Current through Register Vol. XLI, No. 24, June 14, 2024
Section 47-65-6 - Civil Penalty Assessment6.1. Determination of Base Penalty. - The seriousness (gravity) of a violation must be taken into account in assessing a penalty for a violation. The gravity-based penalty amount should be determined by examining two factors: potential for harm to human health or the environment and extent of deviation from the statutory or regulatory requirement. 6.1.a. Potential for harm to human health or 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 major, moderate or minor depending 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 Act or its Rules and its regulatory requirements relates to the degree to which the violation renders inoperative the requirements violated.6.1.b.2. The Secretary shall determine whether the extent of deviation from the statutory or regulatory requirement was major, moderate or minor depending upon factors to be considered on a case-by-case basis.6.1.c. Factors that may be considered in determining potential for harm to human health or the environment and the extent of deviation from a regulatory requirement may include, but are not limited to, length of time of violation, actual human and environmental exposure, and resultant effects upon human health and the environment, potential seriousness of contamination, 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 seriousness of the violation is considered in determining the base penalty. The reason the violation was committed, the intent of the responsible party or other factors related to the violator 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. The 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. Good faith efforts to comply or lack of good faith;6.2.b.2. Degree of willfulness or negligence;6.2.b.3. Cooperation with the Secretary;6.2.b.4. History of noncompliance;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. Staff investigative costs; and6.2.b.8. Other factors deemed relevant by the Secretary that may be presented on a case-by-case basis.6.3. Multi-Day Penalties. - In cases of an ongoing or continuing violation, each day of violation is one distinct violation for which a calculation must be made.