Update: Resolving Air Quality Problems
2019 by Ivan Tether
If you have a business in Los Angeles, Orange County, San Bernardino or Riverside, with any amount of air emissions, you already know about the South Coast Air Quality Management District ("SCAQMD"). This brief update provides tips on: (1) What to do to avoid a violation if you discover you cannot meet an air quality requirement, either immediately or in the future; and (2) How to preserve your rights during an air quality (or other environmental) inspection.
1. I HAVE A PROBLEM, NOW HOW DO I AVOID A VIOLATION?
Maybe you have a new, state-of-the-art, boiler or engine or turbine, with an innovative emission control system. And, suddenly, it goes out of compliance for one or more pollutants, such as reactive organic gases or nitrogen oxides. Maybe you have an older, more proven piece of emitting equipment, but, despite consistent inspection and maintenance, the emission control system breaks. What do you do? Of course you want to fix it as soon as possible. And maybe you can shut it down. But what if you have a production deadline that would just kill your business if you miss it? Or what if the turbine is supplying electricity that will cost mega-bucks to buy off from your electric utility?
Under California Law and SCAQMD regulations, you can often keep operating, so long as you act very quickly and minimize your excess emissions. First, immediately report a breakdown:
* Reporting Breakdowns
Sometimes, despite your best efforts, something, like a vapor recovery system or an afterburner, breaks down and this causes immediate noncompliance with District rules. As soon as you possibly can, DAY OR NIGHT, call the District at (800) 288-7664, and report the breakdown. If you don't reach a live human being, be sure to leave a message. If you do this within ONE HOUR of learning of the breakdown, you can avoid a noncompliance situation until the end of the "operating cycle," not to exceed twenty-four hours. See, District Rule 430, available at http://www.aqmd.gov/search?q=district%20rule%20430 . You will also be required to submit a written report of the breakdown within 7 days of correcting the breakdown, and not later than 30 days from your initial verbal report.
* Petition Immediately for an Emergency Variance
Since the breakdown report covers you only until the end of the operating cycle, and not more than twenty-four hours, as soon as you report the breakdown and get the problem stabilized, you must apply for an emergency variance. (See the next Paragraph for discussion of variances.) Forms are available on the District website http://www.aqmd.gov/nav/about/hearing-board/help-instructions and you can fax your Petition to the Hearing Board, at (909) 396-3317. (Be sure to call the Hearing Board Staff to confirm exactly how to proceed with the petition and payment of the petition fee. They do not take credit cards. Their phone number is (909) 396-2500.) Keep a confirmation of the date and time of the FAX. If it’s a weekend, the Board does not open until Tuesday, and your FAXed petition will help to shield you from prosecution. Remember: the breakdown provides immediate relief, but it is only good until the end of the operating cycle, and never more than 24 hours.
* Variances – General Approach: If you have a breakdown, or some other completely unanticipated compliance problem, you should petition immediately for an emergency variance. If you petition for an "ex parte" emergency variance, you may get your variance coverage, for up to thirty days, within 24 hours. Even if this takes a bit longer, getting your petition on file within 24 hours of the breakdown or other problem will usually avoid compliance problems. In other circumstances, you may be fine for the moment, but know that a deadline or other compliance is looming, a few days, weeks or months away. If you anticipate that future problem, and quickly file for a variance, you can also get the variance relief that is critical to keep running your operations. Usually, the quicker you petition, the better chance you have to get variance relief.
Just What Is a Variance? Air Quality Variances, granted by the Hearing Board of the South Coast Air Quality Management District and authorized by the California Legislature, temporarily re-write the rules, just for you, by suspending control requirements and imposing new conditions to minimize and mitigate any environmental impacts. The trick is to anticipate your compliance problems and petition for a variance without delay. If you can show that the viability of your business depends on operating through a time of noncompliance and that this noncompliance is beyond your reasonable control, the Hearing Board will give you time. But you have to act promptly.
There are four general types of variances, distinguished by their duration and how long beforehand you must apply:
* Emergency ― (usually but not always after a reported breakdown) requires 24 hours notice to the Hearing Board, and provides relief for up to 30 days.
* Short ― requires 15 days notice (petition 15 days before you need variance coverage), and provides relief for up to 90 days.
* Regular ― requires 45 days notice, and provides relief for a year or longer (if longer than one year, you must propose progress milestones, which will become a set of deadlines to
achieve as soon as possible).
* Interim ― can provide you immediate relief, to bridge the gap until the time you can get a hearing for a short or regular variance. This requires about two days notice, plus any intervening weekend or holiday time. You must petition for either a short or a regular variance at the same time you petition for an interim variance. Interim variances can be tough, because the Board must find “Good Cause” for why you have such urgency that you can’t wait for a hearing on a short or regular variance, and why they should go forward without providing the public with notice before the hearing. Be prepared to explain why you were not able to anticipate or otherwise avoid your need for an immediate variance.
* What Does It Take to Get a Variance? To grant you a variance, the Hearing Board must conclude in your favor on six points:
1. Are you in violation of District Rules or other requirements of law? Here, ironically, you must prove you are in violation, or you may not be able to get a variance. Occasionally, this can be tricky, because if you wait until you are actually in violation, the Board may find that you should have come in earlier, closer to the time you anticipated the problem. (In about 200 variance hearings, I have only once been denied a variance because my client did not expect to be in violation for a number of months into the future. Even in this case, going in early helped to convince the Board that the company was working hard to stay in compliance, and when the time came, we succeeded in obtaining the variance.)
2. Is this violation beyond your reasonable control? This is the key issue! Here, you should tell the story: give a narrative of events; explain why the equipment or process that is or will soon be in violation is critical to the viability of your business; tell about efforts to clarify compliance with District Staff; tell about efforts to find ways to further reduce emissions from the equipment or process; tell what could not be anticipated; tell about the prospect of any innovative means of achieving compliance that may improve emissions control for other companies as well; and, whether innovative or not, draw the clearest and most direct line between the present and the moment you will come into full compliance. Use exhibits where possible, such as photographs of the equipment and/or the plant, as well as timelines leading to compliance. If you have done a good job anticipating and analyzing your problem, the Board may well grant you time for research into a solution, and even time to work with District Staff for a rule change if it proves that compliance is impossible because your unique operation does not really fit under the Rule in question.
3. Would there be any benefit from shutting down the equipment or process as compared to the cost of such a shutdown? Here, you will want to emphasize the benefit of continuing your operations, and to discuss whether operating in noncompliance will produce any significant environmental harm.
4. Have you considered shutting down or curtailing operations instead of needing a variance to operate? Ask yourself this before petitioning for a variance. In many cases, you will need to continue operating in order to maintain the viability of your business, but be sure to look for ways to minimize your emissions. Or, maybe your problem does not produce emissions, but has to do with failed, or not-yet-installed monitoring equipment, or some other non-environmental technical problem.
5. Are you reducing emissions to the maximum extent possible? Again, do everything you can to reduce emissions, even if this means agreeing to reduce operations for the period of the variance ― so long as this does not seriously harm your business. (This may sound to you like a repetition of the previous question, but be sure to present a separate answer. The Board must organize their findings and decision according to these six criteria.)
6. How will you monitor emissions during the variance period? Often this will already be happening, unless you have a failure or delay in your monitoring system. If your monitor fails, propose an alternative, such as maintaining and reporting records of raw materials usage, or some other factor of production from which emissions can be estimated on a short-term basis.
* Discuss Your Case with the District's Prosecuting Attorney
At least a week before the hearing, discuss your case with the Attorney assigned to the Case. To learn who this is, check with the Staff of the Hearing Board ((909) 396-2500) and/or the Office of the District Prosecutor ((909) 396-3400). If possible, agree to conditions that will allow the Prosecutor to support your variance B without this support you will have an uphill battle at the hearing. Further, if your variance is very simple, and the Prosecutor agrees, you may be able to submit your variance to the Board’s consent calendar, and have the variance granted without your having to appear at the hearing.
Again, the Key Word is ANTICIPATE.
* Success
When you succeed, and are granted a variance, you can breathe much easier. You can continue to operate your business without fear of receiving a notice of violation for that problem. Be sure to know and pay attention to the conditions of the variance, so that you will meet them in a timely way. Further, be sure you mark your calendar for two months before the expiration of the variance, so you can go back to the Board in plenty of time if things have not gone as you anticipated.
2. THE INSPECTOR IS AT THE DOOR, WHAT DO I DO?
As discussed, if you pay attention to your environmental compliance, and report breakdowns and/or get variances, you will be more relaxed at this moment. Still inspections can lead to notices of violation, and you will want to put your best foot forward, preserve your rights, and document exactly what happened – or didn't happen. Further, this discussion applies to other types of environmental inspections, such as for hazardous waste management.
* Does the Inspector Need a Warrant?
Under the Fourth Amendment to the US Constitution (and you’ve seen the cop shows) inspections require warrants, and “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (U.S. Constitution, Amendment IV.[1]) Because the SCAQMD’s inspections are not part of a program to regulate “pervasively regulated industries,” such as nursing homes, massage parlors and the liquor industry, you may demand that an inspector obtain a warrant to search your business.[2] Be sure to check any SCAQMD permits applying to your operations. You may be required, for example, to maintain records and make these available to an inspector upon request.
* Will It Buy Me Anything to Make It Difficult for the Inspector?
For routine air quality inspections, however, you may not want to put the inspector to the trouble of obtaining a warrant, which will only heighten his or her suspicion about your compliance. The inspector will not have difficulty obtain a warrant for a routine administrative inspection. Most likely a judge or magistrate will issue an administrative warrant based on the inspector’s identifying the statute that authorizes inspection, and will not require the inspector to prove anything else. (See, Cal. Code of Civil Procedure ''1822.50 - 1822.60 and Cal. Health and Safety Code '41510, “Entry on premises; inspection; emission samples.”) In other words, a warrant for a routine SCAQMD inspection does not require a showing of probable cause that evidence of wrongdoing will be found.
Note that inspections for potential criminal violations are a different story: As soon as an inspector suspects, and looks for, evidence of a criminal violation, the inspector is required to obtain a warrant. To get this warrant, the inspector must swear to the magistrate that there is probable cause to believe that evidence of criminal activity will be discovered by the proposed search.[3]
In most situations, however, rather than being a stickler about the warrant requirement, you may want to simply check the inspector’s credentials, and try to use the inspection to begin a positive relationship with the inspector ― which can come in handy if you run across unexpected and nasty surprises at your plant.
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[1]The California Constitution contains a virtually identical requirement: Aa warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.@ (Article 1, '13.)
[1]Los Angeles Chemical Co. v. Superior Court (1990) 226 Cal.App.3d 703, 715-718 (hazardous waste inspection, under Cal. Health &Safety Code '25185, was held not to be inspection of a specific licensed industry or of a pervasively regulated industry, and accordingly, A[b]ecause the department of health services inspectors had no warrant, and the People produced no evidence of consent, the magistrate did not err in granting the motion to suppress evidence seized from the premises of petitioner Los Angeles Chemical Company.@). See also, Pinney v. Phillips (1991) 230 Cal.App.3d 1570.
[1]Los Angeles Chemical Co., supra., at 715.
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* Do I Have to Talk to the Inspector?
Even under a criminal warrant, you do not have to allow the inspector to interview you. You may tell your employees that they are not required to talk to the inspector. You may NOT tell your employees not to talk to the inspector. Further, if the inspector finds something you were not expecting, unless it is something you know a lot about, don’t give any explanation until you have had time to investigate the problem and get your facts straight. Then you can make your best case.
3. IS THERE ANYTHING ELSE I CAN DO TO PREPARE FOR INSPECTIONS AND IMPROVE MY ODDS AGAINST VIOLATIONS?
* Learn the Requirements and Audit Your Facilities
There are several ways you can resolve compliance issues before inspections turn these into violations. First, learn about the requirements. If you are part of a trade association, check with them about the rules of the SCAQMD and other agencies regulating your business, and how these apply to your business. Further, you can access all the Rules and some other useful information at the District’s website, <www.aqmd.gov> Beyond this, you will need to hire a specialized consultant to examine closely your operations, and provide you with information, especially about required reporting and recordkeeping. Further, note that there is no emission too small to guarantee in every case that you are exempt from permit requirements. This sometimes surprises low-emitting industries in the District. (District Rule 219 does provide some equipment-specific exemptions.)
* Environmental Auditing and Compliance Assurance Programs
Many of you may already do routine self-inspections, using either in-house staff or outside consultants. This type of routine self-monitoring is necessary if you are going to anticipate your problems in time to get variances or minimize any fines from noncompliance. An established, documented program will also enhance your credibility with the District, which can avoid prosecution and reduce penalties if you are prosecuted.
* Voluntary Self-Disclosure
This may sound a little nutty, but if you find you are in violation, you may want to inform the regulators. The SCAQMD, as well as the US Environmental Protection Agency and the California Air Resources Board, have programs to reduce or eliminate penalties in return for your telling them in advance about your noncompliance:
"Depending on the circumstances of the case, a penalty sought for a violation discovered through self-auditing and promptly reported to the AQMD should be significantly reduced or when appropriate, waived in order to encourage all facilities to implement an effective self-auditing program." (SCAQMD, “Self-Auditing Penalty Policy.”)
Self-reporting is especially effective if you have an established environmental auditing program (they like that). The SCAQMD’s “Self-Auditing Penalty Policy” requires that you discover the violation, report it promptly and correct it as soon as possible. If you do this they agree to reduce penalties or not impose any penalty. Note, however, that the SCAQMD has many recordkeeping and reporting requirements that will disclose penalties, if not immediately, then soon. The trick is to get there early, so you can argue that the SCAQMD would not have known about your violation if you had not bravely come forward. If you are subject to the SCAQMD's "Title V" requirements, be advised that these include a requirement of prompt self-reporting, which may impact the SCAQMD's leniency toward reported violations.[4]
CONCLUSION
To summarize:
* Report breakdowns immediately;
* Petition promptly for any needed variances;
* Welcome the Inspector;
* Check his or her credentials;
* Make clear that consent is limited to an administrative inspection;
* Accompany the inspector, and photograph or videotape any discovered problems;
* Develop a routine self-auditing program;
* Consider the option of self-disclosure of any discovered violations;
* Sleep better.
And, of course, don’t hesitate to call me if you have any questions about any of this. Ivan Tether, (310) 573-2100.
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This UPDATE provides a summary of certain legal issues arising from the regulation of air emissions and businesses by the South Coast Air Quality Management District and other California environmental agencies. This UPDATE is not legal advice nor a legal opinion. Application of the law to a particular case can produce different results and requires individual attention and legal analysis.
[1]The California Constitution contains a virtually identical requirement: Aa warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.@ (Article 1, '13.)
[2]Los Angeles Chemical Co. v. Superior Court (1990) 226 Cal.App.3d 703, 715-718 (hazardous waste inspection, under Cal. Health &Safety Code '25185, was held not to be inspection of a specific licensed industry or of a pervasively regulated industry, and accordingly, A[b]ecause the department of health services inspectors had no warrant, and the People produced no evidence of consent, the magistrate did not err in granting the motion to suppress evidence seized from the premises of petitioner Los Angeles Chemical Company.@). See also, Pinney v. Phillips (1991) 230 Cal.App.3d 1570.
[3]Los Angeles Chemical Co., supra., at 715.
[4]SCAQMD Rule 3004(a)(5) "[Title V Permits must include:] A requirement for prompt reporting, as defined by District protocol or rule or permit condition, of deviations from permit requirements, including those attributable to upset conditions, the probable cause of such
deviations, and any corrective actions or preventive measures taken."