AB 335, as introduced, Patterson. Air quality: minor violations.
(1) Existing law authorizes the State Air Resources Board and air pollution control and air quality management districts to enforce air quality laws.
This bill would require the State Air Resources Board and air pollution control and air quality management districts to adopt regulations classifying minor violations. The bill would define the term “notice to comply” and would require a representative of those agencies, who in the course of conducting an inspection detects a minor violation, to issue a notice to comply, as specified.
The bill would require the State Air Resources Board to report to the Legislature by January 1, 2020, regarding implementation of the bill.
Because the bill would make a false statement of compliance submitted under those procedures a crime pursuant to specified provisions, the bill would impose a state-mandated local program by creating a new crime. In addition, the bill would impose a state-mandated local program by imposing new requirements on air pollution control and air quality management districts.
(2)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
Chapter 3 (commencing with Section 39150) is
2added to Part 1 of Division 26 of the Health and Safety Code, to
3read:
4
(a) The Legislature hereby finds and declares that the
8purpose of this chapter is to establish an enforcement policy for
9violations of this division that the enforcement agency finds are
10minor when the danger they pose to, or the potential that they have
11for endangering, human health, safety, or welfare or the
12environment is taken into account.
13(b) It is the intent of the Legislature in enacting this chapter to
14provide a more resource-efficient enforcement mechanism, faster
15compliance times, and the creation of a productive and cooperative
16working relationship between the state board, the districts, and the
17regulated community while maintaining protection of human health
18and safety and the environment.
19(c) The state board and each district shall, for their respective
20jurisdictions, implement this chapter by adopting a regulation or
21a rule that classifies the types of violations of this division, or of
22the regulations, rules, standards, orders, permit conditions, or other
23requirements adopted pursuant to this division, that the state board
24or the district finds are minor violations in accordance with
25subdivision (d).
26(d) In classifying the types of violations that are minor
27violations, the state board or the district shall consider all of the
28following factors:
29(1) The magnitude of the violation.
30(2) The scope of the violation.
P3 1(3) The severity of the violation.
2(4) The
degree to which a violation puts human health, safety,
3or welfare or the environment into jeopardy.
4(5) The degree to which a violation could contribute to the
5failure to accomplish an important goal or program objective as
6established by this division.
7(6) The degree to which a violation may make it difficult to
8determine if the violator is in compliance with other requirements
9of this division.
10(e) For purposes of this chapter, a minor violation of this division
11shall not include any of the following:
12(1) Any knowing, willful, or intentional violation of this
13division.
14(2) Any violation of this division that enables the violator to
15benefit economically from noncompliance, either by
realizing
16reduced costs or by gaining a competitive advantage.
17(3) Any violation that is a chronic violation or that is committed
18by a recalcitrant violator.
19(f) In determining whether a violation is chronic or a violator
20is recalcitrant, for purposes of paragraph (3) of subdivision (e),
21the state board or district or an authorized or designated officer
22shall consider whether there is evidence indicating that the violator
23has engaged in a pattern of neglect or disregard with respect to the
24requirements of this division or the requirements adopted pursuant
25to this division.
For purposes of this chapter, “notice to comply” means
27a written method of alleging a minor violation that is in compliance
28with all of the following requirements:
29(a) The notice to comply is written in the course of conducting
30an inspection by an authorized representative of the state board or
31district or an authorized or designated officer. If testing is required
32by the state board or district or an authorized or designated officer
33to determine compliance, and the testing cannot be conducted
34during the course of the inspection, the representative of the state
35board or the district or an authorized or designated officer shall
36have a reasonable period of time to conduct the required testing.
37If, after the test results are available, the representative of the state
38board or district or
an authorized or designated officer determines
39that the issuance of a notice to comply is warranted, the
P4 1representative or officer shall immediately notify the facility owner
2or operator in writing.
3(b) A copy of the notice to comply is presented to a person who
4is an owner, operator, employee, or representative of the facility
5being inspected at the time that the notice to comply is written. If
6offsite testing is required pursuant to subdivision (a), a copy of the
7notice to comply may be mailed to the owner or operator of the
8facility.
9(c) The notice to comply clearly states the nature of the alleged
10minor violation, a means by which compliance with the
11requirement cited by the state board’s or district’s representative
12or an authorized or designated officer may be achieved, and a time
13limit in which to comply, which shall not exceed 30 days.
14(d) The notice to comply shall contain the information specified
15in subdivision (h) of Section 39152 with regard to the possible
16reinspection of the facility.
(a) An authorized representative of the state board or
18district or an authorized or designated officer, who, in the course
19of conducting an inspection, detects a minor violation shall issue
20a notice to comply before leaving the site at which the minor
21violation is alleged to have occurred if the authorized representative
22finds that a notice to comply is warranted.
23(b) A person who receives a notice to comply pursuant to
24subdivision (a) shall have the period specified in the notice to
25comply from the date of receipt of the notice to comply in which
26to achieve compliance with the requirement cited on the notice to
27comply. Within five working days of achieving compliance, the
28person who received the notice to comply shall sign the notice to
29comply and return it to
the state board’s or district’s representative
30or an authorized or designated officer, stating that the person has
31complied with the notice to comply. A false statement that
32compliance has been achieved is a violation of this division
33pursuant to Section 42400.2 or 42402.2.
34(c) A single notice to comply shall be issued for all minor
35violations cited during the same inspection and the notice to comply
36shall separately list each cited minor violation and the manner in
37which each minor violation may be brought into compliance.
38(d) A notice to comply shall not be issued for any minor
39violation that is corrected immediately in the presence of the
40inspector. Immediate compliance in that manner may be noted in
P5 1the inspection report, but the person shall not be subject to any
2further action by the state board’s or district’s representative or an
3authorized or designated officer.
4(e) Except as otherwise provided in subdivision (g), a notice to
5comply shall be the only means by which the state board’s or
6district’s representative or an authorized or designated officer shall
7cite a minor violation. The state board’s or district’s representative
8or an authorized or designated officer shall not take any other
9enforcement action specified in this division to enforce the minor
10violation against a person who has received a notice to comply if
11the person is in compliance with this section.
12(f) If a person who receives a notice to comply pursuant to
13subdivision (a) disagrees with one or more of the alleged violations
14cited in the notice to comply, the person shall give written notice
15of appeal to the state board or district, which shall develop a
16process for reviewing and determining the disposition of the appeal.
17(g) Notwithstanding any other provision of this section, if a
18person fails to comply with a notice to comply within the
19prescribed period, or if the state board or district or an authorized
20or designated officer determines that the circumstances surrounding
21a particular minor violation are such that immediate enforcement
22is warranted to prevent harm to the public health or safety or to
23the environment, the state board or district or an authorized or
24designated officer may take any needed enforcement action
25authorized by this division.
26(h) A notice to comply issued to a person pursuant to this section
27shall contain a statement that the inspected facility may be subject
28to reinspection at any time. Nothing in this section shall be
29construed as preventing the reinspection of a facility to ensure
30compliance or to ensure that minor violations cited in a notice to
31comply have been corrected.
32(i) Nothing in this section shall be construed as preventing the
33state board or district or an authorized or designated officer, on a
34case-by-case basis, from requiring a person subject to a notice to
35comply to submit reasonable and necessary documentation to
36support a claim of compliance by the person.
37(j) Nothing in this section restricts the power of a city attorney,
38district attorney, county counsel, or the Attorney General to bring,
39in the name of the people of California, any criminal proceeding
40otherwise authorized by law. Furthermore, nothing in this section
P6 1prevents the state board or district, or any representative of the
2state board or district, from cooperating with, or participating in,
3such a proceeding.
4(k) Notwithstanding any other provision of this section, if the
5state board or district or an authorized
or designated officer
6determines that the circumstances surrounding a particular minor
7violation are such that the assessment of a civil penalty pursuant
8to this division is warranted or required by federal law, in addition
9to issuance of a notice to comply, the state board or district or an
10authorized or designated officer shall assess a civil penalty in
11accordance with this division, if the state board or district or an
12authorized or designated officer makes written findings that set
13forth the basis for the determination of the state board or district.
On or before January 1, 2020, the state board shall
15report to the Legislature on actions taken by the state board and
16the districts to implement this chapter and the results of that
17implementation. Each district shall provide the state board with
18the information that the state board requests to determine the degree
19to which the purposes described in subdivision (a) of Section 39150
20have been achieved. The report shall be submitted consistent with
21Section 9795 of the Government Code.
No reimbursement is required by this act pursuant to
23Section 6 of Article XIII B of the California Constitution because
24a local agency or school district has the authority to levy service
25charges, fees, or assessments sufficient to pay for the program or
26level of service mandated by this act or because costs that may be
27incurred by a local agency or school district will be incurred
28because this act creates a new crime or infraction, eliminates a
29crime or infraction, or changes the penalty for a crime or infraction,
30within the meaning of Section 17556 of the Government Code, or
31changes the definition of a crime within the meaning of Section 6
32of Article XIII B of the California Constitution.
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