Arkansas Administrative Code › Agency 118 - DEPARTMENT OF ENERGY AND ENVIRONMENT › Division 01 - Arkansas Pollution Control and Ecology Commission › Rule 118.01.21-005 - Rule 7, "Civil Penalties"

Current through Register Vol. 49, No. 6, June, 2024
Rule
			 No.7 -- Civil Penalties
SECTION
			 1.
Authority
Pursuant to the authority and provisions of the Arkansas Solid
				Waste Management Act, A.C.A. §§
										8-6-210
				through 709; the Arkansas Water and Air Pollution Control Act,
				§§A.C.A.
				8-4-101 through 313 and
				§§ 8-5-101 through 612; the Arkansas Hazardous Waste Management Act
				and the statutes governing regulated substance storage tanks, A.C.A.
				§§
										8-7-101
				through 908; and the Recycling Act, A.C.A.
				8-9-101 through 406;
				including amendments to these Acts and acts which the Division may be charged
				with enforcement authority, WHEREFORE, the Arkansas Pollution Control &
				Ecology Commission hereby promulgates this Rule No. 7 to provide guidance for
				the assessment of civil penalties for the violation of any provisions of these
				Acts, or for the violation of any rules issued pursuant to these Acts or for
				the violations of any order, rule, agreement or permit, or any part thereof,
				issued under these Acts.
SECTION
			 2.
Definitions
When used in this rule:
(a) "Commission" means the Arkansas Pollution
			 Control and Ecology Commission.
(b)
			 "Division" means the Division of Environmental Quality.
(c) "Director" means the Director of the
			 Division of Environmental Quality.
(d) "Violation" means the failure to comply
			 with any statute, order, rule, agreement, permit, or any part thereof, and
			 includes both acts and omissions.
(e) "Person" means any individual,
			 corporation, company, firm, partnership, association, trust, joint stock
			 company, state agency, government instrumentality or agency, institution,
			 county, city, town, or municipal authority or trust, venture, or any other
			 legal entity, however organized.
SECTION 3.
Procedure
The assessment of civil penalties hereunder shall be in
				accordance with the administrative procedures specified in Rule No. 8, or if an
				action in a court of competent jurisdiction, then under the Arkansas Rules of
				Civil Procedure.
SECTION 4.
Solid Waste Management
The amount of any civil penalty to be assessed for any person
				for the violation of any provision of the Arkansas Solid Waste Management Act,
				the Recycling Act or the Arkansas Solid Waste Disposal Code, and rules, plans
				or procedures developed thereunder, or the violation of any permit, order, rule
				or agreement, or any part thereof, shall be in accordance with the provisions
				of Act 1057 of 1991 and shall not exceed $10,000.00 per violation. Each day of
				a continuing violation may be deemed a separate violation.
SECTION 5.
Air
The amount of any civil penalty to be assessed any person for
				the violation of any provision of Part II of the Arkansas Water and Air
				Pollution Control Act and rules, plans or procedures developed thereunder or
				the violation of any permit, order, rule or agreement, or any part thereof,
				shall be in accordance with the provisions of Act 1057 of 1991 and shall not
				exceed $10,000.00 per violation. Each day of a continuing violation may be
				deemed a separate violation.
SECTION
			 6.
Hazardous Waste Management
The amount of any civil penalty to be assessed any person for
				the violation of any provision of the Arkansas Hazardous Waste Management Act
				and rules, plans or procedures developed thereunder, the Arkansas Hazardous
				Waste Management Code or the violation of any permit, order, rule or agreement,
				or any part thereof, shall not exceed $25,000.00 per violation. Each day of a
				continuing violation may be deemed a separate violation.
SECTION 7.
Water
The amount of any civil penalty to be assessed any person for
				the violation of any provision of Part I of the Arkansas Water and Air
				Pollution Control Act and rules, plans, or procedures developed thereunder, or
				the violation of any permit, order, rule, or agreement, or any part thereof,
				shall not exceed $10,000.00 per violation. Each day of a continuing violation
				may be deemed a separate violation.
SECTION 8.
Regulated Substance
			 Storage Tanks
The amount of any civil penalty to be assessed any person for
				the violation of any provision of the Regulated Substance Storage Tank Act and
				rules, plans and procedures developed thereunder, or the violation of any
				permit order, rule, or agreement, or any part thereof, shall not exceed
				$10,000.00 per violation. Each day of a continuing violation may be deemed a
				separate violation.
SECTION
			 9.
Determination of Amount
In determining the amount of a civil penalty to be assessed
				hereunder, the Division shall consider the following factors which may increase
				or decrease the amount of the assessed fine:
(a) The seriousness of the noncompliance and
			 its effect upon the environment, including the degree of potential or actual
			 risk or harm to the public health caused by the violation.
(b) Whether the cause of the noncompliance
			 was an unavoidable accident.
(c)
			 The violator's cooperativeness and expeditious efforts to correct the
			 violation.
(d) The history of a
			 violator in taking all reasonable steps or procedures necessary or appropriate
			 to correct any noncompliance.
(e)
			 The violator's history of previous documented violations regardless of whether
			 or not any administrative, civil, or criminal proceeding was commenced
			 therefore.
(f) Whether the cause of
			 the violation was an intentional act or omission on the part of the
			 violator.
(g) Whether the
			 noncompliance has resulted in economic benefit or pecuniary gain to the
			 violator, including but not limited to cost avoidance.
(h) Whether the pursuit and the execution of
			 the enforcement action has resulted in unusual or extraordinary costs to the
			 Division or the public.
(I) Whether
			 any part of the noncompliance is attributable to the action or inaction of the
			 state government.
(j) Whether the
			 violator has delayed corrective action.
These factors, along with the provisions of the above named
				Acts and specifically Act 1057 of 1991, shall be used when determining an
				appropriate amount. In addition, the Division may develop and utilize formulas
				for the calculation of penalties for specific offenses, in an effort to
				uniformly assign penalty amounts where practicable.
SECTION 9.
Effective
			 Date
This rule shall be in full force and effect as of July
				24,1992.