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DWQ Guidance for Tiered Enforcement
The Department of Environment and Natural Resources has begun implementing a three-tiered approach to enforcement, with the severity of enforcement response increasing for each tier. The new policy is consistent with the way many divisions already were implementing compliance and enforcement programs. The policy recognizes that violations of rules typically fit into three categories:1) recordkeeping and paperwork that result in little or no harm to the environment or public health, 2) more serious infractions that could result in harm to the environment or public health, and 3) violations that have clearly impacted the environment or public health.
Tier 1 Violations (Notice of Deficiency (NOD)) – Tier 1 violations represent minor violations resulting in little or no harm to the environment or public health. Tier 1 violations are of minor duration and gravity. The violations are not committed willfully or intentionally. Tier 1 violations often represent the first offense committed by the violator. A Notice of Deficiency is normally issued for Tier 1 violations.
Tier 2 Violations (Notice of Violation (NOV)) – Tier 2 violations represent more serious violations where there is documented or moderate to severe potential for harm to the environment or public health. Tier 2 violations can be of moderate duration and gravity. Tier 2 violation notifications would typically be issued to violators with a prior history of noncompliance with regulations. Tier 2 violations can also include continued noncompliance with Tier 1 violations. A Notice of Violation (NOV) is normally issued for Tier 2 violations. A consent order or other form of compliance schedule may be warranted for Tier 2 violations, depending on the circumstances.
Tier 3 Violations (Civil Penalties (CPA) or Other Methods) – Tier 3 violations represent the most serious violations where there is documented significant or high potential for environmental or public health harm. Tier 3 violations can be of significant duration and gravity. Also, violations that are committed willfully and intentionally are categorized as Tier 3 violations. Tier 3 violation notifications would typically be issued to violators with a significant prior history of noncompliance with regulations. Tier 3 violations can also include continued noncompliance with Tier 2 violations. Civil penalties, consent orders, injunctions, and other enforcement tools are expected with Tier 3 violations. A Notice of Recommendation for Enforcement and subsequent civil penalty or other enforcement action described above is normally issued for Tier 3 violations.