Appropriate penalty. Was the degree of discipline imposed reasonably related to the seriousness of the offense and the employee’s record?
Appropriate penalty. The above captioned Consent Agreement proposes a civil monetary penalty of seventeen thousand eight hundred dollars ($17,800.00) for violating 38 M.R.S. section 412(1). We contend that this penalty fails to recognize the hazardous nature of the material discharged, fails to fully appreciate the criminal negligence of the act, fails to incorporate penalty for not reporting the discharge, and fails to require significant improvements to the Terminal Operations Manual, Ship Shore Safety Inspection Form 03 and Dry Cargo Risk Assessment Form 19. Earlier comments from DEP regarding the need for revisions to the Terminal Operations Manual and Risk Assessment Form, and Xxxxxxx acknowledgement of the need for such revisions, demonstrate failure by Xxxxxxx on December 2, 2020 to be aware of the risk that handling the plastic waste posed - the very definition of criminal negligence. Seeking guidance on what should be considered an appropriate penalty in this case, 17 M.R.S. section 2264-A refers to 38 M.R.S., section 349 for penalties to be imposed in cases where more than 500 pounds of waste have been disposed in violation of Maine law. There, Maine law indicates “a civil penalty, payable to the State, of not less than $100 and not more than $10,000 for each day of violation or, if the violation relates to hazardous waste, of not more than $25,000 for each day of the violation.” The discharge occurred on December 2, 2020. Xxxxxxx and DEP agreed to curtail further cleanup on January 5, 2021, notwithstanding the fact that pieces of the spilled shredded plastic remained visible on the Sears Island shore. Therefore, the plastic trash spilled by Xxxxxxx into Penobscot Bay was, at minimum, in violation of 38 M.R.S. section 412(1) for 34 days. Using the penalty limit for regular waste ($10,000/day x 34 days) but not using the penalty for hazardous waste, when a claim that the material discharged was, in fact, hazardous could easily be made given the science cited earlier, a penalty of at least three hundred and forty thousand dollars ($340,000.00) seems much more appropriate to the deleterious nature of this spill than $17,800. A penalty of $340,000.00 closely aligns with the $310,225.00 Pan American Railways fine for illegal discharges of oil into the Kennebec River between 2015 and 2018. In lieu of having all of the $340,000 penalty go to the State, we suggest that twenty-five thousand dollars ($25,000.00) be allocated as a supplemental environmental project to Friends o...
