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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

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what you should walk away with
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
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

  • 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
Pieces of a violation
  • Section (Citation)
  • Elements of the citation
  • Facts that establish the violation
  • Evidence
  • 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
  • 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!
  • 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

  • What you saw/read/heard/ smelled/observed
types of evidence
Types of Evidence
  • Witness
    • Personal observation, direct statements
  • Documents
    • Manifests, certificates, plans, logs
  • Demonstrative
    • Photographs, samples
types of violations
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)
minor violations
Minor Violations

Defined in HSC Sections 25404(a)(3) and 25117.6

  • Deviation from statute or regulation


  • Not knowing, willful or intentional


  • Other elements*
minor violations 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 elements15
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
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
Class I Violation

Defined in HSC Section 25110.8.5 and T22 Section 66260.10

  • Deviation from statute or regulation that meets certain standards


  • Class II violation which is chronic or committed by a recalcitrant violator
recalcitrant and chronic
Recalcitrant and Chronic
  • The violator engages

in a pattern of neglect

or disregard with

respect to the


class i violations
Class I Violations
  • Class I violations must:
    • be significant threats* to human health or the environment


    • have the potential to prevent the facility from ensuring certain things*
significant threat
“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
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
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
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
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
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
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
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
  • TAG Members
  • Mickey Pierce
    • 510-540-3851
  • Your DTSC CUPA liaison