W. Va. Code R. § 61-12F-3

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 61-12F-3 - Procedure

3.1. These civil penalty assessment rules are designed to include most violations of the Act encountered by pesticide businesses, certified applicators and non-certified applicators. However, there may be situations which arise that are not adequately covered by these rules. In such cases, the enforcement officer shall determine an appropriate course of action and make a recommendation for such action to the commissioner. After review of the circumstances, the commissioner may concur with the recommendation or give direction for other appropriate action as prescribed under the authority of the Act.

3.2. The time interval between the first offense and each repeated offense, beyond which no enforcement action may be taken and which shall clear the applicators record, will be limited to two years for all use, non-use or product violations. There is no time limit for licensing violations.

3.3. The enforcement officer reviewing a case shall prepare a finding of facts surrounding any discovered violation of Section 21 of the Act. Once a violation is discovered the enforcement officer shall determine:

3.3.a. The appropriateness of a civil penalty or criminal enforcement action;

3.3.b. The character of the violation and the appropriate enforcement level as contained in the schedule of penalty codes contained in Table 61-12F-A of this rule. The violations are categorized into the following types:

3.3.b.A. Licensing violations

3.3.b.B. Non-Use violations

3.3.b.C. Use violations

3.3.b.D. Product violations

3.4. Upon establishing a penalty code, the enforcement officer shall refer to the schedule of penalty levels contained in Table 61-12F-B of this rule to determine a monetary assessment. In determining the level of penalty the enforcement officer shall consider the following factors:

3.4.a. The gravity of the violation;

3.4.b. The degree of the violator's culpability;

3.4.c. The degree of the violator's effort to comply with the Act and rules promulgated under the Act; and

3.4.d. The violators history of prior violations.

3.5. Any denial, suspension, revocation or modification of a license, permit or certification shall comply with the requirements of Section 18 of the Act. The commissioner shall notify the violator of the alleged violation and offer the violator an opportunity for a formal hearing prior to any such action.

3.6. Any consent agreement or negotiated settlement agreed upon and signed by the violating party and the duly appointed representative of the commissioner is a penalty levied through an administrative hearing for the purposes of collection and such other action as determined proper and included in the consent agreement or negotiated settlement.

W. Va. Code R. § 61-12F-3