Illinois Administrative Code › Title 92 - TRANSPORTATION › Part 108 - HAZARDOUS MATERIALS CIVIL MONEY PENALTY POLICY › Appendix A - Guidelines For the Assessment of Civil Money Penalties Under the Illinois Hazardous Materials Transportation Act and Regulations

Current through Register Vol. 48, No. 28, July 12, 2024
Regulations were adopted by the Illinois Department of
				Transportation on February 1, 1979, implementing the Illinois Hazardous
				Materials Transportation Act, (Public Act 80-351) (Ill. Rev. Stat. 1981, ch.
				951/2, pars. 700-1 et seq.) ("IHMTA"), to protect the People of the State of
				Illinois against the risk to life and property inherent in the transportation
				of hazardous materials over highways in Illinois by keeping such risk to a
				minimum consistent with technical feasibility and economic
				reasonableness.
Section 11 of the IHMTA provides that any person who knowingly
				commits an act that violates the IHMTA or any regulation issued pursuant to the
				Act is liable to the State for a civil penalty of not more than $10,000 for
				such violation, and if the violation is a continuing one, each day of violation
				constitutes a separate offense.
Section 11 of the IHMTA authorizes the Department to assess the
				amount of any such penalty up to the stated maximum by written notice after
				reasonable notice and opportunity for a fair and impartial hearing. In
				determining the amount of the penalty the IHMTA directs the Department
				to:
. . . take into account the nature,
				circumstances, extent and gravity of the violation and, with respect to a
				person found to have committed such violation, 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 may require.
Subpart D of Part 107 of the Illinois Hazardous Materials
				Transportation Regulations (92 Ill. Adm. Code 107), now in force and effect,
				describes the various enforcement authorities exercised by the Department and
				their associated sanctions and prescribes the procedures governing the exercise
				of those authorities and the imposing of those sanctions. Sections
				107.313 through
				107.323 set forth the
				Department's enforcement procedures for the assessment of civil money
				penalties.
The regulations do not address the policy and procedures to be
				utilized by the Department to determine the civil money penalty which it will
				seek to impose for violations of the Act and the regulations. This Statement
				sets forth the civil money penalty policy which the Department will apply in
				determining, for purposes of issuing a Notice of Probable Violation, the amount
				of the civil money penalty which the Department will seek to have assessed
				against a violator of the Act and the regulations.
It should be noted that this civil money penalty policy applies
				only to the initial determination by the Department of the money relief which
				it intends to pray for in the Notice of Probable Violation which the Department
				issued to commence a civil money penalty proceeding against a violation. If a
				hearing is necessary, the amount of any civil money penalty assessed by order
				of the hearing officer may be independent of the guidelines set forth herein.
				Such civil money penalty assessed by order of the hearing officer may be
				greater than, less than or equal to the amount of the civil money penalty
				requested by the Department in its Notice of Probable Violation.
INTRODUCTION
There has been much discussion by the courts and legal
				commentators about the administrative prescription and imposition of civil
				money penalties. It appears well established, however, that the legislature
				may, by law, impose appropriate obligations and may encourage their enforcement
				by reasonable money penalties. The legislature may also, by law, grant to an
				administrative agency the power to prescribe such penalties and impose them in
				individual cases without the necessity of invoking the judicial process.
One of the major objections to giving an administrative agency
				the discretion to impose money penalties is that the money penalties will be
				imposed in an arbitrary or capricious manner.
In response to this concern, judicial decisions on the exercise
				of discretionary powers by administrative agencies have required that the
				legislature provide some guidelines to the considerations that should be
				weighed by the administrative agency; that, as a matter of fairness (due
				process), notice and an opportunity for a hearing should precede the imposition
				of the penalty; and that there be an opportunity for judicial review. If these
				requirements are fulfilled, there appear to be no significant constitutional
				impediments to the administrative imposition of money penalties.
The Illinois Hazardous Materials Transportation Act ("IHMTA")
				delegates to the Department of Transportation the authority to prescribed and
				impose civil monetary penalties. Section 11 of IHMTA prescribes:
1. What act is to be penalized - a knowing commission of an act
				that is in violation of the IHMTA or any rule or regulation issued thereunder
				(this would, of course, include omissions where the IHMTA or any rule or
				regulation require an affirmative act to be done);
2. Who is subject to the penalty - any person who transports or
				ships or causes to be transported or shipped hazardous materials;
3. What is the penalty - not more than $10,000 for a violation
				and if any violation is a continuing one, each day of violation constitutes a
				separate offense;
4. How is the penalty to be imposed - after reasonable notice
				and opportunity for a fair and impartial hearing; in writing; and taking into
				account the nature, circumstances, extent and gravity of the violation; the
				degree of culpability of the violator; the violator's history of prior
				offenses; the violator's ability to pay; the effect of the penalty on the
				violator's ability to continue to do business and such other matters as justice
				may require;
5. Judicial review is provided under the Administrative Review
				Law (Ill. Rev. Stat. 1981, ch. 110, pars. 3-101 et seq.).
These are adequate standards and safeguards imposed on the
				powers given the Department. Also, the power to impose civil money penalties is
				reasonably necessary to accomplish the legislative purpose.
Similar statutory frameworks can be found in the federal
				statutes, such as the federal Hazardous Materials Transportation Act ( 49
				U.S.C. 1801 ), Water Pollution Control Act ( 33 U.S.C. 1151 ), Occupational
				Safety and Health Act (
				29
				U.S.C. 651 ), and the Motor Vehicle Safety
				Act (15 U.S.C. generally).
PURPOSE OF THE CIVIL MONEY PENALTY
The objective of the civil money penalty is to assist in
				accomplishing the goals of the Illinois Hazardous Materials Transportation Act
				by deterring violations and encouraging voluntary compliance. Punitive
				considerations are secondary.
When a carrier or shipper complies with the IHMTA, he faces an
				investment of resources as well as, in many instances, a long term commitment
				to the payment of operation and maintenance expenses. For example, personnel
				handling hazardous materials must be trained; labels and placards must be
				purchased; the proper packaging must be acquired; tank containers must be
				periodically tested; required paperwork must be done. While complying with the
				regulations will lead to protecting against the risk to life and property
				inherent in the transportation of hazardous materials, compliance may not
				necessarily yield any direct short term economic benefit to the shipper or
				carrier. If financial resources were not used to comply with the Hazardous
				Material laws, they presumably would be invested in a manner which would be
				economically beneficial to the shipper or carrier. Therefore, from a strictly
				economic point of view, a shipper or carrier may perceive it to be in his best
				interest to delay the commitment of funds for compliance.
This short-term economic advantage to the non-complying shipper
				or carrier often creates an incentive to delay compliance. The civil money
				penalty serves to reduce this incentive.
In addition, the civil money penalty is an effective tool for
				reducing the harm or risk of harm to the public health and safety caused by
				non-compliance with the Hazardous Materials laws. By holding shippers or
				carriers liable for the costs of these risks, a money penalty encourages
				shippers and carriers to comply with the law.
The civil money penalty policy established by this memorandum
				is designed to assure fair and uniform money penalties. It is based on the
				statutory considerations set forth in Section 11 of the IHMTA.
It must be emphasized that this civil money penalty policy is
				for determining what money penalties the Department will seek when civil
				actions are taken. It is not a policy to determine which enforcement actions
				should be taken.
OTHER CIVIL MONEY PENALTY POLICIES
As the basis for recommending a civil money penalty policy, the
				Department reviewed civil money penalty enforcement mechanisms used by other
				agencies under related regulatory schemes. Several examples reviewed are
				illustrative.
The policies of the Materials Transportation Bureau of the
				federal Department of Transportation do not provide much guidance. At this time
				they have no systematic mechanism for determining penalty amounts or for
				assuring consistency among cases over time.
The federal Environmental Protection Agency has a complex and
				quite technical policy for assessments of civil money penalties against major
				source violators of the Clean Air Act (
				42 U.S.C.
				7401 et seq.) and Clean Water Act (
				33 U.S.C.
				1251 et seq.). Since the EPA policy is
				directed at enforcement of pollution control equipment requirements, the EPA
				policy is structured solely to calculate and eliminate the economic benefits to
				a non-complying source. Adopting this policy to the Department's hazardous
				materials program was considered unworkable since a strictly economic
				disincentive policy based on calculating the economic benefits of
				non-compliance is not easily adaptable to, and may not be realistically
				appropriate for, the hazardous materials program.
The federal EPA employs a different type of civil penalty
				mechanism for enforcing its regulations respecting availability of unleaded
				gasoline. This penalty mechanism establishes a matrix-type procedure for
				determining a proper penalty in accordance with statutorily mandated criteria -
				again very similar to those in Section 11 of the IHMTA - which are required to
				form the basis for the USEPA penalty. USEPA has established a table which
				classifies, in a fixed number of categories, the possible violations by their
				potential for causing the harm for which the EPA's law is intended to protect.
				Each class of violation is then fed through a matrix which adjusts the type of
				violation by the history of the violator's similar violations and again by the
				size of the violator's business. The result is a separate penalty assessment
				schedule - one for each class of violations - which sets out a dollar value or
				range of values depending on the violator's history of performance and the size
				of the violator's business. This penalty mechanism provides an unadjusted
				penalty arrived at in an objective manner (i.e., application of the matrix),
				which unadjusted penalty may be adjusted in a subjective manner based on
				consideration of the mitigating criteria mandated by EPA's statute. This type
				of penalty mechanism was considered as possibly appropriate and workable for
				the hazardous materials program.
THE CIVIL MONEY PENALTY POLICY
After reviewing several different possible penalty assessment
				structures, the Department established a civil money penalty mechanism which it
				believes will be effective and appropriate. This mechanism provides for
				consideration of the statutory criteria, provides a basis for consistency and
				leaves room for flexibility in applying what are really subjective
				factors.
The penalty mechanism is consistent with a proper exercise by
				the Department of its discretionary authority. The Department is free to
				exercise the discretion vested in it to determine the weight to be assigned to
				each of the criteria dictated by the legislature.
The penalty to be assessed will be determined first by a purely
				objective procedure of using the assessment formula. Although the Department
				used its discretion in creating the assessment formula, the use of the formula
				eliminates the arbitrary exercise of discretion by the Department. The factors
				composing the penalty formula have been established and the appropriate penalty
				amount has been assigned to each. The assessment formula yields an unadjusted
				initial penalty. If there are no factors to mitigate this initial penalty, then
				in each case, similar violations for similar sizes of businesses with the same
				degrees of culpability will yield similar penalties.
Where there are mitigating factors, the unadjusted penalty can
				be modified to reflect the circumstances of the individual violator in
				individual cases. This adjusted penalty is arrived at through a subjective
				process wherein the Department exercises its administrative discretion to
				mitigate the penalty in part or in its entirety. However, the Department's
				discretion is limited by the considerations mandated by the legislature in
				Section 11 of the IHMTA.
The violator has the burden of raising the mitigating facts as
				a defense to reduce the penalty sought. The Department will, however, consider
				such factors, to the degree known or to the degree possible, in setting the
				initial penalty as required by the IHMTA. In considering mitigating factors
				when determining the preliminary amount to be assessed, the Department will
				attempt to determine the ability of the respondent to pay the penalty.
In cases where non-compliance is attributable to the Department
				or its enforcement agents, to impossibility, or to emergency (as these concepts
				are discussed in another part of this policy), the unadjusted penalty will be
				reduced for that part of the non-compliance attributable to the mitigating
				circumstances. In most such instances, a civil money penalty will not be
				assessed.
In cases where the Department determines that the violator will
				be unable to pay or to continue in business after paying the unadjusted
				penalty, an unlimited adjustment may be made. However, it will be considered
				that payments could be deferred or made in installments.
USE OF THE CIVIL MONEY PENALTY POLICY IN ENFORCEMENT
				ACTIONS
The goal of an administrative enforcement action is both
				expeditious compliance (including interim controls) and appropriate and
				adequate money penalties. Compliance and money penalties will not in any way be
				traded off against each other. The civil money penalty is not a substitute for
				compliance and is not intended to preclude injunctive relief or other
				non-duplicative remedies, particularly the administrative compliance order.
				Money penalties are not fees. Payment of money penalties does not give any
				right or privilege to continue operation in violation of law.
STATUTORY CONSIDERATION FOR ASSESSMENT OF THE CIVIL MONEY
				PENALTY
The Department has been expressly instructed by the legislature
				to consider certain factors in determining the amount of the assessed money
				penalty. These factors were not defined by the legislature. How they are to be
				defined and applied have been left to the Department. The determination of the
				specific amounts to be assessed must at a minimum be based on these factors.
				The legislature has not, however, precluded consideration of other factors. The
				following is a brief discussion of the concepts which underlie the statutory
				considerations.
A. Harm to the Public Health, Safety and Property.
It is the declared legislative intent of the IHMTA
				to protect the public against the risk to life and property inherent in the
				transportation of hazardous materials over highways by keeping such risks to a
				minimum consistent with technical feasibility and economic reasonableness. The
				civil money penalty will be used to redress this harm or risk of harm to the
				public health and safety.
The Department's authority under IHMTA is to
				regulate for the safe transportation of hazardous materials so as to prevent
				harm to life and property. Other state agencies are concerned with
				environmental considerations. Although one of the goals of the Hazardous
				Materials laws is to protect against harm to property, it does not appear that
				the legislature intended to use the civil money penalty to supplant the loss
				and damage claims structure of the transportation industry. Nor does it appear
				to be the intent of the legislature to place the Department in a position of
				"parens patriae" to use its civil money penalty to collect a fund out of which
				to pay death, injury or property claims of individual private citizens. What is
				intended to be redressed is the harm or risk of harm to the collective
				public.
This factor is reflected in the statutory
				requirement that the Department consider the nature, circumstances, extent and
				gravity of the violation.
The "nature" of the violation encompasses the
				seriousness of the violation. It requires the Department to distinguish between
				technical violations as opposed to basic and fundamental violations. For
				example, omitting the hazardous materials description from the shipping paper
				is more fundamental than entering the description in the wrong sequence.
				Another example would be failure to indicate the "up" side of a packaging,
				versus indicating it in an unacceptable manner such as by a hand-drawn marking
				across on the side of the package. The "nature" of the violation calls for
				examination of it on the continuum running from form to substance.
The "circumstances" of the violation is a broad
				consideration which would encompass both aggravating as well as mitigating
				factors. To the extent mitigating circumstances are known at the time the
				Department determines the civil penalty it will seek, they will serve to reduce
				the culpability factor and perhaps the weight given to other factors.
The "extent" of the violation requires the
				Department to consider whether the violation was widespread or confined. A
				violation limited to one package or one shipment, for example, must be
				contrasted with violations on all packages in the shipment or on all shipments
				by the company over a period of time.
The "gravity" of the violation is a consideration of
				the seriousness of the violation. This requires the Department to consider
				whether the violation resulted in harm to the public health and safety (looking
				at resulting death, injury or property damage) and whether the violation could
				have resulted in such harm. The Department will therefore be required to
				consider two distinct factors: what DID happen as a result of the violation and
				what COULD have happened as a result of the violation. The gravity of the
				violation will be directly affected by the degree of hazard of the material,
				the volume of the material per package, the number of improper packages shipped
				and the relative exposure of transportation employees and the public to the
				hazard.
The penalty amount applicable to the harm or risk of
				harm will have to be determined on the facts of each specific case.
B. The Violator's Recalcitrance, Defiance or Indifference to
				the Requirements of the Law.
Philosophically speaking, good faith efforts to obey
				the law are expected of all persons subject to its jurisdiction. Mere
				assertions of "good faith" should not be considered as a basis for reducing the
				otherwise appropriate penalty. Courts traditionally consider the degree of the
				violator's recalcitrance, defiance, purposeful delay, or indifference to legal
				obligations in setting penalties. The Department will do so also, and will not
				hesitate to include a sum in the civil penalty to reflect such factors where
				they exist.
Care will be exercised, however, not to seek to add
				such an element of penalty on a person, firm, or entity for exercising, without
				purpose of delay, its lawful rights to challenge agency determinations in
				administrative or court proceedings. A violator which has complied with all
				requirements that were not disputed while challenging the rest has not been, on
				those grounds alone, recalcitrant, defiant or indifferent. Such a violator is
				on a different footing from one which used a challenge of one aspect of its
				compliance requirement to delay all compliance, or which makes frivolous
				challenges for purposes of delay.
Consideration of a violator's recalcitrance,
				defiance, or indifference will require the Department to look at the violator's
				culpability and history of performance or, as stated by IHMTA, the history of
				prior offenses.
"Culpability" of the person is the quality of the
				person's awareness of his actions, and the degree to which he was responsible
				for averting such violations. Ignorance is no excuse and, to a great extent,
				ignorance in handling hazardous materials will weigh in favor of a more severe
				sanction, rather than less. In typical transportation, however, there often are
				other parties involved such as forwarding agents, contract packers, other
				carriers, warehousemen, and the like. To the extent a particular function under
				the regulations is not assigned to a specific person (and many are not), and to
				the extent that the performance of that function fell between multiple parties
				to a transaction, "culpability" of a particular person may be lessened. The
				degree of "culpability" will be influenced for example by the hazard of the
				material in question, the quantity, the frequency with which this person deals
				with that material or the regulations, and other like considerations.
				Negligence in conducting one's operations, or in monitoring agents and
				contractors performing operations on one's behalf, will be considered in
				assessing "culpability." In this element, the Department will weigh how
				avoidable the violation may have been. To the extent the violation may appear
				to have been intentional, for example, for the purpose of using cheaper
				packaging or getting lower freight rates, criminal prosecution, rather than a
				civil money penalty, may be in order.
The history of a violation performance in shipping
				and transporting hazardous materials will be considered by the Department. The
				Department will consider the violator's performance record in terms of prior
				Notices of Apparent Violation, prior Warning Letters, and prior compliance
				efforts of the violator. Consideration will primarily be given to the
				violator's history of performance in terms of previous occurrences of the same
				type of violation as the one for which the respondent is being charged. History
				of committing other acts prohibited by the Hazardous Materials laws will be
				considered but is not as significant as repetitions of the same type of
				prohibited act. For example, if the violation being charged is an equipment
				violation, the Department will focus primarily on the violator's performance
				record of equipment violations. The Department will further consider the type
				of equipment violations involved. Prior administrative and judicial enforcement
				proceedings for the same type of violation which culminated in sanctions
				against the violator, whether through default judgments, consent decrees or
				order, will also be considered. The Department will also give consideration to
				any federal administrative or judicial actions which have been brought against
				the violator for federal hazardous materials offenses. The consideration of
				history of performance also reflects, in part, the statutory consideration of
				the degree of culpability.
C. Mitigation for Non-Compliance Caused by the Department
				Itself.
When failure to comply or compliance delay was
				caused by, requested by, or attributable to the Department or its enforcement
				agents, such as the Illinois State Police, civil money penalties are not
				appropriate. When the failure or delay was partially caused by the Department,
				the penalties may be reduced in proportion to the period of delay caused by the
				Department. It is expected that mitigation on this basis would only be
				permitted when the Department was clearly responsible for the delay.
				Consideration of this factor would fall under the statutory consideration of
				"such other matters as justice may require."
D. Mitigation for Impossibility.
Where delayed compliance was, in fact, attributable
				to causes absolutely beyond the control of the violator (such as acts of
				nature) and was not due to the fault or negligence of the violator, a civil
				money penalty may not be required - even in instances where as a result of the
				impossibility the violator has enjoyed an economic benefit. The violator will
				bear the burden, however, of demonstrating that all reasonable steps were taken
				by him to comply. Examples of excusable circumstances would include natural
				disasters, fire, embargoes, strikes, and inability of a supplier to furnish
				materials. Non-compliance will not be excused where the violator encouraged or
				contributed to the impossibility or unduly delayed negotiations for needed
				equipment or materials through unreasonable demands, unusual restrictions, or
				other delays. If only a portion of the period of delayed compliance is
				attributable to such factors beyond the violator's control a civil money
				penalty will be sought only for that period of non-compliance that was not
				attributable to such factors. Considerations of impossibility would fall under
				the statutory considerations of "degree of culpability" and "such other matters
				as justice may require."
Shippers and carriers affected by this policy should
				understand that where they believe that they cannot comply with a requirement
				of the Hazardous Materials laws by reason of causes absolutely beyond their
				control, it is their responsibility to contact the Department's Hazardous
				Materials Section about their situation. If a shipper or carrier desires to
				continue to ship or transport hazardous materials until such time as it can
				bring itself back into compliance with the Hazardous Materials laws, then the
				shipper or carrier MUST make an application for an exemption by which
				application they MUST demonstrate that their actions, although not in
				compliance with the Hazardous Materials laws, will insure equivalent levels of
				safety. If a shipper or carrier cannot demonstrate this, then no exemption will
				be issued. Such a shipper or carrier must not ship or transport hazardous
				materials until compliance can once again be achieved. The Department will
				consider it to be a very serious violation where a shipper or carrier
				undertakes to excuse its own non-compliance even where non-compliance may be
				due to causes absolutely beyond the control of the shipper or carrier.
E. Other Bases for Mitigation.
There may also be other unforeseeable mitigating
				circumstances which might excuse all or a part of the otherwise appropriate
				civil money penalty. Acceptability of such a situation as a mitigating
				circumstance will have to be considered on a case-by-case basis. Another
				instance in which all or part of an otherwise appropriate civil money penalty
				might not be sought would be where emergency needs (such as employment or
				energy) require non-compliance. Obviously, situations involving unusual
				mitigating circumstances must be looked at individually since the full range of
				such situations cannot be predicted. As discussed above under "impossibility,"
				a shipper or carrier who is unable to comply must make an application for an
				exemption. No shipper or carrier may at any time excuse itself from
				compliance.
Since the Act imposes absolute duties of compliance,
				the burden is clearly upon the violator to establish a compelling reason why a
				civil money penalty should be mitigated. This burden is satisfied only when
				serious efforts have been made to comply but actual impossibility or Department
				conduct alone have precluded compliance. Only in these instances have violators
				really made a "good faith" effort that excuses non-compliance.
All firms and individuals must be held to a standard
				that requires careful and diligent planning and serious effort to come into
				compliance in a timely manner.
F. Other Statutory Factors.
The IHMTA also requires consideration of a
				violator's ability to pay and the effect on the violator's ability to continue
				to do business. This requires the penalty to be a function of the "size" of the
				violator's business. The objective of the Department's penalty structure is to
				provide meaningful deterrence to all members of the industry and thereby
				encourage compliance. The size of business criteria will reflect the
				respondent's ability to pay and continue in business and thereby provides an
				equivalent degree of deterrence despite differences in business size.
A penalty designed to provide adequate deterrence
				against a large business may be wholly inappropriate if assessed against a much
				smaller business. Such a penalty might cause the smaller business to terminate
				its operations. More nearly uniform deterrence can usually be achieved by
				assessing the smaller respondent a smaller penalty.
"Size" will be considered to be expressable in terms
				of some determinable financial criteria which reflects the respondent's
				economic vitality or strength.
Consideration will also be given to whether to defer
				or reduce the penalty where a violator lacks the ability to immediately pay the
				full amount of the penalty.
An unlimited adjustment may be required upon
				consideration of the effect that the proposed money penalty will have upon a
				respondent's ability to continue in business. This consideration is the logical
				extreme of the criteria that relates to the size of the business. A penalty may
				be unreasonable if the respondent would suffer a severe economic hardship or if
				its business must be terminated. Deterrence and compliance in such a case might
				be achieved by coordinating a reduced money penalty with a compliance order or
				an injunction, rather than putting the respondent out of business through the
				imposition of a large money penalty.
If one cannot afford to conduct a hazardous
				materials shipping or carrying operation safely, however, then there is merit
				in having that operation go out of business.
CIVIL MONEY PENALTY MECHANISM
The civil money penalty shall be determined in accordance with
				the following mechanism:
Except as otherwise stated, a numerical value of from 1 to 5
				shall be assigned to each of the following factors: (a) nature of the
				violation, (b) extent of the violation, (c) gravity of what did happen as a
				result of the violation, (d) gravity of what could have happened as a result of
				the violation, (e) culpability, (f) and history of performance for this or
				other hazardous materials offenses. A value of 4 or 5 in the gravity of what
				did happen will be weighted by doubling the value. Repetition of the same
				offense will always be valued at 5 and weighted by doubling it to 10. The
				doubling of these values reflects the Department's determination that
				repetition of the same violation or a violation which results in serious loss
				or injury should carry a greater penalty. The values assigned will be summed.
				The sum will be divided by the maximum possible weighted value per violation
				(40) and then multiplied by the maximum possible penalty per violation
				($10,000). The result will be the unadjusted civil money penalty which the
				Department will seek to assess in actions against violators.
Values will be assigned based upon the following limits:
NATURE would range from 1 for a purely technical violation but
				general overall compliance, to 5 for complete absence of effort to comply with
				a fundamental requirement.
EXTENT would range from 1 for a situation involving a single
				unit, partial violation on a single occasion, to 5 for multi-unit violations
				over an extended time period.
GRAVITY:
A. Of what did happen, would range from 1 for light
				property damage or minor personal injury to 5 for a fatality or permanently
				disabling injury or substantial property damage. Any value of 4 or 5
				automatically would be weighted by doubling to 8 or 10, respectively. If there
				is no personal injury or property damage a value of 0 would be assigned.
B. Of what could have happened, would range from 1
				for the general possibility of light property damage or minor personal injury,
				to 5 for the likelihood of fatal or permanently disabling consequences or
				substantial property damage. If there is no likelihood that there could have
				been personal injury or property damage a value of 0 would be assigned.
CULPABILITY would range from 1 for violation of requirements
				that should have been known, but as a practical matter were not seen, to 5 for
				violations of fundamental requirements for which that person was clearly
				responsible.
HISTORY OF PERFORMANCE:
A. The value assigned for the prior prohibited acts
				of the same type as the one for which the violator is being charged would range
				from 1 where the violator had previously received a single Notice of Apparent
				Violation citing him for the same type of act, to 5 where sanctions pursuant to
				a Notice of Probable Violation or court action charging the same type of act
				were imposed against the violator, either by default, consent or order. Where a
				value of 5 is assigned, this value would be automatically weighted by doubling
				to 10.
B. The value assigned for prior prohibited acts
				which are not the same type as the one for which the violator is being charged,
				would range from 0 for no such prior acts to 5 for multiple prior prohibited
				acts of requirements of a fundamental nature.
A series of examples may suffice to illustrate how this system
				would work. These examples present simple, hypothetical situations which do not
				reflect all circumstances which may arise.
Ex. 1: A shipper chronically fails to use required DOT
				specification packaging for a material corrosive to skin. This violation is
				observed on a routine inspection. There is no leakage or damage. He has had
				other moderate hazardous materials violations in the past, but has not received
				sanctions for this one. A value of 5 would be assigned for the nature of the
				violation, which is total non-compliance with a fundamental requirement; a
				value of 5 is assigned for the extent of the violation, which involves all
				containers and has occurred over an extended time period; a value of 0 is
				assigned to the gravity of the event; a value of 2 is assigned for the gravity
				of the chemical burns that COULD have resulted; a value of 5 is assigned for
				culpability, since proper packaging is a primary shipper responsibility and he
				should have been aware of it; and a value of 2 is assigned for moderate past
				hazardous materials violations. This totals 19, divided by the maximum possible
				value of 40, times $10,000, results in a preliminary civil penalty of
				$4,750.
Ex. 2: In the same situation as Ex. 1, but where minor leakage
				has occurred, the value assigned to the gravity of what did happen would be
				raised to 2, raising the total value to 21, and raising the preliminary penalty
				to $5,250.
Ex. 3: In the same situation as Ex. 1, but where there was
				substantial leakage of a material that permanently disabled a transportation
				worker, the gravity of what happened would be raised to 5 and automatically
				would double to 10, and the value of what could have happened would be raised
				to 5. This gives a total assigned value of 32, and a preliminary civil penalty
				of $8,000.
Ex. 4: In the same situation as Ex. 3, but where there had been
				prior sanctions for the SAME offense, the value of 5 would be assigned to prior
				offenses and would automatically double to 10, giving a total of 40, and a
				preliminary civil penalty of the maximum $10,000.
Ex. 5: A motor carrier is stopped on a routine check and has
				one of three placards missing from the vehicle, but he otherwise is in
				compliance, and has had previous moderate hazardous materials sanctions but
				none for placarding. A value of 1 would be assigned for the partial violation
				of a fundamental requirement, but where compliance otherwise was achieved; a
				value of 1 would be assigned for the extent, being a single missing placard on
				a single vehicle on a single occasion; a value of 0 would be assigned to the
				gravity of what did happen; a value of 1 would be assigned for the value of
				what could have happened, if there had been an emergency and there was a need
				to view the placard from the one side where it was missing; a value of 1 would
				be assigned for culpability, since although the maintenance of placards is the
				carrier's responsibility, in all likelihood this violation was inadvertent; and
				a value of 2 would be used for past hazardous materials violations. This totals
				6, divided by 40, times $10,000, results in a preliminary civil penalty of
				$1,500.
Ex. 6: The same motor carrier in Ex. 5 is missing ALL placards
				from the vehicle, although the papers received from the shipper showed placards
				to be necessary. Values would change. A value of 5 would be assigned for the
				total failure to meet a fundamental requirement; a value of 2 would be assigned
				for the extent, since four placards were missing, but from a single vehicle on
				a single occasion; a value of 0 would be given the gravity of what did happen;
				a value of 5 would be given the gravity of what could have happened; a value of
				5 would be assigned for culpability for total non-compliance with a
				responsibility that clearly is the carrier's; and a value of 2 would be
				assigned for past violations. This totals 19, for a preliminary civil penalty
				of $4,750. (NOTE: If the placards were intentionally removed by the driver to
				avoid tunnel restrictions, etc., a civil penalty would apply to the company,
				and the Department might recommend criminal prosecution of the driver for a
				willful violation; if he was instructed to remove the placards by his
				supervisor, criminal prosecution might be recommended against the company and,
				perhaps, against the supervisor individually, as well.)
Ex. 7: The shipper in Ex. 1, in his reply to the notice of
				probable violation, proves that although the containers were not marked with
				the DOT specification marking, they were built to standards equivalent to or
				better than the specification requirements. In considering this "circumstance,"
				the preliminary penalty values would be reassigned for the nature of the
				violation from 5 to 1, to reduce the gravity of what could have happened from 2
				to 0, and to reduce the culpability from 5 to 1, since he carried the
				responsibility to meet packaging standards but did not meet the marketing
				requirements. This would provide a revised total of 9, and a willingness to
				settle in a settlement conference called by the presiding officer, for the
				reduced penalty of $2,250 rather than the original figure of $4,750.
If the reply indicates other circumstances to warrant reduction
				of the penalty, these will be taken into account to reduce the original values
				assigned. To the extent the recipient of the letter proves that he lacks the
				ability to pay or to continue to do business, consideration will be given to a
				staggered schedule of payments before agreeing to overall reduction of the
				penalty. Of course, there may be circumstances where the penalty should be
				reduced for reasons of financial distress, but those circumstances will be very
				limited.
The caveat bears repeating that this mechanism is a GUIDELINE,
				not a rigid formula that will be implemented blindly. To the extent that a
				particular case calls for unusual treatment, it may receive that treatment,
				irrespective of the penalty figures that the proposed system would impose. As a
				matter of routine, however, this system will provide the basis for determining
				preliminary civil penalties and it will provide a necessary measure of
				consistency from case-to-case, violation-to-violation, and year-to-year in
				administering the Department's hazardous materials program.