Determining Penalties for Hazardous Waste Violations

1. Determining Penalties for Hazardous Waste Violations Jim McCammon DTSC February 15, 2007

2. HSC, Section 25404.1.1(a) • Authorizes UPAs to issue administrative orders and assess penalties for violations of Health and Safety Code Chapter 6.5, 6.7, and 6.95. • Only Chapter 6.5, hazardous waste, has an established matrix with dollar values

3. HSC, Section 25404.1.1(b) – considerations for calculating a penalty: • 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.

4. Assessment of Administrative Penalties-overview Section 666272.60 Applies to violations of H&SC Chapter 6.5. hazardous waste. Does not apply to corrected Minor Violations, as defined by H&SC §25117.6(a). Penalties must be consistent with other penalties issued for the same violations.

5. Assessment of Administrative Penalties-overview Section 66272.61 The penalty shall not exceed the statutory maximum. (The statutory maximum is established by H&SC §25189 and §25198.2. It is $25,000 per violation per day.)

6. Assessment of Administrative Penalties-overview Section 66272.62--Determining the Initial Penalty: • Potential for Harm • Extent of Deviation • Determination of Initial Penalty Matrix.

7. Assessment of Administrative Penalties-overview Section 66272.63--Initial penalty adjustment • Intent • Economic Benefit • Statutory Maximum

8. Assessment of Administrative Penalties-overview Section 66272.64--Multiple Violations A single initial penalty may be assessed for multiple violations, if: • Violations of the same requirement at one or more locations at the same time. • Violations of the same requirement at different times, unless facility has been notified and had time to correct violation.

9. Assessment of Administrative Penalties-overview Section 66272.64 (continued) • Violations are not independent or are not substantially distinguishable Where there is economic benefit to be recovered, violations shall be cited separately.

10. Assessment of Administrative Penalties-overview Section 66272.65--Multiday Violations. • Continuous violations, not intermittent • Penalty for first day calculated per §66272.62 • Remaining days 2% of first day penalty.

11. Assessment of Administrative Penalties-overview Section 66272.66--Minor Penalties Where Minor Penalties are subject to penalties, they shall be calculated according to this Article. • Failure to comply with Notice to Comply • Agency determines that enforcement and penalty is warranted.

12. Minor Violations • Class II violations [H&SC §25117.6] • Not knowing, willful, or intentional • No economic benefit to violator • Not chronic, or committed by recalcitrant violator • No enforcement [§25187.8] • Minor violation corrected at time of inspection • Minor violation corrected within time provided by Notice to Comply • Agency may determine that circumstances warrant assessment of a civil penalty [§25187.8(g)(2)]

13. Assessment of Administrative Penalties-overview Section 66272.67--Base Penalty The base penalty is the penalty determined for each violation by sections 66272.62-66272.66. The total base penalty is the sum of all the base penalties for all violations

14. Assessment of Administrative Penalties-overview Section 66272.68--Adjustments to the Total Base Penalty • Cooperation • Prophylactic Effect • Compliance History • Ability to Pay

15. Assessment of Administrative Penalties-overview Section 66272.69--Final Penalty “The final penalty consists of the total base penalty . . . with any adjustments made pursuant to . . . Section 66272.68.” “The final penalty shall not exceed the statutory maximum.”

17. Worksheet, Step 1 • Assign a number for each violation • Regulatory or Statutory Section • Write a brief description of the violation • Nature and amount of waste • Conditions and circumstances of violation

18. Worksheet, Step 1citation, description of violation

19. Worksheet, Step 2 Potential for Harm • Major: the characteristics and amounts of waste present a major threat and the circumstances indicate a high potential for harm. • Moderate: the characteristics and amount are not a major threat or the circumstances do not present a high potential for harm. • Minimal: the threat presented by the characteristic and amount of waste, and by the circumstances of the violation is low.

20. 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.

21. Something to Note: • “Record keeping” violations do not have a major potential for harm. “Record keeping” means only the requirement to record, retain, and make available, records [see §66272.62(b)(5)] • Failure to have required plans, such as waste analysis plans, or to use manifests, is not a “record keeping” violation.

22. Worksheet, Step 2potential for harm

23. Worksheet, Step 3 Extent of Deviation • Major: requirement is completely ignored, or the function of requirement is rendered ineffective • Moderate: requirement functions to some extent, but not all important provisions are met. • Minimal: requirement functions nearly as intended, but not as well as if all provisions were met.

24. Extent of Deviation Factors • For requirements with more than one part, consider the extent of violation in terms of the more significant requirement. • For a single requirement, the range of potential deviation may vary. For example: • Major: failure to have a contingency plan • Moderate: significant elements of plan are missing • Minimal: one or two minor elements missing

25. Worksheet, Step 3extent of deviation

26. Worksheet, Step 4statutory maximum

27. Statutory Maximum • Based on H&SC sec. 25189 and 25189.2. • “. . . shall be liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000) for each separate violation or, for continuing violations, for each day that violation continues.”

28. Initial Penalty Matrix§66272.62(d)

29. Worksheet, Step 5initial penalty

30. Adjustments to Initial Penalty • Intent • Economic Benefit Adjustments to Initial Penalty must not exceed the Statutory Maximum.

31. Adjustment for Intent

32. Worksheet, Step 6adjustment for intent

33. Adjustments for Economic Benefit • Increase the initial penalty by the amount of economic benefit gained. • Includes: - Avoided costs. - Delayed costs. - Increased profits. - Avoided interest.

34. Simple Penalty CalculationTotal Base Penalty

35. Adjustments to Total Base Penalty • Cooperation • Prophylactic Effect • Compliance History • Ability to Pay

36. Adjustment for Cooperation

37. Adjustments to the Base Penaltycooperation

38. Adjustment for 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 2: tending to prevent or ward off: preventative.”

39. Adjustments to the Base Penaltyprophylactic effect

40. Adjustment for Compliance History • Reduction of 5% for previous inspections without violations up to 10%. • 15% reduction for current ISO 14001 certificate. • Increase for violations in past 5 years up to 100% • Violations at same site receive more weight • Recent violations receive more weight • Same or similar violations receive more weight

41. Adjustments to the Base Penaltycompliance history

42. Adjustment for Ability to Pay • Payment may be extended • Penalty may be reduced • No adjustment for ability to pay if: • Upward adjustment for failure to cooperate • Upward adjustment for compliance history. Note: Usually adequate financial information to make an ability to pay determination is not available at the time an administrative order is prepared.

43. Adjustments to the Base Penaltyability to pay

44. Final Penalty Total Base Penalty $33,000 +/- Adjustments for: Cooperation -$8,250 Prophylactic Effect $ 0 Compliance History -$1,650 Ability to Pay $0 + Economic Benefit $0 = Final Penalty $26,400

45. Multiple Violations • A single initial penalty may be assessed for multiple violations 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.

46. Multiple ViolationsViolations not independent

47. Multiple ViolationsViolations not independent

48. Multiple ViolationsViolations occurring at different times

49. Multiple ViolationsViolations occurring at different times

50. Multiday Violations • The initial penalty for the first day of violation shall be determined as provided in Sections 66272.62 and 66272.63. • Multiply the initial penalty by 2% • Then multiply by the number of days (less the first day) • Add this number to the initial penalty