Penalties gravity based

Like all of the ERPs, i the Reporting Rule ERP calls for determining the nature, circumstances, extent, and gravity of the violation to determine the gravity based penalty. Each individual component is given a score, based on a matrix. The penalty is then adjusted up or down based on factors such as history of prior violations, culpability, ability to pay, and such other matters as j ustice may require. The nature of all Reporting Rule violations is hazard assessments The circumstances reflect the possibility that harm will result from the violations while the extent of a violation depends on the extent of the potential harm.ssi... 

Gravity based penalties can be reduced based on the Reporting Rule ERP up to 50 percent for self-reporting within thirty days, and another 15 percent for attitude, and more for taking all steps to mitigate the violation,2 ° but in no event can the gravity based penalty be less than the economic benefit to... 

Enforcement Response Policy ( 5 ERP). ° Like all the ERPs, the 5 ERP assigns a nature, circumstance, and extent to each violation to calculate a gravity based penalty which is then adjusted up or down based on the violator s attitude, violation history, and other similar factors. ... 

There are a few anachronisms in the 5 ERP to watch out for. The dollar values of the gravity based penalties are out of date because the maximum daily penalty has gone up from 25,000 to 37,500. ° To determine the correct penalties for violations occurring after January 12, 2009 each dollar value given in the 5 ERP must be multipKed by the ratio of the current maximum to the maximum in effect when the 5 ERP was written. That ratio is currently 37,500 divided by 25,000, or 1.5. For violations between January 31,1997 and March 15,2004, the gravity based penalties must be increased by a factor of 1.1. For violations between March 16, 2004 and January 12,2009 the gravity based penalties must be increased by a factor of 1.3. 

Another matrix supphes the gravity based penalties for each combination of nature, circumstances and extent. For the hypothetical Level 1, significant violation the daily penalty in the 5 ERP is 17,000. However, the penalties applicable to the violations in 2006,2007, and 2008 must be increased by a factor of 1.3, and the penalties applicable to the 2009 violations must be increased by a factor of 1.5 (assuming the manufacturing took place after January 12,2009). Therefore the gravity based penalties for the hypothetical are ... 

The total gravity based penalty in this hypothetical can be reduced by a factor of 50 percent for voluntary self reporting within thirty days of discovery, another 15 percent for mitigating the violation by fifing a PMN and entering into a 5(e) order, and another 15 percent for a cooperative attitude. 

Once the gravity based penalty is calculated, it can be adjusted for voluntary self reporting, voluntary self reporting within one month, the violator s attitude, the violator s ability to pay, the effect the penalty will have on the violator s ability to do business, any history of prior such violations the violator may have, the violator s degree of culpability, and such other matters as justice may require. ... 

Gravity based penalties can be reduced based on the Reporting ERP up to 50 percent for self-reporting within thirty days, and another 15 percent for... 

The EPA issued a Polychlorinated Biphenyls (PCB) Penalty Policy (PCB Penalty Policy) that follows the basic format and approach of the TSCA Civil Penalty Policy, which the EPA published in 1980. The PCB Penalty Policy categorizes all violations according to their nature, extent, and circumstances in order to determine a gravity based penalty. Then the gravity based penalty is adjusted upwards for factors such as prior history of violations, and downwards for factors such as cooperation with EPA and prompt self-reporting. 

Many PCB violations continue for a period of time, and the EPA will either penalize those based on the total amoimt of PCB involved, or by multiplying the gravity based penalty times the munber of days of violation. 

For TSCA violations, gravity based penalties are the penalties that the EPA calculates applying a series of policies on penalties applicable to the various types of regulatory violations. These policies are the EPAs Enforcement Response Policies. For an in-depth discussion of the Enforcement Response Policies, see Chapter 14, Penalties and Enforcement... 

All of the ERPs follow the format and approach of the TSCA Civil Penalty PoUcy, which the EPA published in 1980. Each begins by determining gravity based penalties, which are the presumptive penalties for each possible type of violation. Then they apply adjustment factors to increase or reduce the gravity based penalties based on circumstances specific to each company. 

The gravity based penalties take the seriousness of the violation into account by using three of the factors specified in 16 (a)(2)(B) of the TSCA statute for assessing penalties. These three factors are nature, circumstance, and extent. The EPA s interpretation of these three factors has little to do with their dictionary meanings, but the ERPs are easy to follow to calculate a dollar value for virtually any type of violation. Each of them uses nature, circumstances, and extent to create a matrix showing dollar penalties for each type of violation. 

The dollar values assigned to the gravity based penalties in the ERPs must be recalculated because, as discussed supra, the EPA has increased the daily maximum penalties several times, most recently effective as of January 12,2009.57... 

The EPA will either allow a deduction from the gravity based penalty for environmentally beneficial expenditures needed to amehorate the violation or a 15 percent reduction for taking all steps reasonably requested or expected by the EPA to respond to the violation. Industry generally relies on the more assured 15 percent penalty reduction alternative. The most common type of action that quahfies for the 15 percent penalty reduction is quarantining a substance that may have been manufactured or imported in violation of the premanufacture notification requirements of 5. Depending on the size of the penalty and cost of mitigating the effects of the violation, different alternative reductions will be more favorable. In some circumstances where a substance has been completely used and there is no mitigation possible, the EPA may allow the 15 percent penalty reduction. 

A SEP can offset up to 75 percent of a penalty, but the penalty cannot be decreased below the economic benefit of noncompliance plus 10 percent of the gravity based penalty. Usually no more than 80 percent of the value of the SEP can be used to offset the cash penalty payment. For example, if a SEP costs 200,000 and the gravity based penalty is 100,000, up to 80% of the SEP costs, or 160,000 could have been used to offset a higher penalty, but the offset for a penalty of 100,000 cannot ordinarily exceed 75,000. 

If a company cannot pay the adjusted gravity based penalty and remain in business, the penalty may be reduced to keep the company viable. The EPA puts financial information from the company into a model called ABEL to determine the appropriate penalty in these situations. There are analogous models called INDIPAY and MUNIPAY for assessing individuals and municipalities ability to pay. ... 

An example of how the EPA applied the ABEL model to reduce a gravity based penalty from 82,571,267 to 8300,000 based on ability to pay is provided in In the Matter ofMarChem Corporation ... 

All higher tier penalties are in the same category for the nature of the violation, and so the nature can be disregarded when calculating the gravity based penalties. The AHERA ERR classifies each violation into suigeneris circumstance levels and extent categories. Both upward and downward adjustments maybe made, consistent with the adjustments available to LEAs. 

The EPA can seek the economic benefit the violator achieved from non-compliance, if the adjusted gravity based penalty is not a deterrent to future violations. ... 

Penalties can be reduced to just 5 percent of the gravity based penalty if the violator proves that there was no lead in the target housing at the time of the violation. The penalties can be reduced by 50 percent if there was no interior lead paint, up to 40 percent if a major potential source of lead was removed prior to the violation, and up to 25 percent if the were no lead paint hazards, even if there was lead painL ... 

The gravity of the violation is the primary consideration in determining penalty amounts. It is the basis for calculating the basic penalty for Serious and Other-Than-Serious violations. (Repeat and Willful violations can be based on the initial Serious or Other-Than-Serious gravity-based penalty but are multiplied by five to 10 times). 

After OSHA has determined the gravity and probability of a violation, a Gravity Based Penalty (GBP) is assessed. 

OSHA Gravity Based Penalty system — Serious violations... 

Once a base penalty has been calculated using the Gravity-Based Penalty system, OSHA may then assign a reduction based on certain factors, including size of the employer. The size adjustment factor allows for the following maximum penalty reductions ... 

The gravity-based penalty system establishes the initial penalty based upon the potential severity of loss the hazard poses and the probability that an injury or illness could occur because of the alleged violation. The severity assessment classifies the alleged violations as serious or other-than-serious. The severity assessment is assigned to a hazard to be cited according to the most serious injury or illness which could reasonably be expected to result from an employee s exposure as follows (United States Department of Labor, Occupational Safety and Health Administration 2001) ... 

OSHA s Gravity-Based Penalty System establishes the initial penalty based on the potential severity of loss that the hazard poses and the probability that an injury or illness could occur because of the alleged violation. 

Penalty Factors factors used to reduce the penalty from the initial gravity-based penalty level. The three factors are the size of the business, the good faith of the employer, and the employer s history of previous violations. 

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