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Penalty Calculations For Non-Hazardous Waste Administrative Actions

Penalty Calculations For Non-Hazardous Waste Administrative Actions. Vincent Mendes, R.E.H.S. Supervising Environmental Health Specialist Fresno County Environmental Health Division February 15, 2007. New automatic penalty system for violations. Enforcement Philosophy Factors. POLICIES

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Penalty Calculations For Non-Hazardous Waste Administrative Actions

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  1. Penalty Calculations For Non-Hazardous Waste Administrative Actions Vincent Mendes, R.E.H.S. Supervising Environmental Health Specialist Fresno County Environmental Health Division February 15, 2007

  2. New automatic penalty system for violations

  3. Enforcement Philosophy Factors • POLICIES • PROCEDURES • POLITICS • PERSPECTIVE

  4. Do you have an Enforcement Plan? • What is your enforcement approach? • Notice to comply/violation • Second notice? • Other options – • District Attorney • County Counsel or City Attorney • Red Tags (UST) • Small Claims (past practice) • Goal (s) of enforcement • Compliance • Penalty • Both

  5. Business Plan Enforcement HSC 25514 • “in an amount which shall be set by the governing body of the administering agency,” • Is this an issue for your CUPA? • Each AEO for 6.95 violations must be approved by their governing body • Have the governing body approve a penalty matrix/enforcement plan

  6. Common Business Plan Violation for AEO • Fails to submit or implement a business plan after notice. • Failure to submit or implement a business plan at high volume-high risk facilities. • Knowingly or willfully failing to report a 100% increase in quantities within 30 days. • Failure to report within 30 days a new chemical that poses a significant threat and was not previously disclosed.

  7. Business Plan Penalty Matrix

  8. Common UST Violations for AEO • Tampering with monitoring equipment. • Failure to repair non-functional monitoring equipment. • Failure to report an unauthorized release. • Failure to repair secondary containment. • Failure to complete/pass secondary containment testing. • Failure to properly close a UST. • Operating/Repairing/Removing UST without a permit

  9. UST Penalty Matrix

  10. Common CalARP Violations for AEO • No incident investigation conducted for significant releases. • Failure of the owner or operator to submit an initial RMP after notification from the CUPA. • Failure to update the RMP that requires an revise Offsite Consequence analysis, within 6 months of change. • Owner/Operator did not complete an initial hazard review or initial process hazard analysis. • A certified RMP misrepresents what programs are in place. • Not completing action items from internal and/or external compliance audits, internal hazard reviews or PHAs, incident investigations, etc. • If a facility has an incident that adversely impacts the community, workers, or the environment, and a CalARP program element is found to be inadequate and attributable to the cause of the incident. • Failure to implement a Prevention Program

  11. CalARP Penalty Matrix

  12. Establishing the Initial Penalty • Multiple violations can result in very high penalty amounts • Statue penalties add up quick • Can either set a high one day penalty or a low daily penalty (or justify your penalty by using both methods to determine your number)

  13. HSC Section 25404.1.1(b)When setting an AEO penalty, the UPA shall consider: • Nature, circumstances, extent & gravity of violation • Violator’s past and present efforts to prevent, abate, or clean up • Violator’s ability to pay • The deterrent effect the penalty has on both the violator and the regulated community

  14. Nature, circumstances, extent & gravity of violation Failed to submit a HMBP Who has deviated more? Who has greater potential for harm? Does one HMBP facility deserve a higher penalty than the other?

  15. Penalty Factors: “circumstances of the violation” • Effort to comply before & after violation • Cooperation • Known or should have known • Any previous/current problems with regulatory agencies • Changes/unique circumstances

  16. Adjusted Initial Penalty:The initial penalty may be adjusted based on the violator’s intent in committing the infraction. The following factors will be considered as a basis for adjustment.

  17. Penalty adjustment factors • Violator ability to pay. • How do you determine this? • County/City Auditor. • Revenue/Collection Dept. • Other means? • Economic Benefit – Did the business profit, avoid or delay costs by not being in compliance? • Deterrent effect of the penalty on the regulated community-“The Ripple Affect” • You must be able to articulate and defend this penalty in future AEOs. • Are you being fair to those who are in compliance?

  18. Another factor for the penalty (unwritten factor) • How are you issuing the AEO? • Unilateral • Draft AEO • Stipulation and Order to be offered • Show Cause • Consent order

  19. Remember to KISS the AEO process • KEEP • IT • SOMEWHAT • SIMPLE

  20. Have a plan and you’ll get through it all Any questions?

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