8.1 Introduction. Section
19-5-115 of the Water Quality Act
provides for penalties of up to $10,000 per day for violations of the act or
any permit, rule, or order adopted under it and up to $25,000 per day for
willful violations. Because the law does not provide for assessment of
administrative penalties, the Attorney General initiates legal proceedings to
recover penalties where appropriate.
8.2 Purpose And Applicability. These criteria
outline the principles used by the State in civil settlement negotiations with
water pollution sources for violations of the UWPCA and/or any permit, rule or
order adopted under it. It is designed to be used as a logical basis to
determine a reasonable and appropriate penalty for all types of violations to
promote a more swift resolution of environmental problems and enforcement
actions.
To guide settlement negotiations on the penalty issue, the
following principles apply:
(1)
penalties should be based on the nature and extent of the violation;
(2) penalties should at a minimum, recover
the economic benefit of noncompliance;
(3) penalties should be large enough to deter
noncompliance; and
(4) penalties
should be consistent in an effort to provide fair and equitable treatment of
the regulated community.
In determining whether a civil penalty should be sought, the
State will consider the magnitude of the violations; the degree of actual
environmental harm or the potential for such harm created by the violation(s);
response and/or investigative costs incurred by the State or others; any
economic advantage the violator may have gained through noncompliance;
recidivism of the violator; good faith efforts of the violator; ability of the
violator to pay; and the possible deterrent effect of a penalty to prevent
future violations.
8.3 Penalty
Calculation Methodology. The statutory maximum penalty should first be
calculated, for comparison purposes, to determine the potential maximum penalty
liability of the violator. The penalty which the State seeks in settlement may
not exceed this statutory maximum amount.
The civil penalty figure for settlement purposes should then
be calculated based on the following formula: CIVIL PENALTY = PENALTY +
ADJUSTMENTS - ECONOMIC AND LEGAL CONSIDERATIONS
PENALTY: Violations are grouped into four main penalty
categories based upon the nature and severity of the violation. A penalty range
is associated with each category. The following factors will be taken into
account to determine where the penalty amount will fall within each
range:
A. History of compliance or
noncompliance. History of noncompliance includes consideration of previous
violations and degree of recidivism.
B. Degree of willfulness and/or negligence.
Factors to be considered include 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. Good faith
efforts to comply. Good faith takes into account the openness in dealing with
the violations, promptness in correction of problems, and the degree of
cooperation with the State.
Category A - $7,000 to $10,000 per day. Violations with high
impact on public health and the environment to include:
1. Discharges which result in documented
public health effects and/or significant environmental damage.
2. Any type of violation not mentioned above
severe enough to warrant a penalty assessment under category A.
Category B - $2,000 to $7,000 per day. Major violations of
the Utah Water Pollution Control Act, associated regulations, permits or orders
to include:
1. Discharges which likely
caused or potentially would cause (undocumented) public health effects or
significant environmental damage.
2. Creation of a serious hazard to public
health or the environment.
3.
Illegal discharges containing significant quantities or
concentrations of toxic or hazardous materials.
4. Any type of violation not mentioned
previously which warrants a penalty assessment under Category B.
Category C - $500 to $2,000 per day. Violations of the Utah
Water Pollution Control Act, associated regulations, permits or orders to
include:
1. Significant excursion of
permit effluent limits.
2.
Substantial non-compliance with the requirements of a compliance
schedule.
3. Substantial
non-compliance with monitoring and reporting requirements.
4. Illegal discharge containing significant
quantities or concentrations of non toxic or non hazardous materials.
5. Any type of violation not mentioned
previously which warrants a penalty assessment under Category C.
Category D - up to $500 per day. Minor violations of the Utah
Water Pollution Control Act, associated regulations, permits or orders to
include:
1. Minor excursion of permit
effluent limits.
2. Minor
violations of compliance schedule requirements.
3. Minor violations of reporting
requirements.
4. Illegal discharges
not covered in Categories A, B and C.
5. Any type of violations not mentioned
previously which warrants a penalty assessment under category D.
ADJUSTMENTS: The civil penalty shall be calculated by adding
the following adjustments to the penalty amount determined above:
1) economic benefit gained as a result of
non-compliance;
2) investigative
costs incurred by the State and/or other governmental levels;
3) documented monetary costs associated with
environmental damage.
ECONOMIC AND LEGAL CONSIDERATIONS: An adjustment downward may
be made or a delayed payment schedule may be used based on a documented
inability of the violator to pay. Also, an adjustment downward may be made in
consideration of the potential for protracted litigation, an attempt to
ascertain the maximum penalty the court is likely to award, and/or the strength
of the case.
8.4 Mitigation Projects.
In some exceptional cases, it may be appropriate to allow the reduction of the
penalty assessment in recognition of the violator's good faith undertaking of
an environmentally beneficial mitigation project. The following criteria should
be used in determining the eligibility of such projects:
A. The project must be in addition to all
regulatory compliance obligations;
B. The project preferably should closely
address the environmental effects of the violation;
C. The actual cost to the violator, after
consideration of tax benefits, must reflect a deterrent effect;
D. The project must primarily benefit the
environment rather than benefit the violator;
E. The project must be judicially
enforceable;
F. The project must
not generate positive public perception for violations of the law.
8.5 Intent Of
Criteria/Information Requests. The criteria and procedures in this section are
intended solely for the guidance of the State. They are not intended, and
cannot be relied upon to create any rights, substantive or procedural,
enforceable by any party in litigation with the State.
8.6 Expedited Settlement Offer (ESO). Only
enforcement cases classified as Category C or Category D violations may qualify
for an ESO in lieu of the penalty process found in Subsection
R317-1-8.3 Penalty Calculation
Methodology. Except in cases where recidivism has been established by a pattern
of non-compliance, an ESO may be used when violations are readily identifiable,
readily correctable, and do not cause significant harm to human health or the
environment.
A . A violator is not compelled
to sign an ESO. If the violator does not sign the ESO, then the penalty will be
recalculated according to Subsection R317-1-8.3.
B. The violator has 30 days total from
receipt of the ESO to sign and return the ESO to the division. If the violator
signs the ESO, then the violator must comply with its conditions within 15 days
after receipt of the final ESO signed by the director, or as otherwise
designated in the ESO. If the violator signs the ESO they agree to waive:
1. the right to contest the findings and
specified penalty amount;
2. the
opportunity for an administrative hearing pursuant to Section
19-1-301; and
3. the opportunity for judicial
review.
C. Deficiency
Form. A deficiency form is used to list the violations and corresponding
penalties. Multiple violations at a site are totaled providing a final penalty
commensurate with the extent of non-compliance. Penalties developed for the
list of program violations on the deficiency form should be estimated at about
60% of the penalty as calculated in Subsection
R317-1-8.3.
