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)

12. Violation ALL PROGRAMS MINOR Notice to Comply Allegation Facts Correction Tine Return to Compliance HW Class II Summary of Violations Allegation Facts Correction Time Formal Enforcement Return to Compliance HW Class I Summary of Violations Allegation Facts Correction Time Formal Enforcement UST “Significant” Notice of Significant Violation Allegation Facts Correction Time Red Tag/Bag Imminent Threat-Immediate Or 7 days after no compliance Return to Compliance (non-imminent) All other viols Notice of Violation Allegation Facts Correction Time Return to Compliance Formal Enforcement

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 Violations Deviations 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