(1) Under Section
19-6-425,
the court establishes penalty amounts rather than the director.
(a) nonetheless, the director may enter a
stipulated penalty agreement with the violator.
(2) The director shall consider the following
factors when negotiating or calculating a penalty to promote a swifter
resolution of environmental problems and promote compliance:
(a) economic benefit. The costs to an owner
or operator delayed or avoided by not complying with applicable laws or
rules.
(b) gravity of the
violation. The extent of deviation from the rules and the potential for harm to
health and the environment, regardless of the extent of the harm that actually
occurred. This factor may be adjusted upward or downward depending on:
(i) degree of cooperation or noncooperation
and good faith efforts to comply, considering the openness in dealing with the
violations, promptness in correction of problems, and the degree of cooperation
with the state;
(ii) willfulness or
negligence of the violation;
(iii)
history of compliance or noncompliance; and
(iv) other unique factors including how much
control the violator had over and the foreseeability of the events constituting
the violation, whether the violator made or could have made reasonable efforts
to prevent the violation, whether the violator knew of the legal requirements
which were violated, and degree of recalcitrance.
(c) environmental sensitivity. The actual
impact of the violations that occurred.
(d) number of days of
noncompliance.
(e) response and
investigation costs incurred by the state and others.
(f) the possible deterrent effect of a
penalty to prevent future violations.
(3) Cases involving major violations with
actual or high-potential for harming public health or the environment, and
cases involving a history of repeat violations by the same violator will
require a penalty as a part of any settlement, unless good cause is shown for
not seeking a penalty.
(4) Where
the director determines that a penalty is appropriate under Section 19-6-425,
the director may negotiate the penalty based on the following categories and
ranges:
(a) Major Violations: $5,000 to
$10,000 per violation.
(i) this category
includes major deviations from the requirements of the rules or act, violations
that cause or may cause substantial or continuing risk to human health and the
environment, or violations that may have a substantial adverse effect on the
regulatory program.
(b)
Moderate Violations: $2,000 to $7,000 per violation.
(i) this category includes moderate
deviations from the requirements of the rules or act but some requirements have
been implemented as intended, violations that cause or may cause a significant
risk to human health and the environment, or violations that may have a
significant notable adverse effect on the regulatory program.
(c) Minor Violations: Up to $3,000
per violation.
(i) this category includes
slight deviations from the rules or act but most of the requirements are met,
violations that cause or may cause a relatively low risk to human health and
the environment, or violations that may have a minor adverse effect on the
regulatory program.
(5) The director may consult "EPA Penalty
Guidance for Violations of UST Regulations" (OSWER Directive 9610.12) as
supplemental guidance to Section R311-208-5.