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)