40.17.390 Extend of Deviation from Requirement

Potential for Harm:

The dollar figure to be multiplied by the number of days of violation will generally be selected from the range provided in the appropriate multi-day cell. The figure selected should not be less than the lowest number in the range provided. Selections of a dollar figure from the range of penalty amounts can be made at the TMBCI/EPA discretion based on an assessment of case-specific factors, including those discussed below.

In determining whether to assess multi-day penalties and what penalty amount is appropriate to select from the multi-day matrix, the Department must analyze carefully the specific facts of the case. This analysis should be conducted in the context of the Penalty Policy's broad goals of:

(a) ensuring fair and consistent penalties which reflect the seriousness (gravity) of violations;

(b) promoting prompt and continuing compliance; and

Additional factors which may be relevant in analyzing these Policy goals in the context of a specific case include the seriousness of the violation relative to other violations falling within the same matrix cell, efforts at remediation or the promptness and degree of cooperation evidenced by the facility (to the extent not otherwise accounted for in the proposed penalty or settlement amount), the size and sophistication of the violator, the total number of days of violation, and other relevant considerations. All of these factors must be analyzed in light of the overriding goals of the Penalty Policy to determine the appropriate penalties in a specific case.

As discussed above, this Penalty Policy permits the TMBCI/EPA to waive or reduce multi-day penalties, when otherwise mandatory for a violation, in a "highly unusual case." Because almost all continuing "major" violations warrant multi-day penalties, it is anticipated that such a waiver will occur very infrequently. As required with the presumptive multi-day violations, when the TMBCI/EPA has determined that it will either reduce the number of days of violation or will not use the multi-day matrix for violations that fall into the mandatory category, the case-specific facts justifying the reduction or waiver must be documented in the case file.