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Enforcing Health Standards
Under both federal and state law, the South Coast Air Quality Management District is under a legal obligation to make and enforce air pollution regulations. These regulations are primarily meant to ensure that the surrounding (or ambient) air will meet federal and state air quality standards. However, AQMD also has broad authority to regulate toxic and hazardous air emissions, and these regulations are enforced in the same manner as those which pertain to the ambient air quality standards.
These ambient air standards are health-based and concern the following six air contaminants: sulfur dioxide, lead, ozone, nitrogen dioxide, carbon monoxide, and fine particulate matter.
These standards are designed to protect the most sensitive persons from illness or discomfort with a margin of safety. The four-county region within AQMD's jurisdiction complies with standards for the first two, but fails to meet standards for the other four. In addition, AQMD must meet California standards for hydrogen sulfide, sulfates, and vinyl chloride, as well as state standards for visibility.
California requires a reduction in district-wide emissions of five percent or more per year until these standards are met. California has also set statewide emission limitations for odor or unhealthful emissions, visible emissions, open burning, sandblasting, gasoline vapors, and incineration of toxics.
Background on Emission Sources
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Regarding the four air contaminants for which AQMD is out of attainment, carbon monoxide (CO) is formed by the incomplete combustion of fossil fuels and comes almost entirely from automobile exhaust. Carbon monoxide can cause dizziness and fatigue, and can impair central nervous system functions. Controls on indirect sources which attract automobiles, such as places of employment and shopping centers, reduce the amount of CO in the surrounding air.
Nitrogen dioxide (NO2) and other oxides of nitrogen (NOx) are formed as a result of fuel combustion under high temperature or pressure, and they contribute to the problems of ground-level ozone, fine particulate matter, poor visibility, and acid rain. Nitrogen dioxide decreases lung function and may reduce resistance to infection. Controls on fuel combustion, particularly internal combustion engines and large stationary sources such as power plants and refineries, reduce the concentrations of NOx in the surrounding air.
Ozone is formed by photochemical reactions between oxides of nitrogen and volatile organic compounds. VOCs are formed from the incomplete combustion of fuels and from evaporation of organic solvents. Elevated ozone levels in the air we breathe (as opposed to the upper atmosphere where it protects us from harmful radiation) result in reduced lung function, particularly during vigorous physical activity. This health problem is particularly acute in children because their lungs are not fully developed and they don't always recognize the symptoms that would warn adults of the effects of ozone.
Reducing ozone levels involves controlling both NOx and VOC emissions. NOx controls were described above. Typical VOC controls include reducing the VOC content of paints and solvents, and controlling fumes from gasoline pumping, auto body painting, furniture finishing, and other operations that involve organic chemicals and solvents.
PM10 refers to small suspended particulate matter, 10 microns or less in diameter, which can enter the lungs. These small particles can be directly emitted into the atmosphere as a by-product of fuel combustion; through abrasion, such as wear on tires or brake linings; or through wind erosion of soil. They can also be formed in the atmosphere through chemical reactions. The particles may carry carcinogens and other toxic compounds, which stick to the particle surfaces and can enter the lung. PM10 is reduced directly by controls on fugitive dust and indirectly by controls on all other pollutants which contribute to the formation of particles.
Federal and State Enforcement Mandate
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AQMD was created by the state legislature to facilitate compliance with the federal Clean Air Act and to implement the state air quality program. Under the federal Clean Air Act, the Environmental Protection Agency is required to develop health-based air quality standards applying to all of the states, which it has done, as described above.
The states are required to report to EPA on whether they meet the standards and to prepare "State Implementation Plans" for attainment and maintenance of the standards.
If a state or an area within it does not meet the standards, the plan must contain provisions for emission limitations and controls, emission reductions pending attainment, and a permit program for new and modified equipment or devices which emit or control the emission of air pollution.
In its plan, a state must provide assurances that it will have adequate personnel, legal authority, and funding to implement and enforce the plan. Finally, the plan must be approved by the federal government.
If a state submits an inadequate plan or fails to attain the standards by the deadlines established by the EPA, the consequences could be severe, including the imposition of a Federal Implementation Plan, a construction ban on certain new or modified sources, or a citizen's suit to enforce the state plan.
The state legislature conducts regular audits of AQMD activities to ensure that this will not happen. Contrary to what people might think, the AQMD exists solely to implement state and federal law for the purpose of protecting public health. If it fails to do this, however, both the state and federal government may assume authority over the AQMD's regulatory program.
Statutory Penalties for Air Pollution Violations
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Air pollution violations may result in either criminal or civil liability. AQMD does not have the authority to criminally prosecute an air pollution violation. Criminal cases must be handled by state, county or city attorneys. In deciding whether to refer a case for criminal prosecution, AQMD will consider such factors as the type and severity of the violation, the state of mind of the violator, and the harm or risk of harm to the public created by the violation. Criminal penalties are contained in California Health and Safety Code sections 42400, 42400.1, 42400.2, 42400.3,
42400.3.5, and 42400.4.
AQMD's enforcement authority for civil penalties, as required by the State
Implementation Plan, can be found in the California Health and Safety Code Civil
Penalties sections 42402, 42402.1, 42402.2, 42402.3, 42402.4, and 42402.5.
$1,000 per Day Strict Liability
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Under Section 42402(a), a person is strictly liable for a civil penalty of $1,000 per day for violating any provision of the Health and Safety Code section within Part 4 of Division 26 of the code or any order, permit, rule, or regulation of a district, including a district hearing board, or of the state Air Resources Board issued pursuant to Parts 1 through 4 of Division 26 of the code.
What this means in plain language is that a person who violates any provision of the Health and Safety Code or an AQMD rule, regulation, order or permit, regardless of an emission violation, is strictly liable for a civil penalty of $1,000 per day.
$10,000 per Day
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Under Section 42402(b), a person may be liable for a civil penalty of up to $10,000 per day if that person has violated any Health and Safety Code section in Part 4 of Division 26 of the code, or any order, permit, rule, or regulation of a district, including a district hearing board, or of the state Air Resources Board issued pursuant to Parts 1 through 4 of Division 26 of the code.
What this means in plain language is that a person who violates an AQMD rule, regulation, order, permit condition or applicable state law, will be subject to a civil penalty of up to $10,000 per day unless the violator can establish that the violation was not the result of intentional or negligent conduct. If the violation involves the emission of air contaminants, the penalty could be higher than $10,000 per day.
$25,000 per Day
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Under Section 42402.1, a person may be liable for a civil penalty of up to $25,000 per day if that person has negligently emitted an air contaminant in violation of Part 4 of Division 26 of the code, or any rule, regulation, permit or order of the state Air Resources Board or district board pertaining to emission regulations or limitations.
What this means in plain language is that a person who carelessly, inattentively, or inadvertently violates air pollution rules, causing the emission of air contaminants, will be subject to a civil penalty of up to $25,000 per day.
Moreover, if the negligent emission of air contaminants causes actual harm to an
individual, a civil penalty of up to $100,000 per day may be imposed.
An example of such a violation would be the use of coatings containing higher levels of VOC than allowed by an AQMD rule by a person who did not make sure that the coatings complied with AQMD requirements.
In addition, if the violation results in a situation of public nuisance under
Health and Safety Code Section 41700 which causes injury to the public, the
potential penalty increases to $15,000 per day. See Section 42402(c).
$40,000 per Day
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Under Section 42402.2, a person may be liable for a civil penalty of up to $40,000 per day if that person has emitted an air contaminant in violation of Part 4 of Division 26 of the code, or any order, rule, regulation, or permit of the state Air Resources Board or district board pertaining to emission regulations or limitations, provided the person knew of the emission and failed to take corrective action within a reasonable time under the circumstances.
Moreover, if the knowing emission of air contaminants causes actual harm to an
individual, a civil penalty of up to $250,000 per day may be imposed.
"Corrective action"; means a termination of the emission violation or the grant of a variance from the applicable order, rule, regulation or permit, or compliance with a regulation excusing the violation (such as AQMD Rule 430 applying to the breakdown of equipment).
What this means in plain language is that a person who violates air pollution rules will be subject to a civil penalty of up to $40,000 per day if the violation causes the emission of an air contaminant and the person knows of the emission
but fails to act promptly to halt the emission.
What matters is that there was a violation that caused an emission and the person knew of the emission without acting as quickly as he could have to stop it. The person's knowledge of the emission and the failure to act promptly are the key elements in making this a serious type of violation.
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Under Section 42402.3, a person may be liable for a civil penalty of up to
$75,000 per day if that person willfully and intentionally emits an air contaminant in violation of any Health and Safety Code section in Part 4 of Division 26 of the code or any order, rule or regulation of the state Air Resources Board or district pertaining to emission regulations or limitations.
If the willful and intentional emission of air contaminants causes injury to
any person or results in a violation of Health and Safety Code Section 41700
which poses a risk of injury to to any person, one may be liable for a civil
penalty of up to $125,000 per day and a corporation may be liable for an amount
up to $500,000 per day. If the willful
and intentional emission of air contaminants causes great bodily injury or
death, a person may be liable for a civil penalty of up to $250,000 per day and a corporation may be liable
for an amount up to $1,000,000 per day.
Violations of Variances and Orders for Abatement
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The penalty statutes discussed above apply as well to violations of variance conditions and Orders for Abatement issued by the district hearing board.
Falsification of Records
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AQMD's air regulatory program includes record-keeping requirements which allow AQMD to verify source compliance with air pollution rules and regulations. Section 42402.5 provides a penalty of up to $35,000 for falsifying records with the intent to deceive AQMD.
Policy of Judging Each Violation Individually
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As a matter of state law, a judge or jury is obligated to evaluate each violation individually and with reference to all relevant facts and circumstances. This is an important legislative policy that the AQMD follows in negotiating settlements. This policy recognizes that what might be a fair penalty for a large refinery might not be for a three-person metal stamping operation, despite the fact that the same rule was violated.
Under such a policy, AQMD considers such factors as the financial burden to the violator or the action taken to correct the violation, thus allowing a "sliding scale" in negotiating the appropriate penalty. Without such a policy, all violators would have to be treated exactly alike without regard for the factors which can make one violation different from another. The California Health and Safety Code requires that the following factors be considered in assessing civil penalties:
(a) The extent of harm caused by the violation.
(b) The nature and persistence of the violation.
(c) The length of time over which the violation occurs.
(d) The frequency of past violations.
(e) The record of maintenance.
(f) The unproven or innovative nature of the control equipment.
(g) Any action taken by the defendant to mitigate the violation.
(h) The financial burden to the defendant.
While it is clearly important for AQMD to make and enforce air pollution regulations to comply with federal and state law and to protect public health, it is also important to recognize that the regulated community is made up of all kinds and sizes of businesses.
The legislative policy of individualized attention to air pollution violations allows AQMD to pursue its legal obligations and mandates while carefully
and fairly judging all of the circumstances of each air pollution violation.
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