DAR File No. 37321

Environmental Quality, Solid and Hazardous Waste

Rule R315-102

Penalty Policy

Notice of Proposed Rule

(Amendment)

DAR File No.: 37321
Filed: 02/15/2013 08:26:02 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Changes are required to conform with S.B. 21 passed during 2012 General Session (Chapter 360, Laws of Utah 2012).

Summary of the rule or change:

S.B. 21, passed during the 2012 General Session, removed some authorities from the Utah Solid and Hazardous Waste Control Board and its Executive Secretary and gave them to the Director of the Division of Solid and Hazardous Waste. This change in statute now requires changes to the Solid and Hazardous Waste rules. Specifically, references to the "Board" and the "Executive Secretary" in the rules need to be changed to "Director" as appropriate.

State statutory or constitutional authorization for this rule:

• Section 19-6-105
• Section 19-6-107
• Section 19-6-106

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings as this amendment only changes who has authority to make regulatory decisions.

local governments:

There are no anticipated costs or savings as this amendment only changes who has authority to make regulatory decisions.

small businesses:

There are no anticipated costs or savings as this amendment only changes who has authority to make regulatory decisions.

persons other than small businesses, businesses, or local governmental entities:

There are no anticipated costs or savings as this amendment only changes who has authority to make regulatory decisions.

Compliance costs for affected persons:

There are no compliance costs for affected persons as this amendment only changes who has authority to make regulatory decisions.

Comments by the department head on the fiscal impact the rule may have on businesses:

There is no anticipated fiscal impact on businesses as this amendment only changes who has authority to make regulatory decisions.

Amanda Smith, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Environmental Quality
Solid and Hazardous WasteRoom Second Floor
195 N 1950 W
SALT LAKE CITY, UT 84116-3097

Direct questions regarding this rule to:

• Allan Moore at the above address, by phone at 801-536-0211, by FAX at 801-536-0222, or by Internet E-mail at allanmoore@utah.gov
• Tina Mercer at the above address, by phone at 801-536-0259, by FAX at 801-536-0222, or by Internet E-mail at tmmercer@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

04/01/2013

This rule may become effective on:

04/15/2013

Authorized by:

Scott Anderson, Director

R315. Environmental Quality, Solid and Hazardous Waste.

R315-102. Penalty Policy.

R315-102-1. Purpose, Scope, and Applicability.

(a) Subsection 19-6-113(2) of the Utah Solid and Hazardous Waste Act provides that any person who violates any order, plan, rule, or other requirement issued or adopted under the Act is subject in a civil proceeding to a penalty of not more than $13,000 per day for each day of violation. Subsection 19-6-721(1) of the Used Oil Management Act provide that any person who violates any order, plan, rule, or other requirement issued or adopted under the Acts is subject in a civil proceeding to a penalty of not more than $10,000 per day for each day of violation. Subsection 19-6-104(1)(e) of the Utah Solid and Hazardous Waste Act allows the [Board]Director to settle or compromise administrative or civil actions initiated to compel compliance with the Act or rules adopted under the Act.

(b) The following criteria are to be used by the [Executive Secretary of the Board]Director for determining amounts which (1) may be sought in settlement of enforcement actions, and which (2) may be accepted in settlement of enforcement actions.

(c) The procedures in R315-102 are intended solely for the guidance of the [Executive Secretary]Director and are not intended, and cannot be relied upon, to create a cause of action against the State.

 

R315-102-2. Criterion 1: Factors.

The [Executive Secretary]Director shall consider the following factors when calculating a settlement amount:

(a) Economic benefit of noncompliance. These are the costs a person may save by delaying or avoiding compliance with applicable laws or rules.

(b) Gravity of the violation. This component of the calculation shall be based on:

(1) the extent of deviation from the rules, and

(2) the potential for harm to human health and the environment, regardless of the extent of harm that actually occurred.

(c) The number of days of noncompliance.

(d) Good faith efforts to comply or lack of good faith. This takes into account the openness in dealing with the violations, promptness in correction of the problems, and the degree of cooperation with the State to include accessibility to information and the amount of State effort necessary to bring the person into compliance.

(e) Degree of willfulness or negligence. Factors to be considered include how much control the violator had over the events constituting the violation, the foreseeability of the events constituting the violation, whether the violator took reasonable precautions to prevent the violation, and whether the violator knew, or should have known, of the hazards associated with the conduct or the legal requirements which were violated.

(f) History of compliance or noncompliance. The settlement amount may be adjusted upward in consideration of previous violations and the degree of recidivism. Likewise, the settlement amount may be adjusted downward when it is shown that the violator has a good compliance record.

(g) Ability to pay. The settlement amount may be adjusted downward based on a person's inability to pay. This should be distinguished from a person's unwillingness to pay. In cases of financial hardship, the [Executive Secretary]Director may accept payment of the settlement under an installment plan, delayed payment schedule, reduced penalty amount, or any combination of these options.

(h) Other unique factors.

 

R315-102-3. Criterion 2: Calculation of Settlement Amounts.

(a) Violations are grouped into the following categories based on the gravity of the violation:

(1) Major potential for harm, major extent of deviation from the requirement. For used oil, major potential for harm, major extent of deviation from the requirement: $8,000 to $10,000. For hazardous waste or constituents, or solid waste, major potential for harm, major deviation from the requirement: $10,400 to $13,000.

(i) The violation: poses, or may pose, a relatively high risk of exposure of humans or other environmental receptors to hazardous waste or constituents, solid waste, or used oil; or has, or may have, a relatively high adverse effect on statutory or regulatory purposes or procedures for implementing the hazardous waste, solid waste, or used oil programs.

(ii) The violator deviates from requirements of the regulation or statute to such an extent that most, or important aspects, of the requirements are not met, resulting in substantial noncompliance.

(2) Major potential for harm, moderate extent of deviation from the requirement. For used oil, major potential for harm, moderate deviation from the requirement: $6,000 to $8,000. For hazardous waste or constituents, or solid waste, major potential for harm, moderate deviation from the requirement: $7,800 to $10,400.

(i) The violation: poses, or may pose, a relatively high risk of exposure of humans or other environmental receptors to hazardous waste or constituents, solid waste, or used oil; or has, or may have, a relatively high adverse effect on statutory or regulatory purposes or procedures for implementing the hazardous waste, solid waste, or used oil programs.

(ii) The violator significantly deviates from the requirements of the regulation or statute but some of the requirements are implemented as intended.

(3) Major potential for harm, minor extent of deviation from the requirement. For used oil, major potential for harm, minor deviation from the requirement: $4,400 to $6,000. For hazardous waste or constituents, or solid waste, major potential for harm, minor deviation from the requirement: $5,720 to $7,800.

(i) The violation: poses, or may pose, a relatively high risk of exposure of humans or other environmental receptors to hazardous waste or constituents, solid waste, or used oil; or has, or may have, a relatively high adverse effect on statutory or regulatory purposes or procedures for implementing the hazardous waste, solid waste, or used oil programs.

(ii) The violator deviates somewhat from the regulatory or statutory requirements but most, or all important aspects, of the requirements are met.

(4) Moderate potential for harm, major extent of deviation. For used oil, moderate potential for harm, major deviation from the requirement: $3,200 to $4,400. For hazardous waste or constituents, or solid waste, moderate potential for harm, major deviation from the requirement: $4,160 to $5,720.

(i) The violation: poses, or may pose, a medium risk of exposure of humans or other environmental receptors to hazardous waste or constituents, solid waste, or used oil; or has, or may have, a medium adverse effect on statutory or regulatory purposes or procedures for implementing the hazardous waste, solid waste or used oil programs.

(ii) The violator deviates from requirements of the regulation or statute to such an extent that most, or important aspects, of the requirements are not met, resulting in substantial noncompliance.

(5) Moderate potential for harm, moderate extent of deviation from the requirement. For used oil, moderate potential for harm, moderate deviation from the requirement: $2,000 to $3,200. For hazardous waste or constituents, or solid waste, moderate potential for harm, moderate deviation from the requirement: $2,600 to $4,160.

(i) The violation: poses, or may pose, a medium risk of exposure of humans or other environmental receptors to hazardous waste or constituents, solid waste, or used oil; or has, or may have, a medium adverse effect on statutory or regulatory purposes or procedures for implementing the hazardous waste, solid waste or used oil programs.

(ii) The violator significantly deviates from the requirements of the regulation or statute but some of the requirements are implemented as intended.

(6) Moderate potential for harm, minor extent of deviation from the requirement. For used oil, moderate potential for harm, minor deviation from the requirement: $1,200 to $2,000. For hazardous waste or constituents, or solid waste, moderate potential for harm, minor deviation from the requirement: $1,560 to $2,600.

(i) The violation: poses, or may pose, a medium risk of exposure of humans or other environmental receptors to hazardous waste or constituents, solid waste, or used oil; or has, or may have, a medium adverse effect on statutory or regulatory purposes or procedures for implementing the hazardous waste, solid waste or used oil programs.

(ii) The violator deviates somewhat from the regulatory or statutory requirements but most, or all important aspects, of the requirements are met.

(7) Minor potential for harm, major extent of deviation from the requirement. For used oil, minor potential for harm, major deviation for the requirement: $600 to $1,200. For hazardous waste or constituents, or solid waste, minor potential for harm, major deviation from the requirement: $780 to $1,560.

(i) The violation: poses, or may pose, a relatively low risk of exposure of humans or other environmental receptors to hazardous waste or constituents, solid waste, or used oil; or has, or may have, a small adverse effect on statutory or regulatory purposes or procedures for implementing the hazardous waste, solid waste, or used oil programs.

(ii) The violator deviates from requirements of the regulation or statute to such an extent that most, or important aspects, of the requirements are not met, resulting in substantial noncompliance.

(8) Minor potential for harm, moderate extent of deviation from the requirements. For used oil, minor potential for harm, moderate deviation from the requirement: $200 to $600. For hazardous waste or constituents, or solid waste, minor potential for harm, moderate deviation from the requirement: $260 to $780.

(i) The violation: poses, or may pose, a relatively low risk of exposure of humans or other environmental receptors to hazardous waste or constituents, solid waste, or used oil; or has, or may have, a small adverse effect on statutory or regulatory purposes or procedures for implementing the hazardous waste, solid waste, or used oil programs.

(ii) The violator significantly deviates from the requirements of the regulation or statute but some of the requirements are implemented as intended.

(9) Minor potential for harm, minor extent of deviation from the requirements. For used oil, minor potential for harm, minor deviation from the requirement: $40 to $200. For hazardous waste or constituents, or solid waste, minor potential for harm, minor deviation from the requirement: $50 to $260.

(i) The violation: poses, or may pose, a relatively low risk of exposure of humans or other environmental receptors to hazardous waste or constituents, solid waste, or used oil; or has, or may have, a small adverse effect on statutory or regulatory purposes or procedures for implementing the hazardous waste, solid waste, or used oil programs.

(ii) The violator deviates somewhat from the regulatory or statutory requirements but most, or all important aspects, of the requirements are met.

(b) The [Executive Secretary]Director shall have the discretion to determine the appropriate amount within these ranges.

(c) If applicable, a multi-day component may be added to the settlement amount determined in R315-102-3(b). The amount used in a multi-day calculation will typically range from 5% to 20%, with a minimum of $40 per day for used oil, and with a minimum of $50 per day for hazardous waste or constituents, or solid waste, of the amount determined in R315-102-3(b) for each day of violation up to 179 days following the first day of violation. However, discretion is retained to consider amounts (1) of up to $10,000 per day of violation for used oil and up to $13,000 per day of violation for hazardous waste or constituents, or solid waste and (2) for days of violation after the first 179 days following the first day of violation.

(d) The amount calculated above may be adjusted by taking into account the factors specified in R315-102-2(d) through (h).

(e) This amount will then be added to any economic benefit gained by the person as specified in R315-102-2(a).

(f) If applicable, partial credit may be given for an approved supplemental environmental project.

 

KEY: hazardous waste

Date of Enactment or Last Substantive Amendment: [January 20, 2006]2013

Notice of Continuation: May 27, 2010

Authorizing, and Implemented or Interpreted Law: 19-6-105; 19-6-106