Transcript Federal Facilities & USTs

Enforcement Options
(including federal
facilities) and Violation
Classification Guidance
CUPA/UST Conference
February 2007
Topics
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Types of Enforcement Actions
Federal Facilities
New Violation Determination Guidance
Topics
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Types of Enforcement Actions
Choosing an Enforcement Action
Federal Facilities
New Violation Determination Guidance
You have completed your
inspection….
Found several instances of
non-compliance….
Written a well-documented
report….
Submitted it to your
supervisor………
Types of
Enforcement Actions
Criminal
Civil
Administrative
Informal
Enforcement Agency
& Court System
Enforcement Agency
only
Informal Actions
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Oral or written warnings
Noncompliance checked on the
inspection report
Notices to Comply (minor violations)
CUPA Administrative
Enforcement
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Administrative Enforcement Orders
(penalties, clean up or other orders)
Denial, suspension, revocation of
permits
Can be contested at a hearing
Standard of proof – “Preponderance of
Evidence”
Civil Actions
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Monetary penalties
Injunctions (require or prohibit action)
Filed through court system (City
Attorney, District Attorney, Attorney
General)
Standard of proof – “Preponderance of
Evidence”
Criminal Actions
May result in fines, imprisonment and/or
probation
– Misdemeanors (max. one year jail)
– Felonies (max. more than one year in
prison)
 Filed through court system (City Attorney,
D.A., A.G., U.S. Attorney)
 Standard of proof – “Beyond a
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Which Option(s) to
Choose?
Civil
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Administrative
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Violations with
your agency only
First time violator
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Injunctive relief
needed
Multi-agency issues
(i.e. CUPA and non
CUPA)
Previous violations of
administrative orders
Prosecutor available
Repeat violator
Civil and/or Criminal?
Criminal
Civil
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Injunctive relief needed
to obtain compliance or
remediation
Multi-jurisdictional issues
(cross-media)
Previous violations of
administrative orders
Statute of limitations
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Civil or
administrative
remedies inadequate
Maximum deterrence
needed
Sufficient evidence
to convict (beyond a
reasonable doubt)
Administrative, Civil and
Criminal
It is possible!
Statutes of Limitations
Crimes
Misdemeanor - 1 year from date of
the offense to filing the complaint
 Felony - 3 years
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Note federal criminal statute is 5
years
Statutes of
Limitations
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Civil –
– 1 year CCP § 349 (HMMP &
Cal/ARP)
– 4 years unfair biz practices
B&PC § 17208
– 5 years after the discovery by the
agency (Haz waste, UST) CCP § 338.1
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Administrative – use the above
rules
So Who Decides
What’s a Crime?
PUBLIC
PROSECUTERS
Public Prosecutors
"The district attorney is the public
prosecutor, except as otherwise
provided by law…
"The public prosecutor shall attend the
courts, and within his or her discretion
shall initiate and conduct on behalf of
the people all prosecutions for public
offenses."
Public Prosecutors
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Determining whether to institute
criminal proceedings is discretionary.
Authority to investigate the facts is
unlimited.
Common Enviro Crimes
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Illegal storage/disposal/transportation of
hazardous waste
Illegal discharge of anything other than
rainwater to storm drains or waterways
Asbestos rip & tears
Failure to report release
Operation without a permit
Fraud
7/7/2015
Environmental Task Forces
18
(More) Examples of
Criminal Cases
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Lying, cheating, stealing
Flagrant, deliberate, repeated violations
Deception, cover up, conspiracy
Willingness to pay penalties with continued
noncompliance
Institutional cost avoidance (failure to make
upgrades, failure to maintain equipment)
Tampering, threats/intimidation, evidence
destruction
Where to Get Help
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Will the DA take your case?
Where can I get enforcement training?
Where can I find out what agencies
are doing?
Environmental Enforcement
Task Forces
A coordinated approach to
environmental enforcement between
federal, state and local entities
usually involving periodic meetings
What Cases to Take
to Your Task Force?
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Intentional, repeat, recalcitrant violations.
Pattern of non-compliant behavior
Potential or actual harm to public or
environment
Threaten integrity of the effectiveness of
program goals (falsification and/or lack of
record-keeping)
Violations in multiple programs
Cases where you need help
How to Participate
Enforcement Principals
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Enforcement should be swift,
predicable and certain
Enforcement should be consistent
among the CUPA programs
Every violation should be noted and
recorded
Escalating enforcement for repeat
violations
Enforcement is
a
Public Process
Final documents are public records.
 Publicize all enforcement actions.
 Never negotiate publicity.
 Never agree to secret or off the record
settlements.
 There is no deterrence without public
information.
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Enforcement &
Federal Facilities
CUPA/UST Training Conference 2007
Lisa Brown
Assistant Counsel for Enforcement
Cal/EPA
What is a federal facility?
Department of Defense
–Navy, Army, Air Force, Marines
 Department of Homeland
Security
–Border Patrol
 United States Postal Service
 Department of Veterans Affairs
–V.A. Hospital
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Navy Submarine Base
Point Loma
Navy Exchange Fuel Station
1) Must the federal
government comply with
state environmental
regulations?
2) Must they pay fees?
3) Must they pay
penalties?
General Rule
State and local laws do not apply to the
federal government because of
“sovereign immunity”
Sovereign Immunity
“The king can do no wrong!”
A legal doctrine precluding the
institution of a lawsuit against
the government without the
government’s consent.
Supremacy Clause
“This Constitution and the Laws of the
United States…shall be the Supreme
law of the Land; and the Judges in
every State shall be bound thereby,
any Thing in the Constitution or the
Laws of the States Notwithstanding.”
U.S. Constitution, Article VI, Clause 2
How Does the Federal Gov’t
Consent to Obey State Law ?
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Congress puts a “waiver” of sovereign
immunity in federal legislation
Problem, every program is different
– Compliance
– Fees
– Enforcement
Sovereign Immunity Waived
by Federal Statutes….
Hazardous Waste
- RCRA 42 U.S.C. § 6961
UST
- RCRA 42 U.S.C. § 6991(f)
CalARP/RMP
- Clean Air Act 42 U.S.C. § 7418
CUPA Program where there is
no Clear Waiver in the Federal
Statutes
HMMP (Business Plans and Inventories)
AGST (Above Ground Tanks)
If no waiver in federal law
then…is it a reasonable user
fee?
Three part test established in federal
law in the case of Massachusetts v.
United States ((1978) 435 U.S. 144).
Massachusetts Test
(1) The charge does not discriminate against
the federal government;
(2) the charges are a fair approximation of
the benefits received by the federal
government; and
(3) the charges do not produce revenue that
exceeds the cost to the state.
If all yes, the federal agency must pay the fee.
Fee
Waiver?
Penalties
Waiver?
ARP/RMP
Yes
42 USC
§ 7418
Yes
Hazardous
Waste
Yes
42 USC
§ 6961
Yes
42 USC
§ 6961
Underground
Yes
Storage
42 USC
§ 6991(f)
Tanks
Yes
42 USC §
6991f
Fee
Waiver?
HMMP
AGT
Mass. Test
Not clear
We think so
but no case
law
Not clear
We think so
but no case
law
Penalties
Waiver?
unclear
unclear
Try to Gain Voluntary
Compliance but…..
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Issue Notice of Violation
– Early and often
– Send up NOVs chain of command
 Inform Cal/EPA of problems
 Formal enforcement is possible
Current issues
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Ewaste fees
State surcharge
Violation Classification
Guidance
For Unified Program Agencies
Purpose
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Purpose: Create a standard violation
classification protocol
– More consistent enforcement response
– Provide factors for consideration when
examining violations
– Reinforce existing violation classifications
and statutory factors
– Starting point to help evaluators to
determine appropriateness of actions
This Document Does Not:
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Set new regulation via “underground
regs”
Require an enforcement response for
each classification of violation
Change existing data reporting or
tracking requirements
Create a mandate for usage, but
instead, sets a common understanding
for how violations may best be classified
How this fits
Violation
Classification
Guidance
Inspections
-
NTC, NOV d
Inspection
Report
Inspection
Report Writing
Guidance
Model I & E
Program Plan
and/or
UPA I&E Plan
Enforcement
Response
AEO Guidance
The “work” in workgroup
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Work Group consisted of
– Cal/EPA, SWRCB, and DTSC
– CUPAs
Layout of the guidance
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Introduction
Existing Nomenclature
Definition of terms
“New” Nomenclature
Things to consider in classifying
violations
Things not to consider
Examples (by class and program)
Examples (application of principles)
Existing Nomenclature
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Minor Violation (applies to all CUPA
programs). HSC § 25404(a)(3)
Hazardous Waste Class I Violation
HSC § 25110.8.5 and 22 CCR 66260.10
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Hazardous Waste Class II Violation
22 CCR 66260.10
Minor Violation
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Violation that does not/is not
– Result in injury to person or property
– Pose a significant threat to health/environ
– Knowing, willful or intentional
– Chronic or recalcitrant
– Results in emergency response
– Allow the violator to benefit economically
– Hinders the UPA from determining
compliance with other rules, regs or
requirements.
New Nomenclature
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Chose to expand the use existing
Hazardous Waste nomenclature
– Class I
– Class II
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Done for ease in tracking
Done for ease in reference
– Example: Class I = “bad” regardless of
program
Class I (non-HW)
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The most egregious type of violation
– Willful, Intentional
– Negligent (Knew or should have known)
– Pose a significant threat
– Chronic or recalcitrant
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Those violations that truly warrant formal
enforcement, regardless of program
Class II
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Not a Class I
Not a minor
Failure to correct a minor violation
within the prescribed timeframes
Clarification of terms
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Significant Threat
– Based on volume, hazard, proximity
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Chronic
– Habit or pattern of behavior, 2 consecutive insp.
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Recalcitrant Violator
– Engaged in pattern of neglect or disregard
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Economic Benefit
– Must be considered in CONTEXT of “minor” def.
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Person
– Amalgamation of all programs definitions
How to classify
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Confirm or eliminate Class I
– Apply the standards, make a decision Y or N
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Confirm or eliminate Minor
– Apply the standards, make decision Y or N
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Classify as Class II
– Its all that’s left at this point
Things to Consider
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Extent of deviation from regulatory
requirements
– Missing an element? Complete
disregard? Does the violation render the
rule useless? Does the violation now pose
a significant threat?
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Example: Incomplete emergency plan
vs. not having prepared an emergency
plan
Things to Consider
Total number of violations found during
the inspection
– Does this establish a pattern of neglect or
disregard for the regulations?
– Do these violations create a overall state
of compliance that now poses a
significant threat?
Things to Consider
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Volume of material/waste involved
Relative hazard of material/waste
Proximity of population at risk
– Already elements for consideration in the
definition of “significant threat”
– Does this violation increase the threat
because of any of these factors or a
combination of the three?
Things to Consider
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Regulatory history of the facility
– Chronic
– Recalcitrant violator
– Does this facility show a pattern of
neglect or disregard? Are the violations
recurring in consecutive inspections?
– 2 consecutive inspections is NOT a hardand- fast rule
Things NOT to consider
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Fiscal health of the business
– Make allowances at penalty phase if
necessary
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Size of business
– Make allowances at penalty phase if
necessary
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Subjectivity
– Make allowances at penalty phase if
necessary
Things NOT to Consider
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Potential outcome of enforcement
– Attorney Support
– Workload effects
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All are recognized as factors that
affect enforcement, but you aren’t at
enforcement yet!
Things NOT to Consider
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Having to defend the Classification
– Violator has no right to contest your
classification
– They can defend against the alleged
violation but the classification--that is
your discretion
Before we embark…
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Remember, each of the examples may
change with context
This is a committee project= majority
consensus not unanimous approval
Idea is to convey a set of fairly routine
or commonly encountered scenarios
Examples
Biz Plan - Minor Violation
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Failure to submit annual certification when
there is no change in chemical inventory.
– Why? No significant risk; no significant economic
benefit
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Failure to specify the location of a low
hazard chemical on the facility site map.
– Why? Chemical is low hazard, does not pose
significant risk, no significant economic benefit
Examples
(Biz Plan - Class II)
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Failure to submit and/or implement a business
plan for businesses with solely low volume- low
hazard materials .
Failure to include a hazardous material in a
hazardous materials inventory submission.
Failure to provide or update emergency
contacts.
Failure to indicate hazardous material locations
on the facility/site map
Failure to provide annual refresher training.
Examples
Biz Plan - Class I
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Fails to submit or implement a business plan
after notice
Failure to submit or implement a business
plan at high volume-high risk facilities.
Failure to report a release or threatened
release.
Knowingly or willfully failing to report a
100% increase in quantities within 30 days.
Failure to report within 30 days a new
chemical that poses a significant threat and
was not previously disclosed.
Examples
(UST- Minor Violation)
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No maintenance and monitoring records
onsite (assuming offsite storage not
allowed).
– Why? Paperwork only, no pose
significant risk
One of the twelve monthly inspection
records was not maintained onsite
(assuming offsite storage not allowed).
– Why? See above
Examples (UST- Class II)
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Failure to document a recordable release.
Mechanical monitoring device within the UDC is
not operational.
Device to remove liquid from the spill bucket is
not functional.
Timely repairs not made following a failed
secondary containment test.
Did not designate a certified designated UST
operator.
Owner/Operator does not have monthly
inspection records and all attachments.
Examples (UST- Class I)
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Tampering with monitoring equipment.
Failure to repair non functional
monitoring equipment.
Failure to report an unauthorized release.
Failure to repair secondary containment.
Failure to complete/pass secondary
containment testing.
Failure to properly close a UST.
Examples
(CalARP- Minor Violation)
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A required data element is missing
from the submitted Registration
Information.
– Why?
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A stationary source reported gallons
instead of pounds for a regulated
substance in the initial RMP
– Why?
Examples (CalARP- Class
II)
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RMP five year update was submitted late.
RMP not updated within six months of an
accidental release.
Owner/operator did not meet the internal
3 year internal compliance audit
requirements for Program 3. They only
retained one of the last two internal
compliance audit reports
Examples
CalARP- Class II Violation
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Owner/operator did not meet the management
of change requirements for Program 3. Did not
document a technical basis for the change
Owner/operator did not maintain investigation
reports for releases.
No hot work permits were issued for program
level 3 stationary source when flammable or
combustible materials onsite.
PHA or Hazard Review not revalidated every 5 years
Examples
CalARP- Class I Violation
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No incident investigation conducted for
significant releases.
Failure to update the RMP that requires an
revise Offsite Consequence analysis,
within 6 months of change.
Owner/Operator did not complete an
initial hazard review (Program 2) OR
owner/operator did not complete an initial
process hazard analysis (Program 3).
Examples
CalARP- Class I Violation
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A certified RMP misrepresents what
programs are in place.
If an audit determines that CalARP
program prevention element is missing
completely or significantly enough to
render it ineffective.
Not completing action items from internal
and/or external compliance audits, internal
hazard reviews or PHAs, incident
investigations, etc
Elevating Violation
Classification
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Examples designed to show the
application of factors to the same violation
that result in the same violation being
classified differently
– Thought process for each classification
provided with each example
Elevating
Biz Plan Example
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Failure to report a hazardous material
inventory – Health and Safety Code,
Section 25504(a)/25509
Minor: A business fails to report one cylinder
containing greater than 200 cubic feet of
compressed carbon dioxide in the facility
inventory.
– The facility failed to report one inventory
item that is relatively benign and handled in
a relatively small quantity.
Elevating
Biz Plan Example
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Failure to report a hazardous material
inventory – H&S Code §§ 25504(a)/25509
Class II: A business fails to report ten cylinders
containing greater than 2000 cubic feet of
compressed carbon dioxide in the facility
inventory.
– The facility failed to report one inventory item
that is relatively benign and handled in a
relatively large quantity.
Elevating UST Example
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Failure to conduct annual monitoring
system certification every 12 months
23 CCR 2638
Minor: Annual monitoring was done one month
late. All on-site written records done & their
annual certification was on time for the three
prior years.
– The facility was regularly conducting the
annual certification and they had no prior
record of not conducting the certification
within the 12-month time frame.
Elevating UST Example
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Failure to conduct annual monitoring
system certification every 12 months
23 CCR 2638
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Class II: Certification was done 15
months after their last certification. For
three previous years certifications were
conducted greater that every 12 months.
– The facility is showing a pattern of missing
the 12 month deadline.
UST Example
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Failure to conduct annual monitoring system
certification every 12 months- 23 CCR 2638
Class I: During a paperwork audit it was noted that a
facility had not conducted their annual monitoring
system certification. A NOV was sent via registered mail.
A return receipt was received back signed by the
operator of the facility. The monitoring system had not
been certified within the timeframe specified in the
notice of violation.
– The monitoring system was not certified after a
written notification was given
Elevating
CalARP Example
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Implementation of a Program 3
Prevention Program- 19 CCR 2760.2
Minor: Some of the design information
is missing for equipment that will not
lead to a release if broken or out of
service when the facility was performing
a PHA or hazard review. The PHA was
completed on time.
– No increased risk, no economic benefit since
equipment is present
Elevating
CalARP Example
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Implementation of a Program 3
Prevention Program- 19 CCR 2760.2
Class II: Some of the design information
is missing for equipment that will not
lead to a release if broken or out of
service when the facility was performing
a PHA or hazard review. The PHA was
not completed on time or within 5 years.
– Economic benefit due to delayed costs, cost
savings from not completing PHA on time.
Elevating HW Example
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Storage without a permit longer than the
allowable timeframes – 22 CCR 66262.34
Class II: Drum at SQG has a label with an accumulation
start date 182 days ago. Operator indicates that the
facility was closed the week after Christmas, and the
pick-up was scheduled for the next week, but the
transporter delayed pick up for 2 more days. The facility
has a good history.
– There is clear economic benefit – minor, but
measurable that exists by extended storage times.
Not a class I since the history of compliance,
circumstances of extended time, and lack of
significant threat.
Elevating HW Example
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Storage without a permit longer than the
allowable timeframes – 22 CCR 66262.34
Class I: SMG has a label is with an accumulation start
date that was 300 days ago. The operator indicates that
the facility only really generates that waste in the fall,
“business is slow during winter months”, and that it
takes longer to actually fill the drum; costs too much to
ship drums that aren’t full. Manifests show multiple
similar violations.
– Class I because the majority of the requirement is
being ignored - storage without a TSDF permit. The
facility has pattern of neglecting the requirement
during lower production times and with this waste.