Current through Register Vol. 50, No. 9, September 20, 2024
A. Limit of Penalty
Amount. The total penalty assessed for the expedited penalty agreement shall
not exceed $3,000 for one violation or $5,000 for two or more
violations.
B. Departmental
Discretion. The secretary of the department or his designee, at his sole
discretion, may propose an expedited penalty agreement for any violation
described in LAC 33:I.807.A and considered in accordance with Subsection E of
this Section. The expedited penalty agreement shall specify that the respondent
waives any right to an adjudicatory hearing or judicial review regarding
violations identified in the signed expedited penalty agreement. The respondent
must concur with and sign the expedited penalty agreement in order to be
governed by this Chapter and
R.S.
30:2025(D).
C. Notification to the Respondent. The
expedited penalty agreement shall serve as notification to the respondent of
the assessed penalty amount for the violations identified on the specified
dates.
D. Certification by the
Respondent. By signing the expedited penalty agreement, the respondent
certifies that all cited violations in the expedited penalty agreement have
been or will be corrected, and that the assessed penalty amount has been or
will be paid, within 30 days of receipt of the expedited penalty
agreement.
E. Nine Factors for
Consideration. An expedited penalty agreement may be used to assess a monetary
penalty for a violation or violations cited in an enforcement action that
includes a notice of potential penalty component. An expedited penalty
agreement may be used only when the following criteria for the nine factors for
consideration listed in
R.S.
30:2025(E)(3)(a) are
satisfied.
1. The History of Previous
Violations or Repeated Noncompliance. An expedited penalty agreement may be
utilized to assess a monetary penalty only for a violation that is not a repeat
occurrence of a violation that was cited in any compliance order, penalty
assessment, settlement agreement, or expedited penalty agreement issued to or
entered into with the respondent by the department within the previous two
years, and occurred at a facility under the same agency interest number.
Site-specific enforcement history considerations will only apply to expedited
penalty agreements.
2. Criteria for
violations addressed pursuant to this Chapter.
a. The violation identified in the expedited
penalty agreement deviates somewhat from the requirements of statutes,
regulations, or permit; however, the violation exhibits at least substantial
implementation of the requirements.
b. The violation identified is isolated in
occurrence and limited in duration.
c. The violation is easily identifiable and
corrected.
d. The respondent
concurs with the violation identified and agrees to correct the violation
identified and any damages caused or allowed by the identified violation within
30 days of receipt of the expedited penalty agreement.
3. The Gross Revenues Generated by the
Respondent. By signing the expedited penalty agreement, the respondent agrees
that sufficient gross revenues exist to pay the assessed penalty and correct
the violation identified in the expedited penalty agreement within 30 days of
receipt of the expedited penalty agreement.
4. The Degree of Culpability, Recalcitrance,
Defiance, or Indifference to Regulations or Orders. The respondent is culpable
for the violation identified, but has not shown recalcitrance, defiance, or
extreme indifference to regulations or orders. Willingness to sign an expedited
penalty agreement and correct the identified violation within the specified
time frame demonstrates respect for the regulations and a willingness to
comply.
5. The Monetary Benefits
Realized through Noncompliance. The respondent's monetary benefit from
noncompliance for the violation identified shall be considered. The intent of
these regulations is to eliminate economic incentives for
noncompliance.
6. The Degree of
Risk to Human Health or Property Caused by the Violation. The violation
identified does not present actual harm or substantial risk of harm to the
environment or public health. The violation identified is isolated in
occurrence or administrative in nature, and the violation identified has no
measurable detrimental effect on the environment or public health.
7. Whether the Noncompliance or Violation and
the Surrounding Circumstances Were Immediately Reported to the Department and
Whether the Violation or Noncompliance Was Concealed or There Was an Attempt to
Conceal by the Person Charged. Depending upon the type of violation, failure to
report may or may not be applicable to this factor. If the respondent concealed
or attempted to conceal any violation, the violation shall not qualify for
consideration under these regulations.
8. Whether the Person Charged Has Failed to
Mitigate or to Make a Reasonable Attempt to Mitigate the Damages Caused by the
Noncompliance or Violation. By signing the expedited penalty agreement, the
respondent states that the violation identified and the resulting damages, if
any, have been or will be corrected. Violations considered for expedited
penalty agreements are, by nature, easily identified and corrected. Damages
caused by any violation identified are expected to be nonexistent or
minimal.
9. The Costs of Bringing
and Prosecuting an Enforcement Action, Such as Staff Time, Equipment Use,
Hearing Records, and Expert Assistance. Enforcement costs for the expedited
penalty agreement are considered minimal. Enforcement costs for individual
violations are covered with the penalty amount set forth for each violation in
LAC 33:I.807.
F.
Schedule. The respondent must return the signed expedited penalty agreement and
payment for the assessed amount to the department within 30 days of the
respondent's receipt of the expedited penalty agreement. If the department has
not received the signed expedited penalty agreement and payment for the
assessed amount by the close of business on the thirtieth day after the
respondent's receipt of the expedited penalty agreement, the expedited penalty
agreement may be withdrawn at the department's discretion.
G. Extensions. If the department determines
that compliance with the cited violation is technically infeasible or
impracticable within the initial 30-day period for compliance, t he department,
at its discretion, may grant additional time in order for the respondent to
correct the violation cited in the expedited penalty agreement.
H. Additional Rights of the Department
1. If the respondent signs the expedited
penalty agreement, but fails to correct the violation identified, pay the
assessed amount, or correct any damages caused or allowed by the cited
violation within the specified time frame, the department may issue additional
enforcement actions, including but not limited to, a civil penalty assessment,
and may take any other action authorized by law to enforce the terms of the
expedited penalty agreement.
2. If
the respondent does not agree to and sign the expedited penalty agreement, the
department shall consider the respondent notified that a formal civil penalty
is under consideration. The department may then pursue formal enforcement
action against the respondent in accordance with
R.S.
30:2025(C), 2025(E), 2050.2,
and 2050.3.
I. Required
Documentation. The department shall not propose any expedited penalty agreement
without an affidavit, inspection report, or other documentation to establish
that the respondent has caused or allowed the violation to occur on the
specified dates.
J. Evidentiary
Requirements. Any expedited penalty agreement issued by the department shall
notify the respondent of the evidence used to establish that the respondent has
caused or allowed the violation to occur on the specified dates.
K. Public Enforcement List. The signed
expedited penalty agreement is a final enforcement action of the department and
shall be included on the public list of enforcement actions referenced in
R.S.
30:2050.1(B)(1).
L. Date of Issuance. When an expedited
penalty agreement is issued in conjunction with a Notice of Potential Penalty,
the issuance date shall be the date on the document of initial signature by the
administrative authority.
AUTHORITY
NOTE: Promulgated in accordance with
R.S.
30:2001 et seq., and in particular
R.S.
30:2025(D).
