Judging Each Violation Individually

As a matter of state law, a judge or jury is obligated to evaluate each violation individually and with reference to all facts and circumstances. This is an important legislative policy that the General Counsel's Office follows in negotiating settlements. By evaluating each case individually and utilizing Supplemental Environmental Projects when appropriate, the office has placed a major emphasis on balancing economic and environmental concerns. This policy recognizes that what might be a fair penalty for a large company might not be for a small company, despite the fact that the same District rule was violated.

South Coast AQMD considers such factors as the financial burden to the violator or the action taken to correct the violation, thus allowing a “sliding scale” in negotiating the appropriate penalty. Without such a policy, all violators would have to be treated exactly alike without regard for the factors which can make one violation different from another. The California Health and Safety Code requires that the following factors be considered in assessing penalties:

1. The extent of harm caused by the violation.
2. The nature and persistence of the violation.
3. The length of time over which the violation occurs.
4. The frequency of past violations.
5. The record of maintenance.
6. The unproven or innovative nature of the control equipment.
7. Any action taken by the defendant to mitigate the violation.
8. The financial burden to the defendant.

While it is clearly important for the South Coast AQMD to enforce air pollution regulations to comply with federal and state law and to protect public health, it is also important to recognize that the regulated community is made up of all kinds and sizes of businesses. The legislative policy of individualized attention to air pollution violations allows the South Coast AQMD to carry forth with its legal obligations and mandates while carefully judging all of the circumstances of each air pollution violation.

The successful implementation of this policy has resulted in fair and reasonable penalty assessments and has led to the development of a nationally recognized Supplemental Environmental Project (SEP)  program that has balanced economic and environmental concerns in a fair and effective manner. Whether the penalty involves money or a SEP measure contributing to air quality, the underlying policy of the General Counsel’s Office is the same; that is, each case is carefully reviewed for the most appropriate penalty assessment.