§ 12-9-22 — Noncompliance penalties

(a) The following sources shall be subject to noncompliance penalties under the conditions specified in this Code section: (1) Any major stationary source which is not in compliance with an emission limitation, emission standard, standard of performance, or compliance schedule under any applicable provision of this article or any rule, regulation, permit, consent order, or decree, whether federal or state, or final order adopted, issued, consented to, or otherwise in effect under this article or the federal act; (2) Any stationary source which is not in compliance with an emission limitation, emission standard, standard of performance, or other requirement applicable to such sources, established under this Code section or any section of the federal act; or (3) Any source referred to in paragraph (1) or (2) of this subsection which has been granted an exemption, extension, or suspension under subsection (f) of this Code section or which is covered by a consent order or decree, if such source is not in compliance with any interim emission control requirement or schedule of compliance established under such exemption, extension, suspension, or consent order or decree. (b) Not later than July 1, 1979, or 30 days after the discovery of such noncompliance, whichever is later, the director shall give a brief but reasonably specific notice of noncompliance to the owner or operator of each source specified in subsection (a) of this Code section. Each person given notice by the director pursuant to this subsection shall either: (1) Calculate the amount of the penalty owed determined in accordance with subsection (d) of this Code section and the schedule of payments determined in accordance with subsection (d) of this Code section for each source owned or operated by such person and not in compliance, and, within 30 days after the issuance of such notice or within 30 days after a final order or decision denying a petition submitted under paragraph (2) of this subsection, submit that calculation and proposed schedule together with the information necessary for an independent verification thereof to the director; or (2) Submit a petition, to be filed with the Board of Natural Resources within 30 days, challenging such notice of noncompliance or alleging entitlement to an exemption under subsection (f) of this Code section, with respect to the source. There shall be a hearing on such petition as provided in paragraph (2) of subsection (i) of this Code section. (c) If the person to whom notice is issued pursuant to subsection (b) of this Code section does not submit a timely petition under paragraph (2) of subsection (b) of this Code section, or submits a petition which is denied, and fails to submit a calculation of the penalty assessment and a schedule for payment and the information necessary for independent verification by the division pursuant to paragraph (1) of subsection (b) of this Code section, then the division may enter into a contract with any person who has no financial interest in the matter to assist in determining the amount of the penalty assessment or payments schedule with respect to such source as provided in subsection (d) of this Code section. In any instance of noncompliance where a calculation by the division is necessary under this subsection, any person to whom notice was given under subsection (b) of this Code section shall make available to division personnel, and allow division personnel and disinterested parties contracted with under this subsection to have access to such financial, operational, and maintenance records as shall be necessary to complete computations under subsection (d) of this Code section. Any such availability or access shall be at a reasonable time and place. The amount of the penalty and payment schedule determined pursuant to a contract entered into by the director under this subsection shall be final and shall be considered as and given the effect of a submittal by such person pursuant to paragraph (1) of subsection (b) of this Code section. The director may issue an assessment pursuant to subsection (d) of this Code section based upon the determined amount and schedule and may add to the penalty, as an additional assessment, the cost of carrying out such contract. The director shall give notice of such assessments to persons against whom such assessments are ordered. Any person against whom costs are assessed under subsection (d) of this Code section based upon an amount determined pursuant to this subsection may submit a petition, to be filed with the Board of Natural Resources within 30 days after receipt of such notice, challenging that portion of the penalty assessed pursuant to subsection (d) of this Code section which is attributable to the costs of the contract, and a hearing shall be held thereon as provided in paragraph (2) of subsection (i) of this Code section. The filing of a petition as provided in this subsection shall not, however, affect the assessment or payment of noncompliance penalties nor the payment schedule provided in any order assessing those penalties. (d) Unless there has been a final determination under paragraph (2) of subsection (i) of this Code section on a petition submitted under paragraph (2) of subsection (b) of this Code section finding no noncompliance or finding the existence of an exemption, penalties or costs shall be assessed, and payment schedules prescribed therefor, by order of the director directed to and against the person or persons to whom notice of noncompliance is given. Such penalties or costs shall be computed, assessed, and paid as follows: (1) For each quarter, or any part of a quarter, of any period of covered noncompliance, the amount of the noncompliance penalty assessment shall be no less than the quarterly equivalent of the capital cost of compliance and debt service over a normal amortization period, not to exceed ten years, and operation and maintenance cost foregone as a result of noncompliance, and any additional economic value or gain which a delay in compliance beyond July 1, 1979, may have or produce for the owner or operator of such source; minus (2) The amount of any expenditure made by the owner or operator of that source during any such quarter for the purpose of bringing that source into and maintaining compliance with such requirement to the extent that such expenditures have not been taken into account in the calculation of the penalty under paragraph (1) of this subsection. To the extent that any expenditure under this paragraph made during any quarter is not subtracted for such quarter from the costs under paragraph (1) of this subsection, such expenditure may be subtracted for any subsequent quarter for such cost, except that in no event shall the amount paid be less than the quarterly payment minus the amount attributed to actual cost of construction. (3) The penalties or costs assessed shall be paid to the director in quarterly installments. All quarterly payments, determined without regard to any adjustment or any subtraction under paragraph (2) of this subsection after the first payment, shall be equal. The first payment shall be due on the date six months after the date of issuance of the notice of noncompliance under subsection (b) of this Code section with respect to any source, or on January 1, 1980, whichever is later. Such first payment shall be in the amount of the quarterly installment for the upcoming quarter, plus the amount owed for a preceding period within the period of covered noncompliance for such source. (4) The term "period of covered noncompliance" means the period which begins: (A) On July 1, 1979, in the case of a source for which notice of noncompliance under subsection (b) of this Code section is issued on or before July 1, 1979; or (B) On the date of issuance of the notice of noncompliance under subsection (b) of this Code section in the case of a source for which such notice is issued after July 1, 1979, and ending on the date on which such source comes into, or for the purpose of establishing the schedule of payments, is estimated to come into, compliance with such requirement. (5) The director is authorized to issue a final order of assessment and payment schedule from which no appeal or review may be taken, based upon any of the following: (A) The calculated amount of penalty and payment schedule submitted, pursuant to paragraph (1) of subsection (b) of this Code section, whether submitted within 30 days after notice or within 30 days after a final order or decision denying a petition submitted under paragraph (2) of subsection (b) of this Code section, by the person to whom notice of noncompliance was given, and to which no adjustment is made by the director under subsection (e) of this Code section; (B) Upon an adjusted amount and payment schedule computed as provided in subsection (e) of this Code section and becoming final under paragraph (1) of subsection (i) of this Code section or upon any hearing or appeal provided for under subsection (e) of this Code section; (C) Upon an amount and payment schedule determined and becoming final pursuant to subsection (c) of this Code section; or with respect to assessments of costs authorized under subsection (c) of this Code section, upon an amount and payment schedule for costs assessed as provided in subsection (c) of this Code section, becoming final pursuant to paragraph (1) of subsection (i) of this Code section or upon any hearing or appeal provided for under subsection (c) of this Code section; (D) Upon an amount of nonpayment penalty and payment schedule therefor computed as provided in subsection (h) of this Code section, becoming final under paragraph (1) of subsection (i) of this Code section, or upon any hearing or appeal provided for under subsection (h) of this Code section; or (E) Upon an amount of final adjustment and payment schedule therefor computed as provided in subsection (g) of this Code section, becoming final under paragraph (1) of subsection (i) of this Code section or upon any hearing or appeal provided for under subsection (g) of this Code section. (6) The director is authorized to issue an order of assessment and payment schedule for costs of contracts entered into under subsection (c) of this Code section, adjusted noncompliance penalty amounts determined under subsection (e) of this Code section, final adjustments under subsection (g) of this Code section, and nonpayment penalties computed under subsection (h) of this Code section, or for other amounts authorized in this Code section. Such assessments and payment schedules shall be subject to review as provided in the relevant subsection. (e) The amount of the penalty assessment calculated or the payment schedule proposed by any person pursuant to paragraph (1) of subsection (b) of this Code section shall be subject to adjustment by the director, if the director finds that the assessment or proposal does not meet the requirements of this Code section. The director shall issue an assessment pursuant to subsection (d) of this Code section based upon such adjustment and shall give notice of such adjusted assessment. Any person making a submittal under paragraph (1) of subsection (b) of this Code section receiving a notice of adjusted assessment may submit a petition to the Board of Natural Resources within 30 days challenging such adjusted assessment and a hearing shall be held thereon as provided in paragraph (2) of subsection (i) of this Code section. The director is authorized to require a final adjustment of the penalty within 180 days after such source comes into compliance, in accordance with subsection (g) of this Code section. (f) (1) Notwithstanding the requirements of paragraphs (1) and (2) of subsection (a) of this Code section, the owner or operator of any source shall be exempted from the duty to pay any noncompliance penalty, if, in accordance with the procedures of paragraph (2) of subsection (b) of this Code section, the owner or operator demonstrates that the failure of such source to comply with any such requirement is due solely to: (A) A conversion by such source from the burning of petroleum products or natural gas, or both, as the permanent primary energy source to the burning of coal pursuant to an order under 42 U.S.C. Section 7413(d)(5) , or Section 119 of the federal Clean Air Act, as amended, 88 Stat. 248 (as in effect before the date of enactment of the federal Clean Air Act Amendments of 1977); (B) In the case of a coal-burning source granted an extension under the second sentence of Section 119(c)(1) of the federal Clean Air Act, as amended, 88 Stat. 248 (as in effect before the date of the enactment of the federal Clean Air Act Amendments of 1977), a prohibition from using petroleum products or natural gas or both, by reason of an order under Section 2(a) and (b) of the federal Energy Supply and Environmental Coordination Act of 1974 or under any legislation which amends or supersedes such provisions; (C) An inability to comply with such requirement, which inability results from reasons entirely beyond the control of the owner or operator of such source or facility or of an entity controlling, controlled by, or under common control with the owner or operator of such source or facility and an order has been issued under 42 U.S.C. Section 7413 as it existed prior to August 7, 1977; or (D) The conditions by reason of which a temporary emergency suspension has been authorized with regard to such source, by order of the Governor or his designee in accordance with 42 U.S.C. Section 7410(f) or (g) . (2) Any exemption under paragraph (1) of this subsection ceases to be effective if the person subject to the order fails to comply with the interim emission control requirements or schedules of compliance, including increments of progress, under any extension, order, or suspension. (3) The director may, after notice and opportunity for public hearing as provided for in this article, exempt any source from the requirements of this Code section with respect to a particular instance of noncompliance if he finds that such instance of noncompliance is de minimis in nature and in duration. (g) On making a determination that a source, with respect to which a penalty has been paid as assessed under this Code section, is in compliance and is maintaining compliance with the applicable requirement, the director shall review the actual expenditures made by the owner or operator of such source for the purpose of obtaining and maintaining compliance and shall within 180 days after such source comes into compliance provide for a final adjustment of the penalties paid, to be made by order of the director under subsection (d) of this Code section, and shall provide reimbursement, with interest at appropriate prevailing rates, of any overpayment by such person, or shall assess and collect, pursuant to subsection (d) of this Code section, an additional payment with interest at appropriate prevailing rates for any underpayment by such person. The director shall give notice of any final adjustment under this subsection. Any person receiving such notice may submit a petition, filed with the Board of Natural Resources within 30 days after receipt of such notice, for a hearing pursuant to paragraph (2) of subsection (i) of this Code section challenging such final adjustment. The sole issue on such petition shall be the validity and amount of the final adjustment and any assessment of that amount. (h) Any person who fails to pay the amount of any penalty or cost assessed with respect to any source under this Code section on a timely basis shall be required to pay, and the director shall assess under subsection (d) of this Code section, an additional quarterly nonpayment penalty for each quarter during which such failure to pay persists. Such nonpayment penalty shall be in an amount equal to 20 percent of the aggregate amount of such person's penalties, costs, and nonpayment penalties with respect to such source or facility which are unpaid as of the beginning of such quarter. The director shall give notice of the assessment of nonpayment penalties provided for in this subsection. Any person receiving such notice may submit a petition, to be filed with the Board of Natural Resources within 30 days after receipt of such notice, for a hearing pursuant to paragraph (2) of subsection (i) of this Code section challenging such nonpayment penalty. The filing of such a petition shall not, however, affect the assessment or payment of noncompliance penalties nor the payment schedule prescribed for payment in any order assessing those amounts. The sole issue in a petition under this subsection is the validity and amount of the nonpayment penalty assessment. (i) (1) (A) If any person receiving a notice under subsection (b) of this Code section does not submit a petition as provided in paragraph (2) of subsection (b) of this Code section, and the director issues an assessment for noncompliance penalties pursuant to subsection (d) of this Code section, based upon an amount determined under subsection (c) of this Code section; (B) If the director makes an adjustment under subsection (e) of this Code section to a submittal made under paragraph (1) of subsection (b) of this Code section and issues an assessment pursuant to subsection (d) of this Code section based on that adjustment, and no petition as provided in subsection (e) of this Code section is filed challenging such adjustment; (C) If the director enters into a contract pursuant to subsection (c) of this Code section and issues an assessment of costs pursuant to subsection (d) of this Code section based upon the contract entered into under subsection (c) of this Code section and no petition is filed, as provided in subsection (c) of this Code section challenging the assessed costs; (D) If the director makes an assessment of nonpayment penalties, computed as provided for in subsection (h) of this Code section, pursuant to subsection (d) of this Code section, and no petition is filed as provided in subsection (h) of this Code section challenging that assessment of nonpayment penalties; or (E) If the director makes a final adjustment under subsection (g) of this Code section and issues an assessment therefor pursuant to subsection (d) of this Code section based upon that final adjustment and no petition is filed as provided for in subsection (g) of this Code section challenging such final adjustment assessment; then, in any such case or cases, such assessment or assessments become final and no hearing or appeal may be taken. (2) In all cases where a petition is filed, as provided in either paragraph (2) of subsection (b) of this Code section, challenging the notice or alleging exemption, or subsection (c) of this Code section, challenging the costs of contract, or subsection (e) of this Code section, challenging the adjustment, or subsection (g) of this Code section, challenging the final adjustment, or subsection (h) of this Code section, challenging the nonpayment penalties, hearing and review of the assessment, based upon such challenge, shall be provided in accordance with Code Section 12-9-15 . The hearing officer's initial decision and order shall in all such cases be issued within 90 days after receipt of any petition. (j) Any order, payments, sanctions, or other requirements under this Code section shall be in addition to any other permits, orders, payments, sanctions, or other requirements established under this article, and shall in no way affect any action for civil penalties pursuant to Code Section 12-9-23 , or injunctive relief pursuant to Code Section 12-9-12 . The noncompliance penalties provided for in this Code section are intended to be wholly cumulative with any and all remedies, procedures, or requirements of this article. (k) In the case of any emission limitation or other requirement ordered, approved, adopted, or promulgated by the Board of Natural Resources, department, division, or director under this article after July 1, 1978, which is more stringent than the emission limitation or other requirement for the source in effect prior to such order, approval, adoption, or promulgation, if any, or where there was no emission limitation or other requirement approved, adopted, or promulgated before July 1, 1978, the date for imposition of the noncompliance penalty under this Code section shall be either July 1, 1979, or the date on which the source is required to be in full compliance with such emission limitation or other requirement, whichever is later, but in no event later than three years after the issuance, approval, or promulgation of such emission limitation or other requirement. (l) All noncompliance penalties recovered by the director as provided in this Code section shall be paid into the state treasury to the credit of the general fund; provided, however, the director may retain such penalties in an escrow account created for that purpose until a final determination and adjustment has been made under subsection (g) of this Code section with respect to a period of noncompliance by a particular source or facility; and provided, further, that any amounts assessed and collected for costs of contracts entered into by the director under subsection (c) of this Code section may be retained and used by the director to pay the costs of such contracts. After assessment and collection of a final adjustment, the final remaining penalty amount and any accumulated interest thereon shall be paid to the state treasury. During the pendency of such escrow period, the director is authorized to invest such escrow amounts to earn appropriate prevailing rates of interest in institutions in this state insured by the Savings Association Insurance Fund of the Federal Deposit Insurance Corporation.