The General Counsel’s Office encourages companies to audit their own facilities and correct any SCAQMD rule violations in a timely manner. Depending on the circumstances of the case, a penalty sought for a violation discovered through self-auditing and promptly reported to the SCAQMD should be significantly reduced or when appropriate, waived in order to encourage all facilities to implement an effective self-reporting program.
The General Counsel’s Office’s self reporting penalty guidelines are founded on the basic principle that violations which are self-reported and corrected warrant penalties that are consistently and predictably lower than penalties for violations which are discovered by the SCAQMD.
This penalty guideline is structured to provide an incentive for facilities to self-audit so that violations will be promptly found and corrected, thereby minimizing any harm to the environment.
To determine whether a company is eligible for a reduced or waived penalty, the following criteria must be met:
- The violation was discovered by the facility without any participation by the SCAQMD or other regulatory agency.
- The violation was reported voluntarily by the facility, i.e. without any requirement to do so by law, regulation, permit or agreement.
- The violation was reported promptly by the facility to appropriate SCAQMD staff, as soon as possible after discovery.
- The violation was corrected promptly and effectively by the facility to reduce or eliminate all emissions and to prevent re-occurrence of the violation.
In all cases, the company or facility seeking the penalty waiver or reduction must provide sufficient documentation to the General Counsel’s Office to prove eligibility for the application of the guidelines and must bear the burden of persuasion that waiver or reduction is appropriate.
There are circumstances under which a violation, even if discovered pursuant to self-auditing and voluntarily reported, would not be eligible for a reduced or waived penalty. To determine whether a company is ineligible for a reduced penalty, the following criteria must be considered:
- The violation was the result of knowing, willful or intentional conduct or was the result of gross negligence.
- The violation resulted in the emissions of any toxic air contaminant.
- The violation created a public nuisance.
- The company or facility has a prior history of the same violation.
Crafting the Penalty
Under certain limited circumstances, it may be appropriate to waive a penalty. Penalty waivers are to be used sparingly. Often, a Supplemental Environmental Project (SEP) penalty may be a more appropriate alternative to a penalty waiver. Please note that under no circumstances may a penalty be waived without the prior approval of the General Counsel's Office.
The following circumstances indicate that a penalty waiver may be appropriate:
- The violation occurred despite the good faith efforts on the part of the facility to comply with all rules and regulations.
- The facility has a history of good compliance and cooperation with the SCAQMD’s enforcement efforts.
- The violation did not result in significant harm to the environment or any risk to public health.
- The facility, upon discovery of the violation, took immediate and effective action under appropriate technical supervision to cease or remediate the violation and avoid repeated violations, and agrees in writing with the SCAQMD to take any further action necessary to address the violation in a manner that is acceptable to the SCAQMD.
- The violation did not result in any economic gain or competitive advantage to the company or facility.
In those cases where any of the above conditions set forth for penalty waiver have not been met, or where other circumstances indicate that a waiver is not warranted, the General Counsel’s Office will consider all legal and factual circumstances to determine the extent to which a penalty associated with a violation discovered through self-auditing and voluntarily reported to the SCAQMD should be reduced.
As is always the case when seeking a penalty, the General Counsel’s Office must consider all factors set forth in the California Health and Safety Code.
In all cases, the General Counsel’s Office may seek to recover any economic benefit afforded to the company or facility as a result of the violation.
If you have any questions about these guidelines or would like further information about the SCAQMD’s General Counsel’s Office, please call 909-396-3535 or 909-396-3400.