DAR File No. 28346

Environmental Quality, Solid and Hazardous Waste

R315-102

Penalty Policy

NOTICE OF PROPOSED RULE

DAR File No.: 28346
Filed: 11/10/2005, 03:19
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

In the 2005 General Session, the Legislature passed S.B. 24 which made changes to the statue as found in Subsection 19-6-113(2). The Legislature enacted an increase in the maximum civil penalty amount from $10,000 to $13,000. (DAR NOTE: S.B. 24 (2005) is found at UT L 2005 Ch 10, and was effective 02/25/2005.)

Summary of the rule or change:

This rule change increases the maximum penalty amount for hazardous waste or solid waste violations from $10,000 to $13,000 and the minimum from $40 to $50.

State statutory or constitutional authorization for this rule:

Subsection 19-6-113(2)

Anticipated cost or savings to:

the state budget:

Penalties collected are dependent upon the type and frequency of the violations; therefore an aggregate cost or savings cannot be determined. Depending upon the violation to the solid waste or hazardous waste rules, the penalty may increase anywhere from $10 to $3,000 per day for each day of violation. As stipulated in Subsection 19-6-113(5)(a), all penalties collected will be deposited in the General Fund.

local governments:

Penalties collected are dependent upon the type and frequency of the violations; therefore an aggregate cost or savings cannot be determined. Depending upon the violation to the solid waste or hazardous waste rules, the penalty may increase anywhere from $10 to $3,000 per day for each day of violation.

other persons:

Penalties collected are dependent upon the type and frequency of the violations therefore an aggregate cost or savings cannot be determined. Depending upon the violation to the solid waste or hazardous waste rules, the penalty may increase anywhere from $10 to $3,000 per day for each day of violation.

Compliance costs for affected persons:

Depending upon the violation to the solid waste or hazardous waste rules and requirements, the penalty may increase anywhere from $10 to $3,000 per day for each day of violation.

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

A business subject to a penalty for violation of the solid waste or hazardous waste laws and regulations may be assessed an increased penalty anywhere from $10 to $3,000 depending on the type of violation. Dianne R. Nielson, Executive Director

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

Direct questions regarding this rule to:

Susan Toronto at the above address, by phone at 801-538-6776, by FAX at 801-538-6715, or by Internet E-mail at storonto@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:

01/03/2006

This rule may become effective on:

01/20/2006

Authorized by:

Dennis Downs, Director

RULE TEXT

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 [and]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 [b]Board 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 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 and are not intended, and cannot be relied upon, to create a cause of action against the State.

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 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

[January 15, 1996]2006

Notice of Continuation July 19, 2005

19-6-105

19-6-106

ADDITIONAL INFORMATION

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For questions regarding the content or application of this rule, please contact Susan Toronto at the above address, by phone at 801-538-6776, by FAX at 801-538-6715, or by Internet E-mail at storonto@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.