1. Air Pollution Control Districts and Nuisance A Case Study Cooperation vs. Confrontation

2. Authority of APCO

3. Authority of Hearing Board

4. APCO Actions Enforces the District Rules & Regs. Enforces H&S provisions and run state programs. Runs District day to day operations.

5. Hearing Board Actions May allow source operation violation of rules (Variance). May order a source to comply or shut down (Abatement Order). Hears appeals from APCO actions on permits.

6. Checks and Balances Internal: –APCO Enforces – Governing Board hires/fires APCO. –APCO Acts – Hearing Board Reviews –Hearing Board Grants/Denies – Governing Board Appoints. External: –APCO and/or Hearing Board Acts – CARB & USEPA Review. –Governing Board Adopts/Amends – CARB & USEPA Review. –Governing Board Adopts/Amends – Court Reviews. –Hearing Board Grants/Denies – Court Reviews

7. Nuisance – Definition …no person shall discharge from any source whatsoever such quantities of air contaminants or other material which cause injury, detriment, nuisance, or annoyance to any considerable number of persons or to the public, or which endanger the comfort, repose, health or safety of any such persons or the public, or which cause, or have a natural tendency to cause, injury or damage to business or property” (41700, MDAQMD Rule 402)

8. Nuisance – What is it? Discharge of something into the air. Causes nuisance to a considerable number of persons or the general public. –Nuisance is often dependant upon location and population density.

9. Nuisance – Enforcement Options Private suits Abatement Action Permit Conditions Permit Denial APCO direct enforcement (Notice of Violation)

10. General Considerations Issues involved in “shutting down” an operating facility. Adversarial proceedings always take longer than co-operative negotiations. Fixing underlying problems is not easy or cheap.

11. Private suits Must have direct impact to bring. Need a private attorney. Adversarial process. Takes a long time (years) Often no obligation of facility to “fix” problem before judgment.

12. Abatement Action Official Request to Hearing Board from APCO. –Complaint requesting a “fix” or cease operating. –Requires noticed, public hearing. If source doesn’t comply with Abatement Order District must sue to enforce.

13. Permit Conditions Imposed upon permitted source. Appealable to Hearing Board w/in 30 days. Hearing w/in 30 days of request. Hearing Board decision appealable to Superior Court.

14. Permit Denial APCO may deny to issue/renew a permit/ Appealable to Hearing Board – 30 day statute of limitations. Hearing w/in 30 days after request. Hearing Board decision appealable to Superior Court.

15. Notice of Violation (NOV) Notice To Comply (NTC) Issued for alleged violation of rule, reg or H&S Code. –Time to fix problem is negotiated with APCO. –Settlement and Fine amounts calculated after problem is fixed. If problem not fixed or fine amount not negotiated District can sue to force the fix and get a fine.

16. Nutro Products Started Up in April 2006 Complaints started in May NTC Issued Attempted fix with Chimney NOV issued Compliance Agreement (Installation of RTO)

22. Milestones in Compliance Agreement Finalize plans for building modifications – 3/15/08 Complete building modifications – 9/15/08 Complete fabrication of RTO and ship to Victorville – 9/15/08 Complete installation of RTO – 11/31/08 Startup and test RTO – 12/31/08

23. After Installation Complete Assess effectiveness of control. Issue Settlement Offer APCO negotiates Final Settlement (Penalty) with Company.

24. Conclusions Cooperation works faster than punitive actions Permit appeal pending Final settlement at end of the year