(a) For purposes of this section: - (i) "Knowingly" means that a person who authorized, ordered, or carried out an act or omission knew or had reason to know that the act or omission would result in either a violation or a failure to abate or correct a violation;
- (ii) "Violation, failure or refusal" means:
- (A) A violation of a condition of a permit issued pursuant to the State program or Federal lands program; or
- (B) A failure or refusal to comply with any order issued under Section 2 of this Chapter, or any order incorporated in a final decision issued by the Director under the Act, except for failure to pay a civil penalty.
- (iii) "Willfully" means that a person who authorized, ordered or carried out an act or omission that resulted in either a violation or the failure to abate or correct a violation acted:
- (A) Intentionally, voluntarily or consciously; and
- (B) With intentional disregard or plain indifference to legal requirements.
(b) An individual civil penalty may be assessed when: - (i) The Director may assess an individual civil penalty as outlined in W. S. § 35-11-902(b), against any corporate director, officer or agent of a corporate permittee who knowingly and willfully authorized, ordered or carried out a violation, failure or refusal, except as provided in subsection (ii) below.
- (ii) The Director shall not assess an individual civil penalty in situations resulting from a permit violation by a corporate permittee until a cessation order has been issued by the Department to the corporate permittee for the violation, and the cessation order has remained unabated for thirty ( 30) days and the procedures for assessment in subsection (d) below have been complied with.
(c) Amount of Civil Penalty. - (i) In determining the amount of an individual civil penalty assessed under this Section, the Director shall consider the criteria specified in Section 3 of this Chapter, including:
- (A) The individual's history of authorizing, ordering or carrying out previous violations, failures or refusals at the particular surface coal mining operation;
- (B) The seriousness of the violation, failure or refusal (as indicated by the extent of damage and/or the cost of reclamation), including any irreparable harm to the environment and any hazard to the health or safety of the public; and
- (C) The demonstrated good faith of the individual charged in attempting to achieve rapid compliance after notice of the violation, failure or refusal.
- (ii) The penalty shall not exceed the limits prescribed in W.S. W.S. 35-11-902(b) for each day during which a violation, failure or refusal continues, or, for multiple violations, a penalty not to exceed the limits prescribed in W.S. 35-ll-902(b) for each violation for each day during which a violation, failure or refusal continues from the date of service of the underlying notice of violation, cessation order or other order incorporated into a final decision issued by the Director, until abatement or compliance is achieved.
(d) Procedure for assessment of individual civil penalty. - (i) Notice. The Director shall serve on each individual to be assessed an individual civil penalty a notice of proposed individual civil penalty assessment, including a narrative explanation of the reasons for the penalty, the amount to be assessed and a copy of any underlying notice of violation and cessation order.
- (ii) Final order and opportunity for review. The notice of proposed individual civil penalty assessment shall become a final order of the Director thirty (30) days after service upon the individual unless:
- (A) The individual files within 15 days of service of the notice of proposed individual civil penalty assessment a petition for review with the Environmental Quality Council, or
- (B) The Department and the individual or responsible corporate permittee agree, within thirty (30) days of service of the notice of proposed individual civil penalty assessment, to a schedule or plan for the abatement or correction of the violation, failure or refusal.
- (iii) Service. For purposes of this Section, service shall be performed on the individual to be assessed an individual civil penalty, by certified mail, or by any alternative means consistent with the rules governing service of a summons and complaint under Rule 4 of the Wyoming Rules of Civil Procedure. Service shall be complete upon tender of the notice of proposed assessment and any attached information or of the certified mail and shall not be deemed incomplete because of refusal to accept.
(e) Payment of Penalty - (i) No abatement or appeal. If a notice of proposed individual civil penalty assessment becomes a final order in the absence of a petition for review or abatement agreement, the penalty shall be due upon issuance of the final order.
- (ii) Appeal. If an individual named in a notice of proposed individual civil penalty assessment files a petition for review in accordance with the Environmental Quality Council, the penalty shall be due upon issuance of a final administrative order affirming, increasing or decreasing the proposed penalty.
- (iii) Abatement agreement. Where the Department and the corporate permittee or individual have agreed in writing on a plan for the abatement of or compliance with the unabated order, an individual named in a notice of proposed individual civil penalty assessment may postpone payment until receiving either a final order from the Department stating that the penalty is due on the date of such final order, or written notice that abatement or compliance is satisfactory and the penalty has been withdrawn.
020-16 Wyo. Code R. § 16-4