(a) The department may assess an administrative penalty against
a person who sells an abusable volatile chemical at retail who violates the
Act or a rule or order adopted under this Act.
(b) A penalty collected under this subchapter shall be deposited
in the state treasury in the general revenue fund.
(c) The amount of the penalty may not exceed $1,000 for each
violation, and each day a violation continues or occurs is a separate violation
for purposes of imposing a penalty. The total amount of the penalty assessed
for a violation continuing or occurring on separate days under this subsection
may not exceed $5,000.
(d) In determining the amount of the administrative penalty,
the department shall consider:
(1) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of the violation;
(2) the threat to health or safety caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) whether the violator demonstrated good faith, including
when applicable whether the violator made good faith efforts to correct the
violation; and
(6) any other matter that justice may require.
(e) Violations will be classified in one of three severity
levels.
(1) Critical Violation. Severity Level III includes violations
that are most significant and have a direct negative impact on public health
and safety. The penalty for a Level III violation on first occurrence is up
to $1000 per day, per violation. The same violation continuing for more than
one day is a separate violation. Examples of Level III violations include
but are not limited to:
(A) operating without a valid volatile chemical sales permit
for the location at which abusable volatile chemicals are sold in violation
of §205.54 of this title (relating to Permit Requirements and Conditions);
(B) operating under a permit issued to another person or for
another location, in violation of §205.54 of this title;
(C) falsifying information required on the volatile chemical
sales permit application under §205.56 of this title (relating to Permit
Application);
(D) failing to establish controls to restrict a person under
the age of 18 years from access to aerosol paints displayed for retail sale
at a business establishment as required under §205.61(a) of this title
(relating to Restriction of Access to Aerosol Paint);
(E) interfering with, denying, or delaying department representatives
in conducting an inspection at the location at which abusable volatile chemicals
may be sold as required under §205.63 of this title (relating to Compliance
Inspections); or
(F) committing any of the prohibited acts listed under §205.62
of this title (relating to Prohibited Acts).
(2) Serious violation. Severity Level II includes violations
that are significant and which, if not corrected, could threaten public health
and safety. The penalty for a Level II violation on first occurrence is up
to $750 per day, per violation. The same violation continuing for more than
one day constitutes a separate violation. Examples of Level II violations
include, but are not limited to:
(A) failing to have a volatile chemical sales permit available
for inspection by the public or department as required under §205.59
of this title (relating to Permit Available for Inspection);
(B) failing to display a volatile chemical warning sign as
required under §205.60(a) of this title (relating to Requirement to Post
Sign); or
(C) failing to ensure that the controls established under §205.61(a)
of this title (relating to Restriction of Access to Aerosol Paint) are adequate
to restrict a person under the age of 18 from access to aerosol paints.
(3) Significant violation. Severity Level I includes violations
that are of more than minor significance and, if left uncorrected, could lead
to more serious circumstances. The penalty for a Level I violation on first
occurrence is up to $500 per day, per violation. The same violation continuing
for more than one day constitutes a separate violation. Examples of Level
I violations include, but are not limited to:
(A) failing to post a volatile chemical warning sign in a conspicuous
and prominent place as required under §205.60(b) of this title; or
(B) posting a volatile chemical warning sign that does not
comply with the requirements under §205.60(c) of this title.
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