Hazard assessment violations

The first step in calculating any penalty is to determine the nature, circumstance, and extent of the violation by analyzing the ERP. The 5 ERP provides that the nature of all failures to submit required notices to the EPA is a hazard assessment violation because the violations interfere with the EPA s ability to determine whether the substance poses any risks. This hypothetical violation is also a commercial use of a substance produced without a PMN, which is also a hazard assessment violation.The ERP states that circumstance of this hypothetical violation is Level 1, with penalties to be assessed for each day of violation because substance A did merit restrictions through a TSCA 5(e) order and it was further processed and distributed to others. ... 

The extent of the violation is determined by consulting a matrix in the 5 ERP, using the nature and production quantity to look up the classification. For a hazard assessment violation where three thousand pounds of substance A were made in each production batch, the extent classification is significant. If a batch takes several days to complete, the day of completion... 

EPA has issued an Enforcement Response Policy (ERP) for 4 violations that follows the basic format of aU its TSCA ERPs. Each type of violation is categorized by its nature, extent, and circumstances and then a monetary penalty is calculated and upwards and dovmwards adjustment factors are determined. All 4 violations are assigned a nature of hazard assessment violations. EPA assigns higher penalties to violations involving studies of longer duration simply because they will disrupt the EPA s schedule more significantly. 

Violation of the warning and supervision conditions for an R D exemption is a chemical control violation and penalties are assessed on a per-day basis Violation of the recordkeeping condition for an R D exemption is a control-associated data-gathering violation, and penalties are assessed on a one-time basis. Failure to file a SNUN is a hazard assessment violation. 

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... 

The nature of a violation depends on how the violation prevents the EPA from performing its information gathering or regulatory functions under TSCA. The ERPs classify these functions as chemical control, control-associated data gathering, or hazard assessment. Chemical control violations are violations of use and handling restrictions on particular chemical substances. Chemical control violations are only applicable when the EPA... 

If an inspector conducting this inquiry concludes that violations or dangers exist, that inspector is required to issue appropriate citations or orders. (They may, and often do, issue such citations or orders based solely on information provided by witnesses.) If no hazards or violations are uncovered, the inspector is required to issue a notice of negative finding. Such findings are subject to informal review by MSHA at the request of the party that made the complaint in the first place. Such requests for informal review must be fQed with MSHA within ten days. As with all violations, citations and orders issued diuing a Hazard Investigation are subject to mandatory civil penalty assessments, and occasionally they may be subject to criminal penalties. 

The EPA has further categorized violations as one-day or per-day violations. The per-day violations can easily add up to millions of dollars because each day of violation can be penalized separately. The ERPs specify which types of violations are per-day and which are one-day. Generally, penalties for violations relating to manufacturing are based on the volume of each batch made. The date of the violation is the date the batch is completed. The EPA will assess per-day violations when there is an imminent hazard, or when there was an intent to disregard TSCA. 

After the compliance officer reports the findings, the area director determines which citations warrant formal issuance and which penalties require assessment. An other than serious violation addresses issues that would not normally cause death or serious physical harm. OSHA can issue a serious violation if substantial probability exist that death or serious physical harm could result. The employer knew or should have known situation or hazard. OSHA cites imminent dangerous citations as serious violations. A willful violation refers to a situation that the employer intentionally and knowingly committed. The employer either knows that the operation constitutes a violation or is aware that a hazardous condition existed but made no reasonable effort to eliminate it. A repeat violation can address any standard, regulation, rule, or order where, upon reinspection, another... 

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) ... 

The next step requires a probability assessment be conducted for the hazard. The probability that an injury or illness will result from a hazard has no role in determining the classification of a violation, but does affect the amount of the penalty. The probability is categorized either as greater or as lesser probability, defined as follows ... 

Citations for other than serious violations are issued when a situation would affect safety or health but there is a small probability of the hazard resulting in death or serious physical harm. There is often no penalty assessed, but the hazard must still be corrected. If there is a high probability of the hazard resulting in an injury or illness, then the maximum penalty is 1,000. The OSHA regional administrators have the authority to impose a penalty of up to 7,000 if the circumstances warrant. 

Specifically, OSHA says that employers would not be cited under Subpart D, Walking-Working Surfaces. However, the letter also says that The General Duty Clause requires an employer to provide employees with a workplace that is free from hazards that are recognized by the employer s industry and that are likely to cause death or serious physical harm. Thus, where feasible means exist to eliminate or materially reduce the hazard, a citation can be issued for a General Duty Clause violation. In other words, employers need to assess whether fall protection can be used when working on top of rolling stock. If it can, it must be. 

If all employers on a worksite who have employees exposed to a hazard meet the previous criteria, the citation shall be issued only to the employers who are responsible for creating the hazard or are in the best position to correct or ensure correction of the hazard. In such circumstances, the controlling employer or the hazard-creating employer shall be cited even though none of their employees are exposed to the condition that resulted in the violation. Penalties for such citations shall be appropriately calculated by using the exposed employees of all employers as the number of employees for probability assessment. 

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