Browse Previous Page | Table of Contents | Browse Next Page

California Air Pollution Control Laws

HEALTH AND SAFETY CODE

Division 26 Air Resources

Part 4 Nonvehicular Air Pollution Control

Chapter 3 Emission Limitations

§ 41701. Restricted discharges

Except as otherwise provided in Section 41704, or Article 2 (commencing with Section 41800) of this chapter other than Section 41812, or Article 2 (commencing with Section 42350) of Chapter 4, no person shall discharge into the atmosphere from any source whatsoever any air contaminant, other than uncombined water vapor, for a period or periods aggregating more than three minutes in any one hour which is:

(a) As dark or darker in shade as that designated as No. 2 on the Ringelmann Chart, as published by the United States Bureau of Mines, or

(b) Of such opacity as to obscure an observer's view to a degree equal to or greater than does smoke described in subdivision (a).

Added Stats 1975 ch 957 § 12; Amended Stats 1976 ch 1063 § 35, effective September 21, 1976; Stats 1977 ch 644 § 1.

Former Sections: Former § 41701, similar to present § 51351, was added by Stats 1976 ch 1341 § 27, effective September 26, 1975, and repealed by Stats 1977 ch 610 § 1.

Amendments:

1976 Amendment: Added “, other than uncombined water vapor,” after “contaminant” in the introductory clause.

1977 Amendment: Substituted “or Article 2 (commencing with Section 41800) of this chapter other than Section 41812” for “41809, or 41810,” in the introductory clause.

Historical Derivation: (a) Former § 24242, as added by Stats 1947 ch 632 § 1.

(b) Former § 24242.5, as added by Stats 1969 ch 530 § 1.

(c) Former §§ 39077.1, 39077.2, 39441, as added by Stats 1970 ch 1552 §§ 27, 30.

Cross References: Exceptions: H & S C § 41704.

Restriction on stringency of air pollution control district's regulations on islands: H & S C § 41810.

Authority of any person to apply to hearing board for variance from this section or from rules and regulations of district: H & S C § 42350.

Penalty for violation: H & S C § 42402.

Collateral References: 12 Witkin Summary (10th ed) Real Property § 899.

Air quality criteria, standards, plans, etc., under Federal Clean Air Act: 42 USCS §§ 7408 et seq.

Law Review Articles:

Regulation of smoke nuisance. 4 CLR 416.

Legislative limitation on air pollution enforcement. 9 Hast LJ 191.

Attorney General's Opinions: Right of air pollution control board to pass regulations reducing shade of emission authorized by this section. 27 Ops. Cal. Atty. Gen. 102.

Inapplicability of standards of exhaust emissions from motor vehicles, adopted under H & S C § 426.5, in prosecutions for excessive smoke discharges. 42 Ops. Cal. Atty. Gen. 47.

Authority of air pollution control district to adopt regulations setting non-vehicular emissions standards of a shade or opacity lighter than that prescribed in law and to apply Ringelmann 1 standard to emission sources set forth in former law. 55 Ops. Cal. Atty. Gen. 329.

Annotations:

Validity of regulation of smoke and other air pollution. 78 ALR2d 1305.

Air pollution: Evidence as to Ringelmann Chart observations. 51 ALR3d 1026.

NOTES OF DECISIONS



A. GENERALLY-CONSTITUTIONALITY

1. In General

2. Definiteness Under Due Process Requirement

B. CONSTRUCTION AND APPLICATION

3. In General

4. Contamination Criteria

C. PROCEDURE

5. In General

6. Pleading

7. Admissibility of Evidence

8. Burden of Proof; Weight and Sufficiency of Evidence

9. Instructions

10. Appeal and Error

A. GENERALLY-CONSTITUTIONALITY

1. In General

This section is not unreasonable or discriminatory merely because, as the line in between permitted and prohibited discharge is drawn, an unlimited discharge of smoke lighter than the shade of smoke whose discharge per hour is limited may result in a greater contamination than would discharge of the limited shade for only a short time beyond the limit. People v. International Steel Corp. (1951, Cal App Dep't Super Ct) 102 Cal App 2d Supp 935, 226 P2d 587, 1951 Cal App LEXIS 1411.

This section is not rendered discriminatory nor made a special act by virtue of the exemption granted certain agricultural operations by § 24251, since such classification is reasonable. People v. International Steel Corp. (1951, Cal App Dep't Super Ct) 102 Cal App 2d Supp 935, 226 P2d 587, 1951 Cal App LEXIS 1411.

2. Definiteness Under Due Process Requirement

Standard of subd (a) is sufficiently definite to satisfy due process. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

Section is not unconstitutionally indefinite. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

Section is not unconstitutional for uncertainty under theory that ordinary person, having no special training, will not be able to tell whether certain smoke is as dark as Ringelmann No. 2, or whether its opacity equals that of smoke matching Ringelmann No. 2. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

There is no unconstitutional uncertainty introduced by reference to “observer” in subd (b). People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

B. CONSTRUCTION AND APPLICATION

3. In General

Air pollution board may not exempt sulphur dioxide less concentrated than that described in one of their rules from condemnation of section, if in fact concentration falls within condemnation of statute. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

Owner or person in control of realty who has notice or knowledge that continuing condition exists on realty violating this section and who thereafter fails to use reasonable care to abate such condition is liable therefor in same manner as person who first created it. People v. Southern Pacific Co. (1957, Cal App Dep't Super Ct) 150 Cal App 2d Supp 831, 311 P2d 200, 1957 Cal App LEXIS 2250.

4. Contamination Criteria

The shade of smoke whose discharge is limited by the code is sufficiently described by this section. People v. International Steel Corp. (1951, Cal App Dep't Super Ct) 102 Cal App 2d Supp 935, 226 P2d 587, 1951 Cal App LEXIS 1411.

Opacity is not determined by comparison with chart but by comparison with opacity of smoke that matches Ringelmann's No. 2. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

Contaminant that for some reason has no opacity as it emerges from source may be as fully within condemnation of section as that which is immediately identifiable. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

Subd (b) condemns smoke or any other contaminant that is at least as hard to see through as is smoke which is as dark or darker than Ringelmann No. 2, and is sufficiently definite. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

“Opacity,” as used in subd (b) means want of transparency. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

Smoke is contaminant whether or not “noxious.” People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

C. PROCEDURE

5. In General

It is proper to leave to jurors question whether inspectors called as witnesses for state, or experts called by defense, should be believed on issue of opacity of emission from defendant's smoke stacks. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

Where a private company had applied to the Public Utilities Commission to construct and operate steam electric generating units (using fossil fuels), but its application for a permit covering the proposed units had been denied by the county air pollution control district on the grounds that they would not comply with the air contamination provisions of either the state statutes (§§ 24242, 24243) or the district rules, it was beyond the Public Utilities Commission's jurisdiction to grant the company's application and to direct it to begin construction immediately; the commission's order to that effect was annulled, without prejudice to the company's right to seek judicial review of the district's order pursuant to § 24322. Orange County Air Pollution Control Dist. v. Public Utilities Com. (1971) 4 Cal 3d 945, 95 Cal Rptr 17, 484 P2d 1361, 1971 Cal LEXIS 371.

6. Pleading

Law does not require that precise time of alleged violation of section appear in complaint. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

If, in charging violation of section, time is such ingredient of offense that precise hour should be alleged, failure to do so will not warrant reversal, where no prejudice to defendant appears. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

Defendant was not prejudiced by any error in overruling demurrer directed to fact that complaint charged that smoke was emitted from “a source,” whereas section refers to any “single” source, especially where evidence reveals only one possible source. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

7. Admissibility of Evidence

In a prosecution for pollution of air, the court properly admits testimony as to the opacity and density of smoke discharged from defendants' factory, although it is given in terms of the Ringelmann Chart, and the observations were made without the chart, where the witnesses have learned to make the observations correctly without the chart. People v. International Steel Corp. (1951, Cal App Dep't Super Ct) 102 Cal App 2d Supp 935, 226 P2d 587, 1951 Cal App LEXIS 1411.

In a prosecution for pollution of air, doubt as to the ability of experts to read smoke density and opacity did not justify the exclusion of thir testimony, but affected only the weight and credibility. People v. International Steel Corp. (1951, Cal App Dep't Super Ct) 102 Cal App 2d Supp 935, 226 P2d 587, 1951 Cal App LEXIS 1411.

Fact that inspector was not trained to determine opacity by physical use of Ringelmann Chart does not render his testimony concerning opacity inadmissible. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

8. Burden of Proof; Weight and Sufficiency of Evidence

Evidence failed to sustain a conviction of air pollution by a corporation secretary although the corporation was guilty thereof, where he had no control over the corporation's acts causing the pollution. People v. International Steel Corp. (1951, Cal App Dep't Super Ct) 102 Cal App 2d Supp 935, 226 P2d 587, 1951 Cal App LEXIS 1411.

People have burden of proof beyond reasonable doubt that that which has opacity specified in section and comes from defendant's stacks, is contaminant. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

To warrant conviction under section, proof must be made that contaminant was discharged into atmosphere and that contaminant was of shade as dark or darker than Ringelmann No. 2, or obstructed vision at least as much as would smoke as dark as Ringelmann No. 2. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

Implied finding that substance discharged from defendant's smoke stacks was contaminant within section, was sustained by testimony of witnesses, trained in subject matter, that on four occasions stacks emitted dirty brownish-gray plume with opacity ranging between 65 and 80% and that it was not condensed water vapor, and by evidence that regular, commercial grade fuel oil was being burned on those occasions. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

Conviction of violation of this section was sustained by evidence that defendant had notice of fire on its realty for more than four hours and did nothing in that time to abate smoke produced by fire. People v. Southern Pacific Co. (1957, Cal App Dep't Super Ct) 150 Cal App 2d Supp 831, 311 P2d 200, 1957 Cal App LEXIS 2250.

A roofing company's violations of Health & Saf. Code, § 41701, prohibiting the discharge of smoke of certain densities under certain conditions, and of rules of the South Coast Air Quality Management District adopted pursuant to Health and Saf. Code, § 41701, were not excused under the district's rule that provided an exception to some provisions of its regulations if an equipment breakdown occurred. Such rule did not purport to excuse violations of Health & Saf. Code, § 41701, and, with respect to the rule violations, the roofing company failed to establish any of the necessary criteria that would have excused its conduct. People v. A-1 Roofing Service, Inc. (1978, Cal App Dep't Super Ct) 87 Cal App 3d Supp 1, 151 Cal Rptr 522, 1978 Cal App LEXIS 2200.

9. Instructions

It is not error to refuse instruction that guilt may not be established by evidence of opacity of substances emitted as observed at some distance from emitting stacks. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

Defendant, notwithstanding giving of general instruction on reasonable doubt and presumption of innocence, is prejudiced by failure to instruct that prosecution must prove each element of charged offense “beyond reasonable doubt,” where evidence of issue whether emission contained contaminant is in conflict, and where it appears that jury may have seen written instructions with quoted words stricken, and thus may have believed the words inapplicable. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

It is proper to refuse instruction precluding guilty verdict based on sole ground that defendant discharged air contaminant of forbidden opacity, should jurors have reasonable doubt that smoke of shade designated as No. 2 on Ringelmann Chart under all conditions will appear to observer to have same opacity, or that same is true with respect of darker shade. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

10. Appeal and Error

Appellate court will presume that in enacting this section, Legislature acted advisedly. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

Error in refusing instruction, as general as this section, requiring acquittal, will not warrant reversal of conviction, where this section and Pen C § 1096 were read, unless jurors are convinced beyond reasonable doubt that defendant committed prohibited acts. People v. Plywood Mfrs. of California (1955, Cal App Dep't Super Ct) 137 Cal App 2d Supp 859, 291 P2d 587, 1955 Cal App LEXIS 1274, dismissed (1956) 351 US 929, 76 S Ct 787, 100 L Ed 1458, 1956 US LEXIS 977.

Where convictions on counts of violation of this section, and of rule of air pollution control district could not both stand, conviction of violation of rule was reversible. People v. Southern Pacific Co. (1957, Cal App Dep't Super Ct) 150 Cal App 2d Supp 831, 311 P2d 200, 1957 Cal App LEXIS 2250.

Defendant railway's conviction of discharging excessive air contaminants in violation of § 24242 had to be reversed, where the evidence was uncontradicted that there was no known method of preventing the complained of emissions while continuing to operate the railroad. Under such circumstances, the statute constituted an unreasonable burden upon defendant's operation and as such substantially impeded the free flow of interstate commerce. People v. Atchison, T. & S. F. R. Co. (1968, Cal App 2d Dist) 268 Cal App 2d 501, 74 Cal Rptr 222, 1968 Cal App LEXIS 1336.

Browse Previous Page | Table of Contents | Browse Next Page