Penalty Determination H&SC section 39619.7 requires CARB to provide information on the basis for the penalties it seeks. This Agreement includes this information, which is also summarized here. The provision of law the penalty is being assessed under and why that provision is most appropriate for that violation. The penalty provision being applied, in this case, is H&SC section 42402 et seq. because TJX sold, supplied, offered for sale, or manufactured for sale consumer products for commerce in California in violation of the Consumer Products Regulations (17 CCR section 94507 et seq.). The penalty provisions of H&SC section 42402 et seq. apply to violations of the Consumer Products Regulations because the regulations were adopted under authority of H&SC section 41712, which is in Part 4 of Division 26. The manner in which the penalty amount was determined, including aggravating and mitigating factors and per unit or per vehicle basis for the penalty. H&SC section 42402 et seq. provides strict liability penalties of up to $10,000 per day for violations of the Consumer Product Regulations with each day being a separate violation. In this case, the total penalty is $196,800 for 171 days of administrative and emission violations. The penalty, in this case, was reduced because TJX made diligent efforts to cooperate with the investigation and to comply, including developing new business practices to ensure future compliance. These business practices include modifying relevant purchasing practices, delivering staff training, and implementing a vendor certification program for the relevant vendor population. Final penalties were determined based on the unique circumstances of this matter, considered together with the need to remove any economic benefit from noncompliance, the goal of deterring future violations and obtaining swift compliance, the consideration of past penalties in similar negotiated cases, and the potential cost and risk associated with litigating these particular violations. The penalty reflects violations extending over a number of days resulting in quantifiable harm to the environment considered together with the complete circumstances of this case. Penalties in future cases might be smaller or larger on a per ton basis. The final penalty, in this case, was based in part on confidential financial information or confidential business information provided by TJX that is not retained by CARB in the ordinary course of business. The penalty, in this case, was also based on confidential settlement communications between CARB and TJX that CARB does not retain in the ordinary course of business. The penalty also reflects CARB's assessment of the relative strength of its case against TJX, Inc., the desire to avoid the uncertainty, burden and expense of litigation, obtain swift compliance with the law and remove any unfair advantage that TJX may have secured from its actions. ls the penalty being assessed under a provision of law that prohibits the emission of pollution at a specified level, and, if so a quantification of excess emissions, if it is practicable to do so. The Consumer Product Regulations do not prohibit emissions above a specified level, but they do limit the concentration of VOCs in regulated products. In this case, a quantification of the excess emissions attributable to the violations was not practicable.
