SECTION 12.689. Assessment of Separate Violations for Each Day

(a) The Commission may assess separately a civil penalty for each day from the date of issuance of the notice of violation or cessation order to the date set for abatement of the violation. In determining whether to make such an assessment, the Commission shall consider the factors listed in §12.687 of this title (relating to Point System for Penalties) and may consider the extent to which the person to whom the notice or order was issued gained any economic benefit as a result of a failure to comply. For any violation which continues for two or more days and which is assigned more than 70 points under §12.687(b) of this title (relating to Point System for Penalties), the Commission shall assess a civil penalty for a minimum of two separate days.

(b) In addition to the civil penalty provided for in subsection (a) of this section, whenever a violation contained in a notice of violation or cessation order has not been abated within the abatement period set in the notice or order or subsequently extended pursuant to §12.678 of this title (relating to Notices of Violation), a civil penalty of not less than $1,025 shall be assessed for each day during which such failure continues, except that, if the person to whom the notice or order was issued initiates review proceedings with respect to the violation, the abatement period shall be extended as follows:

(1) if suspension of the abatement requirements of the notice or order is ordered in a temporary relief proceeding pursuant to administrative review under §134.171 of the Act, after a determination that the person to whom the notice or order was issued will suffer irreparable loss or damage from the application of the requirements, the period permitted for abatement shall not end until the date on which the Commission issues a final order with respect to the violation in question; and

(2) if the person to whom the notice or order was issued initiates judicial review proceedings under §12.694 of this title (relating to Final Assessment and Payment of Penalty), with respect to the violation, in which the obligations to abate are suspended by the court, the daily assessment of a penalty shall not be made for any period before entry of a final order by the court.

(3) Such penalty for the failure to abate the violation shall not be assessed for more than 30 days for each such violation. If the permittee has not abated the violation within the 30-day period, the Commission shall take appropriate action pursuant to §§134.179, 134.181, 134.164 or 134.173 of the Act within 30 days to ensure that abatement occurs or to ensure that there will not be a reoccurrence of the failure to abate.

Source Note: The provisions of this §12.689 adopted to be effective April 7, 1997, 22 TexReg 3093; amended to be effective November 12, 2007, 32 TexReg 8124