Current through Register Vol. XLI, No. 24, June 14, 2024
Section 47-1-6 - Civil Penalty Assessment6.1. Determination of Base Penalty.6.1.a. Potential for harm to human health and the environment. -- 6.1.a.1. The potential for harm to human health or the environment from a violation may be determined by the likelihood and degree of exposure of persons or the environment to pollution, or the degree of adverse effect of noncompliance on statutory or regulatory purposes or procedures for implementing the regulatory program.6.1.a.2. Emphasis shall be placed on the potential harm posed by a violation rather than the actual harm which occurred. There need not be any showing of actual harm to human health or the environment to support a finding of potential harm.6.1.a.3. The Secretary shall determine whether the potential for harm was either major, moderate or minor dependent upon factors to be considered on a case-by case analysis.6.1.b. Extent of Deviation from Requirements. --6.1.b.1. The extent of deviation from the statutory or regulatory requirements may be determined by the degree to which the requirement is violated.6.1.b.2. The Secretary shall determine whether the extent of deviation from the statutory or regulatory requirement was either major, moderate or minor dependent upon factors to be considered on a case-by-case analysis.6.1.c. Factors which may be considered in determining potential for harm to human health and the environment and the extent of deviation from a regulatory requirement may include, but are not limited to, amount of pollutants released, toxicity of the pollutant, sensitivity of the environment potentially effected, length of time of violation, actual human and environmental exposure and resultant effects upon human health and the environment, and degree of non-compliance.6.1.d. Civil Penalty Matrix. -- Each of the above factors - potential for harm and extent of deviation from a requirement - forms one of the axes of a civil penalty matrix from which the base penalty is calculated. The matrix shall have nine cells each containing a penalty range. The selection of the exact penalty amount is within the discretion of the Secretary. The reasons for the violation, the intent of the responsible party, or other factors are not considered. The complete matrix is illustrated in Appendix A.6.2. Penalty Adjustment Factors. --6.2.a. The base penalty may be adjusted at the discretion of the Secretary after consideration of factors presented by the responsible party or his staff. Said adjustment may raise or lower the base civil penalty.6.2.b. The Secretary may consider the following factors in determining whether an adjustment in the base civil penalty assessment is justified; 6.2.b.1. Degree of or absence of willfulness and/or negligence.6.2.b.2. Good faith efforts by the permittee both before and after an alleged violation to comply.6.2.b.3. Cooperation with the Secretary.6.2.b.4. Previous compliance/non-compliance history.6.2.b.5. Ability to pay a civil penalty.6.2.b.6. Economic benefits derived by the responsible party.6.2.b.7. The public interest.6.2.b.8. Loss of enjoyment of the environment due to the violation.6.2.b.9. Staff investigative costs.6.2.b.10. Other factors deemed relevant by the Secretary which may be present on a case-by-case analysis.6.3. In cases of an ongoing or continuing violation, each day of violation is one distinct violation for which a calculation must be made.