Gravity based penalties adjustment

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... 

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. ... 

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. ... 

A matrix in the ERP supplies the gravity based penalties for each combination of nature, circumstances, and extent. However, the penalties applicable to violations that occurred in 2006,2007, and 2008 must be increased by a factor of 1.3, and the penalties applicable to 2009 violations that occurred after January 12,2009 must be increased by a factor of 1.5. These increased penalties are required by the Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461, as amended by the Debt Collection Improvement Act of 1996, 31 U.S.C. 3701, which required each federal agency to adjust its maximum penalties to maintain a deterrent effect in the face of inflation. As required by that legislation, EPA increased the daily maximum penalties to 27,500 effective after January 30,1997 and again to 32,500 effective March 15,2004, and again to 37,500 effective January 12,2009. The Debt Collection Improvement Act requires penalty adjustments every four years and so another increase should be forthcoming in 2013. 

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. 

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. 

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. ... 

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. ... 

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 ... 

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