Stage one is the determination of a ‘gravity-based penalty.’ Gravity refers to the overall

seriousness of the violation. To determine the gravity-based penalty, the following

factors are considered:

The nature of the violation, which may include work practice and occupant

protection, supervision, training, certification and administrative violations.

The scope of the violation and extent of harm that may result, including the

vulnerability of potentially affected individuals to lead poisoning.

Stage two involves adjusting upward or downward the penalty determined under the

gravity-based penalty guideline. Adjustments may be made by considering the

following factors:

Violator’s voluntary disclosure of the violation.

Violator’s degree of cooperation in quickly and effectively correcting the violation.

• Violator’s degree of culpability.

Violator’s history of prior violations.

• Violator’s financial situation and size of operation.

Such other factors as justice may require.

STAGE 1: Gravity-Based Penalty Guidelines for Lead Violations

Nature of the Violation

The nature reflects the type of vioation and probability of harm resulting, or that could

result, from the violation. The following system ranks violations using three levels that

factor in the probability and amount of harm associated with the violation. However, the

unique circumstances of a violation must be considered in establishing a level.

Low- Violations that have little potential of causing harm. These violations generally

result from a paperwork or administrative failure.

Medium -Violations that have some potential of causing harm. These violations

generally involve work practice or occupant protection viOlations but where there is no

evidence of persons being directly exposed or in a position to be directly exposed, suchas work in a vacant property.

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p

g

Minor—

A violation that has minimal potential of causing damage to human health or the environment, as may be evidenced when no hazard or only

a minor hazard was created and no exposures or potential exposures were documented.

Major -A violation that has potential for causing “serious’ damage to human health or the environment, as may be evidenced by the creation of hazardous conditions, or failure to contain hazardous conditions during work, that if left uncorrected would be accessible to

a child under age 6,

a pregnant woman, older children, women of child bearing age; when workers conducting high-risk activities are not properly protected; when lead paint activities are conducted without protecting the environment; and, where

a lead hazard has been left behind in the environment in

a location where

a person would likely be exposed, such as bare soil in play areas, porch floors, or on floors or window sills on the interior of

a residence or child-occupied building No evidence of actual exposure is necessary.

Severe -A violation that has

a high potential for causing, or has caused, ‘significant” damage to human health or the environment, including, insufficient or no containment of high-risk lead paint activities in an occupied dwelling or child-occupied facility; exposure of

a child under age 6,

a pregnant woman or multiple occupants of a building to

a lead- based paint hazard during

a lead project creation of

a lead-based paint hazard in

a common area or multiple living units of

a multi-family residential dwelling.

The scope and extent levels are determined based on the age and status of exposed persons, on the number of persons exposed or potentially exposed to,

a lead hazard, or on the amount of lead hazard created or improperly contained and the size of the environmenta[ area contaminated (interior or exterior). Factors that affect the severity of the violation include:

1. The age of any children occupying the dwelling orbuilding. Children under the age of six (6) are more vulnerable to the effects of lead-based paint hazards in their environment than older children or adults. The extreme effects that lead c?n have on children under the age of

6 mandates

a “severe” extent factor when such

a child is exposed, Children above the age of

6 can also be affected by lead; therefore, the extent factor takes this fact into consideration. The presence and age of children present must be taken into account when determine the scope and extent of the violation.

2.

A pregnaht woman occupying the dwelling or building. Pregnant women represent

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includes using proh

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, 

g 

the proper controls, or conducting any lead-based paint disturbance in such

a way that

potential lead hazards are not properly contained or cleaned up.

Gravity-Based Penalty Matrix for Lead Program

POTENTIAL FOR HARM

NATURE OF VIOLATION

Minor Major Severe

Low j $100-$150 $150-$250 $2504500

Medium $150 - $250 $250- $500 $500- $750

High $250- $500 $500- $750 $750- $1,000

Gravity-Based Penalty Guidelines for Asbestos Violations

Types of violation can range from administrative omissions, such as improper project

notification or not having

a certification card on-site, as required, to violations with

a

greater potential for causing harm such as not having a certified supervisor on-site or

using untrained and uncertified workers or not notifying for the asbestos prect. Type

of violation may also refer to the type of asbestos disturbance or activity involved in the

violation. An uncertified worker is less likely to cause harm if the material being

disturbed in non-friable and remains non-friable for the duration than if the material is

highy friable such as pipewrap or ‘lagging.’ Likewise, an uncertified person who takes

one sample of floor tile to give an owner information about asbestos content is less

likely to cause real harm than an uncertified person who claims to be able to conduct full

asbestos inspections of an industrial facility and the business subsequently makes

renovation decisions based on an inaccurate inspection report of their facilities.

The scope and extent of the non-compliance also play

a part in determining the gravity

of the violation. The scopele$ent may relate to the number of persons involved, the

number of projects or amount of time during which the vioation has occurred. Finding

no trained workers on a multi-worker crew and no certified supervisor overseeing an un

notified project has greater potential for harm, generally, than finding one uncertified

worker in a multi-worker crew of

a notified project with

a certified supervisor on-site.

Penalties are based on the nature of the violation and scope of the violation, similar to

descriptions for lead violations. Violator’s level of responsibility, presence or lack of

training, and presence or Jack of certification and supervision are also taken into

account as provided in the table below:

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High na $100 $100

STAGE 2: ADJUSTMENT FACTORS

Factors to consider in determining the amount of a civil penalty amount include:

Voluntary disclosure prior to Department inspection or investigation

• Attitude and level of cooperation

• Degree of culpability

• History of prior violations

• Supplemental projects

• Economic benefit derived from noncompliance

• Adjustment for small independent companies and training providers

• Financial situation

Voluntary disclosure

A person may be eligible for a reduction in the forfeiture of up to 25% if the person voluntarily discloses aviolation before receiving notice of a pending inspection, investigation or alleged violation or before an inspection or investigation is conducted or a complaint is made to the DHFS, EPA or a local government agency. An additional reduction of up to 25% may be made if the violator reports the potential violation within 30 days of discovery.

The reduction for voluntary disclosure and immediate disclosure may be made prior to issuing a civil notice of non-compliance. The NON should state the amount of the original forfeiture and amount of the reduced forfeiture with the reasons for the reduction.

Cooperation

Forfeitures may be retluced up to 30% for cooperation when circumstances warrant. This adjustment has the following components:

1. Assistance with investigation. May reduce base forfeiture up to 10% based on a respondent’s cooperation throughout the entire inspection, investigation, case

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Degree of culpability

The principal criteria for assessing culpability include both of the following:

1. The violator’s knowledge of the lead-based paint regulation violated.

2. The degree of the violator’s control over the conditions of the violation.

For forfeiture purposes, when the violator intentionally commits an act which he knew

would be

a violation or would be hazardous to health, or when the violator has been

issued

a prior NON, the penalty may be increased by up to 25% (as limited to the

maximum forfeiture allowed by statute).

History of prior violations

When a violator has a history of prior violations of lead-based paint rules, the penalty

may be adjusted upward by up to 25% (or to the maximum allowed by statute). The

need for such an upward adjustment is based on the premise that previous penalties did

not sufficiently motivate the violator to comply.

A corporation owned by or affiliated with the same parent corporation may not

necessarily affect each other’s history (such as with independently-owned franchises) if

they are substantially independent of one another in their management and the

functioning of their Boards of Directors. Request, obtain and review underlying and

supporting financial documents that form the basis of these records as needed to verify

their accuracy. If the violator fails to provide the necessary information and the

information is not readily available through other sources, rely on available information.

n the case of wholly-owned subsidiaries, the parent corporation’s history of violation

shall apply to all of its subsidiaries. The history of violation for a wholly-owned

subsidiary will apply to the parent corporation.

Supplemental projects

Supplemental projects are actions which

a respondent agrees to undertake in

settlement of an enforcement action, but which the violator would not otherwise legally

required to perform. In return, the cost of the project reduces the amount of the final

forfeiture paid by the respondent. The actions should be substantially related to

protecting human health from harmful exposure to lead-based paint or asbestosConsider evidence.ofa violator’s commitment and ability to perform

a supplemental

project in establishing an appropriate settlement penalty.

Economic benefit derived from noncompliance.

A person who has violated lead-based paint regulations should not profit from the

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adequately 

j

or economic benefit dpes not

benefit capture the economic benefit, consider seeking parity for the economic

might include

to the violator based on the circumstances of the individual case. An example

and requiring them requiring the violator to send uncertified employees to appropriate training to become certified.

Adjustment for small companies

engaged

Civil forfeitures may be reduced by up to 50% for persons who are generally not

contractors

in

with

regulated asbestos or lead activities as a business or who are independent fewer than three employees.

Financial situation

financial

Under TSCA,

means

EPA

of the

generally

violator.

will not levy monetary penalties that are clearly beyond the

ability Absent proof to the contrary, estabLish a respondent’s to pay with circumstantial evidence relating to a company’s size and sales.

of

If a

settlement

violator raises

negotiations,

the ability to pay argument as a defense in its answer or in the course request the following types of information: • Tax returns for the last 3 years Balance sheets

• Income statements

Statements of changes in financial position • Statement of operations

• Retained earnings statements

• Loan applications, financing agreements, security agreements

•

• Annual

Statements

and quarterly reports to shareholders and the SEC, including 10K reports on assets and liabilities

Under some circumstances,

a company

it may be appropriate to seek a forfeiture that might prevent

violations., it

from

may

continuing

be

in business. For example, when there is a long history of

indicates that inappropriate to reduce the amount of a forfeiture because history a less severe measure would be ineffective.

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