RESOLUTION
NO.
2005­
16
OF
THE
MOHEGAN
TRIBE
OF
INDIANS
OF
CONNECTICUT
AUTHORIZING
CIVIL
PENALTY
AMOUNT
THAT
MAY
BE
ASSESSED
FOR,
AND
APPROVING
A
POLICY
FOR
SETTLEMENT
OF,
VIOLATIONS
OF
THE
AREA
WIDE
NOx
EMISSION
LIMITATION
REGULATION
WHEREAS,
the
Mohegan
Tribe
of
Indians
of
Connecticut
is
an
American
Indian
Tribe
recognized
by
the
United
States
pursuant
to
the
provisions
of
25
C.
F.
R.
Part
83
;
and
.
WHEREAS,
the
Tribal
Council
is
vested
with
the
authority
to
approve
and
enforce
all
ordinances
to
protect
the,
health
safety,
welfare
and
economy
of
the
Reservation
community
pursuant
to
Article
IX,
Sections
2(
j),(
1),
(
n)
and
(
r)
of
the
Constitution
of
the
Mohegan
Tribe
of
Indians
of
Connecticut;
and
WHEREAS,
the
Gaming
Disputes
Court
has
authority
under
Section
11
.
A.
i.
g
of
the
Area
Wide
NOx
Emission
Limitation
Regulation
to
issue
judicial
orders
assessing
civil
penalties
for
violations
of
this
regulation;
and
WHEREAS,
the
Tribal
Council
has
established
a
Tribal
Environmental
Protection
Department
pursuant
to
Ordinance
2002­
12
to
implement
and
enforce
Tribal
air,
water
and
land
use
quality
standards
on
the
Mohegan
Indian
Reservation;
and
WHEREAS,
the
Administrator
of
the
Mohegan
Environmental
Protection
Department
has
authority
under
Section
11
.
A.
i.
d
of
the
Area
Wide
NOx
Emission
Limitation
Regulation
("
the
NOx
Regulation")
to
propose
a
settlement
of
alleged
violations
of
this
regulation;
and
WHEREAS,
the
Administration
has
authority
under
Section
43.
of
Ordinance
2002­
12
to
promulgate
reasonable
and
appropriate
policies
and
procedures
for
the
enforcement
of
approved
environmental
and
natural
resource
laws,
such
as
the
NOx
Regulation;

WHEREAS,
the
Administration
has
promulgated
the
Area
Wide
NOx
Emission
Limitation
Regulation
Civil
Penalty
Option
( 
the
Policy")
to
guide
the
Department's
exercise
of
authority
under
Section
11
.
A.
i.
d
of
the
NOx
Regulation;

THEREFORE,
be
it
resolved
that
the
Mohegan
Tribal
Council
hereby
authorizes
the
Gaming
Disputes
Court
to
assess
civil
penalties
in
the
amount
of
up
to
$
25,000
per
day
of
violation
of
the
Area
Wide
NOx
Emission
Limitation
Regulation
and
approves
the
Policy,
a
copy
of
which
is
attached.
Dated
this,.;
y
day
of
April
2005
at
Uncasville,
Connecticut.

ATTEST:

­=
~­
Shirley
M.
Wal
h
Recording
Secretary
Mohegan
Tribe
Mohegan
Environmental
Protection
Department
Tribal
Air
Program
Area
Wide
NOx
Emission
Limitation
Regulation
Civil
Penalty
Policy
Option
In
accordance
with
The
Mohegan
Tribe
Tribal
Air
Program
"
Area
Wide
NOx
Emission
Limitation"
(
AWL)
Section
1
lA.
i.
d
Enforcement,
the
Administrator
of
the
Mohegan
Environmental
Protection
Department
(
MEPD)
is
authorized
to
propose
a
settlement
of
the
alleged
violation
of
the
regulation.
Such
settlement
may
consist
of
a
monetary
civil
penalty
.

In
the
event
that
the
Administrator
chooses
to
offer
such
a
civil
penalty
option
to
an
alleged
violator,
the
Administrator
may
choose
to
assess
penalties
for
alleged
violation
of
the
Mohegan
Tribal
Air
Program
by
using
a
gravity­
based
penalty
for
each
violation
.
If
deemed
appropriate
by
the
Administrator,
the
attached
"
Mohegan
Environmental
Protection
Department
Gravity
Based
Penalty
Matrix"
may
be
used
for
guidance
for
calculating
the
appropriate
penalty
by
the
Administrator
.

In
the
event
that
the
matrix
is
used,
the
following
two
factors
shall
be
considered
for
each
violation
:
"
Extent
of
Deviation"
from
the
legal
requirement
violated:
this
is
a
measure
of
the
degree
to
which
the
alleged
violator
has
deviated
from
the
substance
and
intent
of
the
AWL
requirement,
and
 . 
Potential
for
Harm"
to
the
environment,
to
public
health,
and
the
Department's
ability,
through
the
MEPD
regulatory
programs,
to
insure
against
actual
or
potential
harm
to
the
environment
or
public
health
posed
by
the
violation
.

These
two
factors
reflect
the
seriousness
of
the
violation,
and
have
been
incorporated
onto
the
attached
gravity­
based
penalty
matrix.

The
MEPD
retains
full
discretion
to
seek
up
to,
but
no
greater
than,
the
maximum
penalty
for
each
day
a
violation
existed.

When
adjusting
the
gravity­
based
penalty
upward
or
downward,
the
Administrator
may
consider
the
following
factors
:

Good
faith
efforts
or
lack
of
good
faith
to
comply
prior
to
the
MEPD
discovery
of
the
violation
(
downward
or
upward
adjustment).
Degree
of
willfulness
and
/
or
negligence
(
upward
adjustment)
.
History
of
noncompliance
(
upward
adjustment)
.
Ability
to
pay.
Other
unique
factors,
such
as
risk
and
cost
of
litigation
(
upward
or
downward
adjustment)
.
The
MEPD
may
choose
to
forego
the
assessment
of
a
penalty
on
the
grounds
of
impossibility
only
if
the
alleged
violator
demonstrates
to
the
Administrator's
satisfaction
that
compliance
was
impossible
due
solely
to
an
event
that
was
unforeseeable,
beyond
the
violator's
control,
and
the
results
of
which
could
not
have
been
avoided
or
repaired
in
order
to
prevent
the
violation
.

While
enforcement
action
in
a
case
is
pending,
penalty
calculations
should
be
kept
in
a
separate
file
of
confidential
documents,
but
after
the
enforcement
action
is
settled
or
adjusted,
penalty
calculations
should
be
placed
in
the
public
file.

Basic
Gravity­
Based
Penalty
Component
The
basic
gravity­
based
penalty
for
each
violation
of
the
"
Mohegan
Area­
Wide
NOx
NOx
Emission
Limitation"
is
calculated
by
the
Administrator
by
assessing
both
the
"
Extent
of
Deviation"
from
legal
requirements,
and
using
the
"
Potential
for
Harm"
posed
by
the
violation
using
the
"
Mohegan
Environmental
Protection
Department
Gravity­
Based
Penalty
Matrix".

1
.
Extent
of
Deviation
­
The
extent
of
deviation
from
the
substance
and
extent
of
the
requirements
without
regard
to
risk
opposed
by
the
violation
the
extent
of
deviation
.
In
determining
the
extent
of
deviation,
the
Administrator
uses
the
following
categories:
"
Major:"
Substantial
noncompliance
to
the
extent
that
most
of
the
components
of
the
requirements
are
either
not
met
or
are
met
after
significant
delay.
"
Moderate:"
Significant
noncompliance,
but
some
of
the
components
of
the
requirement
are
implemented
as
intended
or
requirements
are
met
after
significant
delay.
"
Minimal
:"
Minor
noncompliance
but
most
of
the
important
components
of
the
requirement
are
met
after
minimal
delay.

2.
Potential
for
harm
~
Assessment
of
the
"
potential
for
harm"
should
consider
both:
Harm
to
the
environment
­
risk
of
human
or
environmental
exposure
to
pollutants,
or
the
risk
to
natural
resources.
Harm
to
the
reRulatory
rp
ogram
­
adverse
effect
of
noncompliance
to
the
MEPD's
ability,
through
its
regulatory
programs,
to
prevent
or
monitor
potential
harm
to
public
health
or
the
environment.

a.
Harm
to
the
environment
The
risk
analysis
considers
hazard
exposure,
the
impact
of
such
exposure,
and
the
potential
impact
on
natural
resources.
Emphasis
is
on
potential
for
harm.
The
Administrator
uses
professional
judgment
to
determine
if
the
risk
is
Major,
Moderate,
or
Minor
based
on
the
population
at
risk,
environment
at
risk,
and
the
hazard
and
quantity
of
the
discharge.
b.
Harm
to
the
regulatory
program
.
Some
violations
may
undermine
the
purpose
of,
or
procedures
necessary
to
implement
the
MEPD
program
and
therefore,
have
the
potential
for
indirect
impact
on
health
and
/
or
the
environment.

Each
violation
shall
be
evaluated
by
the
Administrator
in
terms
of
degree
of
regulatory
harm
and
to
categorize
each
violation
as
major,
moderate,
or
minor.

"
Major:"
The
violation
has
or
could
have
a
substantial
effect
on
the
MEPD's
ability
to
prevent
or
monitor
potential
harm
to
public
health
or
the
environment.
"
Moderate:"
The
violation
has
or
could
have
a
significant
effect
on
the
MEPD's
ability
to
prevent
or
monitor
potential
harm
to
public
health
or
the
environment
.
"
Minor:"
The
violation
has
or
could
have
a
small
effect
on
the
MEPD's
ability
to
prevent
or
monitor
potential
harm
to
public
health
or
the
environment
.
o
.

(
D
tU
rn
...

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cc
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