10- 144 C.M.R. ch. 220, § B-6

Current through 2025-03, January 15, 2025

Section 144-220-B-6 - Civil Penalties

A. A civil penalty is a monetary penalty that may be imposed for violation of:

(1) Certain specified licensing provisions of the Radiation Protection Act or these rules, or orders, or

(2) Any requirement for which a license may be revoked. Civil penalties are designed to emphasize the need for lasting remedial action and to deter future violations.

B. Before instituting any proceeding to impose a civil penalty authorized under 22 MRSA Section690 of the Radiation Protection Act, the Agency shall serve a written notice of violation upon the person charged. This notice may be included in a notice issued pursuant to Part B.5. The notice of violation shall specify the date or dates, facts, and the nature of the alleged act or omission with which the person is charged, and shall identify specifically the particular provision or provisions of the law, rule, regulation, license, permit, or cease and desist order involved in the alleged violation and shall state the amount of each penalty which the Agency proposes to impose. The notice of violation shall also advise the person charged that the civil penalty may be paid in the amount specified therein, or the proposed imposition of the civil penalty may be protested in its entirety or in part, by a written answer, either denying the violation, or showing extenuating circumstances. The notice of violation shall advise the person charged that upon failure to pay a civil penalty subsequently determined by the Agency, if any, the penalty may, unless compromised, remitted or mitigated, be collected by civil action pursuant to the Act.

C. Generally, civil penalties are imposed for Severity Level I violations and if mitigating circumstances are absent, for Severity Level II violations. Civil penalties are considered for Severity Level III violations, and may be imposed for Severity Level IV violations that are similar to previous violations for which the licensee did not take effective corrective action.

D. In applying this guidance for Severity Level IV violations, the Agency normally considers civil penalties only for similar Severity Level IV violations that occur after the date of the last inspection or within two years, whichever period is greater.

E. Civil penalties will normally be assessed for known and conscious violations of the reporting requirements of these rules and for any willful violation of any Agency requirement including those at any severity level.

F. Within 20 working days of the date of a notice of violation or other time specified in the notice, the person charged may either pay the penalty in the amount proposed or answer the notice of violation. The answer to the notice of violation shall state any facts, explanations, and arguments, denying the charges of violation, or demonstrating any extenuating circumstances, error in the notice of violation, or other reason why the penalty should not be imposed and may request remission or mitigation of the penalty.

G. If the person charged with the violation fails to answer within the time specified in paragraph (F) of this Part, the Agency will issue an order imposing the civil penalty in the amount set forth in the notice of violation described in paragraph (B) of this Part

H. If the person charged with violation files an answer to the notice of violations, the Agency, upon consideration of the answer, will issue an order dismissing the proceeding or imposing, mitigating, or remitting the civil penalty. The person charged may, within 20 working days of the date of the order or other time specified in the order, request a hearing.

I. If the person charged with violation requests a hearing, the Agency will issue an order designating the time and place of hearing.

J. If a hearing is held, an order will be issued after the hearing by the Agency dismissing the proceeding or imposing, mitigating, or remitting the civil penalty.

K. If the civil penalty is not compromised, or is not remitted and if payment is not made within ten 10 working days following either the service of the order described in paragraph (G) or (J) of this section, or the expiration of the time for requesting a hearing described in paragraph (H) of this section, no such request having been made, the Agency may refer the matter to the Office of the Maine Attorney General for collection.

L. The Agency may impose different levels of penalties for different severity level violations and different classes of licensees. Tables 1A and 1B show the base civil penalties for various areas. The structure of these tables generally takes into account the gravity of the violation as a primary consideration and the ability to pay as a secondary consideration. Generally, operations involving greater potential consequences to the public and licensee employees will receive higher civil penalties.

M. Regarding the secondary factor of ability of various classes of licensees to pay the civil penalties, it is not the agency's intention that the economic impact of a civil penalty be such that it puts a licensee out of business (orders, rather than civil penalties, are used when the intent is to terminate licensed activities) or adversely affects a licensee's ability to safely conduct licensed activities. The deterrent effect of civil penalties is best served when the amounts of such penalties take into account a licensee's ability to pay. In determining the amounts of civil penalties for licensees for whom the tables do not reflect the ability to pay, the Agency will consider as necessary an increase or decrease on a case-by-case basis.

N. The Agency attaches great importance to the comprehensive licensee programs for detection, correction, and reporting of problems that may constitute, or lead to, violation of regulatory requirements. This is emphasized by giving credit for effective licensee audit programs when licensees find, correct and report problems expeditiously and effectively. To encourage licensee self-identification and correction of violations and to avoid potential concealment of problems of safety significance, application of the adjustment factors set forth below may result in no civil penalty being assessed for violations which are identified, reported (if required), and effectively corrected by the licensee.

O. Ineffective licensee programs for problem identification or correction are unacceptable . In cases involving willfulness, flagrant NRC-identified violations, repeated poor performance in an area of concern, or serious breakdown in management controls, the Agency intends to apply its full enforcement authority where such action is warranted, including issuing appropriate orders and assessing civil penalties for continuing violations on a per day basis, up to statutory limit. In this regard, while management involvement, direct or indirect, in a violation may lead to an increase in the civil penalty, the lack of such involvement may not be used to mitigate a civil penalty.

P. Allowance of mitigation could encourage lack of management involvement in licensed activities and a decrease in protection of the public health and safety.

Q. The Agency reviews each proposed civil penalty case on its own merits and adjusts the base civil penalty values upward or downward appropriately. Tables 1A and 1B identify the base civil penalty values for different severity levels, activity areas, and classes of licensees.

R. Payment of civil penalties imposed under 22 MRSA Section690 of the Act shall be made by check, draft, or money order payable to the Treasurer of State of Maine, and mailed to: Radiation Control Program, Maine Center for Disease Control and Prevention, Department of Health and Human Services, 11 State House Station, Augusta, Maine 04333-0011.

10- 144 C.M.R. ch. 220, § B-6