216 R.I. Code R. 216-RICR-50-05-1.20

Current through December 26, 2024

Section 216-RICR-50-05-1.20 - Violations, Noncompliance, and Enforcement

A. In order to obtain and/or maintain any approval, permit, certification, and/or license, compliance with the provisions of the Act and this Part is required. Failure to comply with these requirements of the Act and/or this Part shall constitute grounds to revoke, suspend, or otherwise limit or restrict any approval, permit, certification, and/or license issued by the Director. In addition, any person who violates the provisions of R.I. Gen. Laws Chapter 46-13, or this Part shall be subject to the penalties and remedies set forth in R.I. Gen. Laws § 46-13-16. Furthermore, the Director is authorized pursuant to the provisions of R.I. Gen. Laws §§ 46-13-10 and 46-13-12 to issue orders requiring corrective action(s) necessary to "provide safe and potable water."

B. Purpose and Goals

1. To assure the protection of public health, safety and welfare by promoting compliance and deterring noncompliance with the Act, and the rules, regulations, approvals, permits, certification, license and orders adopted pursuant to the Act and of this Part;

2. To assure that the Department assesses administrative penalties, and otherwise implements the Act and of this Part, lawfully, fairly and consistently;

3. To clarify the Department's authority to enforce the Act and the rules, regulations, approvals, permits and orders adopted pursuant to the Act.

C. Policy. This Part promotes a policy of assuring the effective enforcement of the Act as administered by the Director and to deter noncompliance with the rules, regulations, approvals, permits, certification, license and orders adopted pursuant to the Act and of this Part:

1. Seeking any appropriate legal and equitable relief, including removal of any economic benefit or competitive advantage realized as a direct or indirect result of the violation;

2. Assessing administrative penalties, where appropriate, which:

a. Reflect the nature and gravity of the violation and the potential for harm to the public health;

b. Reflect the length of time during which the violation was repeated or continued;

c. Will deter future noncompliance by the person in violation; and

d. Will encourage continued compliance by persons similarly regulated.

3. Seeking from any person found to be in violation, those additional or extraordinary costs which are actually expended by the Director during the course of the investigation and enforcement of noncompliance for which the State of Rhode Island is not otherwise reimbursed other than non-overtime personnel costs; and

4. Pursuing any other lawful enforcement option necessary to achieve compliance.

D. Application

1. This Part shall be liberally construed to permit the Department to effectuate the purposes of the Act.

2. This Part shall apply to all persons subject to enforcement action by the Department under the Act, and the rules, regulations, approvals, permits, certification, license and orders adopted pursuant to the Director's authority hereunder.

3. This Part shall be applied in a manner that is consistent with or more stringent than any applicable Federal program requirements for delegated programs.

E. Enforcement Options. The Director may pursue any combination of administrative and judicial enforcement actions depending upon the circumstances and gravity of each case. The penalty and remedies prescribed by the Act (R.I. Gen. Laws § 46-13-16) shall be deemed to be concurrent and the existence of an exercised remedy shall not prevent the Director from exercising any other remedy.

F. Preconditions for Assessment of Administrative Penalty. An administrative penalty may be assessed only for a violation or a failure to comply that, at the time it occurred, constituted noncompliance with a legal requirement:

1. Which was then in effect; and

2. To which the person was then subject; and

3. To which this Part applies.

G. Assessment of Administrative Penalty - Penalty Ceiling. No penalty shall exceed the maximum penalty allowed by the Act. The maximum administrative penalty which the Director has the authority to impose under the Act is five thousand dollars ($5,000.00) per violation per day.

1. A penalty may be assessed "per day," multi-day violations are counted from the initial day of noncompliance until compliance is achieved.

2. A penalty may be assessed "per violation", multiple violations of the same law, rule, regulation, permit approval, certification, license or order are counted as separate violations if any violation:

a. involves a prohibited act which is distinguishable from any other by the nature of the act itself; or

b. involves a prohibited act which is distinct from any other by the time or place of its commission; or

c. involves a prohibited act which is distinct from any other by definition; or

d. presents a risk of harm to the public health, safety or welfare which is distinguishable from the risk threatened by any other violation.

3. Each day following service of a Notice of Violation, or Immediate Compliance Order or Cease and Desist Order, to which the Director is a party, during which a violation is repeated, continued or remains in place, constitutes a continuing violation. The Director may assess an additional administrative penalty, not to exceed five thousand dollars ($5,000.00) for each day the violation or failure to comply is repeated, continued or remains in place.

4. The penalty imposed shall continue to accrue from the day the Notice of Violation, Immediate Compliance Order or Cease and Desist Order is issued until compliance is achieved.

H. Assessment of Administrative Penalty - Calculation. The amount of the penalty will be calculated based on the factors enumerated below.

1. The penalty may be based on the gravity of the violation. That portion will be calculated according to the "DWQ Penalty Matrix" (See § 1.22 of this Part). The applicable penalty range is reached by first determining the "Type of Violation" and the "Deviation from the Standard" of the alleged violation.

a. "Type of Violation" - refers to the nature of the legal requirement allegedly violated.

(1) Type I violations - Type I violations include violations of legal requirements identified by the Director as directly related to the protection of the public health. Such violations include, but are not necessarily limited to, exceeding any MCL, failure to adhere to new source approval requirements or plan requirements, and/or any failure to comply with an order of the Director which is presently enforceable.

(2) Type II violations also have a direct impact on public health, but are mainly noncompliance with technical safeguards. Such violations include but are not limited to failure to monitor as required, failure to comply with reporting requirements, and failure to make public notice.

(3) Type III violations have an indirect impact on public health and are generally related to poor record keeping. Such violations include, but are not limited to failure to submit monitoring reports, late submittal of monitoring reports, and failure to keep records on file as required.

b. "Deviation from the Standard" - refers to the degree to which the violation is out of compliance with the legal requirement allegedly violated. The Deviation from the Standard may be determined without consideration of the factors enunciated below in cases of strict liability. In all other cases, the Department's assessment of whether a violation is a minor, moderate or major deviation from the standard is based upon an evaluation of one (1) or more of the following factors except to the extent already considered:

(1) The degree to which the act or failure to act was from compliance;

(2) Whether the person took reasonable and appropriate steps to prevent and/or mitigate the non-compliance;

(3) Whether the person has previously failed to comply with any regulations, order, permit or approval issued or adopted by the Director;

(4) The degree of willfulness or negligence, including but not limited to, how much control the violator had over the occurrence of the violation and whether the violation was foreseeable; and

(5) Any other factor(s) that may be relevant in determining the amount of a penalty, provided that said other factor(s) shall be set forth in the Notice of Violation or other written notice of the assessment of a penalty.

2. The Economic Benefit from Non-Compliance. The penalty shall include an amount intended to offset the economic benefit of non-compliance.

a. Such an amount may include, but not be limited to:

(1) The cost of complying;

(2) The cost of equipment needed to comply;

(3) Any associated operation and maintenance costs;

(4) The costs of studies needed to achieve compliance;

(5) Any other delayed or avoided costs including, interest, market or competitive advantage over other regulated entities which are in compliance.

b. The economic benefit portion may not be included in the penalty only if:

(1) There is no identifiable benefit from non-compliance; or

(2) The amount of economic benefit cannot be quantified.

3. The penalty shall include additional or extraordinary costs which are incurred by the Director during the course of the investigation and enforcement of noncompliance for which the State of Rhode Island is not otherwise reimbursed other than non-overtime personnel costs.

4. Nothing in this Part shall preclude the Director from resolving the outstanding penalty through a Consent Agreement at any time he or she deems appropriate.

I. Assessment of Administrative Penalty - Hearing

1. Any person against whom the Director seeks to assess an administrative penalty for a violation of a law, rule, regulation, approval, license, certification, or order which is within the Director's authority and responsibility to enforce, has the right to request a hearing thereon. The request for a hearing must be filed with the Director within thirty (30) days after service of the notice assessing said penalty.

2. If a timely request for a hearing is made, a hearing shall be conducted in accordance with R.I. Gen. Laws Chapter 42-35.

3. Judicial review of any final decision of the administrative hearing officer shall be available in accordance with R.I. Gen. Laws Chapter 42-35.

J. Assessment of Administrative Penalty-Enforcement. The Department's proposal of an administrative penalty shall become a final order of the Director upon the person's election to waive, or failure to timely request, an administrative hearing on the violation and/or the penalty. Each day during which the person fails to pay said penalty or otherwise fails to comply with a final order of the Director constitutes a separate and distinct violation. An additional administrative penalty, not to exceed five thousand dollars ($5,000.00) for each such violation of a final order, may be assessed by the Director. The Director may also, by summons and complaint, seek to enforce said final order in the Superior court for Providence County.

K. This Part shall not be construed to govern any enforcement action which is commenced by the Director prior to the formal adoption of this Part, or any administrative appeal taken therefrom, except that they shall apply to all unresolved monitoring and public notice violations as of the effective date of this Part.

216 R.I. Code R. 216-RICR-50-05-1.20

Amended effective 9/18/2024