FEATHER RIVER AIR QUALITY MANAGEMENT DISTRICT

RULE 9.9 - NOTICE TO COMPLY
(Adopted 6/2/97)

A. PURPOSE
The purpose of this rule is to implement the provisions of Chapter 3 of Part I of Division 26 of the California Health and Safety Code (commencing with section 39150), which define a minor violation and to establish guidelines for issuing a Notice to Comply.

B. APPLICABILITY
Any person who is an owner, operator, employee, or representative of a facility subject to rules, regulations, or other requirements adopted pursuant to Division 26 of the Health and Safety Code shall comply with this rule.

C. DEFINITIONS
For the purposes of this rule, the following definitions shall apply:

C.1 Chronic Violation: A violation where there is evidence indicating that the violation is of the same or similar nature as previous violations at the same facility or by the same owner or operator.

C.2 Air Pollution Control Officer (APCO): The Air Pollution Control Officer, or his designee, of the Feather River Air Quality Management District (District).

C.3 Information: Data, records, photographs, analyses plans, or specifications which will disclose the nature, extent, quantity, or degree of air contaminants which are or may be discharged by a source.

C.4 Minor Violation: The failure of a person to comply with any requirement of any applicable rule, regulation, information request, or other requirement, adopted by the District pursuant to Division 26 of the Health and Safety Code, whether procedural or substantive, that meets all the following criteria:

  1. Does not result in, or have the effect of covering or concealing an emission of air contaminants;
  2. Does not endanger the health, safety, or welfare of any person;
  3. Does not endanger the environment;
  4. Does not cause or contribute to the violation of any state or federal ambient air quality standard; and
  5. Does not hinder the ability of the APCO to determine compliance with any other applicable local, state, or federal rule, regulation, information request, or other requirement.
  6. Notwithstanding this section, a minor violation includes a breakdown of equipment which is reported to the Disrict, provided the APCO determines that the breakdown was beyond the reasonable control of the person responsible of such equipment.
  7. Notwithstanding this section, no violation shall be considered a minor violation if:
  1. The violation is knowing, willful, or intentional; or
  2. The violation enables the violator to benefit economically from noncompliance, either by realizing reduced costs or by gaining a competitive advantage; or
  3. The violation is chronic; or
  4. The violation is committed by a recalcitrant violator.


C.5 Notice to Comply: A written method of alleging a minor violation that includes the following:

  1. Is written in the course of conducting an inspection by the APCO.
  2. Is presented to a person who is owner, operator, employee, or representative of the facility being inspected at the time the Notice to Comply is issued.
  3. Clearly states all the following:
  1. The nature of the alleged violation;
  2. A means by which compliance with the requirement cited may be achieved;
  3. A time limit, not to exceed thirty days, by which date compliance must be achieved; and
  4. That the inspected facility may be subject to reinspection at an time.

C.6 Procedural Requirement: A requirement of a rule or regulation that established a manner, method, or course of action but does not specify, limit, or otherwise address direct air contaminant emissions.

C.7 Recalcitrant Violator: A person who, based upon the evidence, has engaged in a pattern of neglect or disregard with respect to the violation of applicable rules, regulations, information requests, or other requirements.


D. REQUIREMENTS
For the purposes of this rule, the following requirements shall apply:

D.1 Except as otherwise provided in this regulation, a Notice to Comply shall be the only means by which the APCO shall cite a minor violation.

D.2 A person who receives a Notice to Comply pursuant to this Rule shall have the period specified in the Notice to Comply in which to achieve compliance. Within five working days of achieving compliance, the person who received the Notice to Comply shall sign the Certificate of Compliance on the Notice to Comply, stating that the person has achieved compliance and return it to the APCO. A false statement that compliance has been achieved is a violation of this rule.

D.3 If testing is not required, or if test results are received in a timely manner, a single Notice to Comply shall be issued for all minor violations cited during the same inspection. The Notice to Comply shall separately list each cited minor violation and the manner in which it may be corrected.

D.4 A Notice to Comply shall not be issued for any minor violation that is corrected immediately in the presence of the APCO. Immediate compliance may be noted in the inspection report, but the person shall not be subject to any further enforcement action due to the corrected minor violation. Corrected minor violations may be used as evidence to show a pattern of neglect or disregard by a recalcitrant violator.

D.5 The APCO may require a person subject to a Notice to Comply to submit reasonable and necessary information to support a claim of compliance.

D.6 Nothing in this rule shall be construed as preventing the reinspection of a facility to ensure that the minor violation cited in a Notice to Comply has been corrected.

D.7 Notwithstanding any other provision of this rule, if a person fails to comply with a Notice to Comply within the prescribed period, or if the APCO determines that the circumstances surrounding a particular minor violation are such that immediate enforcement is warranted to prevent harm to any person or to the environment, the APCO may take any needed enforcement action authorized by law.

D.8 Notwithstanding any other provision of this rule, if the APCO determines that the circumstances surrounding a particular minor violation are such that the assessment of a civil penalty is warranted or required by federal law, the APCO shall make written findings that set forth the basis for this determination.

D.9 Nothing in this rule restricts the power of a City Attorney, District Attorney, County Counsel, or the Attorney General to bring any criminal proceeding otherwise authorized by law. Furthermore, nothing in this rule prevents the APCO from cooperating with, or participating in, such a proceeding.

E. APPEALS
If a person disagrees with the alleged minor violation cited in a Notice to Comply issued pursuant to this rule, the following appeal procedure shall be followed:

E.1 The person shall file a written application for appeal with the APCO within five working days of receiving the Notice to Comply. The written application shall include all supporting information which explains and justifies the appeal.

E.2 Within fifteen days of receiving the appeal application, the APCO shall issue a determination either upholding or denying the appeal and shall notify the appeal applicant by certified mail within five working days of the decision.

E.3 If the appeal is denied, the applicant may, within five working days of receiving the APCO's determination, make a written request for the APCO to file an application for Hearing Board action. The Hearing Board shall meet to consider the appeal within fifteen days of the date that the written request is received by the APCO.

E.4 The Hearing Board shall make a written decision as to whether the Notice to Comply shall be upheld or repealed. If the decision is to uphold the Notice to Comply, the appeal applicant shall complete all corrections as specified in the Notice to Comply within five working days of the decision and shall pay all Hearing Board fees pursuant to Rule 7.1.

F. PENALTIES
Any person who fails to comply by the date specified on the Notice to Comply shall be issued a Notice of Violation, which may result in further enforcement action.