(a) For purposes of this section, the term, “cited party,” means the person or entity which appears to have committed a violation of a provision or provisions of this Article 5 or Article 5.3.
(b) Classifications of violations:
(1) All violations of provisions of this article 5 and Article 5.3 shall be considered within one of three classes:
(A) Class 1: Violations each of which could not directly result in a discharge of oil or pose a threat to public health and safety and the environment
(B) Class 2: Violations each of which could result in a discharge of oil or pose a threat to public health and safety and the environment under certain circumstances, in combination with other violations or over time.
(C) Class 3:
1. Violations each of which could, by itself, directly result in a discharge of oil or pose a threat to public health and safety and the environment; or
2. Violations of Section 2320, sub. (c), concerning access by the Division to the terminal, terminal records, or vessels at the terminal.
(2) If a single person or entity has committed a number of Class 2 violations at the same time which, taken together, could directly result in discharge of oil or pose a threat to public health and safety and the environment, then each violation shall be considered a separate Class 2 violation and the total combination of violations may be considered a separate Class 3 violation.
(3) If a single person or entity has committed three (3) Class 1 violations in any twelve-month period, five (5) in any 24-month period, or seven (7) in any 36-month period, that series of violations may be considered a single Class 2 violation.
(4) If a single person or entity has committed three (3) Class 2 violations in any twelve-month period, five (5) in any 24-month period, or seven (7) in any 36-month period, that series of violations may be considered a single Class 3 violation.
(c) When it appears to the Division Chief that a cited party has committed a Class 3 violation, the Division Chief shall report the apparent violation to the Executive Officer.
(d) Prior to pursuing any enforcement action under the provisions of Government Code Sections 8670.65 through 8670.67, the following preliminary procedures shall be followed:
(1) The Division Chief shall provide written notice to the cited party containing the following:
(A) A description of the Class 3 violation or the lesser violations making up the Class 3 violation;
(B) A statement that enforcement proceedings may be initiated; and
(C) Notification that the cited party may, within ten working days after receipt of the notice, submit a request in writing to the Chief for a preliminary meeting.
(2) If the cited party requests a preliminary meeting with the Chief, that meeting shall be held prior to any further enforcement actions and may include any discussions relating to the apparent violation or violations in question, including, but not limited to, the question as to whether a violation had in fact occurred, what evidence there was for the apparent violation, and what classification should apply for each violation.
(3) If the cited party so requests and agrees to pay for all costs, the preliminary meeting shall be recorded and a transcript shall be prepared.
(4) The preliminary meeting shall be scheduled at the Division Chief's discretion, but shall in no event be scheduled more than thirty (30) calendar days after the request for the meeting is received by the Division Chief.
(5) Within ten (10) working days after the preliminary meeting, the Division Chief shall provide written notice to the cited party of the decision as to whether enforcement action is to proceed.
(6)(A) Within ten working days after receipt of the notice regarding the decision of the Division Chief following the preliminary meeting, the cited party may appeal the decision to the Executive Officer of the Commission.
(B) Any appeal to the Executive Officer shall be submitted in writing.
(C) If the decision of the Division Chief is appealed to the Executive Officer, no enforcement action shall be taken unless and until the Executive Officer directs the Division Chief to proceed.
(e) If, after the preliminary procedures under subsection (d) of this section are followed, it appears to the Executive Officer that the cited party has committed a Class 3 violation of any provision or provisions of this Article 5 or 5.3 the Executive Officer may take any or all of the following actions:
(1) The Executive Officer may request that the Administrator do one or more of the following where appropriate:
(A) Issue an order under Government Code § 8670.69.4 requiring that person to cease and desist;
(B) Take whatever legal action that is necessary and appropriate, to obtain an order from the court enjoining the apparent and threatened violation; or
(C) Initiate and pursue proceedings under Government Code § 8670.66 or 8670.67 to subject the cited party to statutory penalties.
(2) The Executive Officer may do one or more of the following:
(A) Take whatever legal action is necessary and appropriate to obtain an order from the court enjoining the apparent or threatened violation; or
(B) If appropriate, take whatever action is necessary and appropriate to initiate and pursue proceedings under Government Code § 8670.66 to subject the cited party to statutory penalties.
(f)(1) The Executive Officer shall notify the U.S. Coast Guard of any apparent violation which may also constitute violation of federal law or regulation.
(2) The Executive Officer shall keep the Administrator fully apprised if any action is taken under subsection (e)(2).
Credits
Note: Authority cited: Sections 8750, 8751, 8755 and 8760, Public Resource Code. Reference: Sections 8670.66, 8670.67 and 8670.69.4, Government Code; and Sections 8750, 8751, 8755 and 8760, Public Resources Code.
