40.17.440 Additional Information on Economic Benefit

In addition to delayed and avoided costs, an economic benefit may accrue to a violator in the form of an illegal competitive advantage. In this type of economic benefit, the illegal activity results in a financial gain that the violator would not otherwise realize if the violation had not been committed. In most cases, a violating facility will realize either benefits from delayed/avoided costs or from an illegal competitive advantage; however, where the circumstances support it, any penalty amount based on benefits due to illegal competitive advantage should be added to any other type of economic benefit that has been calculated.

An example of an illegal competitive advantage would be a waste hauler that charges a lower fee for his services due to avoidance of full tipping fees at a landfill due to illegally dumping portions of the waste loads prior to legal disposal at the landfill.