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Penalty Policy – Preventing/Avoiding the “BIG” Fines
 

Penalty Policy – Preventing/Avoiding the “BIG” Fines

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Penalty Policy – Preventing/Avoiding the “BIG” Fines

Penalty Policy – Preventing/Avoiding the “BIG” Fines

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    Penalty Policy – Preventing/Avoiding the “BIG” Fines Penalty Policy – Preventing/Avoiding the “BIG” Fines Presentation Transcript

    • – KPA CONFIDENTIAL – Penalty Policy – Preventing/Avoiding the “BIG” FinesPenalty Policy – Preventing/Avoiding the “BIG” Fines 8-18-20118-18-2011
    • – KPA CONFIDENTIAL – PRESENTED BY Wayne Curtis Director, Client Operations wayne@kpaonline.com 678-298-5492
    • – KPA CONFIDENTIAL – QUESTIONS • If you have questions during the presentation, please submit them using the “Questions” feature • Questions will be answered at the end of the webinar
    • – KPA CONFIDENTIAL – 44 THE NATION’S LEADER ABOUT KPA • 25 Years Experience • 3000 + Automotive Clients • 50 consultants serving 43 States • Degreed Staff • Environmental and Safety Compliance Product •22+ State Automobile Dealership Association Endorsements • HR Compliance Product •14 State Endorsements
    • – KPA CONFIDENTIAL – 55 AGENDA OBJECTIVE: • Review Recent News • Review General Penalty Policy by Type • Discuss Examples and What Not to Do • Q and A
    • – KPA CONFIDENTIAL – RECENT NEWS 66 STATUS OF REGULATORY AGENCIES • 8-15-2011 Investors.com article • Regulatory agencies combined budget increase 16% since 2008 • Agency employment has climbed 13%
    • – KPA CONFIDENTIAL – RECENT NEWS 77 WHAT DOES THIS MEAN? • More inspectors and More regulations Inspectors • 1/29/10 - Labor Secretary, Hilda Solis: • “OSHA received over 100 inspectors in our 2010 budget, as well as an additional 25 requested in 2011. We are also moving 35 inspectors from compliance assistance activities to enforcement….There’s a new Sheriff in town.” Regulations • Federal Register total # of pages increased 18% in 2010 • 379 new rules were passed in July • Federal Register - 4200 new proposed rules on the way
    • – KPA CONFIDENTIAL – DEPARTMENT OF TRANSPORTATION 88
    • – KPA CONFIDENTIAL – HAZMAT PARTS
    • – KPA CONFIDENTIAL – DOT / FAA COMPLIANCE IMPORTANT EVENTS May 11, 1996 • Value Jet Flight 592 • No HAZMAT training • Chemical Oxygen generators ignited February 17, 2006 • DOT Raises the Maximum Civil Penalty from $32,500 to $50,000 • DOT Raises the Maximum Criminal Penalty to $500,000 and up to 10 years in Prison. •September, 2010 •Raise Maximum Penalty to $55,000 •$110,000 if results in death, severe injury, or significant property damage
    • – KPA CONFIDENTIAL – DOT / FAA COMPLIANCE • Penalty Policy: “When the violation is a continuing one, each day of the violation constitutes a separate offense” •§ 107.329 Maximum penalties • HAZMAT PENALTIES DO NOT SHIP HAZMATS VIA AIR
    • – KPA CONFIDENTIAL – OSHA 1212
    • – KPA CONFIDENTIAL – HOW PENALTIES ARE ASSESSED 1313 OSHA ASSESSMENT • Minimum Penalties • History Reduction • History Increase • Repeat Violations • Severe Violator Enforcement Program • Gravity-Based Penalty – severity and prob COMMON MITIGATING FACTORS • Size Reduction • Good Faith GRAVITY COMPONENTS • Other than serious • Serious • Willful • Repeated • Failure to Abate
    • – KPA CONFIDENTIAL – OSHA 1414 Last year • Past history period expanded to 5 years • Violations can be separate and not grouped • Average penalty will increase from $1000 to $3000-$4000 per penalty • Employers with 251 or more employees - no reduction for size • “Good Faith” reductions only if a safety and health program in place MOST AGENCIES – CIVIL PENALTIES INFLATION ACT Not OSHA - no increase in 40 years
    • – KPA CONFIDENTIAL – OSHA Violation / Penalty Trends
    • – KPA CONFIDENTIAL – Citations and Penalties VIOLATION TYPE PENALTY WILLFUL A violation that the employer intentionally and knowingly commits or a violation that the employer commits with plain indifference to the law. OSHA may propose penalties of up to $70,000 for each willful violation, with a minimum penalty of $5,000 for each willful violation. SERIOUS A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. There is a mandatory penalty for serious violations which may be up to $7,000. OTHER-THAN-SERIOUS A violation that has a direct relationship to safety and health, but probably would not cause death or serious physical harm. OSHA may propose a penalty of up to $7,000 for each other-than-serious violation. REPEATED A violation that is the same or similar to a previous violation. OSHA may propose penalties of up to $70,000 for each repeated violation.
    • – KPA CONFIDENTIAL – EPA MVAC COMPLIANCE 1717
    • – KPA CONFIDENTIAL – OSHA vs EPA David Michaels – Asst Secretary OSHA to House Subcommittee “In 2001 a tank full of sulphuric acid exploded at a Motiva refinery. A worker was killed and his body literally dissolved. The OSHA penalty was only $175,000. Yet, in the same incident, thousands of dead fish and crabs were discovered, allowing an EPA Clean Water Act violation amounting to $10 million — 50 times higher.” 1818
    • – KPA CONFIDENTIAL – STAFF SUPPORT THE FINES: • Different penalty policies established – CWA, CAA, RCRA, etc • Typically up to $37,500 per incident per violation ASSESSMENT • Minimum Penalties / Penalty Matrix, then • Multiple Penalties – Multiple Days possible, then • Gravity Based Penalty – potential for harm and risk, then • Extent of Deviation from Requirement, then • Economic Benefit of Non- compliance, then • Economic Benefit of delayed costs and avoided costs, and • Size of the violator…. •Penalty Policy: “in the case of a company with more than one facility, the size of the violator is determined based on the company’s entire operation, not just the violating facility” EPA CIVIL PENALTY POLICY
    • – KPA CONFIDENTIAL – EPA PENALTY POLICY – CIVIL PENALTIES 2020
    • – KPA CONFIDENTIAL – Clean Air Act 2121
    • – KPA CONFIDENTIAL – IMPORTANT PENALTY FACTORS 2222 CIVIL vs CRIMINAL • Willfully, Knowingly, Negligently (though should have known) • Personal Injury, Property Damage, Damage to the Environment Who Enforces? FAA, OSHA, EPA vs State • EPA MVAC • New 6H rule delegated States
    • – KPA CONFIDENTIAL – 6H Delegated States
    • – KPA CONFIDENTIAL – Delegated States
    • – KPA CONFIDENTIAL – RECAP: What Not to Do 2525 • Ship HAZMATS via air • Underestimate the seriousness of shipping HAZMATs • Knowingly or willfully pollute/release/ship/violate • Potential harm to human health, property, or environment • Repeat violations • Fail to give proper attention to regulators, inspections, letters, or responses
    • – KPA CONFIDENTIAL – What Not to Do 2626 Some choose to do nothing as it relates to regulations and requirements: Programs Training Facility Audits Paperwork
    • – KPA CONFIDENTIAL – Inspection Resources • Electronic Code of Federal Regulations http://www.gpoaccess.gov/ecfr/ • KPA inspection protocol • OSHA Field Operations Manual – CPL 02-00-148 • CAA, CWA, RCRA, and EPA Civil Penalty Policy • FAA – 14 CFR Section 13.16c
    • – KPA CONFIDENTIAL – Free Consulting Time!!!
    • – KPA CONFIDENTIAL – CONTACT INFORMATION The recorded webinar and presentation slides will be emailed to you today including your local representative’s contact information. www.kpaonline.com bross@kpaonline.com 866-356-1735