40.17.360 Multiple and Multi-Day Penalties

(a) Multiple Violations Criteria: In certain situations, the TMBCI/EPA may find that a facility has violated several different requirements. A separate penalty should be proposed in an administrative proceeding and obtained in settlement or litigation for each separate violation that results from an independent act (or failure to act) by the violator and is substantially distinguishable from any other claim in the complaint for which a penalty is to be assessed. A given claim is independent of, and substantially distinguished from, any other claim when it requires an element of proof not needed by the others. In many cases, violations of different sections of the regulations constitute independent and substantially distinguishable violations. For litigation or settlement purposes, each of the violations should be assessed separately and the amounts added to determine a total penalty to pursue. It is also possible that different violations of the same section of the regulations could constitute independent and substantially distinguishable violations. For penalty purposes, each of the violations should be assessed separately and the amounts totaled.

Penalties for multiple violations also should be sought in litigation or obtained in settlement where one party or person has violated the same requirement in substantially different locations. An example of this type of violation is failure to clean up discharged waste during transportation. A transporter who did not clean up waste discharged in two separate locations during the same trip should be charged with two counts. In these situations, the separate penalty assessments are justified. Similarly, penalties for multiple violations are appropriate when a party or person violates the same requirement on separate occasions but not as multi-day violations. An example would be the case where the facility fails for a year to submit required quarterly reports. For penalty purposes, each failure to report during the year, which is four total violations, should be assessed separately.

(b) Compression of Penalties for Related Violations: In general, penalties for multiple violations may be less likely to be appropriate where the violations are not independent or not substantially distinguishable. Where a claim derives from or merely restates another claim, a separate penalty may not be warranted. For example, if an owner/operator of a waste management facility submitted a permit application with a cover letter, signed by the manager's secretary, but failed to sign the permit application, and also thereby failed to have the appropriate responsible person sign the application, the owner/operator has violated the requirement that the application be signed by a responsible company official. The TMBCI/EPA has the discretion to view the violations resulting from the same factual event, failure to sign the application at all, and failure to have the person legally responsible for the permit application sign the application at all, and failure to have the person resulting from the same factual event, failure to sign the application at all, and failure to have the person legally responsible for the permit application sign it, as posing one legal risk. In this situation, both sections violated should be cited in the complaint, but one penalty, rather than two, may be appropriate to pursue in litigation or obtain in settlement, depending upon the facts of a case. The fact that two separate sections were violated may be taken into account in choosing higher "potential for harm" and "extent of deviation" categories on the penalty matrix.

In cases such as these where multiple violations result from a single initial transgression, assessment of a separate penalty for each distinguishable violation may produce a total penalty which is disproportionately high. Accordingly, in the specifically limited circumstances described, enforcement personnel have discretion to forego separate gravity-based and multi-day penalties for certain distinguishable violations, so long as the total penalty for all related violations is appropriate considering the gravity of the offense and is sufficient to deter similar future behavior and recoup economic benefit. In deciding which penalties should be compressed (i.e., the violations for which separate penalties should not be calculated), enforcement personnel should consider the seriousness of the violation, the importance of the underlying requirement to the regulatory scheme, and the economic benefit resulting from each violation. Violations that involve substantial noncompliance or that result in economic benefit that should be recaptured, should be set forth separately in the complaint. Even where separate penalties are not calculated for distinguishable violations, all significant violations should still be cited separately in the complaint to demonstrate the magnitude and scope of the violations. [Citation 21] The recitation of all significant violations will provide further support for a penalty that is based on a risk of harm and extent of deviation for the totality of the violations.

(c) Multiple Violations Treated as Multi-day Violations: Multiple violations are appropriate where the TMBCI/EPA can demonstrate that independent and independent and substantially distinguishable violations have occurred. Violations should be treated as multi-day violations (one penalty with a multi-day component) where the same violation continues uninterrupted for more than one day.

Where a facility has through a series of independent acts or omissions repeatedly violated the same statutory or regulatory requirement, the violations may begin to closely resemble multi-day violations in their number and similarity to each other. This is particularly true where the violations occur within close proximity in time to each other and are based on similar acts by the violator. In these circumstances, enforcement personnel have discretion to treat each violation after the first in the series as multi-day violations (assessable at the rates provided in the multi-day matrix), if to do so would produce a more equitable penalty calculation. For example, if a facility fails to submit four quarterly reports in the same year, the TMBCI/EPA may treat these as four separate violations. However, if a facility is required to conduct daily inspections but fails to do so for an entire month or longer, the TMBCI/EPA may calculate the penalty utilizing the multi-day matrix. In those cases where a series of recurring, separate violations are treated as multi-day violations, enforcement personnel should treat each occurrence as one day for purposes of calculating the multi-day component.