260.249. Administrative penalties--not to be assessed for minor violation, definition--amount set by rule, payment when--appeal effect--surcharge due when--unpaid penalty, collection--time limitation
Administrative penalties--not to be assessed for minor violation,definition--amount set by rule, payment when--appealeffect--surcharge due when--unpaid penalty, collection--timelimitation to assess violation--judicial appeal--civil actioneffect, exception.
260.249. 1. In addition to any other remedy provided by law, upon adetermination by the director that a provision of sections 260.200 to260.281, or a standard, limitation, order, rule or regulation promulgatedpursuant thereto, or a term or condition of any permit has been violated,the director may issue an order assessing an administrative penalty uponthe violator under this section. An administrative penalty shall not beimposed until the director has sought to resolve the violations throughconference, conciliation and persuasion and shall not be imposed for minorviolations of sections 260.200 to 260.281 or minor violation of anystandard, limitation, order, rule or regulation promulgated pursuant tosections 260.200 to 260.281 or minor violations of any term or condition ofa permit issued pursuant to sections 260.200 to 260.281 or any violationsof sections 260.200 to 260.281 by any person resulting from mismanagementof solid waste generated and managed on the property of the place ofresidence of the person. If the violation is resolved through conference,conciliation and persuasion, no administrative penalty shall be assessedunless the violation has caused, or has the potential to cause, a risk tohuman health or to the environment, or has caused or has potential to causepollution, or was knowingly committed, or is defined by the United StatesEnvironmental Protection Agency as other than minor. Any order assessingan administrative penalty shall state that an administrative penalty isbeing assessed under this section and that the person subject to thepenalty may appeal as provided by section 260.235. Any such order thatfails to state the statute under which the penalty is being sought, themanner of collection or rights of appeal shall result in the state'swaiving any right to collection of the penalty.
2. The department shall promulgate rules and regulations for theassessment of administrative penalties. The amount of the administrativepenalty assessed per day of violation for each violation under this sectionshall not exceed the amount of the civil penalty specified in section260.240. Such rules shall reflect the criteria used for the administrativepenalty matrix as provided for in the Resource Conservation and RecoveryAct, 42 U.S.C. 6928(a), Section 3008(a), and the harm or potential harmwhich the violation causes, or may cause, the violator's previouscompliance record, and any other factors which the department mayreasonably deem relevant. An administrative penalty shall be paid withinsixty days from the date of issuance of the order assessing the penalty.Any person subject to an administrative penalty may appeal as provided insection 260.235. Any appeal will stay the due date of such administrativepenalty until the appeal is resolved. Any person who fails to pay anadministrative penalty by the final due date shall be liable to the statefor a surcharge of fifteen percent of the penalty plus ten percent perannum on any amounts owed. Any administrative penalty paid pursuant tothis section shall be handled in accordance with section 7 of article IX ofthe state constitution. An action may be brought in the appropriatecircuit court to collect any unpaid administrative penalty, and forattorney's fees and costs incurred directly in the collection thereof.
3. An administrative penalty shall not be increased in thoseinstances where department action, or failure to act, has caused acontinuation of the violation that was a basis for the penalty. Anyadministrative penalty must be assessed within two years following thedepartment's initial discovery of such alleged violation, or from the datethe department in the exercise of ordinary diligence should have discoveredsuch alleged violation.
4. The state may elect to assess an administrative penalty, or, inlieu thereof, to request that the attorney general or prosecutor file anappropriate legal action seeking a civil penalty in the appropriate circuitcourt.
5. Any final order imposing an administrative penalty is subject tojudicial review upon the filing of a petition pursuant to section 536.100,RSMo, by any person subject to the administrative penalty.
(L. 1991 S.B. 45, A.L. 1992 H.B. 1732, A.L. 1993 S.B. 80, et al., A.L. 2007 S.B. 54)Effective 1-01-08