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Dave Shelton - 2 - October 16, 1985 <br /> The Show Cause Order is issued when there is a systematic failure to comply as <br /> evidenced by several violations over a period of time. It is aimed at <br /> identifying over time a failure to manage in compliance with the law. The <br /> Cessation Order is issued for the single failure that may or has caused <br /> significant environmental harm, or threatens public health and safety. It is <br /> probable that several violations over the twelve month period do not contain <br /> Cessation Orders. Cessation Orders are only a deterrent with respect toward <br /> preventing single catastrophic events, and are not a deterrent to routine <br /> violations which can be significant. <br /> The civil penalty system, as currently employed, does not serve as an <br /> effective economic disincentive. Violations that have existed for multiple <br /> days prior to an inspection cannot be assessed for the period prior to <br /> issuance of the NOV. In most cases there is not a continuing environmental <br /> problem either. A continuing environmental problem is something like an <br /> illegal discharge which continues for several days after the first observation <br /> until it is finally abated. Thus, it is a rare case where multiple days <br /> assessments can be used. <br /> The highest civil penalty for a single day is $5,000, and that is only if the <br /> Division can prove that the violation was willfully caused and the result was <br /> intended, a difficult proof. Most violations are assessed less than $5,000 <br /> for that reason. Thus, if an operator had violations for a single day found <br /> in separate inspections during a twelve month period, the highest civil <br /> penalty possible is $15,000. For a large company that may not be much of a <br /> deterrent. <br /> For these reasons, the Cessation Order and multiple days civil penalty are <br /> limited in their effect and purpose. The Show Cause Order is an appropriate <br /> additional deterrent and punitive step. However, we may want to reexamine our <br /> civil penalty and Cessation Order system so they are potentially more <br /> effective and thus change our perspective on the Show Cause Orders. <br /> Another point is that the Show Cause Order is issued when there is a <br /> systematic failure to comply with the law, as in the case of Mid-Continent. <br /> In some ways I am surprised that no one picked up on the refuse and <br /> development waste management as the predominant issue in the Mid-Continent <br /> case. For a period of at least one year, Mid-Continent routinely failed to <br /> manage these waste materials. The violations were not isolated incidences, <br /> but were caused, by a failure of the company to manage its operations in <br /> compliance with the law on a daily basis. <br /> From the perspective of hindsight, and considering future cases, our <br /> - Mid-Continent case may have been more effective had we focused upon the refuse <br /> and development waste management issue. Eliminating the hydrology issue would <br /> have removed their key defense, and we may have had better success in <br /> presenting a case for the failure to manage. <br /> /vjr <br /> 4075F <br />