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It is the policy of the Prosecutor’s Office to support companies which audit
their own facilities and correct any AQMD 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 AQMD should be
significantly reduced or when appropriate, waived in order to encourage all
facilities to implement an effective self-auditing program.
The Prosecutor’s Office’s self auditing penalty policy is founded on the
basic principle that violations which are self-audited, disclosed and corrected
warrant penalties that are consistently and predictably lower than penalties for
violations which are discovered by the AQMD.
This penalty policy 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.
Eligibility (Return to top) 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 AQMD or other regulatory agency.
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The violation was reported voluntarily by
the facility, i.e. without any requirement to do so by law, regulation, permit
or agreement.
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The violation was reported promptly by the
facility to appropriate AQMD staff, as soon as possible after discovery.
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The violation was corrected promptly and
effectively by the facility to reduce or eliminate all emissions and to
prevent reoccurrence of the violation.
In all cases, the company or facility seeking the penalty waiver or reduction
must provide sufficient documentation to the Prosecutor’s Office to prove
eligibility for the application of this policy 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.
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The violation resulted in the emissions of any
toxic air contaminant.
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The violation created a public nuisance.
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The company or facility has a prior history
of the same violation.
Crafting the Penalty (Return to top)
Penalty Waiver
Under certain limited circumstances, it may be appropriate to waive a
penalty. Penalty waivers should be used sparingly. Often, a 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 District
Prosecutor.
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.
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The facility has a history of good compliance and
cooperation with the AQMD’s enforcement efforts.
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The violation did not result in significant harm
to the environment or any risk to public health.
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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 AQMD to take any further action necessary to address the
violation in a manner that is acceptable to the AQMD.
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The violation did not result in any economic gain
or competitive advantage to the company or facility.
Penalty Reduction (Return to top) 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 Prosecutor’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 AQMD should
be reduced.
As is always the case when seeking a penalty, the Prosecutor’s Office must
consider all factors set forth in the California Health and Safety Code.
In all cases, the Prosecutor’s Office may seek to recover any economic
benefit afforded to the company or facility as a result of the violation.
Questions and Further Information If you have any questions about
these policies or would like further information about the AQMD’s Prosecutor’s
Office, please contact the Duty Deputy at (909) 396-3400 or send your question
by e-mail to
ddeputy@aqmd.gov.
Return to General Compliance Policy page.
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