Transcript Objectives

Penalty Calculations For
Non-Hazardous Waste
Administrative Actions
Vincent Mendes, R.E.H.S.
Supervising Environmental Health Specialist
Fresno County Environmental Health Division
February 15, 2007
New automatic penalty system for violations
Enforcement Philosophy Factors

POLICIES

PROCEDURES

POLITICS

PERSPECTIVE
Do you have an Enforcement Plan?

What is your enforcement approach?

Notice to comply/violation


Second notice?
Other options –
District Attorney
 County Counsel or City Attorney
 Red Tags (UST)
 Small Claims (past practice)


Goal (s) of enforcement



Compliance
Penalty
Both
Business Plan Enforcement
HSC 25514

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“in an amount which shall be set by
the governing body of the
administering agency,”
Is this an issue for your CUPA?


Each AEO for 6.95 violations must be
approved by their governing body
Have the governing body approve a
penalty matrix/enforcement plan
Common Business Plan Violation for
AEO

Fails to submit or implement a business plan after
notice.

Failure to submit or implement a business plan at high
volume-high risk facilities.

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.
Business Plan Penalty Matrix
Major
Moderate
Minimal
Major
Maximum $2,000
($5,000)
Average $1,600
($4,000)
Minimum $1,200
($3,000)
$1,200
($3,000)
$1,000
($2,500)
$800
($2,000)
$800
($2,000)
$600
($1,500)
$400
($1,000)
Moderate
Maximum $1,200
($3,000)
Average $1,000
($2,500)
Minimum $800
($2,000)
$800
($2,000)
$600
($1,500)
$400
($1,000)
$400
($1,000)
$300
($750)
$200
($500)
Minimal
Maximum $800
($2,000)
Average
$600
($1,500)
Minimum $400
($1,000)
$400
($1,000)
$300
($750)
$200
($500)
$200
($500)
$100
($250)
$0
($0)
ACTUAL/POTEN HARM
EXTENT OF
DEVIATION
Common UST Violations for AEO


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.
Operating/Repairing/Removing UST without a
permit
UST Penalty Matrix
ACTUAL OR
POTENTIAL
HARM
Major
Moderate
Minimal
Major
Maximum $5,000
Average $4,000
Minimum $3,000
$3,000
$2,500
$2,000
$2,000
$1,500
$1,000
Moderate
Maximum $3,000 $2,000
Average $2,500 $1,500
Minimum $2,000 $1,000
$1,000
$750
$500
Minimal
Maximum $2,000 $1,000
Average $1,500 $750
Minimum $1,000 $500
$500
EXTENT OF
DEVIATION
Common CalARP Violations for AEO
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

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No incident investigation conducted for significant releases.
Failure of the owner or operator to submit an initial RMP after
notification from the CUPA.
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 or
initial process hazard analysis.
A certified RMP misrepresents what programs are in place.
Not completing action items from internal and/or external
compliance audits, internal hazard reviews or PHAs, incident
investigations, etc.
If a facility has an incident that adversely impacts the
community, workers, or the environment, and a CalARP
program element is found to be inadequate and attributable to
the cause of the incident.
Failure to implement a Prevention Program
CalARP Penalty Matrix
ACTUAL OR
POTENTIAL HARM
Major
Moderate
Minimal
Major
Maximum
$2,000
($25,000)
Average
$1,600
($20,000)
Minimum
$1,200
($15,000)
$1,200
($15,000)
$1,000
($12,500)
$800
($10,000)
$800
($10,000)
$600
($7,500)
$400
($5,000)
Moderate
Maximum
$1,200
($15,000)
Average
$1,000
($12,500)
Minimum
$800
($10,000)
$800
($10,000)
$600
($7,500)
$400
($5,000)
$400
($5,000)
$300
($3,750)
$200
($2,500)
Minimal
Maximum
$400
($5,000)
$300
($3,750)
$200
($2,500)
$200
($2,500)
$100
($1,250)
$0
($0)
EXTENT OF
DEVIATION
$800
($10,000)
Average
$600
($7,500)
Minimum
$400
($5,000)
Establishing the Initial Penalty



Multiple violations can result in very high
penalty amounts
Statue penalties add up quick
Can either set a high one day penalty or a low
daily penalty (or justify your penalty by using
both methods to determine your number)
HSC Section 25404.1.1(b)
When setting an AEO penalty, the
UPA shall consider:




Nature, circumstances, extent & gravity of
violation
Violator’s past and present efforts to prevent,
abate, or clean up
Violator’s ability to pay
The deterrent effect the penalty has on both
the violator and the regulated community
Nature, circumstances,
extent & gravity of
violation
Failed to submit a HMBP
Who has deviated more?
Who has greater potential
for harm?
Does one HMBP
facility deserve a
higher penalty than
the other?
Penalty Factors:
“circumstances of the violation”

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Effort to comply before & after violation
Cooperation
Known or should have known
Any previous/current problems with
regulatory agencies
Changes/unique circumstances
Adjusted Initial Penalty:
The initial penalty may be adjusted based on the violator’s intent
in committing the infraction.
The following factors will be considered as a basis for adjustment.
ADJUSTMENT FACTOR
CIRCUMSTANCES
Downward adjustment of 100%
Violation was completely beyond the
control of the violator.
Downward adjustment of 0 to 50%
Violation occurred even though good
faith efforts to comply with regulations
were made.
No adjustment
Violation indicated neither good faith
efforts nor intentional failure to comply.
Upward adjustment of 50 to 100%
Violation was the result of intentional
failure to comply.
Penalty adjustment factors

Violator ability to pay.
 How do you determine this?
County/City Auditor.
 Revenue/Collection Dept.
 Other means?

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Economic Benefit – Did the business profit, avoid or
delay costs by not being in compliance?
Deterrent effect of the penalty on the regulated
community-“The Ripple Affect”

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You must be able to articulate and defend this penalty in
future AEOs.
Are you being fair to those who are in compliance?
Another factor for the penalty
(unwritten factor)

How are you issuing the AEO?
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Unilateral
Draft AEO

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Stipulation and Order to be offered
Show Cause
Consent order
Remember to KISS the AEO process
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KEEP
IT
SOMEWHAT
SIMPLE
Have a plan and you’ll get through it
all
Any questions?