§ 66272.68. Adjustments to the Total Base Penalty.

The Enforcement Agency shall adjust the total base penalty considering each of the following adjustment factors:

(a) Cooperation: The Enforcement Agency shall consider the violator's cooperation and efforts to return to compliance. Cooperation in achieving compliance is the standard and all necessary good faith efforts to comply with requirements must be made. Adjustments shall be based on the violator's efforts to return to compliance after being notified of the violations by the Enforcement Agency. The adjustment shall be made using the following guidelines:

Adjustment Factors for Cooperation

Degree of
Cooperation	Adjustment
/Effort	Factor	Circumstance
Extraordinary	Downward	Violator exceeded the minimum
	adjustment of	requirements in returning to
	up to 25 percent	compliance or returned to compliance
		faster than requested.
Good Faith	No adjustment	Violator demonstrated a cooperative
		effort.
Recalcitrance	Upward	Violator failed to cooperate, delayed
	adjustment of	compliance, created unnecessary
	up to 25 percent	obstacles to achieving compliance, or
		the compliance submittal failed to
		meet requirements.
Refusal	Upward adjustment	Violator intentionally failed to return
	of 50 to 100 percent	to compliance or to allow clean-up
		operations to take place. This does not
		include refusal to allow inspections.

(b) Prophylactic Effect: The total base penalty may be adjusted upward or downward to ensure that the penalty is sufficient to provide a prophylactic effect on both the violator and the regulated community as a whole.

(c) Compliance History: The total base penalty may be decreased by five percent for each previous consecutive Enforcement Agency inspection report that has had no violations noted, up to a total reduction of ten percent. A separate, additional downward adjustment of 15 percent may be granted if the violator has a current International Organization for Standardization (ISO) 14001 Certificate. The total base penalty may be increased if the violator has demonstrated a history of noncompliance over the past five (5) years. The maximum adjustment factor for compliance history is an upward adjustment of 100 percent. When adjusting the penalty for compliance history, the Enforcement Agency shall consider the following criteria:

(1) Previous violations at the site in question receive more weight than previous violations at another site owned or operated by the same person;

(2) Recent violations receive more weight than older violations;

(3) The same or substantially similar previous violations receive more weight than previous unrelated violations.

(d) Ability to Pay: If the violator has provided the Enforcement Agency with the financial information necessary to assess the violator's ability to pay, the payment of the final penalty may be extended over a period of time if immediate, full payment would cause, in the judgment of the Enforcement Agency, extreme financial hardship. If extending the penalty payment over a period of time would cause, in the judgment of the Enforcement Agency, extreme financial hardship, the penalty may be reduced. No adjustment for ability to pay may be made if the penalty has been adjusted upward because of failure to cooperate, pursuant to subsection (a), or because of compliance history, pursuant to subsection (c).

HISTORY

1. New section filed 1-14-99 as an emergency; operative 1-14-99 (Register 99, No. 3). A Certificate of Compliance must be transmitted to OAL by 5-14-99 or emergency language will be repealed by operation of law on the following day.

2. New section refiled 5-10-99 as an emergency; operative 5-10-99 (Register 99, No. 20). A Certificate of Compliance must be transmitted to OAL by 9-7-99 or emergency language will be repealed by operation of law on the following day.

3. New section refiled 9-7-99 as an emergency; operative 9-7-99 (Register 99, No. 37). A Certificate of Compliance must be transmitted to OAL by 1-5-2000 or emergency language will be repealed by operation of law on the following day.

4. Repealed by operation of Government Code section 11346.1(g) (Register 2000, No. 38).

5. New section filed 12-13-2000 as an emergency; operative 12-13-2000 (Register 2000, No. 50). A Certificate of Compliance must be transmitted to OAL by 4-12-2001 or emergency language will be repealed by operation of law on the following day.

6. New section refiled 3-30-2001 as an emergency; operative 4-13-2001 (Register 2001, No. 13). A Certificate of Compliance must be transmitted to OAL by 8-13-2001 or emergency language will be repealed by operation of law on the following day.

7. Certificate of Compliance as to 3-30-2001 order, including amendment of section, transmitted to OAL 7-19-2001 and filed 8-28-2001 (Register 2001, No. 35).

Note

Note: Authority cited: Sections 25150 and 58012, Health and Safety Code. Reference: Sections 25187 and 25189.2 Health and Safety Code; and Section 11425.50, Government Code.