Guam § 49116 - Penalties.

§ 49116. Penalties.

(a) Administrative Penalties. The Administrator may issue an

administrative order against any person and assess a civil

administrative penalty of up to Ten Thousand Dollars

($10,000.00) per day per violation not to exceed a total penalty of

Two Hundred Thousand Dollars ($200,000.00).

(1) Before issuing an administrative order, the

Administrator shall give written notice to the person to be

assessed an administrative penalty of the Administrator's

intent to issue the order, and provide the person an

opportunity to request a hearing on the proposed

administrative penalty order, within thirty (30) days of the

date the notice of intent is received by the person. If a hearing

is requested, it will be conducted pursuant to § 49111 of this

Chapter. If no hearing is requested within the period

specified, the administrative penalty to be assessed will

automatically be imposed and deemed final.

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(2) The Administrator may settle, modify or release,

with or without conditions, any administrative penalty which

may be imposed under this Subsection (a) of § 49116 of this

Chapter.

(3) Any person against whom a civil administrative

penalty is assessed may seek judicial review in accordance

with § 49111 of this Chapter and the Administrative

Adjudication Law.

(4) If any person fails to comply with an administrative

penalty order after the assessment has become final, or after

a court in an action brought under Subsection (3) of this

Section has entered a final judgment in favor of the

Administrator, the Attorney General of Guam shall bring a

civil action to enforce the order or to recover the amount

ordered or assessed, plus current interest rates from the date

of the final order or decision or the date of the final judgment,

as the case may be. In this action, the validity, amount and

appropriateness of the order or assessment shall not be

subject to review. The Administrator need only show that:

(A) notice was given;

(B) a hearing was held, or the time granted for

requesting a hearing has run without a request for a

hearing;

(C) the penalty was imposed; and

(D) the penalty remains unpaid.

(b) Civil Penalties. Any person who violates any provision of

this Chapter, any rule or regulation promulgated under this

Chapter, refuses, or neglects to comply with any final order issued

by the Administrator in carrying out the provisions of this Chapter,

shall, in addition to other sanctions, pay a civil penalty not to

exceed Ten Thousand Dollars ($10,000.00) per day for each

violation or non-compliance.

(c) Criminal Penalties.

(1) Any person who knowingly violates any of the air

pollution control permit rules adopted by the Agency

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pursuant to this Chapter, including any condition in a permit

or any fee or filing requirement, shall be punished by a fine

not to exceed Ten Thousand Dollars ($10,000.00), or by

imprisonment not to exceed five (5) years, or both.

(2) Any person who knowingly makes a false statement,

representation or certification in any form, in any notice or

report required by an air pollution control permit, or who

knowingly renders inaccurate any monitoring device or

method required by the Agency to report as required by this

Chapter, shall be punished by a fine not to exceed Ten

Thousand Dollars ($10,000.00) for each day of violation or

by imprisonment not to exceed two (2) years, or both, for

each instance of violation.

(3) Any person who negligently releases into the

ambient air any hazardous air pollutant, and who at the time

negligently places another person in imminent danger of

death or serious bodily injury, upon conviction, shall be

punished by a fine not to exceed Ten Thousand Dollars

($10,000.00) or imprisonment not to exceed one (1) year, or

both. If a conviction of any person under this Subsection (c)

of § 49116 of this Chapter is for a violation committed after

a first conviction of the person under this Subsection, the

maximum punishment shall be doubled with respect to both

amount of fine and term of imprisonment.

(4) Any person who knowingly releases into the ambient

air any hazardous air pollutant, and who knows at the time

that another person is thereby placed in imminent danger of

death or serious bodily injury, upon conviction, shall be

punished by a fine not to exceed Ten Thousand Dollars

($10,000.00), or imprisonment of not more than fifteen (15)

years, or both. Any organization which violates this Item (4)

of Subsection (c) of § 49116 shall be subject to a fine not to

exceed One Million Dollars ($1,000,000.00). If a conviction

of any person under this Item (4) is for a violation committed

after a first conviction of the person under this Item (4), the

maximum punishment shall be doubled with respect to both

amount of fine and term of imprisonment.

(d) Penalty Assessment Criteria.

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(1) The Administrator, or the court as the case may be,

in determining the amount of any penalty to be assessed, shall

take into consideration, in addition to any other factors as

justice may require, the size of the business, the violator's full

compliance history and good faith efforts to comply, the

duration of the violation, payment by the violator of penalties

previously assessed for the same violation, economic benefit

of non-compliance and the seriousness of the violation.

(2) It is presumed that the violator's economic and

financial condition allows payment of the penalty, and the

burden of proof to the contrary is on the violator.

(3) A penalty may be assessed for each day of violation.

For purposes of determining the number of days of violation

for which a penalty may be assessed, if the Administrator has

notified the source of the violation and makes a prima facie

showing that the conduct or events giving rise to the violation

are likely to continue or recurred past the date of the notice,

the days of violation shall be presumed to include the date of

the notice and each and every day thereafter until the violator

establishes that continuous compliance has been achieved.

(4) Each day of continued violation of this Chapter or

rules and regulations promulgated pursuant to this Chapter

shall be deemed a separate violation or offense.

(e) Disposition of Collected Fines and Penalties. Fines and

penalties collected under this Section related to the air pollution

control permit program shall be deposited into the Air Pollution

Control Special Fund pursuant to Subsection (f) of § 49107 of this

Chapter.