40.17.260 Calculating a Penalty Amount to Support Tmbci/Epa Penalty Injudicial Actions

In judicial actions, it will generally only be necessary to calculate a penalty amount to support any penalty the TMBCI/EPA is to accept in settlement. Counsel for the Tribe may point out to the court in judicial actions that the penalty figure it seeks is consistent with the rationale underlying the Penalty Policy. However, counsel should not suggest that the court is bound to follow the Policy in assessing a civil penalty. Judicial officers have discretion to apply most of the upward or downward adjustment factors described in this Policy in determining what penalty should be imposed on a violator. However, judgments as to whether a penalty should be reduced in settlement because:

(a) the violator is willing to undertake an environmental project in settlement of a penalty claim;

(b) the TMBCI/EPA faces certain litigative risks in proceeding to hearing or trial, or

(c) the violator demonstrates a highly cooperative attitude throughout the compliance inspection and enforcement process, are decisions involving matters of policy and prosecutorial discretion which by their nature are only appropriate to apply in the context of settling a penalty claim. It is therefore contemplated that decision makers in the administrative proceedings would not adjust penalty amounts downward based upon their assessment of any of these three "settlement only" factors in assessing a civil penalty.