N.D. Admin Code 69-05.2-28-12 - Inspection and enforcement - Determination of amount of civil penalty - Factors

In determining the amount of any civil penalty assessed under subsection 1 of North Dakota Century Code section 38-14.1-32, the commission will consider the following:

1. History of previous violations. The commission may assess a civil penalty of up to three thousand five hundred dollars per day based on the history of previous violations by the operator or permittee at the particular operation.

a. If a violation is under review or if the time for review has not yet expired, the violation will not be considered.

b. No violation for which the notice of violation or cessation order has been vacated is considered.

c. Each violation is considered without regard to whether it led to a civil penalty.

2. Seriousness. The commission may assess a civil penalty of up to three thousand five hundred dollars per day based on the seriousness of the violation, including any irreparable harm to the environment and any hazard to public health or safety. The commission will consider:

a. The probability of the occurrence of the event which a violated standard is designed to prevent.

b. The extent of the potential or actual damage, in terms of area and impact on the public or environment.

c. The extent to which enforcement is obstructed by the violation.

d. The actual or potential duration of the damage or the impact on the public or the environment.

3. Negligence. The commission may assess a civil penalty of up to three thousand dollars per day based on the degree of fault of the operator or permittee in causing or failing to correct the violation, condition, or practice which led to the notice or order, either through act or omission.

a. A violation which occurs through no negligence, or, an inadvertent violation that was unavoidable by the exercise of reasonable care, is not considered.

b. A civil penalty of up to one thousand five hundred dollars per day may be assessed for a violation caused by negligence, or the failure of an operator or permittee to prevent the occurrence of any violation of his permit or any requirement of North Dakota Century Code chapter 38-14.1 or this article, due to indifference, lack of diligence, or lack of reasonable care, or the failure to abate the violation due to indifference, lack of diligence, or lack of reasonable care.

4. Good faith in attempting to achieve compliance. The commission may deduct up to one thousand dollars per day from the total civil penalty assessed based on the demonstrated good faith of the operator or permittee charged in attempting to achieve rapid compliance after notification of the violation.

a. "Rapid compliance" means that the operator or permittee took extraordinary measures to abate the violation in the shortest possible time and that abatement was achieved before the time set for abatement.

b. No deduction will be made for normal compliance, which is abatement of the violation within the time set for abatement.

Notes

N.D. Admin Code 69-05.2-28-12

Effective August 1, 1980; amended effective May 1, 1990.

General Authority: NDCC 38-14.1-03

Law Implemented: NDCC 38-14.1-32