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Oklahoma SIP: OAC 252:4-9-1 to 252:4-9-5: Enforcement

Regulatory Text: 
Oklahoma Administrative Code.  Title 252.  Department of Environmental Quality 

Chapter 4.  Rules of Practice and Procedures (OAC 252:4)


As adopted in Oklahoma Register June 1, 2001 (18 Ok Reg 1922) effective June 11, 2001.
Approved by EPA December 29, 2008 (73 FR 79400) effective February 27, 2009 (OKd06).

252:4-9-1.  Notice of Violation ("NOV")
252:4-9-2.  Administrative compliance orders
252:4-9-3.  Determining penalty
252:4-9-4.  Assessment orders
252:4-9-5.  Considerations for self-reporting of noncompliance

252:4-9-1.  Notice of Violation ("NOV")

     Unless otherwise provided by the particular enabling legislation, administrative enforcement proceedings shall begin with a written notice of violation (NOV) being served upon the Respondent.  The NOV shall set forth Respondent's action or omission and the specific provision of the Code, rules, license or permit alleged to be violated.  An NOV may be a letter, inspection sheet, consent order or final order, if it meets the requirements of this Section.

252:4-9-2.  Administrative compliance orders

     (a)  When issued.  The Executive Director, upon the request of a Division, may issue an administrative order requiring compliance, assessing penalties for past violations and specifying penalties for continuing noncompliance.

     (b)  Contents.  An administrative compliance order shall specify the findings of fact and conclusions of law upon which it is based and shall set a time for the Respondent to comply.  The Order shall specify the penalty, not to exceed the statutory maximum per day of noncompliance, to be assessed in the event that the Respondent fails to comply with the Order within the prescribed time, and, if applicable, the penalty assessed for past violations of the Code, rules, or licenses or permits.  The Order shall advise the Respondent that it shall become final unless an administrative hearing is requested in writing in accordance with 252:4-9-32 within fifteen (15) days of service of the Order.

     (c)  Service.  An Order shall be served in accordance with 252:4-9-35.

     (d)  Order following hearing.  Based on the hearing and record, a proposed order will be sustained, modified, or dismissed by the Executive Director.  If the hearing process extends beyond any compliance deadline specified in the Order, fines specified in the Order for violations of the Order will continue to accrue during the hearing process unless the Administrative Law Judge stays the penalty upon request for good cause shown.

252:4-9-3.  Determining penalty

     In determining the amount of penalty specified in an administrative penalty order, the DEQ may consider the following:
          (1)  the factors specified by 27A O.S. § 2-3-502(K)(2); and
          (2)  the extent and severity of environmental degradation or adverse health effects caused by the violation.

252:4-9-4.  Assessment orders

     (a)  Issuance of assessment order.  Any time the DEQ believes the Order has been violated, the Executive Director may issue an order assessing an administrative penalty pursuant to 27A O.S. § 2-3-502.  In determining an appropriate administrative penalty, the Executive Director may consider Respondent's efforts to comply after being served with the Order.

     (b)  Content of assessment orders.  An assessment order must state the nature and period of the violation and must determine the amount of the fine.  The fine is due and payable immediately upon issuance of the assessment order, unless a hearing is requested within seven (7) days.  See also 27A O.S. § 2-3-502.

     (c)  Continuing violations.  If the DEQ believes that violations of the administrative compliance or penalty order continue after the issuance of an assessment order, the Executive Director may issue additional assessment orders covering periods of violation since the period covered by the issuance of a previous assessment order.

252:4-9-5.  Considerations for self-reporting of noncompliance

     (a)  Conditions for not seeking administrative and civil penalties. Except in the case of habitual noncompliance or as otherwise provided in this section, in evaluating an enforcement action for a regulated entity's failure to comply with DEQ rules, the DEQ will not seek an administrative or civil penalty when the following circumstances are present:
          (1)  The regulated entity voluntarily, promptly and fully discloses the apparent failure to comply with applicable state environmental statutes or rules to the appropriate DEQ Division in writing before the Division learns of it or is likely to learn of it imminently;
          (2)  The failure is not deliberate or intentional;
          (3)  The failure does not indicate a lack or reasonable question of the basic good faith attempt to understand and comply with applicable state environmental statutes or rules through environmental management systems appropriate to the size and nature of the activities of the regulated entity;
          (4)  The regulated entity, upon discovery, took or began to take immediate and reasonable action to correct the failure (i.e., to cease any continuing or repeated violation);
          (5)  The regulated entity has taken, or has agreed in writing with the appropriate Division to take, remedial action as may be necessary to prevent recurrence of such failure.  Any action the regulated entity agrees to take must be completed;
          (6)  The regulated entity has addressed, or has agreed in writing with the appropriate Division to address, any environmental impacts of the failure in an acceptable manner;
          (7)  The regulated entity has not realized and will not realize a demonstrable and significant economic or competitive advantage as a result of non-compliance; and
          (8)  The regulated entity cooperates with the DEQ as the DEQ performs its duties and provides such information as the DEQ reasonably requests to confirm the entity's compliance with these conditions.

     (b)  Partial qualification.  Notwithstanding the failure of a regulated entity to meet all of the conditions in subsection a of this section, the DEQ will consider the nature and extent of such actions of the regulated entity in mitigation of any administrative or civil penalty otherwise appropriate.  If the regulated entity meets all conditions in subsection (a) of this section except item seven (7) relating to significant economic or competitive advantage, the DEQ will seek an administrative or civil penalty only to the extent of the economic or competitive advantage gained.

     (c)  Relationship to federal/state agreements.  In the event of any conflict, the elimination or mitigation of penalties pursuant to subsections (a) and (b) of this section is subject to agreements between the DEQ and the United States Environmental Protection Agency (USEPA) relating to regulatory program delegation or authorization from the USEPA to the DEQ.

     (d)  Applicability.  This section applies to all enforcement cases arising from violations discovered by or brought to the attention of the DEQ after June 2, 1997.