40.17.370 Penalties for Multi-Day Violations Procedures

(a) The SHWMC provides the TMBCI/EPA with the authority to assess in administrative actions or seek in court civil penalties of up to $5,000.00 per day of non-compliance for each violation of a requirement of the SHWMC. Any such penalty assessed should consist of a gravity-based component, economic benefit component, and to the extent that violations can be shown or presumed to have continued for more than one day, an appropriate multi-day component. The multi-day component should reflect the duration of the violation at issue, subject to the guidelines set forth in Section VII C., below.

(b) After it has been determined that any of the violations alleged has continued for more than a day, the next step is to determine the length of time each violation continued and whether a multi-day penalty is mandatory, presumed, or discretionary. In most instances, the TMBCI/EPA should only seek to obtain multi-day penalties. If a multi-day penalty is appropriate, for the number of days it can document that the violation in question persisted. However, in some circumstances, reasonable assumptions as to the duration of a violation can be made. For example, in the case where an inspection reveals that a facility has no groundwater monitoring wells in place it can be assumed, in the absence of evidence to the contrary, that the facility has never had any wells. Here the violation can be treated as having commenced on the day that the permit triggered the requirements began or the effective date of the regulations, whichever is later. A multi-day penalty could then be calculated for the entire period from the date the facility was required to have wells in place until the date of the inspection showing they did not.

(c) Conversely, in cases where there is no permit or regulatory deadline from which it may be assumed compliance obligations began to run, a multi-day penalty should account only for each day for which information provides a reasonable basis for concluding that a violation has occurred. Where EPA determines that a violation persists, enforcement personnel may calculate the penalty for a period ending on the date of compliance or the date the complaint is filed or, if the complaint references only the statutory maximum, the date the proposed penalty is submitted.

(d) If the calculation is based on the date the complaint is filed, and if the violation continues after that date, the complaint should include language stating that the TMBCI/EPA may amend the complaint because the violation may continue to occur after filing. For example, the complaint could state:

The violation alleged in Count 1 of this complaint is of a continuing nature and continues, to the best of the TMBCI/EPA knowledge and belief, as of the date of the filing of this complaint. The TMBCI/EPA, therefore, reserves the right to amend this complaint and the penalty proposed herein to reflect additional days of violation for the violation alleged in Count 1.

(e) Alternatively, enforcement personnel may consider including language in the complaint stating that the penalty will include a specific, additional

per day amount until the violation is corrected. The language of the complaint should be clear that the amount chosen is based on the circumstances as they are known at the time the complaint is filed and that if the conditions change, the amount of the penalty sought may change. For example, the complaint could state: "The violation alleged in Count 1 of this complaint is of a continuing nature and continues, to the best of the TMBCI/EPA knowledge and belief, as of the date of the filing of this complaint. In addition to the penalty proposed in paragraph of this complaint, the TMBCI/EPA is hereby assessing an additional penalty of $ _ for each day after the filing of the complaint that the violation alleged in Count 1 continues. This additional penalty assessment is based on the same factors on which the penalty in paragraph is based. Should circumstances or conditions relating to the alleged violation change, the TMBCI/EPA reserves the right to adjust the continuing penalty amount accordingly.