Determining Penalties for HW violations

1. Determining Penalties for HW violations Mickey Pierce DTSC February 9, 2006

2. 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

3. 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

4. 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.

5. 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

6. 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

7. Model for calculating a penalty • Initial Penalty • Adjusted Initial Penalty • Multiple Violations • Multiday Violations • Base Penalty • Total Base Penalty • Adjusted Total Base Penalty

10. 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

11. 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)

13. 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*.

14. “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.

15. 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.

16. 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”

19. “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.

20. 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.

23. Initial Penalty Matrix – HW (in dollars)

25. Steps in calculating the penalty • Initial Penalty • Adjusted Initial Penalty • Multiple Violations • Multiday Violations • Base Penalty • Total Base Penalty • Adjusted Total Base Penalty

26. Initial Adjustments(Intent) • Adjust the initial penalty based on violator’s intent in committing violation.

27. Adjustment Factors for Violator’s Intent

30. 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.

32. Steps in calculating the penalty • Initial Penalty • Adjusted Initial Penalty • Multiple Violations • Multiday Violations • Base Penalty • Total Base Penalty • Adjusted Total Base Penalty

33. 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.

36. Steps in calculating the penalty • Initial Penalty • Adjusted Initial Penalty • Multiple Violations • Multiday Violations • Base Penalty • Total Base Penalty • Adjusted Total Base Penalty

37. 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

38. 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?

40. 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

41. 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)

43. Steps in calculating the penalty • Initial Penalty • Adjusted Initial Penalty • Multiple Violations • Multiday Violations • Base Penalty • Total Base Penalty • Adjusted Total Base Penalty

45. Steps in calculating the penalty • Initial Penalty • Adjusted Initial Penalty • Multiple Violations • Multiday Violations • Base Penalty • Total Base Penalty • Adjusted Total Base Penalty

46. 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.

47. 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

48. Adjustment for Cooperation (66272.68)- HW

50. 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