The scarlet letter for air quality violators

By CMTA Staff

Capitol Update, Sept. 8, 2006 Share this on FacebookTweet thisEmail this to a friend

Last week, the legislature passed AB 2823, Air Violation Posting, authored by Assemblymember Ira Ruskin (D-Redwood City).  While CMTA had originally opposed the bill, amendments earlier this year removed our opposition.  The bill initially passed the Assembly providing for air districts with a population of more than 1 million to post violations of their air quality rules on their website. The bill was intended to provide a vehicle for greater transparency and notification to the public of rule violations.   However, in the final week of session, additional provisions were added to the bill which are unacceptable. 

In addition to website posting, the districts would also be required to publish the violations in a local newspaper and prominently post a brightly colored 2 foot by 2 foot copy of the notice of violation, in at least 24-point font, on all sides of the offending facility that faces a public street. 

The following are CMTA’s objections to AB 2823:

Minor infractions are not "discharges of air contaminants"
The bill is not explicit in defining minor infractions for which there may not be an actual air quality discharge and thus should not be subject to the nuisance requirements.  Air districts issue a "Notices of Violation" (NOV) for actions or omissions other than "public nuisance" as prescribed in Section 41700 of the California Health and Safety Code.  NOVs are frequently issued for recordkeeping or deadline errors which are not "discharges of air contaminants" nor do they endanger the safety and well being of the public.

Inconsistent enforcement, multiple interpretations of Section 41700
As a practical matter, local air districts will be required to evaluate and determine which of the NOVs, issued by inspectors, actually violate Section 41700 and, therefore, require multiple noticing provisions (website, state board, local government, school district, newspapers and placards).  This bill will lead to inconsistent enforcement, multiple interpretations and abuses of public nuisance laws. 

No protections in the bill against abuse

Practical experiences from local districts have shown that repeated nuisance complaints can result from a single disgruntled neighbor who has a disagreement with a particular facility completely unrelated to air quality.  There are no protections in the bill to prevent this type of situation and there is no specificity as to what constitutes a threshold level of action by the district.

Cost recovery establishes a bias for "noticing" even minor infractions
Air districts would only recover the costs of their evaluation if they determine that Section 41700 was violated.  This bill sets up an automatic bias to notice all NOV’s. 

Signage will result in unintended consequences
Posting sign warnings have no value in protecting health, but instead are confusing and alarming to the public.  Unlike website postings, which allow for detailed information, understanding of the nature of the violation, and its resolution; placards or signs allow no such explanation.  Such postings would contribute to sign pollution in neighborhoods, incite community tensions and provide no additional margin of safety or improvement to public health.  
This bill has been sent to the Governor.  CMTA will request a veto.

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