NOTICES TO COMPLY
(Adopted August 20, 1998)
The purpose of this rule is to implement the provisions of Chapter 3 of Part 1 of Division 26 of the California Health and Safety Code (commencing with section 39150) which define a minor violation and establish guidelines for issuing a Notice to Comply.
This rule applies to any person subject to state requirements, District rules or regulations, administrative or procedural plan or permit conditions, or requests for information or records by the District.
3.1 Chronic Violation: a violation that reflects a pattern of neglect or disregard that results in the same or similar violation at the same stationary source or facility or same piece of equipment.
3.2 Information: data, records, photographs, maintenance records, analyses, plans, or specifications which will disclose the nature, extent, quantity, or degree of air contaminants which are, or may be, discharged by the source for which a permit was issued or applied or which is subject to state or federal requirements, District rules or regulations, administrative or procedural plan or permit conditions, or requests for information or records by the District.
3.3 Minor Violation: the failure of any person to comply with administrative or procedural requirements of applicable state requirements, District rules or regulations, administrative or procedural plan or permit conditions, or requests for information or records by the District which meets the following criteria:3.3.1 Does not result in an increase in emissions of any air contaminant by more than a de minimis amount;3.4 Notice To Comply: a written method of alleging a minor violation that meets the requirements of Health and Safety Code section 39151.
3.3.2 Does not endanger the health, safety, or welfare of any person or persons;
3.3.3 Does not endanger the environment;
3.3.4 Does not cause or contribute to the violation of any State or National Ambient Air Quality Standard;
3.3.5 Does not preclude or hinder the District’s ability to determine compliance with other applicable state or federal requirements, District rules and regulations, administrative or procedural plan or permit conditions, or requests for information or records;
3.3.6 Does not involve any failure to comply with the emission standards in the applicable rule or regulation, including requirements for control equipment, emissions rates, concentration limits, product material limitations, and other rule provisions directly associated with emissions;
3.3.7 Is not knowing, willful, or intentional;
3.3.8 Does not enable the violator to benefit economically from noncompliance, either by realizing reduced costs or by gaining a competitive advantage;
3.3.9 Is not chronic;
3.3.10 Is not committed by a recalcitrant violator; and
3.3.11 Does not result in a nuisance.
3.5 Procedural Requirement: a provision of a rule or regulation that establishes a manner, method, or course of action, but does not specify, limit, or otherwise address direct air contaminant emissions.
3.6 Recalcitrant Violator: a person or facility where there is evidence indicating that the person or facility has engaged in a pattern of neglect or disregard with respect to the requirements of District rules and regulations, permit conditions, or other applicable provisions of state or federal law or regulations.
4.0 Issuance of Notices to Comply
4.1 Except as otherwise provided in Section 4.0, a Notice to Comply shall be the only means by which the APCO shall cite a minor violation. The APCO shall not take any other enforcement action to enforce the minor violation against a person who has received a Notice to Comply if the person is in compliance with this rule.
4.2 A single Notice to Comply shall be issued for all minor violations cited during the same inspection and the Notice to Comply shall separately list each cited minor violation and the manner in which each minor violation may be brought into compliance.
4.3 A Notice to Comply shall not be issued for any minor violation that is corrected immediately in the presence of the inspector. Immediate compliance in that manner may be noted in the inspection report or other District documents, but the person shall not be subject to any further action by the District's representative or an authorized or designated officer. Corrected minor violations may be used to show a pattern of disregard or neglect by a recalcitrant violator.
4.4 Testing4.4.1 If testing is required by the state board or District or an authorized or designated officer to determine compliance, and the testing cannot be conducted during the course of the inspection, the APCO shall have a reasonable period of time to have the required testing conducted.
4.4.2 If, after the test results are available, the APCO determines that the issuance of a Notice to Comply is warranted, the APCO shall immediately notify the person in writing. If off site testing is required pursuant to Section 4.4.1, a copy of the Notice to Comply may be mailed to the person or owner or operator of the facility.
4.5 Notwithstanding any other provision of Section 4.0, 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 the public health or safety or to the environment, the APCO may take any needed enforcement action authorized by law.5.0 Requirements
4.6 Nothing in this rule shall be construed as preventing the re-inspection of a site or facility to ensure compliance or to ensure that minor violations cited in a Notice to Comply have been corrected.
4.7 Nothing in this rule shall be construed as preventing the APCO, on a case-by-case basis, from requiring a person subject to a Notice to Comply to submit reasonable and necessary information to support a claim of compliance by the person.
4.8 The issuance of a Notice to Comply for a violation of state law will not interfere with an agency’s ability to enforce all federal requirements or laws.
4.9 Notwithstanding any other provision of Section 4.0, if the APCO determines that the circumstances surrounding a particular minor violation are such that the assessment of a penalty pursuant to this rule is warranted or required by federal law, in addition to issuance of a Notice to Comply, the District shall assess a penalty in accordance with Division 26 of the Health and Safety Code, section 42400, et seq., if the APCO makes written findings that set forth the basis for the determination of the District.
Any person who is issued a Notice to Comply may appeal the issuance by filing a written appeal with the APCO within seven (7) days of receipt of the Notice to Comply. The appeal shall state the grounds and basis for the appeal and include any evidence as to why the Notice to Comply should not have been issued. The APCO shall grant or deny the appeal within 14 days. The APCO’s decision shall be final.
7.0 Penalty for Failure
Any person who fails to comply by the date specified on the Notice to Comply shall be subject to further enforcement action pursuant to the Health and Safety Code, section 42400, et seq., or any other applicable law.