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§ 66272.62. Determining the Initial Penalty for Each Violation.

22 CA ADC § 66272.62BARCLAYS OFFICIAL CALIFORNIA CODE OF REGULATIONS

Barclays Official California Code of Regulations Currentness
Title 22. Social Security
Division 4.5. Environmental Health Standards for the Management of Hazardous Waste
Chapter 22. Enforcement, Inspections, and Informant Rewards
Article 3. Assessment of Administrative Penalties
22 CCR § 66272.62
§ 66272.62. Determining the Initial Penalty for Each Violation.
(a) The Enforcement Agency shall determine an initial penalty for each violation, considering potential harm and the extent of deviation from hazardous waste management requirements. The Enforcement Agency shall use the matrix set forth in Subsection 66272.62(d) to determine the initial penalty for each violation.
(b) Potential Harm of the Violation
(1) The Enforcement Agency shall consider potential harm to public health and safety and the environment when using the matrix.
(2) The categories for degree of potential harm are defined as follows:
(A) Major - The characteristics and/or amount of the substance involved present a major threat to human health or safety or the environment and the circumstances of the violation indicate a high potential for harm or, in the case of a violation of financial requirements, coverage is lacking or substantially below the required amount or it is certain or probable that the coverage would be absent or inadequate;
(B) Moderate - The characteristics and/or amount of the substance involved do not present a major threat to human health or safety or the environment, and the circumstances of the violation do not indicate a high potential for harm or, in the case of a violation of financial requirements, coverage is significantly below the required amount or it is possible that the coverage would be absent or inadequate;
(C) Minimal - The threat presented by the characteristics and the amount of the substance or by the circumstances of the violation are low or, in the case of a violation of financial requirements, coverage is slightly below the required amount or it is unlikely that the coverage would be absent or inadequate.
(3) In determining the degree of potential harm, the Enforcement Agency shall consider the following factors:
(A) The characteristics of the substance involved,
(B) The amount of the substance involved,
(C) The extent to which human life or health is threatened,
(D) The extent to which animal life is threatened,
(E) The extent to which the environment is threatened, and
(F) The extent to which potable water supplies are threatened.
(4) Potential harm for violations or financial requirements shall be determined by considering the amount of closure, postclosure, or corrective action costs for which there is no financial assurance or the amount of required liability coverage that is absent, and the likelihood that injury or damages, if they occur, will not be compensated due to an inadequacy in the coverage.
(5) A violation must involve the actual management of hazardous waste including the absence of adequate financial assurance for closure, postclosure, corrective action or financial liability coverage, as distinguished from being a “record-keeping” violation, for the violation to have a major potential for harm. “Record-keeping,” for purposes of this article, means a requirement to record information, to retain records, and to have documents available for inspection. “Record-keeping” does not include a substantive requirement such as the requirement to have a contingency plan, a waste analysis plan, or a closure plan. The following examples illustrate what is considered “record-keeping” and what is considered a violation that could have a major potential for harm.
(A) A failure to record inspections that were in fact completed is a record-keeping violation and would not have a major potential for harm. A failure to conduct inspections according to the schedule is not a record-keeping violation and could have a major potential for harm depending on the circumstances.
(B) A failure to retain a copy of a manifest is a record-keeping violation and would not have a major potential for harm. A failure to use a manifest for a shipment of hazardous waste is not a record-keeping violation and could have a major potential for harm depending on the circumstances.
(C) A failure to have available for inspection a waste analysis plan that does in fact exist is a record-keeping violation and would not have a major potential for harm. A failure to have a waste analysis plan, or a failure to have a waste analysis plan available to staff who are to implement the plan, is not a record-keeping violation and could have a major potential for harm depending on the circumstances.
(6) Financial violations that are strictly paperwork errors or omissions that do not affect actual functioning of adequate financial assurance for closure, postclosure, corrective action, or financial liability coverage are record-keeping violations. Violations involving the absence of adequate financial assurance for closure, postclosure, corrective action, or financial liability coverage are hazardous waste management violations, not record-keeping violations.
(7) Groundwater monitoring record-keeping is a fundamental part of the groundwater monitoring requirements. Groundwater monitoring record-keeping violations may have a major, moderate, or minimal potential for harm. The category selected for potential harm shall be based on the extent to which the violation may lead directly to environmental harm, have a potential for harm, or cause an inability to detect releases to groundwater.
(c) Extent of Deviation of the Violation
(1) The Enforcement Agency shall consider the extent of deviation from hazardous waste management requirements when using the matrix set forth in this section.
(2) The categories for extent of deviation from requirements are defined as follows:
(A) Major - The act deviates from the requirement to such an extent that the requirement is completely ignored and none of its provisions are complied with, or the function of the requirement is rendered ineffective because some of its provisions are not complied with.
(B) Moderate - The act deviates from the requirement, but it functions to some extent although not all of its important provisions are complied with.
(C) Minimal - The act deviates somewhat from the requirement. The requirement functions nearly as intended, but not as well as if all provisions had been met.
(3) For requirements with more than one part, the Enforcement Agency shall consider the extent of violation in terms of the most significant requirement.
(4) For a single requirement, the range of potential deviation from the requirement may vary. For example, if a facility has no contingency plan, the deviation would be major. If a facility has a contingency plan but significant elements are omitted, the deviation would be moderate. If a facility has a contingency plan with only one or two minor elements missing, the deviation would be minimal.
(d) The matrix set forth in this subsection shall be used to determine the initial penalty for a violation. The Enforcement Agency shall select a penalty amount from the range provided in the matrix cell that corresponds to the appropriate extent of deviation and the potential harm categories. The numbers in parenthesis in each cell of the following matrix are the midpoints of the range.
Determination of Initial Penalty Matrix (in dollars)
Extent of Deviation
Potential Harm
Major
Moderate
Minimal
70,000
56,000
42,000
Major
(63,000)
(49,000)
(29,400)
56,000
42,000
16,800
56,000
42,000
16,800
Moderate
(49,000)
(29,400)
(11,200)
42,000
16,800
5,600
42,000
16,800
5,600
Minimal
(29,400)
(11,200)
(2,800)
16,800
5,600
0
Note: Authority cited: Sections 25150 and 58012, Health and Safety Code. Reference: Sections 25187, 25188, 25189 and 25189.2, Health and Safety Code; Section 11425.50, Government Code; and 40 CFR Section 19.4.
HISTORY
1. New section filed 7-15-97; operative 7-1-97 (Register 97, No. 29). This interim regulation is exempt from most of the procedural requirements of the Administrative Procedure Act and from review by the Office of Administrative Law pursuant to Government Code section 11400.20 and will expire on December 31, 1998 unless earlier terminated or replaced by, or readopted as, permanent regulations.
2. Expired by its own terms on 12-31-98 (Register 99, No. 3).
3. New section filed 1-14-99 as an emergency; operative 1-14-99 (Register 99, No. 3). A Certificate of Compliance must be transmitted to OAL by 5-14-99 or emergency language will be repealed by operation of law on the following day.
4. New section refiled 5-10-99 as an emergency; operative 5-10-99 (Register 99, No. 20). A Certificate of Compliance must be transmitted to OAL by 9-7-99 or emergency language will be repealed by operation of law on the following day.
5. New section refiled 9-7-99 as an emergency; operative 9-7-99 (Register 99, No. 37). A Certificate of Compliance must be transmitted to OAL by 1-5-2000 or emergency language will be repealed by operation of law on the following day.
6. Repealed by operation of Government Code section 11346.1(g) (Register 2000, No. 38).
7. New section filed 12-13-2000 as an emergency; operative 12-13-2000 (Register 2000, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2001 or emergency language will be repealed by operation of law on the following day.
8. New section refiled 3-30-2001 as an emergency; operative 4-13-2001 (Register 2001, No. 13). A Certificate of Compliance must be transmitted to OAL by 8-13-2001 or emergency language will be repealed by operation of law on the following day.
9. Certificate of Compliance as to 3-30-2001 order, including amendment of section, transmitted to OAL 7-19-2001 and filed 8-28-2001 (Register 2001, No. 35).
10. Amendment of subsection (d) and Note filed 7-5-2018 as an emergency; operative 7-5-2018 (Register 2018, No. 27). A Certificate of Compliance must be transmitted to OAL by 1-2-2019 or emergency language will be repealed by operation of law on the following day.
11. Amendment of subsection (d) and Note refiled 12-31-2018 as an emergency; operative 1-3-2019 (Register 2019, No. 1). A Certificate of Compliance must be transmitted to OAL by 4-3-2019 or emergency language will be repealed by operation of law on the following day.
12. Amendment of subsection (d) and Note refiled 4-3-2019 as an emergency; operative 4-3-2019 (Register 2019, No. 14). A Certificate of Compliance must be transmitted to OAL by 7-2-2019 or emergency language will be repealed by operation of law on the following day.
13. Certificate of Compliance as to 4-3-2019 order transmitted to OAL 6-3-2019 and filed 6-24-2019 (Register 2019, No. 26).
This database is current through 3/13/20 Register 2020, No. 11
22 CCR § 66272.62, 22 CA ADC § 66272.62
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