Effective 28 Aug 1991

444.790. Administrative penalties — not to be assessed for minor violation, definition — amount set by rule, limitation — payment when — appeal, effect — surcharge due when — unpaid penalty, collection — time limitation to assess violation — judicial appeal — civil action, effect, exception — habitual violator, defined. — 1. In addition to any other remedy provided by law, upon a determination by the director that a provision of sections 444.760 to 444.789 or a standard, limitation, order, rule or regulation promulgated pursuant thereto, or a term or* condition of any permit has been violated, the director may issue an order assessing an administrative penalty upon the violator. The penalty shall not be imposed until the director has sought to eliminate the violations through conference, conciliation and persuasion and shall not be imposed for minor violations of sections 444.760 to 444.789 or minor violations of any standard, limitation, order, rule or regulation promulgated pursuant to sections 444.760 to 444.789 or minor violations of any term or condition of a permit issued pursuant to sections 444.760 to 444.789. The commission shall define by rule and regulation the term "minor violation".

2. The commission shall promulgate rules and regulations for the assessment of administrative penalties. The amount of the administrative penalty assessed per day of violation for each violation under this section shall not exceed the amount of the civil penalty specified in section 444.787. Such rules shall reflect the criteria used for the administrative penalty matrix as provided for in the Resource Conservation and Recovery Act, 42 U.S.C. 6928(a), Section 3008(a) and the harm or potential harm which the violation causes, or may cause, the violator's previous compliance record, and any other factors which the department may reasonably deem relevant. An administrative penalty shall be paid within sixty days from the date of issuance of the order assessing the penalty. Any person subject to an administrative penalty may appeal to the commission. Any appeal will stay the due date of such administrative penalty until the appeal is resolved. Any person who fails to pay an administrative penalty by the final due date shall be liable to the state for a surcharge of fifteen percent of the penalty plus ten percent per annum on any amounts owed. Any administrative penalty paid pursuant to this section shall be placed in the state treasury and credited to the general revenue fund. An action may be brought in the appropriate circuit court to collect any unpaid administrative penalty, and for attorney's fees and costs incurred directly in the collection thereof.

3. An administrative penalty shall not be increased in those instances where department action, or failure to act, has caused a continuation of the violation that was a basis for the penalty. Any administrative penalty must be assessed within two years following the department's initial discovery of such alleged violation, or from the date the department in the exercise of ordinary diligence should have discovered such alleged violation.

4. Any final order imposing an administrative penalty is subject to judicial review upon the filing of a petition pursuant to section 536.100 by any person subject to the administrative penalty; however, either party may require that the judicial appeal is tried as a trial de novo in the circuit court of the jurisdiction where the violation occurred.

5. The state may elect to assess an administrative penalty, or, in lieu thereof, to request that the attorney general or prosecutor file an appropriate legal action seeking a civil penalty in the appropriate circuit court. The assessment of an administrative penalty shall preclude the assessment of a monetary penalty for the same violation by the attorney general and the judicial assessment of a civil penalty for the same violation except that this limitation shall not apply to persons who** the department has determined *** have habitually violated the requirements of the Missouri land reclamation law, the land reclamation laws of other states or federal laws pertaining to land reclamation. The commission shall promulgate rules and regulations to provide further clarification of a habitual violator under this subsection.

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(L. 1991 S.B. 45)

*Word "of" appears in original rolls.

**Word "whom" appears in original rolls.

***Word "to" appears here in original rolls.