Louisiana Administrative Code › Title 33 - ENVIRONMENTAL QUALITY › Part I - Office of the Secretary › Subpart 1 - Departmental Administrative Procedures › Chapter 8 - Expedited Penalty Agreement › Section I-805 - Applicability

Current through Register Vol. 50, No. 6, June 20, 2024
A. Limit of Penalty
				  Amount. The total penalty assessed for the expedited penalty agreement shall
				  not exceed $3,000 for one violation or $5,000 for two or more
				  violations.
B. Departmental
				  Discretion. The secretary of the department or his designee, at his sole
				  discretion, may propose an expedited penalty agreement for any violation
				  described in LAC 33:I.807.A and considered in accordance with Subsection E of
				  this Section. The expedited penalty agreement shall specify that the respondent
				  waives any right to an adjudicatory hearing or judicial review regarding
				  violations identified in the signed expedited penalty agreement. The respondent
				  must concur with and sign the expedited penalty agreement in order to be
				  governed by this Chapter and
				  R.S.
				  30:2025(D).
C. Notification to the Respondent. The
				  expedited penalty agreement shall serve as notification to the respondent of
				  the assessed penalty amount for the violations identified on the specified
				  dates.
D. Certification by the
				  Respondent. By signing the expedited penalty agreement, the respondent
				  certifies that all cited violations in the expedited penalty agreement have
				  been or will be corrected, and that the assessed penalty amount has been or
				  will be paid, within 30 days of receipt of the expedited penalty
				  agreement.
E. Nine Factors for
				  Consideration. An expedited penalty agreement may be used to assess a monetary
				  penalty for a violation or violations cited in an enforcement action that
				  includes a notice of potential penalty component. An expedited penalty
				  agreement may be used only when the following criteria for the nine factors for
				  consideration listed in
				  R.S.
				  30:2025(E)(3)(a) are
				  satisfied.
1. The History of Previous
				  Violations or Repeated Noncompliance. An expedited penalty agreement may be
				  utilized to assess a monetary penalty only for a violation that is not a repeat
				  occurrence of a violation that was cited in any compliance order, penalty
				  assessment, settlement agreement, or expedited penalty agreement issued to or
				  entered into with the respondent by the department within the previous two
				  years, and occurred at a facility under the same agency interest number.
				  Site-specific enforcement history considerations will only apply to expedited
				  penalty agreements.
2. Criteria for
				  violations addressed pursuant to this Chapter.
a. The violation identified in the expedited
				  penalty agreement deviates somewhat from the requirements of statutes,
				  regulations, or permit; however, the violation exhibits at least substantial
				  implementation of the requirements.
b. The violation identified is isolated in
				  occurrence and limited in duration.
c. The violation is easily identifiable and
				  corrected.
d. The respondent
				  concurs with the violation identified and agrees to correct the violation
				  identified and any damages caused or allowed by the identified violation within
				  30 days of receipt of the expedited penalty agreement.
3. The Gross Revenues Generated by the
				  Respondent. By signing the expedited penalty agreement, the respondent agrees
				  that sufficient gross revenues exist to pay the assessed penalty and correct
				  the violation identified in the expedited penalty agreement within 30 days of
				  receipt of the expedited penalty agreement.
4. The Degree of Culpability, Recalcitrance,
				  Defiance, or Indifference to Regulations or Orders. The respondent is culpable
				  for the violation identified, but has not shown recalcitrance, defiance, or
				  extreme indifference to regulations or orders. Willingness to sign an expedited
				  penalty agreement and correct the identified violation within the specified
				  time frame demonstrates respect for the regulations and a willingness to
				  comply.
5. The Monetary Benefits
				  Realized through Noncompliance. The respondent's monetary benefit from
				  noncompliance for the violation identified shall be considered. The intent of
				  these regulations is to eliminate economic incentives for
				  noncompliance.
6. The Degree of
				  Risk to Human Health or Property Caused by the Violation. The violation
				  identified does not present actual harm or substantial risk of harm to the
				  environment or public health. The violation identified is isolated in
				  occurrence or administrative in nature, and the violation identified has no
				  measurable detrimental effect on the environment or public health.
7. Whether the Noncompliance or Violation and
				  the Surrounding Circumstances Were Immediately Reported to the Department and
				  Whether the Violation or Noncompliance Was Concealed or There Was an Attempt to
				  Conceal by the Person Charged. Depending upon the type of violation, failure to
				  report may or may not be applicable to this factor. If the respondent concealed
				  or attempted to conceal any violation, the violation shall not qualify for
				  consideration under these regulations.
8. Whether the Person Charged Has Failed to
				  Mitigate or to Make a Reasonable Attempt to Mitigate the Damages Caused by the
				  Noncompliance or Violation. By signing the expedited penalty agreement, the
				  respondent states that the violation identified and the resulting damages, if
				  any, have been or will be corrected. Violations considered for expedited
				  penalty agreements are, by nature, easily identified and corrected. Damages
				  caused by any violation identified are expected to be nonexistent or
				  minimal.
9. The Costs of Bringing
				  and Prosecuting an Enforcement Action, Such as Staff Time, Equipment Use,
				  Hearing Records, and Expert Assistance. Enforcement costs for the expedited
				  penalty agreement are considered minimal. Enforcement costs for individual
				  violations are covered with the penalty amount set forth for each violation in
				  LAC 33:I.807.