40.17.310 Larger Penalty Presumptively Appropriate Circumstances

A larger penalty is presumptively appropriate where the violation significantly impairs the ability of the waste management system to prevent and detect releases of waste and/or waste constituents.

(a) Potential Seriousness of Contamination: when calculating risk of exposure, enforcement personnel should weigh the harm which would result if the waste or waste constituents were in fact released to the environment.

(1) quantity and toxicity of wastes (potentially) released;

(2) likelihood or fact of transport by way of environmental media (e.g., air and groundwater); and

(3) existence, size and proximity of receptor populations (e.g., local residents, fish, and wildlife, including threatened or endangered species) and sensitive environmental media (e.g., surface waters and aquifers).

In considering the risk of exposure, the emphasis is placed on the potential for harm posed by a violation rather than on whether harm actually occurred. Violators rarely have any control over whether their pollution actually causes harm. Therefore, such violators should not be rewarded with lower penalties simply because the violations did not result in actual harm.

In considering this factor, the environmental sensitivity of the receptor areas or populations should be examined. The risk of exposure to a particularly sensitive environmental area, such as a wetland, a drinking water source, or the habitat of a threatened or endangered species, may be a basis for an upward adjustment of the category chosen for the potential harm (i.e., minor to moderate, moderate to major) or a selection of a higher amount in the range of the chosen penalty matrix cell.