Enforcement Options including federal facilities and Violation Classification Guidance

1. Enforcement Options (including federal facilities) and Violation Classification Guidance CUPA/UST Conference February 2007 Rev. 1.6.07 Enf options 15 minutes 24 slides Finished Fed facilities Violation Guidance Total 78 slidesRev. 1.6.07 Enf options 15 minutes 24 slides Finished Fed facilities Violation Guidance Total 78 slides

2. Topics Types of Enforcement Actions Federal Facilities New Violation Determination Guidance

3. Topics Types of Enforcement Actions Choosing an Enforcement Action Federal Facilities New Violation Determination Guidance

4. You have completed your inspection�. Found several instances of  non-compliance�. Written a well-documented report�. Submitted it to your supervisor���

5. Types of Enforcement Actions Criminal Civil Administrative Informal This is supposed to show hierarchy and frequency � sort of a food pyramid analogy. The vast majority of the time, resolution of violations is accomplished through Informal and Administrative Actions. Both of these involve the Enforcement Agency only, not the court system We have a case study one ach of these optionsThis is supposed to show hierarchy and frequency � sort of a food pyramid analogy. The vast majority of the time, resolution of violations is accomplished through Informal and Administrative Actions. Both of these involve the Enforcement Agency only, not the court system We have a case study one ach of these options

6. Informal Actions Oral or written warnings Noncompliance checked on the inspection report Notices to Comply (minor violations)

7. CUPA Administrative Enforcement Administrative Enforcement Orders (penalties, clean up or other orders) Denial, suspension, revocation of permits Can be contested at a hearing Standard of proof � �Preponderance of Evidence� IN the CAUP program these are all AEOs add that almost any violation of law, reg or permit can be the basis for an admin action Standard of Proof: Preponderance of evidence; i.e., burden of proof is with agency.IN the CAUP program these are all AEOs add that almost any violation of law, reg or permit can be the basis for an admin action Standard of Proof: Preponderance of evidence; i.e., burden of proof is with agency.

8. Civil Actions Monetary penalties Injunctions (require or prohibit action) Filed through court system (City Attorney, District Attorney, Attorney General) Standard of proof � �Preponderance of Evidence� Almost any violation of any law or regulation, or permit can be brought as a civil action. Civil cases are handled by out side prosecutors� such as DA, county counsel or the AG. A lawsuit naming the people as the plaintiff and the business as the defendant is filed in court. The lawsuit, known as a compliant, details the alleged violations and asks for unspecified amount of penalties. Injunctive relief can also requested (explain what it is). Most civil cases settle by agreement between the parties reached thru negotiations before trial. If trail occurs it is usually before a judge not a jury (no right to a jury trial for civil penalties and injunctions). Almost any violation of any law or regulation, or permit can be brought as a civil action. Civil cases are handled by out side prosecutors� such as DA, county counsel or the AG. A lawsuit naming the people as the plaintiff and the business as the defendant is filed in court. The lawsuit, known as a compliant, details the alleged violations and asks for unspecified amount of penalties. Injunctive relief can also requested (explain what it is). Most civil cases settle by agreement between the parties reached thru negotiations before trial. If trail occurs it is usually before a judge not a jury (no right to a jury trial for civil penalties and injunctions).

9. Criminal Actions May result in fines, imprisonment and/or probation Misdemeanors (max. one year jail) Felonies (max. more than one year in prison) Filed through court system (City Attorney, D.A., A.G., U.S. Attorney) Standard of proof � �Beyond a Reasonable Doubt� Infraction � fines, no jury, no public defender. E.g., speeding ticket Misdemeanor � fines, maximum 1 year jail. Felonies � fines, minimum 1 year in state prison �Wobblers� � misdemeanors or felonies? E.g.: hazardous waste disposal. Environmental laws vary as to criminal penalties. Some, such as air pollution and hazardous waste, make any violation (other than �minor violations that are corrected within 30 days) of law, regulation or permit punishable as a criminal offense (a misdemeanor). Others have more restricted criminal penalties. For example we did have any felony provision in air pollution until 2000. Now knowing or intentional violations of air law/regs/permits that result in great bodily injury are punishable as felonies. � This can be contrasted with hazardous waste laws in which a negligent illegal transportation, treatment storage or disposal is punishable as a felony. Felonies are also provided in water pollution provisions. � Criminal actions are the most sever enforcement actions that may be brought, as it is possible for defendant to lose his/her liberty, to be placed in jail or prison. � Criminal actions are, like civil cases, brought by �outside� prosecutors, usually DA�s or city attorneys. A complaint is filed in which the People are the Plaintiff and the business/responsible person is the defendant. Most criminal cases are resolved through negotiations prior to trial. There are several constitutional rights that come into play in criminal cases and we will discus those next. � Infraction � fines, no jury, no public defender. E.g., speeding ticket Misdemeanor � fines, maximum 1 year jail. Felonies � fines, minimum 1 year in state prison �Wobblers� � misdemeanors or felonies? E.g.: hazardous waste disposal. Environmental laws vary as to criminal penalties. Some, such as air pollution and hazardous waste, make any violation (other than �minor violations that are corrected within 30 days) of law, regulation or permit punishable as a criminal offense (a misdemeanor). Others have more restricted criminal penalties. For example we did have any felony provision in air pollution until 2000. Now knowing or intentional violations of air law/regs/permits that result in great bodily injury are punishable as felonies. � This can be contrasted with hazardous waste laws in which a negligent illegal transportation, treatment storage or disposal is punishable as a felony. Felonies are also provided in water pollution provisions. � Criminal actions are the most sever enforcement actions that may be brought, as it is possible for defendant to lose his/her liberty, to be placed in jail or prison. � Criminal actions are, like civil cases, brought by �outside� prosecutors, usually DA�s or city attorneys. A complaint is filed in which the People are the Plaintiff and the business/responsible person is the defendant. Most criminal cases are resolved through negotiations prior to trial. There are several constitutional rights that come into play in criminal cases and we will discus those next. �

10. Which Option(s) to Choose? Civil Injunctive relief needed Multi-agency issues (i.e. CUPA and non CUPA) Previous violations of administrative orders Prosecutor available Repeat violator Administrative Violations with your agency only First time violator

11. Civil and/or Criminal? Civil Injunctive relief needed to obtain compliance or remediation Multi-jurisdictional issues (cross-media) Previous violations of administrative orders Statute of limitations Criminal Civil or administrative remedies inadequate Maximum deterrence needed Sufficient evidence to convict (beyond a reasonable doubt) Remember the decision whether a civil or criminal case will be filed is not your, it�s the prosecutors. You can refer a case to a DA without making the decision. However, you will be involved in the decision about what kind of action will be taken. Also, it is possible that a case may involve all 3 kinds of action�they are not exclusive. Go over SL, negligence , general intent and specific intent. Remember the decision whether a civil or criminal case will be filed is not your, it�s the prosecutors. You can refer a case to a DA without making the decision. However, you will be involved in the decision about what kind of action will be taken. Also, it is possible that a case may involve all 3 kinds of action�they are not exclusive. Go over SL, negligence , general intent and specific intent.

12. Administrative, Civil and Criminal It is possible!

13. Statutes of LimitationsCrimes Misdemeanor - 1 year from date of the offense to filing the complaint Felony - 3 years Note federal criminal statute is 5 years Statutes of Limitations are laws which require that civil or criminal complaints be filed within a specified length of time after the violation occurs. Part of every investigation must address when the violation occurred. Criminal The statute of limitations starts with the date of discovery of the violation and runs one year for misdemeanors and three years for felonies. Penal Code �� 801-803. Felony: � �shall be commenced within three years after commission of the offense.� PC 801 Misdemeanor: ��shall be commenced within one year after commission of the offense.� PC 802(2) � Statutes of Limitations are laws which require that civil or criminal complaints be filed within a specified length of time after the violation occurs. Part of every investigation must address when the violation occurred. Criminal The statute of limitations starts with the date of discovery of the violation and runs one year for misdemeanors and three years for felonies. Penal Code �� 801-803. Felony: � �shall be commenced within three years after commission of the offense.� PC 801 Misdemeanor: ��shall be commenced within one year after commission of the offense.� PC 802(2) �

14. Statutes of Limitations Civil � 1 year CCP � 349 (HMMP & Cal/ARP) 4 years unfair biz practices B&PC � 17208 5 years after the discovery by the agency (Haz waste, UST) CCP � 338.1 Administrative � use the above rules � Civil One year is the general rule for civil penalties. CCP � 340. Within one year:(a) An action upon a statute for a penalty or forfeiture, if the action is given to an individual, or to an individual and the state, except if the statute imposing it prescribes a different limitation.(b) An action upon a statute for a forfeiture or penalty to the people of this state. �� CCP � 338.1 allows 5 years to file actions pursuant to the Hazardous Waste Control Act, Underground Storage Tank Act or the State Superfund. 340 is for �penalties pursuant to statute� NOT 343 which is 4 years for �everything not covered� B&P 17208 Action for civil penalties or punitive damages authorized under HSC Chapter 6.5 and 6.8: �shall be commenced within five years after discovery by the agency bringing the action of the facts constituting the grounds for commencing the action.� Civil Code of Procedure Section 338.1. � Civil One year is the general rule for civil penalties. CCP � 340. Within one year:(a) An action upon a statute for a penalty or forfeiture, if the action is given to an individual, or to an individual and the state, except if the statute imposing it prescribes a different limitation.(b) An action upon a statute for a forfeiture or penalty to the people of this state. �� CCP � 338.1 allows 5 years to file actions pursuant to the Hazardous Waste Control Act, Underground Storage Tank Act or the State Superfund. 340 is for �penalties pursuant to statute� NOT 343 which is 4 years for �everything not covered� B&P 17208 Action for civil penalties or punitive damages authorized under HSC Chapter 6.5 and 6.8: �shall be commenced within five years after discovery by the agency bringing the action of the facts constituting the grounds for commencing the action.� Civil Code of Procedure Section 338.1.

15. So Who Decides What�s a Crime? PUBLIC PROSECUTERS

16. Public Prosecutors "The district attorney is the public prosecutor, except as otherwise provided by law�  "The public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses."  Gov't Code 26500-26543 Otherwiserpied for AG, City Attorney.Otherwiserpied for AG, City Attorney.

17. Public Prosecutors Determining whether to institute criminal proceedings is discretionary. Authority to investigate the facts is unlimited. District attorneys and in large cities the City Attorney sometimes the AGDistrict attorneys and in large cities the City Attorney sometimes the AG

18. 3/18/2012 Environmental Task Forces 18 Common Enviro Crimes Illegal storage/disposal/transportation of hazardous waste Illegal discharge of anything other than rainwater to storm drains or waterways Asbestos rip & tears Failure to report release Operation without a permit Fraud

19. (More) Examples of Criminal Cases Lying, cheating, stealing Flagrant, deliberate, repeated violations Deception, cover up, conspiracy Willingness to pay penalties with continued noncompliance Institutional cost avoidance (failure to make upgrades, failure to maintain equipment) Tampering, threats/intimidation, evidence destruction

20. Where to Get Help Will the DA take your case? Where can I get enforcement training? Where can I find out what agencies are doing?

21. Environmental EnforcementTask Forces A coordinated approach to environmental enforcement between federal, state and local entities usually involving periodic meetings Not created by statute, no funding, not required by law or regulation Informal groups who get together to discuss enforcement issues Common in other areas such as gangs, drugs, etc Sponsored and promoted by Cal/EPA. Usually chaired by local Dep DA, Circuit Prosecutor, Dep AG or AUSANot created by statute, no funding, not required by law or regulation Informal groups who get together to discuss enforcement issues Common in other areas such as gangs, drugs, etc Sponsored and promoted by Cal/EPA. Usually chaired by local Dep DA, Circuit Prosecutor, Dep AG or AUSA

22. What Cases to Take to Your Task Force? Intentional, repeat, recalcitrant violations. Pattern of non-compliant behavior Potential or actual harm to public or environment Threaten integrity of the effectiveness of program goals (falsification and/or lack of record-keeping) Violations in multiple programs Cases where you need help Do we need? Do we have an equivalent?Do we need? Do we have an equivalent?

23. How to Participate

24. Enforcement Principals Enforcement should be swift, predicable and certain Enforcement should be consistent among the CUPA programs Every violation should be noted and recorded Escalating enforcement for repeat violations

25. Enforcement is a Public Process Final documents are public records. Publicize all enforcement actions. Never negotiate publicity. Never agree to secret or off the record settlements. There is no deterrence without public information.

26. Enforcement & Federal Facilities CUPA/UST Training Conference 2007 Lisa Brown Assistant Counsel for Enforcement Cal/EPA Rev 1.11.07 16 slides Handouts Update CUPA Guidance DTSC letter re Imperial CUPA Rev 1.11.07 16 slides Handouts Update CUPA Guidance DTSC letter re Imperial CUPA

27. What is a federal facility? Department of Defense Navy, Army, Air Force, Marines Department of Homeland Security Border Patrol United States Postal Service Department of Veterans Affairs V.A. Hospital Coast Guard is not part of DOD-- in 2003 it became part of the Department of Homeland Security. Coast Guard is not part of DOD-- in 2003 it became part of the Department of Homeland Security.

28. Above ground storage tanks.Above ground storage tanks.

29. UST at the Navy Exchange�s fuel station. Why are these UST different than UST�s at an ARCO or Shell gas station? Because they are owned by the Federal Gov�t. Will be using UST as my example throughout.UST at the Navy Exchange�s fuel station. Why are these UST different than UST�s at an ARCO or Shell gas station? Because they are owned by the Federal Gov�t. Will be using UST as my example throughout.

30. 1) Must the federal government comply with state environmental regulations?2) Must they pay fees?3) Must they pay penalties?

31. General Rule State and local laws do not apply to the federal government because of �sovereign immunity�

32. Sovereign Immunity �The king can do no wrong!� A legal doctrine precluding the institution of a lawsuit against the government without the government�s consent. Federal Gov�t is the �sovereign� or �king.� Can�t sue the Feds criminally (human) only civil. Dept of Energy v. Ohio US Supreme Ct held that Congress had not waived immunity for punitive damages for past violations of state hazardous waste laws. Congress turned around and enacted law that said, yes we now have. But, they did not do it all at once. For instance the Fed�s only agreed to be sued for UST violations last year. Read previous difference in language section 6001 v. 9007Federal Gov�t is the �sovereign� or �king.� Can�t sue the Feds criminally (human) only civil. Dept of Energy v. Ohio US Supreme Ct held that Congress had not waived immunity for punitive damages for past violations of state hazardous waste laws. Congress turned around and enacted law that said, yes we now have. But, they did not do it all at once. For instance the Fed�s only agreed to be sued for UST violations last year. Read previous difference in language section 6001 v. 9007

33. Supremacy Clause �This Constitution and the Laws of the United States�shall be the Supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or the Laws of the States Notwithstanding.�  U.S. Constitution, Article VI, Clause 2

34. How Does the Federal Gov�t Consent to Obey State Law ? Congress puts a �waiver� of sovereign immunity in federal legislation Problem, every program is different Compliance Fees Enforcement

35. Sovereign Immunity Waived by Federal Statutes�. RMP: See Cal. Ex Rel. Sacramento Metro. Air Quality v. U.S., 215 F.3d 1005, 1010-1011 (9th cir. 2000); U.S. v. Tennessee Air Pollution Control Board, 185 F.3d 529 (6th Cir. 1999). HMMP possible argument that that the immunity waiver for reasonable service charges, under 42 U.S.C section 6961, subdivision (a), is broad enough to encompass assessments for the purpose of preventing discharges of materials that would become wastes upon their release OR use the MASS test RMP: See Cal. Ex Rel. Sacramento Metro. Air Quality v. U.S., 215 F.3d 1005, 1010-1011 (9th cir. 2000); U.S. v. Tennessee Air Pollution Control Board, 185 F.3d 529 (6th Cir. 1999). HMMP possible argument that that the immunity waiver for reasonable service charges, under 42 U.S.C section 6961, subdivision (a), is broad enough to encompass assessments for the purpose of preventing discharges of materials that would become wastes upon their release OR use the MASS test

36. CUPA Program where there is no Clear Waiver in the Federal Statutes RMP: See Cal. Ex Rel. Sacramento Metro. Air Quality v. U.S., 215 F.3d 1005, 1010-1011 (9th cir. 2000); U.S. v. Tennessee Air Pollution Control Board, 185 F.3d 529 (6th Cir. 1999). HMMP possible argument that that the immunity waiver for reasonable service charges, under 42 U.S.C section 6961, subdivision (a), is broad enough to encompass assessments for the purpose of preventing discharges of materials that would become wastes upon their release OR use the MASS test RMP: See Cal. Ex Rel. Sacramento Metro. Air Quality v. U.S., 215 F.3d 1005, 1010-1011 (9th cir. 2000); U.S. v. Tennessee Air Pollution Control Board, 185 F.3d 529 (6th Cir. 1999). HMMP possible argument that that the immunity waiver for reasonable service charges, under 42 U.S.C section 6961, subdivision (a), is broad enough to encompass assessments for the purpose of preventing discharges of materials that would become wastes upon their release OR use the MASS test

37. If no waiver in federal law then�is it a reasonable user fee? Three part test established in federal law in the case of Massachusetts v. United States ((1978) 435 U.S. 144). Federal agencies are subject to fees without regard to whether there has been an express waiver of sovereign immunity, provided they meet the criteria specified in Massachusetts v. United States ((1978) 435 U.S. 144). Federal agencies are subject to fees without regard to whether there has been an express waiver of sovereign immunity, provided they meet the criteria specified in Massachusetts v. United States ((1978) 435 U.S. 144).

38. Massachusetts Test (1) The charge does not discriminate against the federal government; (2) the charges are a fair approximation of the benefits received by the federal government; and (3) the charges do not produce revenue that exceeds the cost to the state. If all yes, the federal agency must pay the fee. IF yes o all 3 then it�s a fee not a tax and feds must pay Federal agencies are always subject to reasonable user fees. United States v. Maine 524 F.Supp. 1056 (1982). These fees may be distinguished from taxes according to the three prong test made precedent in Commonwealth of Massachusetts v. United States 435 U.S. 444 (1978). IF yes o all 3 then it�s a fee not a tax and feds must pay Federal agencies are always subject to reasonable user fees. United States v. Maine 524 F.Supp. 1056 (1982). These fees may be distinguished from taxes according to the three prong test made precedent in Commonwealth of Massachusetts v. United States 435 U.S. 444 (1978).

39. Needs to printed as separate handout Probably, given broad reach of federal removal statute, [28 USC � 1442], and RCRA's citizen suit provision, [42 USC � 6972], does not prohibit removal Needs to printed as separate handout Probably, given broad reach of federal removal statute, [28 USC � 1442], and RCRA's citizen suit provision, [42 USC � 6972], does not prohibit removal

40. See handout letter from DTSCSee handout letter from DTSC

41. Try to Gain Voluntary Compliance but�.. Issue Notice of Violation Early and often Send up NOVs chain of command Inform Cal/EPA of problems Formal enforcement is possible Our experience is stay on top of the Feds, let the chain of command know. Experienced investigators know when they are not going to get compliance. Why not. Is this a budget issue. Fiscal year begins in October. Our experience is stay on top of the Feds, let the chain of command know. Experienced investigators know when they are not going to get compliance. Why not. Is this a budget issue. Fiscal year begins in October.

42. Current issues Ewaste fees State surcharge Ewaste Board of Equalization (BOE) Office of Counsel rejected DoD�s legal argument that the State is barred from attaching the covered electronic waste recycling fee to DoD purchases of covered electronic devices for use in California. Re surcharge they have asked for accountingEwaste Board of Equalization (BOE) Office of Counsel rejected DoD�s legal argument that the State is barred from attaching the covered electronic waste recycling fee to DoD purchases of covered electronic devices for use in California. Re surcharge they have asked for accounting

43. Violation ClassificationGuidance For Unified Program Agencies

44. Purpose Purpose: Create a standard violation classification protocol More consistent enforcement response Provide factors for consideration when examining violations Reinforce existing violation classifications and statutory factors Starting point to help evaluators to determine appropriateness of actions

45. This Document Does Not: Set new regulation via �underground regs� Require an enforcement response for each classification of violation Change existing data reporting or tracking requirements Create a mandate for usage, but instead, sets a common understanding for how violations may best be classified

46. How this fits

47. The �work� in workgroup Work Group consisted of Cal/EPA, SWRCB, and DTSC CUPAs

48. Layout of the guidance Introduction Existing Nomenclature Definition of terms �New� Nomenclature Things to consider in classifying violations Things not to consider Examples (by class and program) Examples (application of principles)

49. Existing Nomenclature Minor Violation (applies to all CUPA programs). HSC � 25404(a)(3) Hazardous Waste Class I Violation HSC � 25110.8.5 and 22 CCR 66260.10 Hazardous Waste Class II Violation 22 CCR 66260.10

50. Minor Violation Violation that does not/is not Result in injury to person or property Pose a significant threat to health/environ Knowing, willful or intentional Chronic or recalcitrant Results in emergency response Allow the violator to benefit economically Hinders the UPA from determining compliance with other rules, regs or requirements.

51. New Nomenclature Chose to expand the use existing Hazardous Waste nomenclature Class I Class II Done for ease in tracking Done for ease in reference Example: Class I = �bad� regardless of program

52. Class I (non-HW) The most egregious type of violation Willful, Intentional Negligent (Knew or should have known) Pose a significant threat Chronic or recalcitrant Those violations that truly warrant formal enforcement, regardless of program

53. Class II Not a Class I Not a minor Failure to correct a minor violation within the prescribed timeframes

54. Clarification of terms Significant Threat Based on volume, hazard, proximity Chronic Habit or pattern of behavior, 2 consecutive insp. Recalcitrant Violator Engaged in pattern of neglect or disregard Economic Benefit Must be considered in CONTEXT of �minor� def. Person Amalgamation of all programs definitions

55. How to classify Confirm or eliminate Class I Apply the standards, make a decision Y or N Confirm or eliminate Minor Apply the standards, make decision Y or N Classify as Class II Its all that�s left at this point

56. Things to Consider Extent of deviation from regulatory requirements Missing an element? Complete disregard? Does the violation render the rule useless? Does the violation now pose a significant threat? Example: Incomplete emergency plan vs. not having prepared an emergency plan

57. Things to Consider Total number of violations found during the inspection Does this establish a pattern of neglect or disregard for the regulations? Do these violations create a overall state of compliance that now poses a significant threat?

58. Things to Consider Volume of material/waste involved Relative hazard of material/waste Proximity of population at risk Already elements for consideration in the definition of �significant threat� Does this violation increase the threat because of any of these factors or a combination of the three?

59. Things to Consider Regulatory history of the facility Chronic Recalcitrant violator Does this facility show a pattern of neglect or disregard? Are the violations recurring in consecutive inspections? 2 consecutive inspections is NOT a hard-and- fast rule

60. Things NOT to consider Fiscal health of the business Make allowances at penalty phase if necessary Size of business Make allowances at penalty phase if necessary Subjectivity Make allowances at penalty phase if necessary

61. Things NOT to Consider Potential outcome of enforcement Attorney Support Workload effects All are recognized as factors that affect enforcement, but you aren�t at enforcement yet!

62. Things NOT to Consider Having to defend the Classification Violator has no right to contest your classification They can defend against the alleged violation but the classification--that is your discretion Sam as they could not contest they had a minor violation or whether or not you decide to issue an AEO.Sam as they could not contest they had a minor violation or whether or not you decide to issue an AEO.

63. Before we embark� Remember, each of the examples may change with context This is a committee project= majority consensus not unanimous approval Idea is to convey a set of fairly routine or commonly encountered scenarios

64. Examples Biz Plan - Minor Violation Failure to submit annual certification when there is no change in chemical inventory. Why? No significant risk; no significant economic benefit Failure to specify the location of a low hazard chemical on the facility site map. Why? Chemical is low hazard, does not pose significant risk, no significant economic benefit

65. Examples (Biz Plan - Class II) Failure to submit and/or implement a business plan for businesses with solely low volume- low hazard materials . Failure to include a hazardous material in a hazardous materials inventory submission. Failure to provide or update emergency contacts. Failure to indicate hazardous material locations on the facility/site map Failure to provide annual refresher training.

66. Examples Biz Plan - Class I Fails to submit or implement a business plan after notice Failure to submit or implement a business plan at high volume-high risk facilities. Failure to report a release or threatened release. 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.

67. Examples (UST- Minor Violation) No maintenance and monitoring records onsite (assuming offsite storage not allowed). Why? Paperwork only, no pose significant risk One of the twelve monthly inspection records was not maintained onsite (assuming offsite storage not allowed). Why? See above Top example assume the work was actually done, just records not on siteTop example assume the work was actually done, just records not on site

68. Examples (UST- Class II) Failure to document a recordable release. Mechanical monitoring device within the UDC is not operational. Device to remove liquid from the spill bucket is not functional. Timely repairs not made following a failed secondary containment test. Did not designate a certified designated UST operator. Owner/Operator does not have monthly inspection records and all attachments.

69. Examples (UST- Class I) 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.

70. Examples (CalARP- Minor Violation) A required data element is missing from the submitted Registration Information. Why? A stationary source reported gallons instead of pounds for a regulated substance in the initial RMP � Why?

71. Examples (CalARP- Class II) RMP five year update was submitted late. RMP not updated within six months of an accidental release. Owner/operator did not meet the internal 3 year internal compliance audit requirements for Program 3. They only retained one of the last two internal compliance audit reports

72. Examples CalARP- Class II Violation Owner/operator did not meet the management of change requirements for Program 3. Did not document a technical basis for the change Owner/operator did not maintain investigation reports for releases. No hot work permits were issued for program level 3 stationary source when flammable or combustible materials onsite. PHA or Hazard Review not revalidated every 5 years

73. Examples CalARP- Class I Violation No incident investigation conducted for significant releases. 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 (Program 2) OR owner/operator did not complete an initial process hazard analysis (Program 3).

74. Examples CalARP- Class I Violation A certified RMP misrepresents what programs are in place. If an audit determines that CalARP program prevention element is missing completely or significantly enough to render it ineffective. Not completing action items from internal and/or external compliance audits, internal hazard reviews or PHAs, incident investigations, etc

75. Elevating Violation Classification Examples designed to show the application of factors to the same violation that result in the same violation being classified differently Thought process for each classification provided with each example

76. Elevating Biz Plan Example Failure to report a hazardous material inventory � Health and Safety Code, Section 25504(a)/25509 Minor: A business fails to report one cylinder containing greater than 200 cubic feet of compressed carbon dioxide in the facility inventory. The facility failed to report one inventory item that is relatively benign and handled in a relatively small quantity. Assumes good compliance historyAssumes good compliance history

77. Elevating Biz Plan Example Failure to report a hazardous material inventory � H&S Code �� 25504(a)/25509 Class II: A business fails to report ten cylinders containing greater than 2000 cubic feet of compressed carbon dioxide in the facility inventory. The facility failed to report one inventory item that is relatively benign and handled in a relatively large quantity. 1 cylinder, minor -- 10 raise it to a class 21 cylinder, minor -- 10 raise it to a class 2

78. Elevating UST Example Failure to conduct annual monitoring system certification every 12 months 23 CCR 2638 Minor: Annual monitoring was done one month late. All on-site written records done & their annual certification was on time for the three prior years. The facility was regularly conducting the annual certification and they had no prior record of not conducting the certification within the 12-month time frame.

79. Elevating UST Example Failure to conduct annual monitoring system certification every 12 months 23 CCR 2638 Class II: Certification was done 15 months after their last certification. For three previous years certifications were conducted greater that every 12 months. The facility is showing a pattern of missing the 12 month deadline.

80. UST Example Failure to conduct annual monitoring system certification every 12 months- 23 CCR 2638 Class I: During a paperwork audit it was noted that a facility had not conducted their annual monitoring system certification. A NOV was sent via registered mail. A return receipt was received back signed by the operator of the facility. The monitoring system had not been certified within the timeframe specified in the notice of violation. The monitoring system was not certified after a written notification was given

81. Elevating CalARP Example Implementation of a Program 3 Prevention Program- 19 CCR 2760.2 Minor: Some of the design information is missing for equipment that will not lead to a release if broken or out of service when the facility was performing a PHA or hazard review. The PHA was completed on time. No increased risk, no economic benefit since equipment is present

82. Elevating CalARP Example Implementation of a Program 3 Prevention Program- 19 CCR 2760.2 Class II: Some of the design information is missing for equipment that will not lead to a release if broken or out of service when the facility was performing a PHA or hazard review. The PHA was not completed on time or within 5 years. Economic benefit due to delayed costs, cost savings from not completing PHA on time.

83. Elevating HW Example Storage without a permit longer than the allowable timeframes � 22 CCR 66262.34 Class II: Drum at SQG has a label with an accumulation start date 182 days ago. Operator indicates that the facility was closed the week after Christmas, and the pick-up was scheduled for the next week, but the transporter delayed pick up for 2 more days. The facility has a good history. There is clear economic benefit � minor, but measurable that exists by extended storage times. Not a class I since the history of compliance, circumstances of extended time, and lack of significant threat.

84. Elevating HW Example Storage without a permit longer than the allowable timeframes � 22 CCR 66262.34 Class I: SMG has a label is with an accumulation start date that was 300 days ago. The operator indicates that the facility only really generates that waste in the fall, �business is slow during winter months�, and that it takes longer to actually fill the drum; costs too much to ship drums that aren�t full. Manifests show multiple similar violations. Class I because the majority of the requirement is being ignored - storage without a TSDF permit. The facility has pattern of neglecting the requirement during lower production times and with this waste.