Determining and Citing Violations - A Basis for Enforcement

1. Determining and Citing Violations -A Basis for Enforcement Mickey Pierce DTSC February 7, 2006

2. What you should walk away with • Recognition of the classes of violations and their relationship to enforcement • Ability to assess and decide where the violation best fits • Understanding of differences and overlaps between program violation classifications • A smile on your face (and a song in your heart)

3. Getting Started • Your violation must be sound Must have a rule or requirement Must have all of the elements of a violation Must have supporting evidence

4. Important? • HSC 25404.1.1(a): If the unified program agency determines that a person has committed or is committing a violation of any law, regulation, permit, information request, order, variance, or other requirement that the UPA is authorized to enforce…the UPA may issue an administrative enforcement order…

5. Pieces of a violation • Section (Citation) • Elements of the citation • Facts that establish the violation • Evidence

6. Section • Code, regulation or rule • Cite source (e.g. HSC) followed by section • Make sure you know the “base” section • 66262.34 refers you to 66265.173, you can reference 66262.34 in parenthesis

7. Elements • Break a section down piece by piece • Is EVERYTHING there? • Beware differences between tanks and containers and CESQGs/SQGs and LQGs • Double-double systems, single-single systems, hybrids • Multiple sets of rules!

8. Example • T22, CCR, Chapter 14 (Standards for O/O of TSDFs), Article 9 (Use and Management of Containers), section 66264.175 Container transfer and storage areas shall have a containment system that is designed and operated in accordance with subsection (b) of this section

9. Facts • What you saw/read/heard/ smelled/observed

10. Types of Evidence • Witness • Personal observation, direct statements • Documents • Manifests, certificates, plans, logs • Demonstrative • Photographs, samples

11. Types of Violations • Type of violation drives the type of enforcement • Different types or classes of violations • Minor [HSC, section 25404(a)(3)] • For HW there is a slightly different definition in 25117.6 • “Non-Minor”/ “Other” • All other programs use this language • Class II and Class I (Hazardous Waste) • T22, Section 66260.10 and 25110.8.5 • “Significant Violation” (Underground Storage Tanks)

13. Minor Violations Defined in HSC Sections 25404(a)(3) and 25117.6 • Deviation from statute or regulation AND • Not knowing, willful or intentional AND • Other elements*

14. Minor Violations-elements • Not Class I (for HW) • Can not allow the business to benefit economically • includes no cost, reduced cost, and competitive advantage

15. Minor Violations-elements • Can not be chronic violations • Can not be committed by a recalcitrant violator • Can not result in an emergency response by a public safety agency

16. Minor Overview- NO!!!! • Not a class I HW • Not recalcitrant or chronic • No economic benefit • Not willful, knowing or with intent • No emergency response associated with it

17. Class I Violation Defined in HSC Section 25110.8.5 and T22 Section 66260.10 • Deviation from statute or regulation that meets certain standards OR • Class II violation which is chronic or committed by a recalcitrant violator

18. Recalcitrant and Chronic • The violator engages in a pattern of neglect or disregard with respect to the requirements

19. Class I Violations • Class I violations must: • be significant threats* to human health or the environment OR • have the potential to prevent the facility from ensuring certain things*

20. “Significant Threat” • You make the decision based on: • Volume of the waste • Relative hazardousness of the waste • Proximity of population at risk

21. Class I ViolationsDeviations that could result in a significant threat by the failure to: • Ensure waste is destined for and delivered to an authorized facility • Prevent releases from entering the environment • Ensure early detection of releases • Ensure adequate $ in the event of a release • Ensure $ is available for closure

22. Class I Overview • Significant threat • Class II violation-- recalcitrant or chronic • Could result in a sig. threat by failure to : • ensure waste is delivered or disposed properly • prevent releases • ensure early detection of releases • ensure $ for closure • ensure $ for spill response

23. Class II Violations • Defined in T22, CCR, Section 66260.10 • Deviation from statute or regulation that is not a Class I violation

24. UST Significant Violation • Causing or threatens to cause a liquid release of petroleum from an UST OR • Impairs the ability of a UST system to detect a liquid leak or contain a release OR • Chronic Violation or recalcitrant violator • (T23, section 2717)

25. Examples of “Significant Violations” • Spill containment failure (Causes/threatens to cause a release) • Tampering with leak detection equipment (Impairs the ability of a system to detect a leak) • Overfill prevention device failure (Impairs the ability of a system to contain a release) • No UDC (Impairs the ability of a system to detect a leak)

26. Non-Minor/“Other” • Business Plan Program • Failure to report a release • Failure to submit a business plan (after being asked to) • Cal ARP • Submitting false information • Failure to submit a RMP

27. Non Minor/“Other” Violations • USTs • Operating without a permit • Any Significant Violation (but may lead to red tag/red bag) • HW • Illegal Disposal • Treatment without a permit or authorization • Accumulation for greater than allowable times

28. Put it all together • Class I- potential for harm, recalcitrant, chronic, willful, knowing or intentional • Minor- Not a class I, no economic benefit from it • Can NOT take formal enforcement* [25404.1.2(c)] • Class II- everything not covered above • Significant UST Violation- cause or threaten release, impairs leak detection, recalcitrant • “Other”- any non-HW violation not covered above

29. Questions? • TAG Members • http://calcupa.net/technical.html • Mickey Pierce • 510-540-3851 • mpierce@dtsc.ca.gov • Your DTSC CUPA liaison • http://www.dtsc.ca.gov/HazardousWaste/HWM_LIST_CUPA-Liaisons.pdf