260.412. Administrative penalties--not to be assessed for minor violation--conference, conciliation and persuasion--rules and regulations, payment--appeal, effect--unpaid penalty, collection--time lim
Administrative penalties--not to be assessed for minorviolation--conference, conciliation and persuasion--rules andregulations, payment--appeal, effect--unpaid penalty,collection--time limit--review.
260.412. 1. In addition to any other remedy provided bylaw, upon a determination by the director that a provision ofsections 260.350 to 260.481 or a standard, limitation, order,rule or regulation promulgated pursuant thereto, or a term orcondition of any permit has been violated, the director may issuean order assessing an administrative penalty upon the violatorunder this section. An administrative penalty shall not beimposed until the director has sought to resolve the violationsthrough conference, conciliation and persuasion and shall not beimposed for minor violations of sections 260.350 to 260.481 orminor violations of any standard, limitation, order, rule orregulation promulgated pursuant to sections 260.350 to 260.481 orminor violations of any term or condition of a permit issuedpursuant to sections 260.350 to 260.481. If the violation isresolved through conference, conciliation and persuasion, noadministrative penalty shall be assessed unless the violation hascaused, or has the potential to cause, a risk to human health orto the environment, or has caused or has potential to causepollution, or was knowingly committed, or is defined by theUnited States Environmental Protection Agency as other thanminor. Any order assessing an administrative penalty shall statethat an administrative penalty is being assessed under thissection and that the person subject to the penalty may appeal asprovided by this section. Any such order that fails to state thestatute under which the penalty is being sought, the manner ofcollection or rights of appeal shall result in the state'swaiving any right to collection of the penalty.
2. The commission shall promulgate rules and regulationsfor the assessment of administrative penalties. The amount ofthe administrative penalty assessed per day of violation for eachviolation under this section shall not exceed the amount of thecivil penalty specified in section 260.425. Such rules shallreflect the criteria used for the administrative penalty matrixas provided for in the Resource Conservation and Recovery Act, 42U.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 commission mayreasonably deem relevant. An administrative penalty shall bepaid within sixty days from the date of issuance of the orderassessing the penalty. Any person subject to an administrativepenalty may appeal to the commission in the manner provided bylaw. Any appeal will stay the due date of such administrativepenalty until the appeal is resolved. Any person who fails topay an administrative penalty by the final due date shall beliable to the state for a surcharge of fifteen percent of thepenalty plus ten percent per annum on any amounts owed. Anyadministrative penalty paid pursuant to this section shall behandled in accordance with section 7 of article IX of the stateconstitution. An action may be brought in the appropriatecircuit court to collect any unpaid administrative penalty, andfor attorney's fees and costs incurred directly in the collectionthereof.
3. An administrative penalty shall not be increased inthose instances where department action, or failure to act, hascaused a continuation of the violation that was a basis for thepenalty. Any administrative penalty must be assessed within twoyears following the department's initial discovery of suchalleged violation, or from the date the department in theexercise of ordinary diligence should have discovered suchalleged violation.
4. Any final order imposing an administrative penalty issubject to judicial review upon the filing of a petition pursuantto section 536.100, RSMo, by any person subject to theadministrative penalty.
5. The state may elect to assess an administrative penalty,or, in lieu thereof, to request that the attorney general orprosecutor file an appropriate legal action seeking a civilpenalty in the appropriate circuit court.
(L. 1991 S.B. 45, A.L. 1993 S.B. 80, et al.)