New California Legislation Gives Air Quality Officials the Ability to Quickly Stop Pollution

California has been combating air pollution since the enactment of the Air Pollution Control Act of 1947, which authorized the creation of Air Pollution Control Districts (APCD) or Air Quality Management Districts (AQMD) in every county in the state of California. Each of the 35 districts regulates air quality control for the public’s health and welfare. On August 7, 2017, a new law passed in California seeks to strengthen the fight against air pollution. It adds Section 42451.5 to the Health and Safety Code, which gives pollution control officers the power to issue immediate orders on or after January 1, 2018, to stop non-vehicular polluting operations when violations pose an “imminent and substantial” danger.

The Implications

This new law will primarily impact California residents living in industrial communities such as Paramount, Boyle Heights and Maywood. Residents who live in these affected areas can expect highly polluting operations to cease much faster as a result of Section 42451.5. However, this new law is viewed as a substantial threat to the survival of California businesses, as Section 42451.5 allows up to a 45-day cessation of operations based on the lone discretion of air pollution control officers.

The Background

Currently, Health & Safety Code Section 42451 allows the hearing boards of California air districts to issue orders for abatement whenever the air districts find a violation of any order, rule or regulation prohibiting or limiting the discharge of air contaminants into the air, but only after notice and an abatement hearing is conducted. Under the current law, air regulators seeking orders to stop an entity’s pollution that threatens public health must go through an administrative hearing board, a process that can take months while the pollution continues.

The Change

Local air quality officials have now gained new powers to quickly stop an entity’s pollution. Section 42451.5 allows an air pollution control officer to issue an interim abatement order, without a hearing, if the officer finds an “imminent and substantial endangerment to the public health or welfare, or the environment.” Most notably, the new law does not define what constitutes an “imminent and substantial” danger. Rather, air pollution control officers are given discretion in applying the new standard.

However, prior to issuing an interim order, the air pollution control officer must attempt to meet and confer with the regulated entity and make a good-faith effort to agree on a stipulated interim order. The air district must then schedule a hearing within three business days, and the hearing must be held no later than 30 days after the receipt of the notice of the interim abatement order. The initial interim abatement order shall remain in effect until the hearing board has made a final determination on the merits, which shall be as soon as possible but not later than 14 days after the completion of the hearing. The air pollution control officer also has the authority to rescind an interim order if the officer finds that the order is no longer necessary. Lastly, under the new law, the hearing board must vacate an interim order at any time after the hearing has commenced if it finds that the imminent and substantial danger does not or no longer exists.