Penalty Assessments

Each EPA Region, as well as EPA Headquarters, can assess a penalty for a TSCA violation. The EPA will typically exercise considerable discretion in reducing negotiated penalties. The Consolidated Rules of Practice governs civil penalty assessments, and requires that each Region have a Regional Judicial Officer who is a lawyer and conducts hearings and may have authority to approve settlements.  

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When the EPA finds violations and when violations are self-reported, the initial penalty assessments are calculated using the Amended TSCA 5... 

The statute requires a hearing under the Administrative Procedure Act if the company or person that the EPA proposes to penalize asks for one. The EPA must give fifteen days notice of the right to request a hearing before it issues a final order. The EPA has promulgated Consolidated Rules of Practice for civil penalty assessments that is a procedure manual for all civil TSCA penalty assessments. The Consolidated Rules of Practice governs hearings and appeals to the EPA s Environmental Appeals Board. 

Companies that request a hearing on the EPA s penalty assessments will have the hearing in the EPA Office of Administrative Law. Administrative Law Judges (ALJs) in the Office of Administrative Law are EPA employees. 

The primary disadvantage of self-reporting is that a company may pay a penalty for a violation that the EPA would never discover on its own. Even if the Audit Policy applies to reduce the penalties to zero, the company will have to spend considerable time in making the report and justifying complete penalty mitigation. Another disadvantage is that a self-reported violation will count as a prior violation that may increase the penalty assessed on a future violation. 

Many companies seem to be reluctant to telephone the EPA before filing a self-report, perhaps out of a concern that the EPA will take advantage of prior notice of the violation. This should not be a concern. Telephoning the EPA in advance to estabhsh a personal rapport can be very helpful in the penalty assessment process. Having a personal contact will also be helpful if there are further questions about the self-report or if the company wants to elaborate on its position later. The self-reporting letter should be ready to send at the time of the initial phone call to the EPA so that the letter can follow the call. 

After receiving a self-report, the EPA has five years from the date of each self-reported violation to issue a complaint assessing a penalty. The five-year statute of limitations begins to run on the date of the violation, and not on the date of the self-report. While no one should expect this to happen, there have been occasions when the EPA has not issued a complaint for a penalty assessment before the statute of limitations has expired on aU of the violations disclosed in a self-report. 

Have there been any TSCA enforcement proceedings or penalty assessments in the past five years ... 

All penalties assessed against LEAs are to be spent by the LEA on AHERA compliance. Commentators have noted that this vitiates the deterrent aspects of a penalty because the LEA can use the penalty money. If the LEA does not spend at least the amount of the penalty, the unspent funds go to the Asbestos Trust Fund. ... 

Employee Appeals—Workplace employees may not contest the fact that citations were or were not awarded or the amounts of the penalties assessed their employer. However, they may appeal the following aspects of OSHA s decisions regarding their workplace and the appeals must be hied within ten working days of a posting ... 

The determination of the actual civil penalties assessed in each proceeding is based on defined hmits or minimums (see Pine Amounts) and consideration of information available at the time the claim is made concerning the nature and gravity of the violation. 

In addition to the factors listed above, a civil penalty assessed under 49 U.S.C. 14901(a) and (d) concerning household goods is also based on the degree of harm caused to a shipper and whether the shipper has been adequately compensated before institution of the civil penalty proceeding. 

The actual civil penalties assessed in each proceeding are based on the limits defined in Part 386 and consideration of information available at the time of the claim against the carrier. Information includes the the history of violations at the carrier and the nature, circumstances, extent, and gravity of the violation. Other factors with respect to the violator include the degree of culpability, history of prior offenses, ability to pay, effect on ability to continue to do business, and such other matters as justice and public safety may require consideration. As the claims and notices are judged under the administrative procedures, additional information may be developed regarding those factors affecting the final amount... 

Once OSHA determines the severity of a violative condition, then the Agency determines the probability that an injury or illness will result from the hazard. For penalty assessment purposes, probability is categorized either as a greater or as a lesser ... 

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. 

Repeat violation citations are issued when the original violation has been abated, but upon reinspection, another violation of the previously cited section of a standard is noted. They may be inadvertent, but if they are found to be willful, both a willful and a repeat citation may be issued. For a first repeat violation, penalties assessed are multiplied by a factor of 2 for employers with less than 251 employees and by 5 for larger employers. The multiplier goes to 5 for a second repeat offense for small employers and 10 for large. OSHA regional administrators have the authority to use a multiplication factor of up to 10 for small employers in order to achieve the necessary deterrent effect. Failure to abate within the prescribed period can result in a penalty for each day of the violation beyond the abatement date. 

Kl quantities the assessment—here in bits—for anticipating a set of probabilities prob(i)]y erroneously or not, according to another probability set (i). There is zero penalty (assessment) for correct anticipation if prob i) = q i then prob(i)fq(i) = 1, and all the logarithm terms in the Equation (2,27) summation cancel to zero. The positive sign emphasizes an important distinction between the formulae used for computing I and KL... 

GAO. 1987. Mine Safety Inspector Hiring, Penalty Assessments, and Injury Reporting. Briefing Report to the Honorable Howard M. Metzenbaum, U.S. Senate. Washington, DC GAO. 9 pp. 

As indicated, there does not have to be a violation of law for an inspector to issue this type of order, but in practice, a citation is often associated with the issuance of such an order. High civil penalties may result from a citation issued with such an order. Typically, such a citation will be referred for an elevated civil penalty assessment under MSHA s Special Assessment procedures, particularly... 

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. 

Nominal—Non-S S Penalty Assessments Some violations are technical and do not really... 

Regular (Computer Calculated) Assessments Under MSHA s regulations, a formula is provided for calculation of proposed civil penalties based on points assigned for each finding made by an inspector with respect to a cited condition. For all civil penalty assessments, MSHA is to take into account six specific criteria estabUshed by Congress for determining final assessments by the commission. The six criteria are ... 

Daily Penalty Assessments Under the Mine Act, MSHA has authority to propose daily civil penalties for every day that an operator fails to correct a violation. In practice, daily civil penalties are rarely used. Operators are not inclined to engage in a course of conduct that would luilawfully defy MSHA, even if they think the agency is completely wrong about something because MSHA has so many enforcement tools at its disposal. In any event, daily penalties are one more way for MSHA to enforce the Mine Act. 

Individual Civil Penalty Assessments Generally speaking, individuals are subject to civil pen-... 

Whether the contractor will be responsible for pa)dng civil penalties assessed for any citations or orders issued by MSHA to the contractor or to the owner for violations alleged by MSHA for conditions at the contractor s worksite or for conditions caused by the contractor s employees or equipment (civQ penalties of up to 55,000 per violation are mandatory rmder the Federal Mine Safety and Health Act. See 30 USC 820(a)(1994)(the maximum penalty was increased to 55,000 by the Omnibus Budget Reconciliation Act of 1997). For civil penalty assessment procedures, see 30 CFR Part 100 (1999)... 

Fines and other penalties assessed as a result of a roadside inspection are based on state statutes. The only penalty specifically addressed in the FMCSRs deals with violations of Out-of-Service orders. 

CDL=Coinnieicial Driver s License FR=Fmandal Responsibility HM=Hazardous Materials (the total penalty assessed is per citation, not per number of counts) NO=Notice and Orders NR =Non-cecordteeping R=Recordkeeping COM=Commercial Regulations... 

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