Current through Register Vol. XLI, No. 50, December 13, 2024
Section 33-27-6 - 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. This gravity based penalty amount should be determined by examining two factors: potential for harm and extent of deviation from the statutory or regulatory requirement. 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 is based on two factors: the risk of human or environmental exposure to hazardous waste and/or hazardous constituents that may be posed by noncompliance, and the adverse effect noncompliance may have on the statutory or regulatory purposes or procedures for implementing the Resource Conservation and Recovery Act (RCRA) program.6.1.a.2. Risk of exposure may be evaluated by considering the probability of exposure and the potential seriousness of contamination.6.1.a.3.Violations of the Act or Rules may be evaluated by considering how the violation directly increases threat of harm to human health and the environment, how the violation undermines the statutory or regulatory purposes or procedures for implementing the RCRA Program and how the violation impairs the overall goals of RCRA to handle wastes in a safe and responsible manner. Examples include but are not limited to: 6.1.a.3.A. Failure to notify the Department that you are a generator or transporter of hazardous waste oran owner or operator of a hazardous waste facility6.1.a.3.B.Failure to submit a timely or adequate Part B application.6.1.a.3.C.Failure to respond to a formal information request.6.1.a.3.D.Operating without a permit.6.1.a.3.E.Failure to prepare or maintain a manifest.6.1.a.3.F.Failure to maintain groundwater monitoring results.6.1.a.4. Consideration shall be given to 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.5. Emphasis shall be placed on evidence of an actual release to the environment and harm to human health and/or actual exposure of humans or other environmental receptors to hazardous waste or constituents.6.1.a.6. 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 basis.6.1.b. Extent of Deviation from Requirements. --6.1.b.1. The extent of deviation from RCRA 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 dependent 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 and the environment and the extent of deviation from a regulatory requirement may include, but are not limited to, harm to the RCRA Program, probability of exposure, 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 Secretary6.2.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 present 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.