40.17.120 Multiple and Multi-Day (Continuing) Violation Calculations

The Policy also explains how to factor into the calculation of the gravity based component the presence of multiple and multi-day (continuing) violations.

The amount of economic benefit from noncompliance gained by the violator will be calculated and added to the gravity-based penalty amount. After the appropriate gravity-based penalty amount (including the multi-day component) has been determined, it may be adjusted upward or downward to reflect particular circumstances surrounding the violation. The amount of any economic benefit enjoyed by the violator is not subject to adjustment.

When adjusting the gravity-based penalty amount the following factors should be considered:

(a) good faith efforts to comply/lack of good faith (downward or upward adjustment);

(b) degree of willfulness and/or negligence (upward or downward adjustment);

(d) ability to pay (download adjustment);

(e) environmental projects to be undertaken by the violator (downward adjustment; and

(f) other unique factors, including but not limited to the risk and cost of litigation and the cooperation of the facility during the inspection, case development and enforcement process prior to prehearing exchange (upward or downward adjustment).

These factors (with the exception of the upward adjustment factor for history of noncompliance and the downward adjustment factor for a violator's good faith efforts to comply) should usually be considered after the penalty has been proposed, i.e., during the settlement stage.