawn. (D) Following the expiration of thirty (30) days after the issuance of a final order assessing an individual civil penalty, any delinquent penalty shall be subject to interest at the rate established quarterly by the United States Department of the Treasury for use in applying late charges on late payments to the commission. 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 may result in one (1) or more of the following actions: 1) initiating of litigation, 2) reporting to the Internal Revenue Service, 3) reporting to the Missouri Department of Revenue, 4) reporting to credit bureaus and 5) referring to collection agencies. Delinquent penalties are subject to a six percent (6%) per annum penalty from when the payment is ninety-one (91) days late until payment, in addition to the previously discussed late charges and any expenses accumulated by the commission while attempting to collect delinquent penalties. AUTHORITY: sections 444.530 and 444.810, RSMo 1994.* Original rule filed May 2, 1989, effective Aug. 1, 1989. -8 *Original authority: 444.530, RSMo 1971, amended 1983, 1990, 1993 and 444.810, RSMo 1979, amended 1983, 1993. -8.050 Small Operators’ Assistance PURPOSE: This rule sets forth the requirements for the Small Operators’ Assistance Program pursuant to 444.530 and 444.810, RSMo. (1) Definition. Qualified laboratory means a designated public agency, private firm, institution or analytical laboratory that can provide the required determination of probable hydrologic consequences or statement of results of test borings or core samplings or other services as specified in section (5) of this rule under the Small Operators’ Assistance Program and which meets the standards of section (6) of this rule. (2) Eligibility for Assistance. An applicant is eligible for assistance if s/he— (A) Intends to apply for a permit pursuant to the law; (B) Establishes that his/her probable total attributed annual production from all locations on which the operator is issued the surface coal mining and reclamation permit, will not exceed three hundred thousand (300,000) tons. Production from the following operations shall be attributed to the applicant: 1. The pro rata share, based upon percentage of ownership of applicant, of coal produced by operations in which the applicant owns more than a ten percent (10%) interest; 2. The pro rata share, based upon percentage of ownership of applicant, of coal produced in other operations by persons who own more than ten percent (10%) of the applicant’s operation; 3. All coal produced by operations owned by persons who, directly or indirectly, control the applicant by reason of direction of the management; and 4. All coal produced by operations owned by members of the applicant’s family and the applicant’s relatives, unless it is established that there is no direct or indirect business relationship between or among them; (C) Is not restricted in any manner from receiving a permit under the permanent regulatory program; and (D) Does not organize or reorganize his/her company solely for the purpose of obtaining assistance under the Small Operators’ Assistance Program. -8—DEPARTMENT OF NATURAL RESOURCES Division 40—Land Reclamation Commission (3) Filing for Assistance. Each application for assistance shall include the following information: (A) A statement of the operator’s intent to file a permit application; (B) The names and addresses of— 1. The permit applicant; and 2. The operator, if different from the applicant; (C) A schedule of the estimated total production of coal from the proposed permit area and all other locations from which production is attributed to the applicant under section (3). The schedule shall include for each location: 1. The operator or company name under which coal is or will be mined; 2. The permit number and Mine Safety and Health Administration (MSHA) number; 3. The actual coal production during the year preceding the year for which the applicant applies for assistance and production that may be attributed to the applicant under section (3); and 4. The estimated coal production and any production which may be attributed to the applicant for each year of the proposed permit; (D) A description of— 1. The proposed method of coal mining; 2. The anticipated starting and termination dates of mining operations; 3. The number of acres of land to be affected by the proposed mining operation; and 4. A general statement on the probable depth and thickness of the coal resource including a statement of reserves in the permit area and the method by which they were calculated; (E) A United States Geological Survey topographic map at a scale of 1:24,000 or larger, or other topographic map of equivalent detail which clearly shows— 1. The area of land to be affected; 2. The location of any existing or proposed test borings; and 3. The location and extent of known workings of any underground mines; and (F) Copies of documents which show that— 1. The applicant has a legal right to enter and commence mining within the permit area; and 2. A legal right of entry has been obtained for the director or commission and laboratory personnel to inspect the lands to be mined and adjacent areas to collect environmental data or to install necessary instruments. (4) Application Approval and Notice. (A) If the director or commission finds the applicant eligible, s/he shall inform the applicant in writing that the application is approved. (B) If the director or commission finds the applicant ineligible, s/he shall inform the applicant in writing that the application is denied and shall state the reasons for denial. (5) Program Services and Data Requirements. (A) To the extent possible with available funds, the director or commission shall select and pay a qualified laboratory to make the determination and statement and provide other services referenced in subsection (5)(B) of this rule for eligible operators who request assistance. (B) The director or commission shall determine the data needed for each applicant or group of applicants. Data collected and the results provided to the director or commission shall be sufficient to satisfy the requirements for— 1. The determination of the probable hydrologic consequences of the surface mining and reclamation operations in the proposed permit area and adjacent areas including the engineering analysis and designs necessary for the determination in accordance with -6.050(9)(C) and any other applicable provisions of this chapter; 2. The drilling and statement of the results of test borings or core samplings for the proposed permit area in accordance with -6.040(5) and -6.110(5), and any other applicable provisions of this chapter; 3. The development of cross-section maps and plans required by - 6.040(15); 4. The collection of archaeological and historic information and related plans required by -6.040(3)(B) and 10 CSR 40-6.050(14) and any other archaeological and historic information required by the regulatory authority; 5. Pre-blast surveys required by 10 CSR 40-6.050(4); and 6. The collection of site-specific resources information, the production of protection and enhancement plans for fish and wildlife habitats required by - 6.050(7) and information and plans for any other environmental values required by the regulatory authority under the Act. (C) Data collection and analysis may proceed concurrently with the development of mining and reclamation plans by the operator. (D) Data collected under this program shall be made publicly available in accordance with -6.070(6). The director or commission shall develop procedures for interstate coordination and exchange of data. (6) Qualified Laboratories. (A) Basic Qualifications. To be designated a qualified laboratory, a firm shall demonstrate that it— 1. Is staffed with experienced, professional or technical personnel in the fields applicable to the work to be performed; 2. Has adequate space for material preparation and cleaning and sterilizing equipment and has stationary equipment, storage and space to accommodate workloads during peak periods; 3. Meets applicable federal or state safety and health requirements; 4. Has analytical, monitoring and measuring equipment capable of meeting applicable standards; 5. Has the capability of collecting necessary field samples and making hydrologic field measurements and analytical laboratory determinations by acceptable hydrologic, geologic or analytical methods in accordance with the requirements of - 6.040(5), -6.110(5) and 10 CSR 40-6.120(5), and any other applicable provisions of this chapter. Other appropriate methods or guidelines for data acquisition may be approved by the director; and 6. Has the capability of performing services for either the determination or statement referenced in subsection (5)(B). (B) Subcontractors. Subcontractors may be used to provide some of the required services, provided their use is identified at the time a determination is made that a firm is qualified and they meet requirements specified by the director or commission. (8) Assistance Funding. (A) Use of Funds. Funds specifically authorized for this program shall be used to provide the services specified in subsection (5) and shall not be used to cover administrative expenses. (B) Allocation of Funds. The director or commission shall establish a formula for allocating funds to provide services for eligible small operators if available funds are less than those required to provide the services pursuant to this rule. (9) Applicant Liability. (A) A coal operator who has received assistance pursuant to section (5) of this rule, shall reimburse the director or commission for the cost of the services rendered if— 1. The applicant submits false information, fails to submit a permit application within one (1) year from the date of receipt of Chapter 8—Definitions and General Requirements the approved laboratory report or fails to mine after obtaining a permit; 2. The director or commission finds that the operator’s actual and attributed annual production of coal for all locations exceeds three hundred thousand (300,000) tons during the twelve (12) months immediately following the date on which the operator is issued the surface coal mining and reclamation permit; or 3. The permit is sold, transferred or assigned to another person and the transferee’s total actual and attributed production exceeds the three hundred thousand (300,000)-ton annual production limit during the twelve (12) months immediately following the date on which the permit was originally issued. Under this section, the applicant and its successor are jointly and severally obligated to reimburse the director or commission. (B) The director or commission may waive the reimbursement obligation if s/he finds that the applicant at all times acted in good faith. AUTHORITY: section 444.530, RSMo Supp. 1999.* Original rule filed Oct. 12, 1979, effective Feb. 11, 1980. Amended: Filed Aug. 13, 1982, effective Nov. 11, 1982. Rescinded and readopted: Filed Aug. 4, 1987, effective Nov. 23, 1987. Amended: Filed Sept. 15, 1994, effective April 30, 1995. Amended: Filed March 21, 2000, effective Oct. 30, 2000. *Original authority: 444.530, RSMo 1971, amended 1983, 1990, 1993, 1995.