Current through Register Vol. XLI, No. 50, December 13, 2024
Section 170-2-5 - Penalties5.1. Penalty Amount. The director may impose a civil penalty on the industrial facility if he or she determines that the industrial facility failed to comply with the reporting or communications and access requirements in this rule. In no case shall the total penalty for all violations exceed $100,000 for an emergency event.5.2. Categories of violations of W. Va. Code § 15-5B-3a. 5.2.a. Reporting violations are failures to report an incident within fifteen minutes of becoming aware of the reportable incident and failing to report all information required by this rule and W. Va. Code § 15-5B-3.a.(b).5.2.b. Communication/Access violations are failures to comply with the requirements of this rule and applicable statutory provisions regarding communication with appropriate state or local officials and/or denying appropriate state or local officials access to the location where the facility is managing its response to the emergency event as required by this rule and W. Va. Code § 15-5B-3.a.(c) and (d).5.3. Determination of Penalty. The following factors related to a violation shall be considered by the Director in determining the penalty:5.3.a. The category of the violation;5.3.b. The extent of the deviation from the requirements of the statute or this rule; and5.3.c. The potential for harm to the public as a result of the violation.5.4. Category of the violation. The Director shall categorize each violation as a reporting violation (Table A) and/or a communication/access violation (Table B).5.5. Extent of deviation. The Director shall evaluate each violation of this rule and the applicable statutory provisions to determine the extent of deviation from the rule or statutory requirement. Each violation shall be assigned a value of minor, moderate, or major depending on the severity of the deviation from the requirement on a case-by-case basis. The Director shall consider any mitigating circumstances which prevented the facility from complying with a requirement of this rule or applicable statutory provision in assigning a value for this factor. MAJOR
No notification within 2 hours after the industrial facility had knowledge that an emergency event has occurred.
MODERATE
No notification within 1 hour but less than 2 hours after the industrial facility had knowledge that an emergency event has occurred.
MINOR
Notification is made within one hour, but after 15 minutes.
5.6. Potential for harm to the public. The Director shall evaluate the potential for harm to the public that resulted from the violation. Each violation shall be assigned a value of minor, moderate, or major depending on the severity of the deviation from the requirement. Emphasis shall be placed on the potential harm posed by a violation rather than the actual harm which occurred. There need not be any showing of actual harm to the public to support a finding of potential harm and this factor shall be assessed on a case by case basis.5.7. Penalty Adjustment Factors. 5.7.a. The penalty may be adjusted at the discretion of the Director after consideration of information available to him.5.7.b. The Director may consider the following factors in determining whether an adjustment in the civil penalty assessment is justified; 5.7.b.1. Degree of or absence of willfulness and/or negligence.5.7.b.2. Good faith efforts by the industrial facility before and immediately after an alleged violation.5.7.b.3. Cooperation with the appropriate local and state officials.5.7.b.4. Previous compliance/non-compliance history.5.7.b.5. Ability to pay a civil penalty. The Director may use the Environmental Protection Agency's process for this determination. The industrial facility would be required to supply all required financial documentation prior to the process being used for consideration.5.7.b.6. The public interest.5.7.b.7. Other factors deemed relevant by the Director which may be present on a case-by-case analysis.5.8. Procedures for imposing penalties. 5.8.a. The Director will review all data available regarding incidents at covered facilities. Such review shall include a meeting with representatives of the industrial facility, and may also include a meeting with other involved parties to ascertain: the impact of delays in notification to the overall response; the access provided by the facility owner or operator to appropriate state and local officials; and, the impact or potential impact of the incident to off-site interested parties.5.8.b. Based on the results of such review and input from involved parties, the Director will determine the appropriate penalties to be imposed, based on methods described above.5.8.c. The Director will cause written notice be delivered by certified mail with return receipt requested to the facility owner or operator. Such notice will include the following information: date and time of incident involved; action warranting the penalty being imposed; amount of penalty being imposed per instance; procedures for requesting a waiver of penalties imposed; and, procedures for requesting appeal of penalties.5.9. Waiving of penalties.5.9.a. The Director may waive all or part of any penalties imposed under this rule.5.9.b. The owner or operator of a facility having penalties imposed under this rule may request a single waiver of the penalties, based on extenuating circumstances. The facility shall have thirty days from receipt of the notice required by subsection 5.8.c to submit a written request of a waiver of the penalties. The filing of a request for waiver stays any obligation to pay such penalty until the resolution of the waiver request. The written request for waiver of penalties must be delivered to the Director, West Virginia Division of Emergency Management, 1900 Kanawha Boulevard, East, Building 1, Room 400-W, Charleston, WV 25305.5.9.c. Such written request for waiver must include reference to the date and time of the incident involved and any and all factors the facility owner or operator considers pertinent to the situation. Factors involved may include, but are not limited to the following: cause for delay in notification beyond the facility's control; corrective actions being undertaken; financial hardship considerations; and, other information the owner or operator considers pertinent.5.9.d. The Director will review all such requests for waiver and provide written notice to the facility owner or operator within 10 working days of receipt of the request for waiver by certified mail with return receipt requested. The written notification will include the determination of whether the request was approved and the amount of penalty being waived per instance.5.10. Appeals of fines and penalties imposed. Facility owners or operators may file notice of appeal of fines and penalties with the Intermediate Court of Appeals as the Intermediate Court of Appeals has appellate jurisdiction over all "[f]inal judgements, orders, or decisions of an agency or administrative law judge entered after June 30, 2022" per West Virginia Code § 51-11-4(b)(4).