What is a Notice of Violation?
A notice of violation (NOV) is the APCD’s official record that someone has violated an APCD rule, permit condition, or state law relating to air pollution. In order to provide consistency and to avoid even the appearance of favoritism, the APCD does not give written or verbal warnings. An NOV is issued every time a violation is observed or discovered.
The primary purpose of an NOV is to initiate corrective action which will reduce air pollution. To provide an incentive for continuing compliance, NOVs may result in monetary penalties. Serious or repeated violations which show blatant disregard for the law and for public health, may lead to civil or criminal prosecution. If You Receive a Notice of Violation, What Should You Do?
Don’t panic! If you have any questions, call us. The first thing you should do is take immediate action to bring your operation back into compliance. Each day of non-compliance could be an additional violation.
Within 10 days, return a copy of the NOV to the APCD with a written description of the corrective action you have taken to prevent continued or recurrent violations. If you need help preparing this report, please call us. Send this information to the attention of the inspector who issued the NOV, or bring it to our Santa Barbara office.
What if you cannot correct the problem?
If you must continue operations which do not comply with APCD rules or permit conditions, you should immediately apply for a variance.
A variance is an administrative order granting temporary relief from specific provisions of an APCD rule or permit condition. If approved, a variance allows you to continue operations while you take steps to come into compliance. If the violation is for creating a public nuisance or failure to obtain a permit, you are not eligible for a variance. However, there may be other operational or administrative remedies available to you. Call us and we will work with you to design a compliance strategy.
For more information, call the APCD at 961-8800 and ask to speak to your inspector.
What Happens Next?
Notices of violation are handled in one of two ways: by the APCD’s Mutual Settlement Program (which may include consultation with APCD’s legal counsel), or by referring the case to an independent enforcement agency such as the Santa Barbara County District Attorney’s office. Each of these is described below.
Mutual Settlement Program
In most cases, violations can be resolved through the APCD’s Mutual Settlement Program. This program offers the opportunity to settle your case by reaching an agreement with the APCD to bring your operation into compliance and, in some cases, to pay a penalty. When your violation is referred to the Mutual Settlement Program, you will receive a settlement offer which may recommend the payment of a monetary penalty and may specify actions to be taken by you to ensure continued compliance with APCD rules and permit conditions.
You should respond to the offer within the time indicated and schedule a settlement conference. A settlement conference may be held over the phone or at our office, and we may include our legal counsel in these conferences. If you do not respond, or if the matter cannot be resolved, it may be referred to an independent enforcement agency, such as the Santa Barbara County District Attorney’s Office.
The Mutual Settlement Program penalties are generally based on 10-25% of the maximum penalty allowed by law (California Health and Safety Code, Section 42403). Penalties may be further reduced based on one or more of the following factors:
- The extent of harm caused by the violation.
- The nature and persistence of the violation.
- The length of time over which the violation occurs.
- The frequency of past violations.
- The record of maintenance.
- The unproven or innovative nature of the control equipment.
- Any action taken to mitigate the violation.
- The financial burden to the operator.
A complete description of the penalty structure as it applies to a violation at your facility can be obtained from the Mutual Settlement staff.
To ease the financial burden of some penalty payments, a suspension may be offered in cases where swift action was taken to achieve compliance; there is a record of vigilant maintenance practices; the pollution control equipment is innovative or unproven; or non-compliance was of a short duration. Rather than requiring you to pay the entire penalty at the time of settlement, a one-year suspension of all or a portion of your penalty may be offered. If additional violations occur within the year, the suspended amount must be paid. If your operations are maintained in compliance for a year, the suspended amount will be dismissed.
You may discuss penalty suspensions with the Mutual Settlement staff during your settlement conference.
Violations which the Mutual Settlement Program are unable to resolve may be referred to an independent enforcement agency, such as the District Attorney’s Office. Some of these cases may be settled out of court. However, the referral of a violation to the District Attorney’s Office may result in civil prosecution. We may also consult the District Attorney’s Office prior to official referral when particularly difficult cases appear to be headed toward deadlock.
Unusually serious violations which could have been prevented or which show willful disregard for public health and air pollution control laws are not considered for Mutual Settlement but are referred directly to the District Attorney for consideration of criminal prosecution. Criminal penalties for such violations may be as high as $25,000 and one year in jail for each day of violation.
When Rules Change
Rule changes can affect your business. It is your responsibility to know the current rules. A copy of the APCD’s Rules and Regulations can be purchased from the APCD. To be kept informed of rule changes, you can subscribe to the following individual services: rule updates, public notices of workshops and Board hearings, copies of draft and proposed rules, and staff reports.
Be sure to familiarize yourself with all conditions of your APCD permit, especially if you receive a modified or re-evaluated permit. You may wish to retain an attorney to deal with variances before the Hearing Board or matters referred to legal counsel.
For More Information, Call 805-961-8800
This provides answers to commonly asked questions about NOVs and the Mutual Settlement Program. If you have specific questions about your NOV, contact the inspector who issued it. For further information about the Mutual Settlement Program or other compliance issues, email [email protected].