40.17.200 Documentation of Penalty Settlement Amount

Until settlement discussions or the pre-hearing information exchanges occur with the respondent, mitigating and equitable factors and overall strength of the TMBCI/EPA enforcement case may be difficult to assess. Accordingly, preparation of a penalty calculation worksheet for purposes of establishing the TMBCI/EPA settlement position on penalty amount may not be feasible prior to the time that negotiations with the violator commence. Once the violator has presented to the TMBCI/EPA with its best arguments relative to penalty mitigation, the TMBCI/EPA may, at its discretion, complete and document a penalty calculation to establish its initial "bottom line" settlement position. However, at a minimum, prior to final approval of any settlement, whether administrative or judicial, enforcement personnel should complete a final worksheet and narrative explanation of the penalty calculation summary which provides the rationale for the final settlement amount to be included in the case file. As noted above, enforcement personnel may, in arriving at a penalty settlement amount, deviate significantly from the penalty amount sought in an administrative complaint, provided such discretion is exercised in accordance with the provisions of this Policy.