Chapter 32. Civil Penalties

The Bureau may assess civil penalties upon the issuance of any notice of violation or cessation order, regardless of a person's subsequent efforts to comply with the requirements of the Regulatory Program.

Civil penalties may be as much as $5,000 for each violation of the Regulatory Program. Each day of continuing violation may be deemed a separate violation for purposes of penalty assessments.

Civil penalties shall be assessed whenever the Bureau issues a cessation order for a violation that creates an imminent danger to the health and safety of the public, or is causing or can reasonably be expected to cause significant, imminent environmental harm.

If a person fails to correct a violation within the time specified in either a notice of violation or cessation order, the Bureau shall assess a civil penalty of not less than $750 for each day up to 30 days beyond the compliance deadline during which the violation continues, and may assess this penalty beyond that time for continued noncompliance. However, in all cases the daily penalty may not begin until the Bureau conducts a reinspection of the permit and informs the person that compliance has not been achieved.

Whenever the $750 per day penalty of §D of this regulation is not assessed beyond 30 days, the Bureau shall take appropriate action pursuant to the Regulatory Program, within 30 days, to ensure that abatement occurs or to ensure that there will not be a recurrence of the failure to abate.

A civil penalty may not be assessed without providing an opportunity for a hearing. If the person charged with the violation fails to request a hearing, the Bureau shall assess a civil penalty only after determining, in writing, that a violation did occur.

If the requirements of a notice of violation or cessation order are expected to be satisfied within 30 days of issuance, the Bureau will await the conclusion of the matter before instituting civil penalty procedures. If satisfactory compliance has not been achieved by that time the Bureau, in its discretion, may wait a further period, or assess a penalty for the first 30 days only, reserving the ability to impose further assessments until compliance is achieved.

Civil penalty assessments shall be initiated by sending a Notice of Proposed Assessment, in writing and by certified mail, to the operator. The notice shall contain:

Service of the Notice of Proposed Assessment is complete upon mailing in accordance with COMAR 26.20.31.08.

Failure by the Bureau to serve any proposed assessment within 30 days of the issuance of a notice of violation or cessation order is not grounds for dismissal of all or part of the assessment unless the person against whom the proposed penalty has been assessed:

An objection under §D(2) of this regulation is timely only if made in the normal course of administrative review.

Within 30 days of the date a Notice of Proposed Assessment is served, the person against whom the penalty has been assessed may request an assessment conference at the Bureau regarding the amount of penalty.

An assessment conference shall be informal in nature, and presided over by the Director of the Bureau or the Director's designee. The purpose of the conference is to discuss the amount of penalty only.

The assessment conference shall be held within 60 days from the date of issuance of the Notice of Proposed Assessment, or the end of the abatement period, whichever is later. Failure by the Bureau to hold the conference within this time period is not grounds for dismissal of all or part of the proposed assessment unless the person against whom the proposed penalty has been assessed proves actual prejudice as a result of the delay.

The Bureau shall post notice at the Bureau of the date and time of the assessment conference at least 5 days before the conference. Any person has the right to attend and participate in the conference.

An assessment conference may result in an increase or decrease in the amount of penalty.

If possible, a settlement agreement can be entered at the conference, under which the operator shall waive all further rights of appeal except as stated in the agreement. If an operator fails to make full payment of any settlement amount within 30 days after the date of signing, the Bureau may enforce the agreement, or rescind it and proceed with final assessment within 30 days from the date of rescission.

Within 30 days of the conclusion of an assessment conference, or, in the absence of a request for a conference, within 30 days after the violation is abated, the Bureau shall send a Notice of Final Assessment in writing and by certified mail. The notice shall contain the:

Service of the Notice of Final Assessment is complete upon mailing in accordance with COMAR 26.20.31.08.

The person against whom the final penalty has been assessed may request formal review of the final assessment by submitting a petition and an amount equal to the final assessment to the Bureau within 30 days from receipt of the Notice of Final Assessment. The formal review hearing shall be conducted in accordance with COMAR 26.20.34. If the person has requested formal review of the underlying violation under COMAR 26.20.31.09, and the fact of the violation has not been adjudicated, formal review of the final assessment may be combined with formal review of the violation.

The fact of the violation may not be contested if the person has not requested a hearing to review the notice of violation or cessation order in accordance with COMAR 26.20.31.09, or if the fact of the violation has been decided in a review proceeding under COMAR 26.20.31.

At the conclusion of an adjudicatory hearing on an assessment, the hearing officer may increase or decrease the amount set by the Bureau's Notice of Final Assessment.

In determining the amount of penalty to be assessed for a violation of the Regulatory Program, the Bureau shall compute a separate figure from each of the following categories:

In determining the amount of the penalty to be assessed under §A(1) of this regulation, the Bureau shall consider violations regardless of whether they resulted in civil penalty assessments. Cessation orders shall constitute a more serious history than notices of violation. A violation may not be considered if it was subsequently vacated or is still being contested or appealed. The maximum amount to be assessed for this category is $2,000.

In determining the amount of the penalty to be assessed under §A(2) of this regulation, the Bureau shall consider the probability of occurrence of the violation and the extent of actual or potential damage to the environment or general public health and safety. If the violation relates to an administrative requirement, such as record keeping, seriousness shall be judged on the extent to which the violation obstructs enforcement under the Regulatory Program. The maximum amount to be assessed for this category is $1,000.

In determining the amount of the penalty to be assessed under §A(3) of this regulation, the Bureau shall evaluate the degree of fault of the person contributing to a violation, such as whether the exercise of reasonable care would have avoided the violation, or whether the person acted intentionally or with reckless disregard of the requirements of the Regulatory Program. The maximum amount to be assessed for this category is $1,500.

In determining the amount of the penalty to be assessed under §A(4) of this regulation, the Bureau shall evaluate the effect of the violation on the probability for eventual success of reclamation on the permit site in accordance with the requirements of the Regulatory Program. The maximum amount to be assessed for this category is $500.

The Bureau shall reduce the amount of the civil penalty under §A(5) of this regulation if the person contributing to a violation takes extraordinary measures to correct a violation in the shortest possible time and achieves compliance before the deadline set in the notice of violation or cessation order. The maximum reduction of the civil penalty for this category is $1,000.

The Bureau shall identify, in a Notice of Proposed Assessment, the amount calculated for each of the categories in §A of this regulation.

In all cases, civil penalty assessments shall be paid within 30 days of receipt of a Notice of Final Assessment. Failure to forward the full amount within this time shall result in a loss of any right to contest or otherwise appeal the penalty amount, or the violation on which the assessment is based.

The Bureau shall place all penalty payments in escrow pending expiration of appeal deadlines or final resolution of any challenge to the violation or penalty amount.

If the final decision upon appeal results in elimination or reduction of a penalty, the Bureau shall refund the amount within 30 days, with interest from the date of payment into escrow to the date of refund at the rate of 6 percent.

If the final decision upon appeal results in an increase in a penalty, the person shall forward the full amount to the Bureau within 15 days of the decision.

Definitions. For the purpose of this regulation, the following terms have the meanings indicated:

Except as provided in §C of this regulation, the Department 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.

The Department may 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 Department to the corporate permittee for the violation, and the cessation order has remained unabated for 30 days.

In determining the amount of an individual civil penalty assessed under this regulation, the Department shall consider the following criteria:

The penalty may not exceed $5,000 for each violation. Each day of a continuing violation may be considered a separate violation and the Department 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 Department, until abatement or compliance is achieved.

The Department shall 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.

The notice of proposed individual civil penalty assessment shall become a final order of the Department 30 days after service upon the individual, unless the:

Service of the notice of proposed individual civil penalty assessment is complete upon mailing in accordance with COMAR 26.20.31.08.

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 is due upon issuance of the final order.

If an individual named in the notice of proposed individual civil penalty assessment files a petition for review with the Department, the penalty is due upon issuance of a final administrative order affirming, increasing, or decreasing the proposed penalty.

When the Department and the corporate permittee or individual have agreed in writing on a plan for compliance with the unabated order, an individual named in the notice of proposed individual civil penalty assessment may postpone payment until receiving either a final order from the Department 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.

Following the expiration of 30 days after the issuance of a final order assessing an individual civil penalty, any delinquent penalty is subject to interest at the rate of 6 percent per annum. Interest on unpaid penalties runs from the date payment first was due until the date of payment. The civil penalty is payable to the State and is collectable in any manner provided at law for the collection of debts.