319.139. Administrative penalties, assessment, procedure--rules--payment, appeal--collection.
Administrative penalties, assessment, procedure--rules--payment,appeal--collection.
319.139. 1. In addition to any other remedy provided by law, upon adetermination by the director that a provision of sections 319.100 to319.137 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 violation throughconference, conciliation or persuasion and shall not be imposed for minorviolations of sections 319.100 to 319.137 or minor violations of anystandard, limitation, order, rule or regulation promulgated pursuant tosections 319.100 to 319.137 or minor violations of any term or condition ofa permit issued pursuant to sections 319.100 to 319.137. If the violationis resolved through conference, conciliation and persuasion, noadministrative penalty shall be assessed unless the violation has caused,or has the potential to cause, a risk to human health or to theenvironment, or has caused or has potential to cause pollution, or wasknowingly committed, or is defined by the United States EnvironmentalProtection Agency as other than minor. Any order assessing anadministrative penalty shall state that an administrative penalty is beingassessed under this section and that the person subject to the penalty mayappeal as provided by this section. Any such order that fails to state thestatute under which the penalty is being sought, the manner of collectionor rights of appeal shall result in the state's waiving any right tocollection of the penalty.
2. The hazardous waste management commission shall promulgate rulesand regulations for the assessment of administrative penalties. The amountof the administrative penalty assessed per day of violation for eachviolation under this section shall not exceed the amount of the civilpenalty specified in section 319.127. Such rules shall reflect thecriteria used for the administrative penalty matrix as provided for in theResource 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 thehazardous waste management commission may reasonably deem relevant. Anadministrative penalty shall be paid within sixty days from the date ofissuance of the order assessing the penalty. Any person subject to anadministrative penalty may appeal to the commission as provided in section260.400, RSMo. An 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. 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.
5. 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.
(L. 1991 S.B. 45, A.L. 1993 S.B. 80, et al., A.L. 2004 S.B. 901)