Determining and Citing Violations -

A Basis for Enforcement

Mickey PierceDTSC

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 66264.175Container 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 PROGRAMSMINOR

HW Class II HW Class I UST “Significant” All other viols

Notice to Comply

AllegationFacts

CorrectionTine

Return toCompliance

Summary ofViolations

AllegationFacts

CorrectionTime

FormalEnforcement

Summary of Violations

AllegationFacts

CorrectionTime

FormalEnforcement

Return to Compliance

Notice of SignificantViolation

Notice of Violation

AllegationFacts

CorrectionTime

Return to Compliance

AllegationFacts

CorrectionTime

Red Tag/BagImminent Threat-Immediate

Or 7 days after no compliance

Return to Compliance (non-imminent)

Formal Enforcement

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 ViolationsDeviations 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

– mpierce@dtsc.ca.gov

• Your DTSC CUPA liaison– http://www.dtsc.ca.gov/HazardousWaste/HWM_LIST_CUPA-

Liaisons.pdf