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 (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 (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 – 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

#CitationViolationPotential for HarmExtent of Deviation # of Time s Viola tion Occu rred Statu tory Maxi mum Initial Penal ty Inten t Fact or Base Penal ty Addit onal Amou nts for Multid ay Violat ions Econ omic Benef it TOTA L

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)

#CitationViolation 1 HSC, Section (a) Illegal disposal (sludge to dumpster) 2 HSC, section 25201(a) and T22, section (a) Storage without a permit/ for greater than allowable time limits (301 days) 3 HSC, section 25201(a) and T22, section (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”

#CitationViolation Potential For Harm 1 HSC, (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.

#CitationViolationPotential for Harm Extent of Deviation (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) (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) (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)

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 2 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 sched for 2/11/06) 1$25,000$4,000 3 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 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.

Adjustment Factors for Violator’s Intent

#Potential for Harm Extent of Deviation No. of times violation occurred Statutory Maximum Initial Penalty Intent Factor 1 MinimalMajor1$25,000$10,500 No adjustment 2 MinimalModerate1$25,000$4,000 No adjustment 3 MinimalModerate1$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 MinimalMajor1$25,000$10,500No Adjust None, waste was drummed and hauled as HW 2 MinimalModerate1$25,000$4,000No Adjust $300 (Delayed cost of disposal) 3 MinimalModerate1$25,000$4,000No 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.

#CitationViolation 1 HSC, Section (a) Illegal disposal (sludge to dumpster) 2 HSC, section 25201(a) and T22, section (a) Storage without a permit/ for greater than allowable time limits (301 days) 3 HSC, section 25201(a) and T22, section (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 PenaltyIntent Factor Economic Benefit 1 MinimalMajor1$25,000$10,500No AdjustNone, waste was drummed and hauled as HW 2 MinimalModerate1212 $25,000 X2 = $50,000 $4,000No Adjust$300 (Delayed cost of disposal) 3 MinimalModerate1$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 and 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 MinimalMajor1$25,000$10,500No Adjust None, waste was drummed and hauled as HW $10,500 x 0.02 x 2 days = $420 2 MinimalModerate2$50,000$4,000No Adjust $300 (Delayed cost of disposal) $4000 x 0.02x 30 = $2,400 3 MinimalModerate1$25,000Rolled 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 Tota l 1 MinimalMajor1$25,000$10,500No Adjust None, waste was drummed and hauled as HW $10,500 x 0.02 x 2 days = $420 $10, MinimalModerate2$50,000$4,000No Adjust $300 (Delayed cost of disposal) $4000 x 0.02x 30 = $2,400 $6, MinimalModerate1$25,000Rolled 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 MinimalMajor1$25,000$10,500No Adjust None, waste was drummed and hauled as HW $10,500 x 0.02 x 2 days = $420 $10,920 2 MinimalModerate2$50,000$4,000No Adjust $300 (Delayed cost of disposal) $4000 x 0.02x 30 = $2,400 $6,700 3 MinimalModerate1$25,000Rolled into Viol #2 TOTA LS $17,6 20

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 (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

Adjustment for Cooperation ( )- HW

Cooperation Compliance HistoryProphylactic EffectAbility 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:

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 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 EffectAbility 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:

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]

CooperationCompliance 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.

CooperationCompliance HistoryProphylactic 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