Current through all regulations passed and filed through September 16, 2024
(A) Definitions. For the purposes of this
rule:
(1)
"Violation" means a violation of any requirement of Chapter 1513. of the
Revised Code, rules adopted thereunder, or of any permit condition.
(2)
"Failure or refusal" means a failure or refusal to comply with any notice of
violation or order of the chief issued under Chapter 1513. of the Revised Code,
except that non-payment of civil penalties assessed against a corporate
permittee or non-compliance with any order issued by the chief under section
1513.39 of the Revised Code does
not constitute a failure or refusal.
(3) "Willfully" means
that an individual acted:
(a) Either
intentionally, voluntarily or consciously; and
(b) With intentional disregard 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.
(B) Except as provided in paragraph (C) of
this rule, the chief 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.
(C) The chief 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 chief to the
corporate permittee for the violation, and the cessation order has remained
unabated for thirty days.
(D)
Amount of the individual civil penalty.
(1)
In determining the amount of an individual civil penalty assessed under
paragraph (B) or (C) of this rule, the chief shall consider the criteria
specified in division (E)(1) of section
1513.02 of the Revised Code,
including:
(a) The individual's history of
authorizing, ordering or carrying out previous violations, failures or refusals
at the particular coal mining operation;
(b) The seriousness of the violation, failure
or refusal, including any irreparable harm to the environment and any hazard to
the health or safety of the public; and
(c) The demonstrated good faith of the
individual charged in attempting to achieve rapid compliance after receipt of
the notice of the violation, failure or refusal.
(2) The penalty shall not exceed five
thousand dollars for each violation. Each day of a continuing violation may be
deemed a separate violation and the chief may assess a separate individual
civil penalty for each day the violation continues, from the date of service of
the underlying notice of violation, cessation order or other order
incorporating a final decision of the chief, until abatement or compliance is
achieved.
(E) Procedure
for assessment of the individual civil penalty.
(1) For every imminent harm cessation order
or failure-to-abate cessation order issued by the chief in accordance with
paragraph (A)(1) or paragraph (A)(3) of rule
1501:13-14-02 of the
Administrative Code, the chief shall immediately 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.
(2)
The notice of proposed individual civil penalty assessment shall become a final
order of the chief thirty days after service upon the individual unless:
(a) The individual files, within thirty days
of service of this notice of proposed individual civil penalty assessment, a
notice of appeal to the reclamation commission in accordance with section
1513.13 of the Revised Code; or
(b) The chief and the individual
or responsible corporate permittee agree, within thirty days of service of the
notice of proposed individual civil penalty assessment, to a schedule or plan
for the abatement or correction of the violation, failure or refusal.
(3) For purposes of
paragraphs (E)(1) to (E)(2)(b) of this rule, service is sufficient if it would
satisfy the requirements of paragraph (D) of rule
1501:13-14-02 of the
Administrative Code.
(F) 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.
(G) If an individual
named in a notice of proposed individual civil penalty assessment files a
notice of appeal in accordance with section
1513.13 of the Revised Code, the
penalty shall be due upon issuance of a final administrative order affirming,
increasing or decreasing the proposed penalty.
(H) Where the chief and the corporate
permittee or individual have agreed in writing on a plan for the abatement of
or compliance with the unabated notice of violation or cessation order, an
individual named in a notice of proposed individual penalty assessment may
postpone payment until receiving either a final order from the chief stating
that the penalty is due on the date of such final order, or written notice that
abatement or compliance is satisfactory and the penalty has been withdrawn.
(I) Following the expiration of
forty-five days after the individual civil penalty is payable, any delinquent
penalty shall be certified to the attorney general for collection.
