Current through Register Vol. 48, No. 12, March 22, 2024
a)
Authority to Assess Civil Penalty. The Agency may assess a civil penalty
against any person who has violated any prohibition contained in the Act, any
regulation promulgated by the Agency pursuant to the Act or any term or
condition included in a permit. Section 5 of the Act also allows civil damages
to be assessed by the land managing agency.
b) Notice of Violation. The Agency shall
serve a notice of violation upon any person believed to be subject to a civil
penalty, either in person or by registered or certified mail (return receipt
requested). The Agency shall include in the notice:
1) A concise statement of the facts believed
to show a violation;
2) A specific
reference to the provisions of the Act or this Part allegedly
violated;
3) The amount of penalty
proposed to be assessed, including any initial proposal to mitigate or remit
where appropriate, or a statement that notice of a proposed penalty amount will
be served after the damages associated with the alleged violation have been
ascertained;
4) Notification of the
right to file a petition for relief pursuant to subsection (d) of this Section.
The notice shall also inform the person of the right to seek judicial review of
any final administrative decision assessing a civil penalty.
c) Alternatives in Response to
Notice of Violations. The person served with a notice of violation shall have
30 calendar days from the date of its service (or the date of service of a
proposed penalty amount, if later) in which to respond. During this time the
person may:
1) Seek informal discussions with
the Agency;
2) File a petition for
relief in accordance with subsection (d) of this Section;
3) Take no action and await the Agency's
notice of assessment;
4) Accept in
writing, or by payment of the proposed penalty, any mitigation or remission
offered in the notice. Acceptance of the proposed penalty or mitigation or
remission shall be deemed a waiver of the notice of assessment and of the right
to request a hearing under subsection (g) of this Section.
d) Petition for Relief. The person served
with a notice of violation may request that no penalty be assessed, or that the
amount be reduced, by filing a petition for relief with the Agency within 30
calendar days after the date of service of the notice of violation (or of a
proposed penalty amount, if later). The petition shall be in writing and signed
by the person served with the notice of violation. If the person is a
corporation, the petition must be signed by an officer authorized to sign such
documents. The petition shall set forth in full the legal or factual basis for
the requested relief.
e) Assessment
of Penalty.
1) The Agency shall assess a
civil penalty upon expiration of the period for filing a petition for relief,
or upon completion of informal discussions, whichever is later.
2) The Agency shall take into consideration
all available information, including information provided pursuant to
subsections (c) and (d) of this Section or furnished upon further request by
the Agency.
3) If the facts warrant
a conclusion that no violation has occurred, the Agency shall so notify the
person served with a notice of violation, and no penalty shall be
assessed.
4) Where the facts
warrant a conclusion that a violation has occurred, the Agency shall determine
a penalty amount in accordance with Section 5 of the Act and Section
4190.205 of this
Part.
f) Notice of
Assessment. The Agency shall notify the person served with a notice of
violation of the penalty amount assessed by serving a written notice of
assessment, either in person or by registered or certified mail (return receipt
requested). The Agency shall include in the notice of assessment:
1) The facts and conclusions from which it
was determined that a violation did occur;
2) The basis in Section
4190.205 for
determining the penalty amount assessed and/or any offer to mitigate or remit
the penalty; and
3) Notification of
the right to request a hearing, including the procedures to be followed, and to
seek judicial review of any final administrative decision assessing a civil
penalty.
g) Hearings.
1) Except where the right to request a
hearing is deemed to have been waived as provided in subsection (c)(4), the
person served with a notice of assessment may file a written request for a
hearing with the Agency. The person shall enclose with the request for hearing
a copy of the notice of assessment, and shall deliver the request as specified
in the notice of assessment, personally or by registered or certified mail
(return receipt requested).
2) A
person served with notice must deliver a written request for a hearing within
30 days after the date of service of the notice of assessment, or shall be
deemed to have waived the right to a hearing.
h) Final Administrative Decision.
1) When the person served with a notice of
violation has accepted the penalty pursuant to subsection (c)(4) of this
Section, the notice of violation shall constitute the final administrative
decision;
2) When the person served
with a notice of assessment has not filed a timely request for a hearing
pursuant to subsection (g)(1) of this Section, the notice of assessment shall
constitute the final administrative decision;
3) When the person served with a notice of
assessment has filed a timely request for a hearing pursuant to subsection
(g)(1) of this Section, the decision resulting from the hearing or any
applicable administrative appeal therefrom shall constitute the final
administrative decision.
i) Payment of Penalty.
1) The person assessed a civil penalty shall
have 30 calendar days from the date of issuance of the final administrative
decision in which to make full payment of the penalty assessed, unless a timely
request for appeal has been filed.
2) Upon failure to pay the penalty, the
Agency Director may request the Attorney General to institute a civil action to
collect the penalty in a court for any district in which the person assessed a
civil penalty is found, resides, or transacts business. Where the Agency is not
represented by the Attorney General, a civil action may be initiated by the
State's Attorney of the county in which the violation occurred.
j) Other Remedies Not Waived.
Assessment of a penalty under this Section shall not be deemed a waiver of the
right to pursue other available legal or administrative remedies.
k) Injunctive Remedy. The Agency may seek
injunction or other relief as the Agency deems appropriate for any violation of
the Act or this Part.
