Sec. 26.20.32.07. Individual Civil Penalties

A. Definitions. For the purpose of this regulation, the following terms have the meanings indicated:

(1) "Knowingly" means that an individual knew or had reason to know in authorizing, ordering, or carrying out an act or omission on the part of a corporate permittee that the act or omission constituted a violation, failure, or refusal;

(2) "Violation, failure, or refusal" means a:

(a) Violation of a condition of a permit issued pursuant to the Regulatory Program, or

(b) Failure or refusal to comply with any order issued under the Regulatory Program or any order incorporated in a final decision issued by the Department, except an order to pay a civil penalty issued in accordance with this chapter or in accordance with Environment Article, §15-521, Annotated Code of Maryland;

(3) "Willfully" means that an individual acted either intentionally, voluntarily, or consciously, and with intentional disregard or plain indifference to legal requirements in authorizing, ordering, or carrying out a corporate permittee's action or omission that constituted a violation, failure, or refusal.

B. Except as provided in §C of this regulation, the Department may assess an individual civil penalty 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.

C. The Department may 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 30 days.

D. In determining the amount of an individual civil penalty assessed under this regulation, the Department shall consider the following criteria:

(1) The individual's history of authorizing, ordering, or carrying out previous violations, failures, or refusals at the particular surface coal mining site;

(2) The seriousness of the violation, failure, or refusal, as indicated by the extent of the damage and the cost of reclamation, including any irreparable harm to the environment and any hazard to the health and safety of the public; and

(3) The demonstrated good faith of the individual charged in attempting to achieve rapid compliance after notice of the violation, failure, or refusal.

E. The penalty may not exceed $5,000 for each violation. Each day of a continuing violation may be considered a separate violation and the Department may assess a separate individual civil penalty for each day the violation, failure, or refusal continues, from the date of service of the underlying notice of violation, cessation order, or other order incorporated in a final decision issued by the Department, until abatement or compliance is achieved.

F. The Department 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.

G. The notice of proposed individual civil penalty assessment shall become a final order of the Department 30 days after service upon the individual, unless the:

(1) Individual files a petition for review with the Department within 30 days of service of the notice of individual civil penalty assessment; or

(2) Department and the individual or responsible corporate permittee agree within 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.

H. Service of the notice of proposed individual civil penalty assessment is complete upon mailing in accordance with COMAR 26.20.31.08.

I. 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 is due upon issuance of the final order.

J. If an individual named in the notice of proposed individual civil penalty assessment files a petition for review with the Department, the penalty is due upon issuance of a final administrative order affirming, increasing, or decreasing the proposed penalty.

K. When the Department and the corporate permittee or individual have agreed in writing on a plan for compliance with the unabated order, an individual named in the 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 the final order, or written notice that abatement or compliance is satisfactory and the penalty has been withdrawn.

L. Following the expiration of 30 days after the issuance of a final order assessing an individual civil penalty, any delinquent penalty is subject to interest at the rate of 6 percent per annum. Interest on unpaid penalties runs from the date payment first was due until the date of payment. The civil penalty is payable to the State and is collectable in any manner provided at law for the collection of debts.