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--tim
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--timelimitation to assess violation--judicial appeal--civil action, effect,exception--habitual violator, defined.
444.790. 1. In addition to any other remedy provided by law, upon adetermination by the director that a provision of sections 444.760 to 444.789or a standard, limitation, order, rule or regulation promulgated pursuantthereto, or a term or* condition of any permit has been violated, the directormay issue an order assessing an administrative penalty upon the violator. Thepenalty shall not be imposed until the director has sought to eliminate theviolations through conference, conciliation and persuasion and shall not beimposed for minor violations of sections 444.760 to 444.789 or minorviolations of any standard, limitation, order, rule or regulation promulgatedpursuant to sections 444.760 to 444.789 or minor violations of any term orcondition of a permit issued pursuant to sections 444.760 to 444.789. Thecommission shall define by rule and regulation the term "minor violation".
2. The commission 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 section 444.787. Such rules shall reflect the criteria used for the administrative penaltymatrix as provided for in the Resource Conservation and Recovery Act, 42U.S.C. 6928(a), Section 3008(a) and the harm or potential harm which theviolation causes, or may cause, the violator's previous compliance record, andany other factors which the department 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. Any appeal will stay thedue date of such administrative penalty until the appeal is resolved. Anyperson who fails to pay an administrative penalty by the final due date shallbe liable to the state for a surcharge of fifteen percent of the penalty plusten percent per annum on any amounts owed. Any administrative penalty paidpursuant to this section shall be placed in the state treasury and credited tothe general revenue fund. An action may be brought in the appropriate circuitcourt to collect any unpaid administrative penalty, and for attorney's feesand costs incurred directly in the collection thereof.
3. An administrative penalty shall not be increased in those instanceswhere department action, or failure to act, has caused a continuation of theviolation that was a basis for the penalty. Any administrative penalty mustbe assessed within two years following the department's initial discovery ofsuch alleged violation, or from the date the department in the exercise ofordinary diligence should have discovered such 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; however, eitherparty may require that the judicial appeal is tried as a trial de novo in thecircuit court of the jurisdiction where the violation occurred.
5. The state may elect to assess an administrative penalty, or, in lieuthereof, to request that the attorney general or prosecutor file anappropriate legal action seeking a civil penalty in the appropriate circuitcourt. The assessment of an administrative penalty shall preclude theassessment of a monetary penalty for the same violation by the attorneygeneral and the judicial assessment of a civil penalty for the same violationexcept that this limitation shall not apply to persons who** the departmenthas determined *** have habitually violated the requirements of the Missouriland reclamation law, the land reclamation laws of other states or federallaws pertaining to land reclamation. The commission shall promulgate rulesand regulations to provide further clarification of a habitual violator underthis subsection.
(L. 1991 S.B. 45)*Word "of" appears in original rolls.
**Word "whom" appears in original rolls.
***Word "to" appears here in original rolls.