Transcript Administrative Enforcement Orders

Determining and Citing
Violations A Basis for Enforcement
Mickey Pierce
DTSC
February 7, 2006
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)
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
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…
Pieces of a violation
• Section (Citation)
• Elements of the citation
• Facts that establish the violation
• Evidence
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
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!
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
Facts
• What you saw/read/heard/
smelled/observed
Types of Evidence
• Witness
– Personal observation,
direct statements
• Documents
– Manifests, certificates,
plans, logs
• Demonstrative
– Photographs, samples
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)
Violation
ALL PROGRAMS
MINOR
HW Class II
Notice to
Comply
Summary of
Violations
Allegation
Facts
Correction
Tine
Return to
Compliance
Allegation
Facts
Correction
Time
Return to
Compliance
Summary of
Violations
All other viols
Notice of Significant
Violation
Allegation
Facts
Correction
Time
Formal
Enforcement
Formal
Enforcement
UST “Significant”
HW Class I
Notice of Violation
Allegation
Facts
Correction
Time
Return to Compliance
(non-imminent)
Allegation
Facts
Correction
Time
Formal
Enforcement
Red Tag/Bag
Imminent Threat-Immediate
Or
7 days after no compliance
Return to
Compliance
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*
Minor Violations-elements
• Not Class I (for HW)
• Can not allow the business to
benefit economically
– includes no cost, reduced cost,
and competitive advantage
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
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
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
Recalcitrant and Chronic
• The violator engages
in a pattern of neglect
or disregard with
respect to the
requirements
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*
“Significant Threat”
• You make the decision based on:
– Volume of the waste
– Relative hazardousness of the waste
– Proximity of population at risk
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
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
Class II Violations
• Defined in T22, CCR, Section 66260.10
• Deviation from statute or regulation that is
not a Class I violation
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)
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)
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
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
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
Questions?
• TAG Members
– http://calcupa.net/technical.html
• Mickey Pierce
– 510-540-3851
– [email protected]
• Your DTSC CUPA liaison
– http://www.dtsc.ca.gov/HazardousWaste/HWM_LIST_CUPALiaisons.pdf