Section 250-RICR-130-00-1.10 - Assessment of Administrative Penalty - CalculationA. The amount of the penalty will be calculated based on the factors enumerated below. The factors set forth in R.I. Gen. Laws § 42-17.6-6 shall be considered when calculating the Type of Violation and Deviation from the Standard as set forth below. 1. The penalty may be based on the gravity of the violation. That portion will be calculated according to the applicable "Penalty Matrix" in the Appendix § 1.14 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 include violations of legal requirements identified by the Director as directly related to the protection of the public health, safety, welfare or environment. Such violations include, but are not necessarily limited to, acts which pose an actual or potential for harm to the public health, safety, welfare or the environment; acts or failures to act which are of major importance to the regulatory program; any failure to obtain a required permit, license or approval from the Director; any failure to report an unauthorized activity which actually or potentially threatens the public health, safety, welfare or the environment; any failure to take remedial action to mitigate a known or suspected harm; and/or any failure to comply with an order of the Director which is presently enforceable.(2) Type II violations include violations of legal requirements identified by the Director as important but indirectly related to the protection of the public health, safety, welfare or environment. Such violations include, but are not necessarily limited to, acts which pose an indirect actual or potential for harm to the public health, safety, welfare or the environment; acts or failures to act which are of moderate importance to the regulatory program; and/or failure to comply with any procedure required by any law administered by the Director, or by a Rule or Regulation adopted pursuant to the Director's authority for the prevention of harm to the public health, safety, welfare or the environment.(3) Type III violations include violations of legal requirements identified by the Director as important but incidental to the protection of public health, safety, welfare or the environment. Such violations include, but are not necessarily limited to, acts of noncompliance with routine sampling schedules, reporting requirements or analytical methods which are incidental to the Department's ability and obligation to enforce the laws administered by the Director.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 factor (I) 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 extent to which the act or failure to act was out of compliance;(2) Environmental conditions;(3) The amount of the pollutant;(4) The toxicity or nature of the pollutant(5) The duration of the violation;(6) The areal extent of the violation;(7) Whether the person took reasonable and appropriate steps to prevent and/or mitigate the non-compliance;(8) Whether the person has previously failed to comply with any Regulations, order, statute, license, permit or approval issued or adopted by the Department, or any law which the Department has the authority or responsibility to enforce;(9) 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;(10) 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. In lieu of calculating the gravity portion of the penalty according to the method in § 1.10(A)(1) of this Part, the gravity portion of the penalty may be an amount specified by Federal statute for a similar violation.3. 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.4. The penalty shall include additional or extraordinary costs which are incurred by the Director during the course of the investigation, enforcement of noncompliance and resolution of an enforcement action for which the State of Rhode Island is not otherwise reimbursed other than non-overtime personnel costs.250 R.I. Code R. 250-RICR-130-00-1.10
Amended effective 3/19/2021