BILL ANALYSIS                                                                                                                                                                                                    



                                                               SB 1224
                                                                       

                      SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                        Senator S. Joseph Simitian, Chairman
                              2009-2010 Regular Session
                                           
           BILL NO:    SB 1224
           AUTHOR:     Wright
           AMENDED:    April 15, 2010
           FISCAL:     No                HEARING DATE:     May 3, 2010
           URGENCY:    No                CONSULTANT:       Randy Pestor
            
           SUBJECT  :    AIR CONTAMINANT RELEASES

            SUMMARY  :    
           
            Existing law  :

           1) Under the California Constitution, authorizes a city or  
              county to "make and enforce within its limits all local,  
              police, sanitary, and other ordinances and regulations not  
              in conflict with general law."  (Cal. Const. art. XI 7).

           2) Under Nuisance Law:

              a)    Defines "nuisance" to be anything injurious to  
                 health, including, but not limited to the illegal sale  
                 of controlled substances, or is indecent or offensive to  
                 the senses, or an obstruction to the free use of  
                 property, so as to interfere with the comfortable  
                 enjoyment of life or property, or unlawfully obstructs  
                 the free passage or use, in the customary manner, of any  
                 navigable lake, river, bay stream canal or basin, or any  
                 public park, square, street, or highway.  (Civil Code  
                 3479).

              b)    Defines "public nuisance" as one that affects at the  
                 same time an entire community or neighborhood, or any  
                 considerable number of persons, although the extent of  
                 annoyance or damage inflicted upon individuals may be  
                 unequal.  (3480).

              c)    Defines "private nuisance" as every nuisance not  
                 included in the definition of "public nuisance."   
                 (3481).









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              d)    Provides that an agricultural or agricultural  
                 processing facility cannot become a nuisance due to any  
                 changed condition in or about the locality after it has  
                 been in operation for more than three years if it was  
                 not a nuisance at the time it began, and certain  
                 conditions are met.  (Civil Code 3482.5 and 3482.6).

           3) Provides the California Air Resources Board (ARB) with  
              primary responsibility for control of mobile source air  
              pollution, including adoption of rules for reducing vehicle  
              emissions and the specification of vehicular fuel  
              composition.  (Health and Safety Code 39000 et seq. and  
              39500 et seq.).  ARB must coordinate efforts to attain and  
              maintain ambient air quality standards.  (39003).

           4) Provides that air pollution control districts (APCDs) and  
              air quality management districts (AQMDs) have primary  
              responsibility for controlling air pollution from all  
              sources, other than emissions from mobile sources.  (40000  
              et seq.).

           5) Under Nonvehicular Air Pollution Control Law (Health and  
              Safety Code 41500 et seq.):

              a)    Prohibits persons from discharging from any source  
                 quantities of air contaminants or other material that  
                 causes injury, detriment, nuisance, or annoyance to any  
                 considerable number of persons or to the public, or that  
                 endanger the comfort, repose, health, or safety of any  
                 of those persons or the public, or that cause or have a  
                 natural tendency to cause injury or damage to business  
                 or property.  (41700).

              b)    Exempts odors emanating from certain agricultural and  
                 compost operations unless the California Integrated  
                 Waste Management Board adopts regulation governing  
                 composting sites by April 1, 2003.  (41705).

              c)    Authorizes an APCD or AQMD board, after notice and  
                 hearing, to issue an order for abatement whenever it  
                 finds that any person is constructing or operating any  










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                 article, machine, equipment, or other contrivance  
                 without a permit required by the law, or is in violation  
                 of 41700, or of any order, rule, or regulation  
                 prohibiting or limiting the discharge of air  
                 contaminants into the air.  (42450).

            
           This bill  , under Nonvehicular Air Pollution Control Law:

           1) Authorizes an APCD or AQMD to adopt a rule or regulation,  
              consistent with public health or safety, that ensures staff  
              and resources are not used to investigate repeated and  
              unsubstantiated complaints, or complaints made in bad faith  
              alleging a violation of the prohibition on discharging air  
              contaminants.

           2) Contains legislative intent that bad faith nuisance claims  
              are not in the public interest and force APCDs and AQMDs to  
              waste limited resources on unnecessary investigations, only  
              serve to contribute to job reductions, and create an  
              unfavorable environment to encourage development and growth  
              of businesses in California.

            COMMENTS  :

            1) Purpose of Bill  .  According to the author, "Present law,  
              Health and Safety Code []41700, does not provide guidance  
              on how odor complaints are processed.  []41705 provides  
              exemptions, but again, not guidance on processing  
              complaints.  The problem that SB 1224 would fix is to  
              establish parameters that are clear for the regulated  
              community, as well as local neighbors filing complaints.   
              Consistency will also help curb abuse of the law as several  
              industries have seen local public nuisance (odor)  
              complaints filed by individuals who don't even live or work  
              in the area.  Avenues exhausted have been multiple meetings  
              with the South Coast AQMD and Bay Area AQMD."

           In response to the author's concern, SB 1224 authorizes APCDs  
              and AQMDs to adopt a rule or regulation ensuring that staff  
              and resources are not used to investigate repeated and  
              unsubstantiated complaints, or complaints made in bad  










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              faith, alleging a violation of the prohibition on  
              discharging air contaminant or other materials under  
              certain conditions.

            2) Background  .  Provisions under Nuisance Law were enacted in  
              1872, 3479 and 3480 were amended in 1873, and 3479 was  
              not amended again until AB 2970 (Olberg) Chapter 658,  
              Statutes of 1996, added a reference to "the illegal sale of  
              controlled substances" under the "nuisance" definition.

           AB 1 (Stewart) Chapter 632, Statutes of 1947, enacted various  
              procedures relating to APCDs, including Health and Safety  
              Code 24243, which has been recodified by four other  
              measures, and is now 41700.  This provision has remained  
              unchanged during that period, other than changing "which"  
              to "that," and striking "such" - and providing exceptions  
              for a specified period for certain agricultural and  
              composting activities until regulations are adopted.

           Needless to say, these provisions are not frequently amended.

            3) Who complains  ?  It is not unusual for complaints relating  
              to possible worker safety, environmental, or other  
              potential violations - or for there to be few complaints  
              when some may feel threatened.  For example, it was  
              recently reported that at the Upper Big Branch in West  
              Virginia "Entrance guards would alert miners when an  
              inspector was on the way down.  Equipment that measured  
              coal dust was manipulated by placing it in areas with  
              cleaner air before inspectors checked it.  Curtains that  
              directed clean air were moved around to favorably skew  
              readings."  (Dan Barry, Ian Urbina and Clifford Krauss, "2  
              mines show how safety practices vary,"  The New York Times  ,  
              April 22, 2010).  It was further reported:

           "Well before this month's fatal explosion at Upper Big Branch,  
              the country's worst mine disaster in 40 years, the lack of  
              proper ventilation had been a continuing concern among its  
              miners. The fear of methane building while oxygen dropped  
              preyed on their minds.

           'I have had guys come to me and cry,' said the veteran  










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              foreman. 'Grown men cried - because they are scared.'

           But workers in the mine said they did not dare question the  
              company's safety practices, even when asked to perform a  
              dubious task.

           'It was all about production,' said Andrew Tyler, 22, an  
              electrician who two years ago worked as a subcontractor on  
              the wiring for the coal conveyer belt and other equipment  
              at Upper Big Branch. 'If you worked for them, you didn't  
              ask questions about whether some step like running a cable  
              around the breaker was a smart idea. You just did it.'"

           Another example is farmer Lynn Henning from Clayton, Michigan,  
              "one of the 2010 winners of the Goldman Environmental  
              Prize, sometimes called the Green Nobel, the largest prize  
              in the world given to grass-roots environmentalists."   
              (Yvonne Zipp, "When farmer Lynn Henning saw what factory  
              farms were doing to the land and water, she had to act,"  
               The Christian Science Monitor  , April 26, 2010).  According  
              to the article:

           "Henning frequently files complaints on behalf of other  
              residents so that they can remain anonymous, Ms Woiwode  
              (state director of the Sierra Club) says.  'She's taken on  
              the role of protector, because she knows how bad it is, and  
              she doesn't want other people to have to go through that.'

           Henning matter-of-factly recounts a list of harassments and  
              lawsuits against her that stretches back years:  Being  
              chased by manure tankers down the road; having dead animals  
              left in her driveway and car; and having her mailbox blown  
              up.

           On Dec. 30, someone shot out the window of her granddaughter's  
              bedroom with buckshot.  The 2-year-old was in the room at  
              the time.

           Environmentalists are sometimes accused of being antifarming,  
              but Henning says she's different.

           'They have a hard time with me because I am a farmer,' she  










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              says.  'I drive a tractor.'"

           On the other hand, businesses sometimes have concerns about  
              complainants - which are a basis for the California Metals  
              Coalition (CMC) sponsoring SB 1224.  For example, CMC cites  
              three businesses in the Bay Area Air Quality Management  
              District (BAAQMD) area with complaint problems and seven  
              within the South Coast Air Quality Management District  
              (SCAQMD) region.  The examples cited by CMC have been  
              reviewed with BAAQMD and SCAQMD staff.

           Of the three facilities cited by the sponsor in the BAAQMD  
              area, BAAQMD reports complaints relating to the CASS  
              facility (Oakland) but no notice of violations for odors;  
              many complaints received relating to Pacific Steel Casting  
              (Berkeley) with 16 notices of violations relating to odors  
              since 2005 (the facility has been sealed with a filtered  
              ventilation system, doors are to be kept closed, and an  
              odor management plan has been implemented); and a handful  
              of complaints relating to AB&I Foundry (Oakland) with no  
              notices of violations relating to odors.

           Of the seven facilities in the SCAQMD area cited by the  
              sponsor, according to SCAQMD there were several complaints  
              relating to Gregg Industries (El Monte) involving several  
              violations and a settlement with SCAQMD of about $5 million  
              in 2009.  According to the Securities and Exchange  
              Commission filings by Neenah Enterprises, Inc., parent  
              company of Gregg Industries, the Kendallville Manufacturing  
              facility in Indiana and the Gregg Industries facility were  
              closed December 5, 2008, and February 9, 2009,  
              respectively, due to pressures of an overall weak economy  
              "and the loss of manufacturing orders for the Gregg  
              facility."

           Of the six other facilities cited by the sponsor as having  
              complaint problems, SCAQMD received no complaints from  
              three of the facilities since January 1, 2000:  James Jones  
              Company facility (Santa Fe Springs), Metal-X facility (Los  
              Angeles), and Thorock Metals (Compton).  SCAQMD received  
              one complaint involving the Brite Plating Company facility  
              (Los Angeles) since January 1, 2000, that was received by  










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              postal mail July 20, 2004, expressing a general concern  
              about use of cancer-causing materials, with no phone number  
              provided by the complainant for followup (no emissions were  
              observed by the SCAQMD inspector, who contacted the source  
              to share the complainant's concerns).  Finally, SCAQMD  
              received 200 complaints since January 1, 2000, alleging one  
              or both of Griswold Castings Division facilities (Costa  
              Mesa) as the source of air contaminants (SCAQMD issued one  
              notice to comply at one facility - the equivalent to a  
              California Highway Patrol "fix it" ticket and used in the  
              case of a records request leading to a notice of violation  
              - and no notices of violation, since January 1, 2000).

            4) Legislative response needed  ?  Would a rule or regulation  
              authorization under SB 1224 enable some APCDs or AQMDs -  
              potentially under pressure from certain interests - to  
              adopt a rule or regulation that weakens the ability to  
              investigate complaints?  How would an APCD or AQMD  
              recognize an unsubstantiated complaint without an  
              investigation?  Why should such a rule or regulation be  
              consistent with only protecting public health and safety  
              when 41700 addresses other issues, such as causing injury,  
              detriment, nuisance, or annoyance - or endanger comfort and  
              repose?  While the sponsor is concerned about odors, SB  
              1224 references 41700 which relates to all air  
              contaminants and is not limited to odors.

           If the Committee believes that an APCD or AQMD should be  
              authorized to adopt a rule or regulation in this area,  
              subdivision (b) (page 2, lines 25 to 29) should be amended  
              as follows:

             (b) A district may adopt a rule or regulation, consistent  
              with protecting  public   the public's comfort, repose,   
              health and safety  , and not causing injury, detriment,  
              nuisance, or annoyance,  that ensures district staff and  
              resources are not used to investigate  repeated and  
              unsubstantiated, or  complaints made in bad faith  and  
              determined to be repeated and unsubstantiated  , alleging a  
               nuisance odor  violation of subdivision (a).

           Finally, the legislative intent ties certain complaints to job  










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              loss while creating an unfavorable environment for business  
              development and growth - and should therefore be stricken,  
              particularly since there is not information to justify this  
              intent.

            SOURCE  :        California Metals Coalition  

           SUPPORT  :       AB&I Foundry, Atlas Pacific Corporation,  
                          Crenshaw Die and Manufacturing Corporation,  
                          Dameron Alloy Foundries, Inc., Edelbrock  
                          Corporation, Globe Iron Foundry, Inc., Hyatt  
                          Die Cast & Engineering Corporation, KenWalt Die  
                          Casting Corporation, Lodi Iron Works, Inc.,  
                          Magnesium Alloy Products Company, Inc., Pacific  
                          Steel Casting Company, Rangers Die Casting Co.,  
                          Strategic Materials Corporation, TST, Inc.,  
                          United States Pipe & Foundry Company (Union  
                          City Pipe Plant)  

           OPPOSITION  :    American Lung Association, Breathe California,  
                          California Communities Against Toxics,  
                          California Environmental Rights Alliance,  
                          California Safe Schools, Society for Positive  
                          Action, Coalition for a Safe Environment, Del  
                          Amo Action Committee, Physicians for Social  
                          Responsibility (Los Angeles)