mickey pierce dtsc february 9, 2006 determining penalties for hw violations

Mickey Pierce

DTSC

February 9, 2006

Determining Penalties for HW violations

You should be able to:

1) Recognize the factors to be considered when calculating a penalty.

2) Use the penalty matrix to determine the base penalty for hazardous waste violations.

3) Recognize factors that allow for adjustment of base penalties

4) Have the basic knowledge to allow you to develop penalty guidelines for non-hazardous waste actions

5) Know who to contact if you still have questions

HSC, Section 25404.1.1(a)

• Authorizes UPAs to assess penalties for each program element that is subject to the Administrative Enforcement Process

• The section refers you each individual program penalty guidance- only HW has an established matrix with dollar values

HSC, Section 25404.1.1(b) - when calculating a penalty,

you shall consider:

• Nature, circumstances, extent & gravity of violation.

• Violator’s efforts to prevent, abate, or clean up conditions posing a threat to public health or the environment.

• Violator’s ability to pay.

• Prophylactic effect of the penalty.

Title 22, CCR sections 66272.62-66272.69

• .62– Initial Penalty• .63– Intent Initial adjustment• .64– Multiple Violations • .65– Multi-day Violations• .66– Minor Violations• .67– Base Penalty• .68– Adjustments• .69– Final Penalty

Statutory Maximum

• The Statutory Maximum for any individual penalty is $25,000– This value is the maximum for each day of

the violation

– This is NOT the maximum for the final penalty

Model for calculating a penalty

• Initial Penalty

• Adjusted Initial Penalty

• Multiple Violations

• Multiday Violations

• Base Penalty

• Total Base Penalty

• Adjusted Total Base Penalty

# Citation

Violation Potential for Harm

Extent of Deviation

# of Times Violation Occurred

Statutory Maximum

Initial Penalty

Intent

Factor

Base

Penalty

Additonal Amounts for

Multiday

Violations

EconomicBene

fit

1

2

3

4

5

6

7

8

9

TOTAL

What are the violations?

• Upper left– Illegal disposal

• Right side– Storage without a permit/storage longer than

allowed accumulation times

• Bottom Left– Storage without a permit/storage longer than

allowed accumulation times

Step 1: Go to the worksheet

• Assign a number for each violation

• Regulatory or Statutory Section

• Write a brief description of each violation– Tell the reader what the regulatory

requirement is – Can add “details” after the requirement

• (I do it in parenthesis)

# Citation Violation

1

HSC, Section 25189.5(a)

Illegal disposal (sludge to dumpster)

2

HSC, section 25201(a) and T22,

section 66262.34(a)

Storage without a permit/ for greater than

allowable time limits (301 days)

3

HSC, section 25201(a) and T22,

section 66262.34(a)

Storage without a permit/ for greater than

allowable time limits

Step 2: Determine the Initial Penalty

• Determine an initial penalty for each violation, considering actual and potential harm and the extent of deviation from hazardous waste management requirements.

• “Potential” and “actual” harm shall be treated the same for HW*.

“Potential for Harm”• Major - The characteristics and/or amount

of the substance involved present a major threat to human health or safety or the environment and the circumstances of the violation indicate a high potential for harm.

• Moderate - …do not present a major threat … and likelihood of harm from

non- compliance is not high.• Minimal - … threat is low.

Potential for Harm Factors

• The characteristics of the substance.• The amount of the substance. • The extent to which human life or health is

threatened.• The extent which animal life is threatened.• The extent to which the environment is

threatened.

Something to Note:

A violation must involve the actual management of hazardous waste for it to have a major potential for harm.

-- paperwork only violations should not be “major”

# Citation Violation Potential For Harm

1

HSC,

25189.5 (a)

Illegal Disposal

(sludge to dumpster)

Minimal? Moderate?

(5-10 gallons, zinc waste with low toxicity, was open to

elements)

2

HSC, 25201(a)

Storage > allowable time

limits (301 days)

Minimal

(30 gallon bag, Cr/Cu/Ni sludge, in containment,good

condition)

3

HSC, 25201(a)

Storage > allowable time

limits (301 days)

Minimal

(30 gallon bag, Cr/Cu/Ni sludge, in containment,good

condition)

“Extent of Deviation”

• Major - The act deviates from the requirement to such an extent that the requirement is

completely ignored or the function of the requirement is rendered ineffective because some of its provisions are not complied with.

• Moderate - The act deviates from the requirements, but functions to some extent.

• Minimal - The act deviates from the requirements, but function nearly as intended.

Extent of Deviation Factors

• For requirements with more than one part, consider the extent of violation in terms of the more significant requirement.

• For single requirement, the range of potential deviation varies.

# Citation Violation Potential for Harm

Extent of Deviation

1

25189.5 (a)

Illegal Disposal (sludge to dumpster)

Minimal (5-10 gallons, zinc waste with low toxicity, was open to elements)

Major

(rule is totally ignored, if unabated, would have ended up

at landfill)

2

25201 (a)

Storage > than allowable time limits (301 days)

Minimal

(30 gallon bag, Cr/Cu/Ni sludge, in containment, good condition)

Moderate

( Rule ignored, but functions mostly as required only 31 days past due, pick up scheduled for

2/11/06)

3

25201 (a)

Storage > than allowable time limits (301 days)

Minimal

(30 gallon bag, Cr/Cu/Ni sludge, in containment, good condition)

Moderate

( Rule ignored, but functions mostly as required only 31 days past due, pick up scheduled for

2/11/06)

ACTUAL AND POTENTIAL HARMEXTENT OF DEVIATION Major Moderate Minimal

Major25,000(22,500)20,000

20,000(17,500)15,000

15,000(10,500)6,000

Moderate20,000(17,500)15,000

15,000(10,500)6,000

6,000(4,000)2,000

Minimal15,000(10,500)6,000

6,000(4,000)2,000

2,000(1,000)0

Initial Penalty Matrix – HW (in dollars)

# Potential for Harm

Extent of Deviation

No. of times violation occurred

Statutory Maximum

Initial Penalty

1

Minimal (5-10 gallons, zinc waste with low toxicity, was open to elements)

Major

(rule totally ignored, if unabated, would have ended up at landfill)

1 $25,000 $10,500

2Minimal

(30 gallon bag, Cr/Cu/Ni sludge, in containment, good condition)

Moderate

( Rule ignored, but functions mostly as required only 31 days past due, pick up sched for 2/11/06)

1 $25,000 $4,000

3Minimal

(30 gallon bag, Cr/Cu/Ni sludge, in containment, good condition)

Moderate

( Rule ignored, but functions mostly as required only 31 days past due, pick up sched for 2/11/06)

1 $25,000 $4,000

Steps in calculating the penalty

• Initial Penalty

• Adjusted Initial Penalty

• Multiple Violations

• Multiday Violations

• Base Penalty

• Total Base Penalty

• Adjusted Total Base Penalty

Initial Adjustments(Intent)

• Adjust the initial penalty based on violator’s intent in committing violation.

ADJUSTMENTFACTOR

CIRCUMSTANCES

Downward adjustmentof 100 percent

Violation was completelybeyond the controlof the violator.

Downward adjustmentof 0 to 50 percent

Violation occurred eventhough good faithefforts to comply withregulations were made.

No adjustment Violation indicated neithergood faith efforts norintentional failure to comply.

Upward adjustment of50 percent to100 percent

Violation was a result ofintentional failure to comply.

Adjustment Factors for Violator’s Intent

# Potential for Harm

Extent of Deviation

No. of times violation occurred

Statutory Maximum

Initial Penalty

Intent Factor

1

Minimal Major 1 $25,000 $10,500 No adjustment

2

Minimal Moderate 1 $25,000 $4,000 No adjustment

3

Minimal Moderate 1 $25,000 $4,000 No adjustment

Initial Adjustments (Economic Benefit)

• Increase the initial penalty by the amount of economic benefit gained.

• Increase to statutory maximum.• Include:

- Avoided costs.

- Delayed costs.

- Increased profits.

- Avoided interest.

# Potential for Harm

Extent of Deviation

No. of times violation occurred

Statutory Maximum

Initial Penalty

Intent Factor

Economic Benefit

1

Minimal Major 1 $25,000 $10,500 No Adjust None, waste was drummed and hauled as HW

2

Minimal Moderate 1 $25,000 $4,000 No Adjust $300 (Delayed cost of disposal)

3

Minimal Moderate 1 $25,000 $4,000 No Adjust $ 300 (Delayed cost of disposal)

Steps in calculating the penalty

• Initial Penalty

• Adjusted Initial Penalty

• Multiple Violations

• Multiday Violations

• Base Penalty

• Total Base Penalty

• Adjusted Total Base Penalty

Multiple Violations

• A single initial penalty may be assessed for

multiple violations. Appropriate when:

- The facility has violated the same requirement in different location (e.g., units) within the facility.

- The facility has violated the same requirement on different days, unless the facility has been

notified of the violation and has had sufficient time to correct the violation.

- Violations that are not independent or are not substantially distinguishable.

# Citation Violation

1

HSC, Section 25189.5(a)

Illegal disposal (sludge to dumpster)

2

HSC, section 25201(a) and T22,

section 66262.34(a)

Storage without a permit/ for greater than

allowable time limits (301 days)

3

HSC, section 25201(a) and T22,

section 66262.34(a)

Storage without a permit/ for greater than

allowable time limits

# Potential for Harm

Extent of Deviation

No. of times violation occurred

Statutory Maximum

Initial Penalty Intent Factor

Economic Benefit

1

Minimal Major 1 $25,000 $10,500 No Adjust None, waste was drummed and hauled as HW

2

Minimal Moderate 1

2$25,000

X2

= $50,000

$4,000 No Adjust $300 (Delayed cost of disposal)

3

Minimal Moderate 1 $25,000 Rolled into Viol #2

Steps in calculating the penalty

• Initial Penalty

• Adjusted Initial Penalty

• Multiple Violations

• Multiday Violations

• Base Penalty

• Total Base Penalty

• Adjusted Total Base Penalty

Multiday Violations

• The initial penalty for the first day of violation shall be determined as provided in Sections 66272.62 and 66272.63.

• Take your initial penalty and multiply by 2% – Then multiply by the number of days

• Add this number to your initial penalty

Multiday Penalties- Calculating

• Viol #1– Is there a multiday factor? Yes: stated that in

the trash for 3 days now– Initial Penalty x 0.02 x no. of days

• 10,500 x 0.02 x 2 days = $420• Initial date of viol (2/7) x 0.02 x “other” days (2/8

and 2/9)

• Violation #2– Is there multiday? If so, how many days?

# Potential for Harm

Extent of Deviation

No. of times violation occurred

Statutory Maximum

Initial Penalty

Intent Factor

Economic Benefit Multiday

amounts

1

Minimal Major 1 $25,000 $10,500 No Adjust

None, waste was drummed and hauled as HW

$10,500 x 0.02 x 2 days = $420

2

Minimal Moderate 2 $50,000 $4,000 No Adjust

$300 (Delayed cost of disposal)

$4000 x 0.02x 30 = $2,400

3

Minimal Moderate 1 $25,000 Rolled into Viol #2

Steps in calculating the penalty

• Initial Penalty• Adjusted Initial Penalty• Multiple Violations• Multiday Violations• Base Penalty (for each violation) • Total Base Penalty• Adjusted Total Base Penalty

Base Penalties

• If a violation is a one day occurrence, the base penalty for that violation is the adjusted initial penalty.

• The base penalty for multiday violations is the initial penalty for the first day of violation plus the calculated mulitday penalty.

• This is adding up everything for each violation (adding across a row)

# Potential for Harm

Extent of Deviation

No. of times violation occurred

Statutory Maximum

Initial Penalty

Intent Factor

Economic Benefit

Multiday amounts

Total

1

Minimal Major 1 $25,000 $10,500 No Adjust

None, waste was drummed and hauled as HW

$10,500 x 0.02 x 2 days = $420

$10,920

2

Minimal Moderate 2 $50,000 $4,000 No Adjust

$300 (Delayed cost of disposal)

$4000 x 0.02x 30 = $2,400

$6,700

3

Minimal Moderate 1 $25,000 Rolled into Viol #2

TOTALS

Steps in calculating the penalty

• Initial Penalty

• Adjusted Initial Penalty

• Multiple Violations

• Multiday Violations

• Base Penalty

• Total Base Penalty

• Adjusted Total Base Penalty

# Potential for Harm

Extent of Deviation

No. of times violation occurred

Statutory Maximum

Initial Penalty

Intent Factor

Economic Benefit

Multiday amounts

Total

1

Minimal Major 1 $25,000 $10,500 No Adjust

None, waste was drummed and hauled as HW

$10,500 x 0.02 x 2 days = $420

$10,920

2

Minimal Moderate 2 $50,000 $4,000 No Adjust

$300 (Delayed cost of disposal)

$4000 x 0.02x 30 = $2,400

$6,700

3

Minimal Moderate 1 $25,000 Rolled into Viol #2

TOTALS

$17,620

Steps in calculating the penalty

• Initial Penalty

• Adjusted Initial Penalty

• Multiple Violations

• Multiday Violations

• Base Penalty

• Total Base Penalty

• Adjusted Total Base Penalty

HSC, Section 25404.1.1(b) - when calculating a penalty,

you shall consider:

• Nature, circumstances, extent & gravity of violation.

• Violator’s efforts to prevent, abate, or clean up conditions posing a threat to public health or the environment.

• Violator’s ability to pay.

• Prophylactic effect of the penalty.

Adjustments to Total Base Penalty

• Violator’s present efforts to prevent...conditions posing a threat” (Cooperation)

• Violator’s past efforts to prevent… conditions posing a threat (Compliance History)

• Deterrent effect that the penalty would have on regulated community (Prophylactic Effect)

• Ability to Pay

Degree ofCooperation/Effort

Adjustment Factor Circumstance

Extraordinary Downwardadjustment of 25percent

Violator exceeded theminimum requirements inreturning to compliance orreturned to compliance fasterthan requested.

Good Faith No adjustment Violator demonstrated acooperative effort.

Recalcitrance Upward adjustment of25 percent

Violator failed to cooperate,delayed compliance, createdunnecessary obstacles toachieving compliance, or thecompliance submittal failed tomeet requirements.

Refusal Upward adjustment of50 to 100 percent

Violator intentionally failed toreturn to compliance withregulations or to allow clean-up operations to the place.This does not include refusalto allow inspections.

Adjustment for Cooperation (66272.68)- HW

Cooperation Compliance History Prophylactic Effect Ability to Pay

No Adjustment: (1) Removed form trash that day, now shipping as HW: (2/3) Shipped as scheduled on 2/11.

Adjustment: No adjustment

Adjustment: Adjustment: Adjustment:

Adjustments Compliance History- HW factors

• A history of noncompliance over the past five (5) years.

• Maximum adjustment factor up to 100 percent.

• Downward adjustments– 5% for each prior “no violation” report (up to

10% max)– Up to 15% if ISO 14001 certified

Compliance History Factors- HW guidelines

• Previous violations at the site receive more weight than previous violations at another site owned or operated by the same person.

• Recent violations receive more weight than older violations.

• The same or substantially similar previous violations receive more weight than previous unrelated violations.

Cooperation Compliance History

Prophylactic Effect Ability to Pay

No Adjustment: (1) Removed form trash that day, now shipping as HW: (2/3) Shipped as scheduled on 2/11.

Downward 10%: Last two reports show no storage problems, review of manifest shows usually ship every 180 days

Adjustment: No adjustment

Adjustment: Downward 10% ($17,620 x .1= $1, 762)

Adjustment: Adjustment:

Adjustments Prophylactic Effect

• The total base penalty may be adjusted upward or downward to ensure that the penalty is sufficient to provide a prophylactic effect on both the violator and the regulated community as a whole.

• [pro-phy-lac-tic: tending to prevent or ward off]

Cooperation Compliance History Prophylactic Effect

Ability to Pay

No Adjustment: (1) Removed form trash that day, now shipping as HW: (2/3) Shipped as scheduled on 2/11.

Downward 10%: Last two reports show no storage problems, review of manifest shows usually ship every 180 days

No adjustment: penalty has required effect

Adjustment: No adjustment

Adjustment: Downward 10% ($17,620 x .1= $1, 762)

Adjustment: No adjustment

Adjustment:

Adjustments Ability to Pay

• The payment of the final penalty may be extended over a period of time if immediate, full payment would cause extreme financial hardship.

• If extending the penalty over a period of time would cause extreme financial hardship, the penalty may be reduced.

Ability to Pay Prohibitions- HW note

• No adjustment for ability to pay may be made if the penalty has been adjusted upward because of failure to cooperate or because of compliance history.

Cooperation Compliance History Prophylactic Effect Ability to Pay

No Adjustment: (1) Removed form trash that day, now shipping as HW: (2/3) Shipped as scheduled on 2/11.

Downward 10%: Last two reports show no storage problems, review of manifest shows usually ship every 180 days

No adjustment: penalty has required effect

Downward 75%: Facility showed accounting noting profit of only $1000 per month for past year.

Adjustment: No adjustment

Adjustment: Downward 10% ($17,620 x .1= $1, 762)

Adjustment: No adjustment

Adjustment: Downward 75%

($17,620 x .75 = $13,215

Final Penalty

• The final penalty consists of the total base penalty with any adjustments made.

Finish it up!! (and off to negotiation and settlement)

• Total Base penalty = $17,620

• Cooperation = $0

• Compliance History = -$1,762

• Prophylactic Effect = $0

• Ability to Pay = -$13,215

• Total Calculated Penalty = $2,643