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 “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 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” 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? 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” 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? Unilateral Draft AEO Stipulation and Order to be offered Show Cause Consent order Remember to KISS the AEO process KEEP IT SOMEWHAT SIMPLE Have a plan and you’ll get through it all Any questions?