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Mr. McClellon viewed each of the three Title 27 violations as continuing, and
<br /> calculated the penalty from December 14, 2008 (the date the Notice and Order
<br /> became final ) to February 14, 2012, a period of 1155 days." Whereas PRC
<br /> section 45011 allows for a civil penalty of up to $ 5,000 per day per violation, Mr.
<br /> McClellon imposed penalties that were one percent of the maximum ($ 50 per
<br /> day). In selecting a "base amount" for each violation, Mr. McClellon considered
<br /> PRC section 45011, subdivision (a), the nature, circumstances, extent and
<br /> gravity of the violation; he then applied the other factors as matters in
<br /> aggravation or mitigation of the base amount, as follows:
<br /> 27 CCR section 20820 (Inadequate Drainage/Erosion Control), 27 CCR section
<br /> 20650 (Inadequate Grading of Fill Surfaces), 27 CCR section 20750 (Inadequate
<br /> Site Maintenance): Mr. McClellon used a base civil penalty of$ 50 per day; he
<br /> found that there was a chronic pattern of noncompliance (PRC section 45016,
<br /> subdivision (c)), and that violations were intentional (PRC section 45016,
<br /> subdivision (d)), as factors in aggravation, with a 10 percent multiplier for each
<br /> factor (10 percent total). He found no factors in mitigation. He calculated the civil
<br /> penalty as follows: $ 50 per day x 1155 days = $ 57,750. $ 57,750 + ($57,750 x
<br /> .10) _ $ 63,525. $ 63,525 x 3 (violations) _ $ 190,575.
<br /> Amount of Civil Penalties
<br /> 27 CCR section 20820 (Inadequate Drainage/Erosion Control), 27 CCR section
<br /> 20650 (Inadequate Grading of Fill Surfaces), 27 CCR section 20750 (Inadequate
<br /> Site Maintenance). EHD seeks a civil penalty for this violation of$ 50 per day
<br /> (base amount), which is one percent of the maximum $5,000 per day authorized
<br /> by PRC section 45011. This amount reflects the nature, circumstances, extent,
<br /> and gravity of the violation, taking into account protection of public health and
<br /> safety and the environment (PRC section 45016, subdivision (a)). By failing to
<br /> correct these violations, owner/operator has increased the risk to public health,
<br /> safety and the environment. Although having more than three years to do so,
<br /> owner/operator has not corrected the violation, and the violations/circumstances
<br /> leading to the violations were not due to circumstances beyond the reasonable
<br /> control of the violator (PRC section 45016, subdivisions (b) and (1)). EHD applied
<br /> a multiplier of 10 percent to the base amount, because appellant demonstrated a
<br /> chronic pattern of noncompliance with applicable laws and regulations, and his
<br /> conduct was intentional (PRC section 45016, subdivisions (c) and (d)). EHD
<br /> calculated the penalty from December 14, 2008, the date the Notice and Order
<br /> became final, to February 14, 2012, a period of 1155 days. Under the
<br /> circumstances, civil penalties of$190,575 for these violations are appropriate.
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