BOARD MEETING DATE: October 9, 1998 AGENDA NO. 2
PROPOSAL:
Set Public Hearing November 13, 1998 to adopt Proposed Rule 112 - Definition of Minor Violation and Guidelines for Issuance of Notice to Comply
SYNOPSIS:
Effective January 1, 1996, AB 2937 (Brulte) requires each air district in the state of California to develop a rule governing the issuance of a Notice to Comply for minor violations. A California Air Pollution Control Officer Association (CAPCOA) task force was convened that year to draft core rule language for adoption by all districts statewide, subject to minor local modifications as required. Following numerous CAPCOA public consultation meetings held throughout the state in 1997 and recent local District workshops, comments were evaluated and rule language modified as necessary. Proposed Rule 112 - Definition of Minor Violation and Guidelines for Issuance of Notice to Comply represents the culmination of this effort to meet the requirements of AB 2937.
COMMITTEE:
Stationary Source, September 18, 1998, Reviewed
RECOMMENDED ACTION:
Set Public Hearing November 13, 1998 to adopt Proposed Rule 112 - Definition of Minor Violation and Guidelines for Issuance of Notice to Comply
Barry R. Wallerstein, D.Env.
Acting Executive Officer
Background
Proposed Rule 112 - Definition of Minor Violation and Guidelines for Issuance of Notice to Comply is being developed pursuant to Assembly Bill 2937 (Brulte, 1996). The provisions of AB 2937 are codified in California Health and Safety Code §39150-39153, and require each air district to adopt a rule or regulation which establishes guidelines and requirements for the issuance of a Notice to Comply (NTC) for minor violations. Proposed Rule 112 sets the procedures for the issuance of a NTC and establishes compliance requirements for the recipients of NTCs. For the purposes of this rule, minor violations are violations of the administrative and procedural requirements of air quality rules, regulations, and requirements established by the California Air Resources Board (CARB) or the District. Minor violations may also include violations which involve a de minimis amount of emissions increases. Proposed Rule 112 is based on a model rule developed by a statewide committee of air pollution enforcement managers under the California Air Pollution Control Officer’s Association (CAPCOA). The final model rule was endorsed by the CAPCOA Board on October 20, 1997.
Staff surveyed 34 of California’s air quality districts. Of the 34 air quality districts, eleven (11) already have a formal NTC program; nine (9) have an informal NTC program and fourteen (14) have no NTC program in place. AB 2937 levels the playing field by establishing a consistent, statewide minor violations program. The benefits of this statewide effort put into place a more resource-efficient enforcement mechanism; provide faster compliance times; promote a productive and cooperative working relationship between regulators and the regulated community, and maintain protection of human health and safety and the environment.
Health & Safety Code Section 39150 provides the guidelines for the development of Proposed Rule 112. These guidelines state that minor violations shall not include any of the following: any knowing, willful, or intentional violations; any violations that enabled the violator to benefit economically from noncompliance, either by realizing reduced costs or by gaining a competitive advantage; and any violations that are chronic or that are committed by a recalcitrant violator. In determining whether a violation is chronic or a violator is recalcitrant the District shall consider whether there is evidence indicating that the violator has engaged in a pattern of neglect or disregard with respect to the air quality requirements.
Prior to 1994, the District had in place a comparable minor violations program whereby NTCs were issued for violations which were procedural, administrative or de minimis in nature. In October 1994, the District developed an official policy which delineated protocols and guidelines to be used by field enforcement staff for issuance of NOVs and NTCs. The October 1994 Protocols for Issuance of Notices of Violations and Notices to Comply (Protocols) were developed for those rules with the highest rates of non-compliance and provide specific guidance for first and second observance of non-compliance situations and the appropriate course of action. Development of the Protocols was to ensure uniformity and consistency in the enforcement of AQMD Rules and Regulations. The Protocols are intended to reflect the most current version of AQMD Rules and Regulations and are therefore updated and published periodically by the Executive Officer or designee.
The intent of Proposed Rule 112 is to layer the provisions of AB 2937 over our existing Protocols with minor adjustments to accommodate those minor violations that are immediately corrected in the inspector’s presence, clarify chronic violations and recalcitrant violators and how they relate to minor violations, and establish an appeals process.
Proposal
The purpose of adopting Proposed Rule 112 is to implement AB 2937 and establish conditions in which a NTC rather than a Notice of Violation (NOV) should be issued. Proposed Rule 112 is not intended to affect violations of any federal laws or requirements. Under AB 2937, a NTC cannot impose any penalties. However, penalties may be assessed to the recipient of the NTC if the violation cited in the NTC is not corrected within a specified time limit not to exceed 30 days.
Issuance of a NTC for a minor violations will be written in the course of conducting an inspection. The NTC will be presented to the owner, operator, employee or representative of the facility being inspected. If testing is required to determine compliance, a reasonable period of time will be provided for the District to conduct the test. A copy of the NTC will be presented to the facility representative at the time the NTC is written or it may be mailed to the owner or operator of the facility following the results of testing. The NTC must clearly state the nature of the alleged minor violation and a means by which compliance may be achieved.
If the minor violation can be fixed immediately in the presence of an inspector, the corrective action will be noted on the inspection form or report for tracking purposes and a NTC will not be issued for "quick-fix" violations.
AB 2937 provisions require that no violation shall be considered minor if the violation is chronic or committed by a recalcitrant violator. The legislation does not define the terms "chronic" or "recalcitrant" but directs the District to consider "whether there is evidence indicating that the violator has engaged in a pattern of neglect or disregard." Based on this directive and existing policy, Proposed Rule 112 defines both "chronic violation" and "recalcitrant violator" with language requiring staff to examine if there has been a definite pattern of reoccurrence within the prior three (3) years.
Public comment has been received requesting that certain odor complaints which result in a public nuisance pursuant to District Rule 402, should constitute a minor violation. Proposed Rule 112 requires that no violation shall be considered minor if the violation results in a public nuisance. In classifying the types of violations that are minor violations, AB 2937 requires the air districts consider various factors, including the degree to which a violation puts human health, safety or welfare or the environment into jeopardy. State law through California Health and Safety Code 41700 is intended to protect public health and comfort from any source that discharges air contaminants or other materials. Health and Safety Code 41700 provides that a violation exists only if a considerable number of persons or the public is affected. Localized odor complaints below that limit do not result in a public nuisance, although they may upon investigation result in other violations. Thus, de minimis impacts would not even be considered a violation. Consistent with Health and Safety Code provisions and CAPCOA model rule language, public nuisance violations will not be considered minor because they do affect a considerable number of persons.
CEQA & Socioeconomic Analysis
The SCAQMD has reviewed the proposed project pursuant to state CEQA Guidelines §15002 that involves a three step process for determining the appropriate CEQA document. The first step involves a determination of whether CEQA applies at all. If the project is exempt, the process does not need to proceed any further, and a Notice of Exemption may be prepared (State CEQA Guidelines § 15002 (k)(1)).
SCAQMD staff has reviewed Proposed Rule 112 and has determined that the project is exempt from CEQA. California Health and Safety Code §§39150 – 39153 requires each air district to adopt a rule or regulation that establishes guidelines for issuing Notices to Comply for minor violations. Since Proposed Rule 112 implements these guidelines as required by state law, it is ministerially exempt from the requirements of CEQA pursuant to state CEQA Guidelines §15268 (a). A Notice of Exemption will be prepared pursuant to state CEQA Guidelines §15062 and filed with the county clerks within the jurisdiction of the SCAQMD immediately following approval by the SCAQMD Governing Board.
No socioeconomic assessment was performed for the proposed rule, since it does not significantly affect air quality or emissions limitations. Moreover, the proposed rule generally conforms to current practices. Additional fiscal impacts on the AQMD are thus not expected.
AB 2937 (Brulte) requires each air district in the state of California to develop a rule governing the issuance of a Notice to Comply for minor violations. Only those violations that meet the criteria and provisions of Health & Safety Code Section 39150 ([d] and [e]) are eligible to be deemed a minor violation. The District is required to consider the magnitude, scope, and severity of the violation, and the degree to which the violation puts human health, safety, or welfare or the environment in jeopardy. CARB is required to report to the Legislature by January 1, 2000 on the status of this regulation. This regulation has a sunset clause of January 1, 2001.
Implementation Plan
To obtain local input on Proposed Rule 112, AQMD held public workshops on June 10, 1997, February 18, 1998 and again on September 29, 1998.
Resource Impacts
Current AQMD resources are sufficient to implement and enforce Proposed Rule 112.
Rule Development Flowchart
Key Contacts List
Proposed Rule Language
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